Mitha v John (C.A. No. 22/1936) [1936] EACA 145 (1 January 1936)

#### APPELLATE CIVIL

### Before LUCIE-SMITH, J.

## JAMAL SUNDERJI MITHA, Appellant (Original Plaintiff)

$\mathbf{v}$

## ALOIS JOHN, Respondent (Original Defendant)

# C. A. No. 22/1936

Money-lender—Limitation—Written acknowledgment—Written promise to pay—Ordinance 45 of 1932, sec. 17.

The appellant, a registered money-lender, on 21-2-36 sued the respondent in the Court of the Resident Magistrate, Mombasa, for Sh. 800 and interest thereon due to the appellant by the respondent on foot of two promissory notes of which one was dated 30-8-34 and payable at 30 days and the other was payable at sight and dated $7-10-34$ .

In reply to a demand for payment the appellant received from the respondent a letter dated 27-9-35 expressed in the terms following: $-$

"Date 27-9-35. Mr. Jamalbhai. In reply to your letter dated 27-9-35. I have to inform you that I owe as principal only Sh. $800$ and I do not understand why you write about something more owing by me. If you add interest at 5 per cent per month then the amount would be Sh. 840 but I cannot understand how you arrived at Sh. 854, Shillings eight hundred and fifty-four. You know that last month we had a talk about my indebtedness when I informed you that $I$ would settle it in a month or two and $I$ do not understand why you had to write this letter.

#### . Sd. A. John."

The learned Resident Magistrate being of opinion that the suit was barred by section 17 of the Money-lenders Ordinance (Ord. 45 of 1932) dismissed the suit. The plaintiff appealed.

- Held (14-8-36).—That the said letter did not contain a sufficient undertaking to pay to enable the appellant to take advantage of the proviso to section 17 of Ordinance $45/32$ - (a) because it merely referred to an oral promise to repay a general indebtedness:

(b) because it was uncertain in its terms as to the amount to be paid.

Doshi for appellant.

Inamdar for respondent.

JUDGMENT.—This is an appeal from the decision of the learned then Resident Magistrate of Mombasa.

By his plaint the appellant claimed judgment for the sum of Sh. 800 and interest being in respect of money lent by the appellant to the respondent.

The appellant is a registered money-lender and as it has not been raised by the defence I think we may take it that the terms of section 10 of the Money-lenders Ordinance have been complied with.

Two promissory notes have been exhibited one bearing date 30-8-34 at thirty days the other $7-11-34$ at sight.

Action was commenced on 21-2-36.

The only point argued here and in the lower Court was that of limitation under section 17 of the Money-lenders Ordinance.

That section reads "No proceedings shall lie for the recovery by a money-lender of any money lent by him ... unless the proceedings are commenced before the expiration of twelve months from the date on which the cause of action accrued." In this case the cause of action on the promissory notes accrued on the 30th September and 7th November, 1934.

Section 17 however contains the proviso that "if during the period of twelve months aforesaid ... the debtor acknowledges in writing the amount due and gives a written undertaking to the money lender to pay that amount, etc."

It is contended for the appellant that Exhibit No. 1 complies with the provisions of this proviso and contains an acknowledgment of the amount due and a written undertaking to pay that amount.

Even accepting the finding of the learned Magistrate that this letter is an acknowledgment of the amount due, and in this connexion I would refer to the recent case of Ward v. Tibbatts (1936 2 All England Reports, 656), I am unable to agree with Mr. Doshi's contention that the words "You know that last month we had a talk about my indebtedness when I informed you that I would settle it in a month or two" contain an undertaking to "pay that amount".

It must be borne in mind that the Money-lenders Ordinance is intended to be exacting and this compels the Court to read section 17 exactly as it stands—there must be a written acknowledgment of the amount due and a written promise to pay that amount—though these two necessities may no doubt be contained in the one document.

Reading Exhibit 1 what, if anything, does it promise to pay, the Sh. 800, the Sh. 840, or the Sh. 854, all of which sums are mentioned? At most it merely refers to an oral promise made a month before to pay a general indebtedness in a month or two. There is nothing to show what that general indebtedness will or may amount to in a month or two. The section says that there must be a written acknowledgment of the amount due and a written promise to pay that amount and if a creditor wishes to escape the penalty of limita-. tion he must see that the terms of the proviso are strictly complied with.

In this case the appellant has failed to safeguard himself and the appeal must be dismissed with costs.