Sardar ats Bakewa [1937] FJLawRp 2; [1875-1946] 3 FLR 207 (26 January 1937)

[1875-1946] 3 FLR 207

SUPREME COURT OF FIJI

Appellate Jurisdiction

MANGAL SARDAR

ats

BAKEWA

Corrie, C.J.

January 26, 1937

Native Dealings Ordinance, 1904^[1]-s.5 - debts exceeding £20 not actionable against natives unless arising from a registered contract - Original debt in excess of £20-promissory note for £20 in part payment - whether an action lies on the promissory note.

Appellant's claim for an amount not exceeding £20 due by the respondent, a native, under a promissory note was dismissed in a Court of Summary Jurisdiction on the ground that the sum secured by the note was part payment of a debt of £22 18s. 10d., arising otherwise than by contract duly registered under s. 3 of the Native Dealings Ordinance, 1904.

HELD –

A promissory note constitutes and creates a fresh debt and if for an amount not exceeding £20 an action lies on the note notwithstanding s. 5 of the Native Dealings Ordinance 1904.

[EDITORIAL NOTE -This decision was followed in Ammai ats Govind Pillay [1937] 3 FLR and Giwar Singh & or. ats Birbal [1943] 3 FLR-].

APPEAL by the plaintiff against judgment for the defendant in an action for moneys due under a promissory note. The facts appear from the judgment.

R. L. Munro for the appellant.

(No appearance of the respondent.)

CORRIE, C.J.-The appellant is suing upon a promissory note for £20 made in his favour by the respondent.

The appellant has stated in evidence that the note was given in part payment of a debt amounting to £22 18s. 10d.

Upon this evidence, the Commissioner has held that no action lies in view of the provisions of s. 5 of the Native Dealings Ordinance, 1904.^[1]

Under that section:-

"No action shall lie against a native party at the suit of a non-native party for a debt exceeding twenty pounds unless the obligation to pay shall have been incurred in pursuance of a contract registered under the provisions of s. 3 hereof."

The promissory note, however, constitutes and creates a fresh debt due from the respondent to the appellant for an amount not exceeding £20; and hence, notwithstanding the provisions of the section, action will lie upon the note.

The appeal is allowed; the judgment of the Commissioner is set aside and the case remitted for completion. The costs of this appeal will be costs in the case.

---

^[1] Cap. 88.
^[1] Cap. 88.