1962 Present:  Sansoni, J., and Sinnetamby, J.

J. E. PERERA

and another, Appellants, and M. M. ZAINUDEEN,
Respondent

S. C. 355-D. C. Colombo, 41,477/M.

Sale of sweep tickets-Term of prescription for recovery of value-Meaning of expressions " chose in action" and " goods "-Sale of Goods Ordinance, s. 59- Prescription Ordinance, ss. S, 10.

The plaintiffs, who were the trustees of the Galle Gymkhana Club, sold to the defendant, a member of the club, 20,000 sweep tickets priced at fifty cents each and sought, in the present action, to recover the value of the tickets. The defendant pleaded prescription.

Held, that the sale was the sale of a chose in action and that section 10, and not section 8, of the Prescription Ordinance was applicable. Section 8 applied only to goods which are capable of being physically delivered and not to the sale of incorporeal things such as a " chose in action ". In the latter case, section 10 applies and the period of prescription would be three years.

APPEAL from a judgment of the District Court, Colombo.

H. V. Perera, Q. C., with P. Navaratnarajah and S. Sharvananda, for the plaintiffs-appellants.

C. Ranganathan, with E. A. G. de Silva, for the defendant-respondent.

Cur. adv. vult.

March 12, 1962.  SINNETAMBY, J.-

The plaintiffs who are the trustees of the Galle Gymkhana Club sold to the defendant, a member of the club, 20,000 sweep tickets priced at 50 cents each on 25th February, 1955, which is the day on which the tickets were delivered to him. The plaintiffs in this action sought to recover a sum of Rs. 11,250 as the value of the said tickets less discount. The defendant pleaded prescription and the learned trial judge held with him. The present appeal was preferred against this decision.

The defendant's contention is that the action is an action for goods sold and delivered within the meaning of section 8 of the Prescription Ordinance. The appellant on the other hand contends that it was not a case of goods sold and delivered, but that the action is based on a cause of action not provided for expressly in the Prescription Ordinance and that Section 10 which prescribes a term of three years is applicable. The learned trial judge came to the conclusion that the sale in this case was the sale of a chose in action and that Section 8 applied inasmuch as the word " goods " in the Sale of Goods Ordinance includes " choses in action ". He based his finding on a consideration of the definition of the term "goods " in Section 59 of the Sale of Goods Ordinance after com­paring it with the definitions in the English Act and in the Indian Contract Act. In the English Act, choses in action are expressly excluded. The Indian Act, while excluding choses in action, includes stocks and shares. The Ceylon Act on the other hand defines the word " Goods " in the following terms :-

" Goods include all movables except money. The term includes growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale ".

I am in agreement with the conclusion reached by the learned trial judge that the sale of the sweep tickets in this case was the sale of a chose in action, namely, the sale of a right on the part of the buyer to receive a prize from the seller on the happening of a certain event, the sweep ticket merely providing evidence of that contract of sale. The condition on which the buyer was entitled to receive a prize was contingent on one of his tickets drawing the prize in a draw that was to be subsequently held. The learned trial judge, however, thereafter, went on to hold that Section 8 of the Prescription Ordinance was applicable for the reason that the contract in this case was a contract for the sale of

goods. It must, however, be remembered that the Prescription Ordinance came into existence long before the Sale of Goods Ordinance and it would not be q