Rajagopal Pillay v Francaise Commerciale (SCA 3 of 1986) [1987] SCCA 2 (23 March 1987)

ftI ·i, ~ i' " .~ [':.1 , CI'fIL _~P;:;,\L no. 3 or· 1986 RAJAGOPAL NATARAJAlI PIIJ. AY • • '.' • • • • • • APPELLANT BANQUE FRAlfCAIS. E COr.:IIffiRCIALJ.: • • • • • • • • • RI!SPOIIDENT Versus JUDGMEI'fT OJ? UIJST.f:.. J!.'"~, P. Banque. Francaise CoIillllerciale,tl';c respondent in this appeal, had filed a suit in the Supr.eraeCourt against three parties, A. S. Pillay, R. N. Pillay mid Raja Chetty. The respondent had claimed against A. S. Fillay, as principal debtor a sum of Rs. 61,130.63 being a sum due and O\YiDg to the respondent in respect of overdraft facilities granted to A. S. Pillay, and against R. II. FiUn;: as guarantor for the said overdraft to the extent or Rs. 25,000 and against Raja Chettyas guarantor to the extent of Js. 15,000. A. S. Pillay, the principal debtor and Raja C'l1etty adl!litted liability and submitted to jvi:t~ent against them. However by then A. S. Pillay had bocorce i.."lsolvent. R. N. Pillay denied liability and filed a state~ent of defence. The case against R. !l. Pillay went to hearinc, and judcrment was given against him~ R. N. Pillay is appe~lil\sfrom that decision to this Court. ; The respondent bank relied on a guarantee document duly signed by the appellant to secnre repayment of~the sum 'of Ra. 25,000 in respect of the overdr3ft facilities granted to the principal debtor. The guk~antee was in the usual standard form of guarantee and \'IS-S executed by the appella.'lt on 12th April, 1979. ••.•/2 ,-", c't~~;Tl;leappel:ant : . admtted signing tile guarantee documentand in defence alleged that the guarantee was ",:orally .mod1:f'iecFandwas only valid ror 2 limited period, ci\lri. Dgthe p~cipal debtor Is absence from Seychelles on ,8 visit to IWia. He alleged tr~t the guarantee was to lapse ~ be of no effect on the principal debtor's return to Seychelles. The principal debtor was absent for about ~·twomonths, 'ashe returned to Seychelles in or about June 1979. The b?Dkofficial whodealt with the appellant in copnection with the guarantee was one J\ntoine Leon. This .:~.:::: . ·j'9!ficial' had left Seychelles in 1982 and is nowbelieved ,,'::tOb~~in Texas, U. S. A. . . '~'-:;;,-' . " .'- - - . Mr. Leon was not called as a witness .t~;~l~;ei the; parti;" presUJ!lSblybecause of the costs and ..,-':';:.:"" ,-:·:~:i.nconvenience1nvolved• --. '.-. .';~lj~;~~--' '-~::~,. '.:: -..- , , ';;-'C; The respcmo.entbank relied on the guarantee documerrt, ,c<.g,*wl1iclLwas~rOdUcedand,exhibited in Court by its Assistant c. ..:__;;~\';',',:-- .., -:-:_:::.:-- ,-,'":",'-.--...> ~:.:."-:;O: J- . >~l4anagerMr. Labiache. 11r~LabLache has no personal knowledge :;~ - , .:~'.-" ,~.'~ . - of the circumstances of the transaction. The respondent bank's position was that the guarantee documentspewcsfor ,.its elf • Mr. Lablache stated that there was no record in the bank to, indicate that the guarantee signed by the ..appellant was to be valid for a limited period of two or three , ,months,only'. ·He also stated that there was no record to show " that the appellant had ever complainedto the respondent ~;bank about:';the guarantee. !!.'heappellant test1:f'ied. He stated that Mr. Leon Y{hadtold him that the guarantee he had signed was operative .... . for two months only, 'during the temporary absence of the .~~;;-.:;. ,',principal debtor from Seychelles. . ... /3 .;:~ ::i' - pr~ciapal :~;. '- debtor A. S. Pillay also testified, suppor ted th .' " ,e appe an a 11 t' t ea amony, t' He safd that .•. tA_. Leon JIU' 'bad informed him and the appe'l. Lant; that on his (A. S. Pillay) _r •• , return. to Seychelles the guar-anueesigned by the appellant ~'" '; .' . ,._.-- :.'-? ....woul.di~pse. atJ4: expire. ,. -J;: .' _ ~~; trial judge,(Proag, J.) in a short jucigI:lent '~:'(:~~~b~li~~ed.and'rejected the appellant's allegation that the ~ant~e wa~valid for a limited period only. He found for the - respondent, ba.tlk,andgave judgment in its favour. _;Th;;appealis based on the sameground as that advanced-at the trial. ~. Luoas for the appellant has PQintlld~'~utthat:there was no evidence from the respondent ~::::-- tYi'J>!Ulk:to,cballengethe test:iJnonygiven by the appellant and his :':,''{ti~;e~s;-ion~e~ the alleged oral modification of the ':';;' <~.,/.: _, ..,_·.t~of the. guarantee. However,it ~~~I~g:~E~:~: .:::t.::::.:t:'.::: is pertinent to note '. >... ,'. :'·:ito.f::thew:i.tnessf~m India. Mr. Leon was alleged to have told -~'. .····:i:::-.~,-:,- -- '.. --'-:'.-'. :~ - .... .- - .... -.:themthen that : -.' ~'.; the guarantee was no longer valid. If that .\VEU'e~o,.i t - ~:"--':' . -'-.. ",'{.:.,-~-. ' ···ll,ot·e:Lther c;lanCelJ.edin the appellant's presence or r.eturned to is inexplioable Vlhythe guarantee documentwas ._. --::,.- -. -. 'h:iln. Again the plaint was filed in February 1984. If <'-.i;herewas any ~th in the appellant's allegation one would ~~baveexpecte<lhim to bave immediately gone to the bank and i>,~o~ -,-~antee -- ....-.~- . it <it ~~ true pOSition as regards the validity of the •. Nothing of the sort Viasdone, and it was only when . the· statement ofclefence was filed in ?jOvember1985 that such . an' averment was made. . ... /4 - 4 a1130relevant that the other guarantor . ,. -. ..~ :1l?ja Chetty hadaubmitted to judgment. He did not allege :.-~-~?-!i,;;,;-:' ',-..': :"-.' . - oralmodii'ioation : . ..-:~:~ '-;~ .. -,-:~.:····~·.::::~~~i::·-.' "'>-~"/Jexeouted. , Ilia, guarantee was in the same terms as the .":r';~"~~r~~;"; ·;:~~t~~~·. :;;~ppetbmt's,":except as to the amountguaranteed. No reason ..-. ···:~<t~:, to the guarantee he had <~~,;~~:- ".<'s: <.~.-:~~~~-' or amendcent ~~'.:- ~ -- .' ... .' - , , :baSJ~~en advanced as to why the respondent bank should have ./j-;:. F~-.-.,-.-;, .•'.-".... sz, -';:'c" -. -.;. '~e trial -. ~I··· -.- . judge heard and saw the witnesses and said . rather tersely, liTheargument that l~ted no folUldation 01' truth in it". to three months •••••• has the guarantee was , On a consideration of the facts and Circumstances, I am in agreement with the trial judge. I would dismiss the appeal wi th ·,·}~S2~~:tll~~;·;~;~'f'ii-¥: :,-\~t!, J)ATED,atVICTORIAthis ',0':,'; "'"2.~ day of 1987. e0-'~~ A. MUSTAFA PRESIDENT ._.......•.. .< s.: ., In the Seychelles Court of Appeal R N Pillay v Appellant Ba~que Francaise Commerciale Respondent Civil Appeal 3 of 1986 Judgment . ;::.:~~~<{Y~~f~~:~(~~ ;~~::;~:::; -;'~' •Thi.s.appeai·ar:1.ses'>Qutof a judgment of the Supreme Court ordering .. ' "~~cj/'::;.:-.':;'.' . ~... the appellant·to pay to.the respondent (here:b1after called the Bank) ' -..~ . ~-::: . .-. -.~.-.: ..... ~':' ';'-'-" -. -' '-'.' -; '- the su~Tdf R2S ,000; fn respect of a guarantee given by the appellant to the ;~~~ingr·e~a~ent .;..,.~;~/ •.. : '-:.;:~ . . '."- - .' of overdraft facilities to the extent of !US,OOO:extended' t o one A S Plllay. ":'::':- =..»: '--.'-.-.-' : .'..-. The·guarantee was given in writing by the appellant on 12.4.1979. By aJl~~lnt.dated 9~2.84the Bank claimed from the appellant-as guarantor the sum,of !Us,ooon The defence of the appellant was that his guarantee -~:-~''-_ i: was liudtedonly tof"the period during which A S Pillay was absent from ';.-, ~-,. the country.:::· -. ~ . .--' :'-/:;::':' "~:4i.~__~~._ ..,.---" - _-. ----"'L'hG<C'. BanlL.b.~t.s.claim on the guarantee document signed by the . -._ -:. --.....-_.-.------_.- appell~!lt~.o:rhe,.app·ellantgave evidence to the effect that one Leon, an employee of the Bank, had told him that the guarantee was· only for :.;' .~.;-:;. the period during which A S Pillay would be absent from the country. Mr Pillay absented himself fro!llthe country for about 2 acncns , The.d9Cqment which·has been produced in Court makes no mention of any limitation of its validity. The learned trial Judge found that the version of the appellant "had no foundation of truth in it". The '. .... . -. appellanf·is challenging the findings of the learned trial Judge mainly on the-ground that -'theevidence of the appellant which was supported by :that oiA S·Pillay3and was not challented by Counsel for the Bank should ~ , . bave been accepted~by the Court. ··:;fi~f,_:;-:~~j~<·:\~;jk,iL . .~~~. evidence shows that Leon who was an employee of the Bank had .left the country for the United States since 1982. He could not be calle,!,as a.:witness.without considerable expenses. The fact that the appel1a.~~'8evidenc;:eto the effect that Leon had told him that the ..docum~ii!_.~~~.ld.~~.vali~:lonly for a limited period was not challenged didnot;?make that evidence true. .···"t'",;t:,,,4 _' -. .appre~1._i!te..such evidence. . . It was for the trial Judge to • •• /2 ;~j~t.ff'-··:,:;, Ha,d::the guarante-e been limited as alleged by the appellant on x, wou.ld~ye_exp·ected to find some mention of it on the document. There is Clb~oi~~~iinothini of the sort. o ._~.~{,~ •• :" ?~~:. Ic.an~ot find f~ult with the learned trial Judge for r ej ec t Lng . the version of the .-,-.";:- The appeal is -' afPellant. V~ at no merit and I would dismiss it with costs. Vfctoria this day of •••.• .r.~'f:.. I c:).t-., c........-~ H Goburdhun Justice of Appeal . ,--.-.-,,~ .......,/; ~. BETI>IEEN- ~ Ha:]a~~Of,a. L. Natare.jan ~ P-IL/..ttY and • • • Appellant - »: ~ Commerciale Respcnderrt JUDG~~T OF LAWJ. A. f •.~ ~ .appeal by R. N. P~l (lithe appellant") !'rom a (Proag J.) in favour of the Banque . ;,Bankll)in respect of a guarantee given ,secure the repayment of moneys oTNing -4/,- ._."._..,..-_the usual standarQ form. 'ilie appellant .to R.61, 130, and from the appellant as A. S. Pillay admitted the debt. but ·)B. Y-his defence dated 25th. November. 1985. ;t~~~,}r,~~tI~~'~~~~M~(2i~-' valid for had signed the guarantee on the under- the period of the absence of country he had gone ~emporarily to get awat for about 2 months from April 1979. He .-.. 'Seycheltes> The official ," i employed by the ;',;nk ~:ihen appeilantsigned - : :;-::~y.~- haveag~~th,at -. :..': ..,.-,~-~._-·"':·~/;r~-,.-:--:''-_:'>c~:'_(::-:-<'''': :;;'.- .~-t."'" :~-_t,· ·the'guarantee. and who is aliher.:edby the a~'pell:mt ::; - theguarPltee would only be valid for the period of ".... ' S~pj,llay"~~;~4P~~9.~.~1~f~I!lSey:chelles,was Mr. Antoine Leon. }fIT. Leon ",'..: ':':';~!:_:'._.-~' -"~'_':"__" F$ey6he;Q.~s.iti,c19132,:~ndisnowbelieved to the in Texas, in the .~,_c_·~....~.--. =, ".,, __:~;';_< ,+; s)A~;,~~keX=-:ll~~~~E.iJ a;(a witness. . -.': :.:•.~~ ->, ">::" -: ".< ~:;~. ...~ >. At'~il~-1i,tial th¢' only witness called by the Bank was its •.•.•,," "T. T:· AsslsJ;ant;:Manage~,Mr. Iablache. He produced the i~U8.rantee, but no-perso~ji kIiowledge of the facts - .-<~.-;'; .:: .. ".,.. - . surrounding the t.ransact. Ion • lim ting the ~ re.-"O< to this effect. of its y?lidi ty, 1L and called ::. S. Pillc:y as <" appellant's ev~ide~ce appellant signed the guarantee in the guarant.ee •..!?~Sonly India, and that on no~longer be valid. tn a short judgment said that the appellant's s~()n~l;!l,a,,1;,,':'U1e~A:~rllJltElie ~~s limited ~~.: W(]tlltI,. to a period of a feyl months to (i.~s;;fj~~:1;O}g?\;~,,~~·~and "cease to be valid on his return to fL of truth in it", and he found the case of appeal is that the appell~nt's chaLLenged =.nd know why ?~ir•leon was presumably because of the expense The Bank relied entirely on the ~ording lUmi tation as to the period of JU if the guar~ntee had been intended :that this woul~ve been so stated in ~'~~'I:~xld9!:;:sem«mtto~it. It is le-eo relevant, to my tocancel.~his guarantee served onc.the appellant as having served in Janua r:r , 1984. J.~:;i'lF'P.t;l*""'iiU1."'.~~.:IlPt present ~the Bank with his version . >--. of the ~,the~~~defencewas filed, nearly triO years later, r".<U1FUfthet guarantee being limited to a short period 'rlas Itis·nQ~~s.l4:rprising in these cf.rcu.usjances tha ttl:e ju~~ heid~that,lthe:appellantls version hr d no foundat.i.on of truth in i:l4: He:had~hJ.rd ..and seen th e appellant ",!"!0 =, -;. Dilh;r givin!; evidence.'~~ is the pe'~sonbest able to assess the relia~ni ty and credibility':of ·;··i··'-;· thateutaence. -. ~. - co~~~u5ion. <.~ I: I see no reason to think th;'~t he came tp