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DAVID DE SILVA v. RAMANATHAN CHETTIAR
NLR65V409
1960 Present :
Basnayake, C . J., and T. S. Fernando, J.
DAVID DE SILVA, Appellant, and RAMANATHAN CHETTIAR and another, Respondents
S. C. 150-D. G. (Inty.) Kandy, 1602/MB
Registration of business name-Change in particulars caused by registration of
other business occupations-Default in registration of such change-Belief on
ground that it is just and equitable-Business Names Ordinance (Cap 120), ss. 4,
7, S, 9-Citizenship-British Nationality Act of 1948.
Civil Procedure Code-Section 143-Impropriety of frequent adjournments of trials.
The plaintiffs Were two professional money-lenders carrying on business in
partnership under a business name which was registered on 17th July 1943. They
instituted the present action on 24th November 1950 to recover a sum of money
due on a bond dated 17th November 1947. In the course of a second trial, it was
admitted by the 1st plaintiff in cross-examination that the plaintiffs
commenced other business occupations of Pawn Brokers and Radio Service on 5th
July 1946 and 13 October 1948 respectively, at other separate places. In view of
this evidence, Counsel for the defendant (appellant) suggested the following
issues :-
" (13) Have the plaintiffs-
(a) failed to furnish the Registrar of Business Names with a statement of
changes in the particulars required under the Ordinance, with respect to the
change of business to Radio Service and Pawn Brokers carried on under this
business name ; and
(b) did they notify the Registrar of the change of their nationality ?
(14) If the plaintiffs are in default, can they enforce any claim in relation to
this business ? "
Consequently, the plaintiffs lodged an application for relief under the proviso
to section 9 of the Business Names Ordinance.
Counsel for the appellant did not press the contention that the plaintiffs were
required by law to notify a change of nationality.
Held, that even if, in contravention of section 7 of the Business Names
Ordinance, the plaintiffs defaulted in respect of notifying the change in the
particulars of the registration which related to the nature of their other
business occupations, the defendant knew the members of the firm with whom he
was dealing and no prejudice was caused to him. In the circumstances it would be
just and equitable to grant relief in terms of the proviso to section 9 of the
Business Names Ordinance.
Per BASNAYAKE, C. J.-" The disability imposed by the section (section 9
of the Business Names Ordinance) is only in respect of any contract made or
entered into by the defaulter at any time while he is in default ... I am unable
to find any provision of the Ordinance which they (the plaintiffs) had failed to
comply with at that time. "
Observations by Basnayake, C. J., on the proneness of Judges of first instance
to grant adjournments of trials without due regard to the provisions of section
143 of the Civil Procedure Code.
APPEAL
from an order of the District Court,
Kandy.
E. W. Jayewardene,, Q. C., with C. 6. Weeramantry and L. C. Seneviratne, for
Defendant-Appellant.
C. Ranganathan, for Plaintiffs-Respondents.
Cur. adv. vult.
June 23, 1960. BASNAYAKE, C.
J.-
The plaintiffs S. P. R. M. M. Ramanathan Chettiar and S. P. R. M. M. Nadarajan
Chettiar are two professional money-lenders carrying on business in partnership
under the business name of S. P. R. M. M. R. M. Ramanathan Chettiar & Brother.
They instituted this action as far back as November 1950 to recover a sum of Rs.
10,000 and accrued interest thereon due on a Bond No. 1405 dated 17th November
1947 attested by M. A. M. Naheem, Notary.
On 3rd December 1952 judgment Was given for the plaintiffs. The defendant
appealed against that judgment and a trial de novo was ordered. At the second
trial on 22nd October 1956 while the 1st plaintiff was still being
cross-examined counsel for the defendant suggested the following issues :-
" (13) Have the plain
