CHRISTODOULOS CONSTANTI ν. THE AGRICULTURAL BANK OF CYPRUS (V12) 1 CLR 71

CHRISTODOULOS CONSTANTI ν. THE AGRICULTURAL BANK OF CYPRUS (V12) 1 CLR 71 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup

1. on)- Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V12) 1 CLR 71 1926 June 4 [NETTLETON, C.J. AND DICKINSON, P.J.] CHRISTODOULOS CONSTANTI v. THE AGRICULTURAL BANK OF CYPRUS BY ITS MANAGER, PETER AMIRAYAN. MORTGAGE-FORCELOSURE AND SALE THROUGH THE LAND REGISTRY OFFICE-MORTGAGED PROPERTY LAW, 1890, SEC. 1 (
2. b)AND SEC. 6-MUKHTAR'S CERTIFICATE OF SERVICE-BANK ACCOUNT-LIABILITY TO EXAMINE-HOLDING OUT-AGENCY. The facts are fully set out in the judgment of the District Court and the Supreme Court. The District Court gave judgment for defendants as follows:- In this case the plaintiff Claims the sum of £80 by way of damages arising out of defendant's alleged negligence in selling certain properties which had been mortgaged to the defendant to secure a certain loan. The facts as admitted or proved are as follows:- The plaintiff in January, 1908, borrowed the sum of £12 from the defendants which sum with interest was to be paid off by twelve equal yearly instalments. This loan was secured by a mortgage on plaintiff's property which the plaintiff himself then valued at £54 10s. (vide exhibit G.A. 1). The plaintiff paid off his instalments at more or less irregular intervals from 1909 to 1922, and it is perhaps instructive to note that none of these instalments were paid to the Imperial Ottoman Bank but were paid to individual agents of the defendant Bank, while those of 1921 and 1922 were paid to the manager of the said Bank himself. The final instalment became due on the 30th January, 1923, and on the 6th May, 1923, a notice under section 6 of Law 13 of 1890, was sent to the plaintiff at his usual or last known place of abode in Cyprus. It has not been suggested that the plaintiff gave or that the defendant had any notice as to any change of address. Learned counsel for the plaintiff has argued that as the Court made an order for security of costs against the plaintiff under Order X., Rule 1 (Rules of Court, 1886), it must follow that the plaintiff is a non-inhabitant of Cyprus under section 6 of Law 13 of 1890, but I hardly think he was serious in this contention as a comparison of the rule and the section quickly shows. We therefore find that the plaintiff in May, 1923, was not a non-inhabitant of Cyprus under the section nor was he a person who could not be found in Cyprus although he may have been absent from the Colony at the time. We say he was not a person who could not be found in Cyprus because he had a house in Kathika which house was kept open and occupied during his absence, and Kathika was the only address he gave the Bank. The section in question reads as follows:-(Read) We have been asked to find that the Mukhtar's certificate, dated the 6th May, 1923, was notice to the defendant that his notice of sale under the Law of 1890, had not been served, but the Court is unable to agree with that proposition. On the contrary it appears to us that this certificate was sufficient to justify the defendant in thinking the plaintiff had full knowledge of his intention to sell, the notice having been served on "his representatives" and presumably accepted by them as such representatives. On the 12th July, 1923, we find as a fact that a letter of which Exhibit C.A.2 is a copy, was posted to the plaintiff's address at Kathika, and in view of the fact that within a month of such posting the plaintiff hurries over to Cyprus (as he himself says to pay off his debts and save his property), and also to the fact that he knew the exact amount which he had to pay although interest was made up to a date of which, as far as we can see, he was totally unaware, we have no hesitation in finding that if he did not receive the actual letter he had the fullest knowledge of its contents. A copy of that letter has been put in and reads as follows:-(G.A. 2). On the 15th September, 1923, immediately prior to his departure from the Colony the plaintiff pays into the Imperial Ottoman Bank to the credit of the defendant the sum of £1 12s. 4cp. and receives the receipt Exhibit C.C. 1. Either through ignorance or sheer inadvertence the plaintiff failed to give notice of such payment to the mortgagee. Some attempt has been made to show that it was the usual custom of the defendant Bank to receive payment of moneys owing to them through the Imperial Ottoman Bank that evidence was somewhat vague and has, to our minds, been completely swept away by Mr. Amirayan's evidence on the point and the production by him of the special form of notice sent out by the Bank in such cases. Vide G.A. 3. The law on the question of discharge of a mortgage by payment is fully discussed and clearly laid down in Wilkinson v. Candlish 82 R.R., p. 588, and Kent v. Thomas 108 R.R., p. 677, while the note to these cases in Halsbury, Vol. XXI., p. 307, would make it appear that an implied authority to an age to receive the principal must be very clear indeed. In the present case there is no evidence before the Court that the Imperial Ottoman Bank were either expressly or impliedly the agents of the defendant to receive the final or any instalment of the mortgage debt and interest. While sympathising with the plaintiff, in so far as he has lost his property it must be borne in mind that such loss has been occasioned solely by his own remissness in not giving his mortgagee, notice of payment and also that the mortgagee as soon as he knew of what had happened did all in his power to help the mortgagor, out of the hole in which he had placed himself. There will be judgment for the defendant with costs. From that judgment Plaintiff appeals. For Appellant Pavlides. For Respondent N. Paschalis. Judgment: A mortgagee in serving a notice of foreclosure and sale under the Sale of Mortgaged Property Law, 1890, on an absentee mortgagor through the Mukhtar of the mortgagor's village, must see that the affidavit of service clearly discloses the fact that the requirements of the law concerning the service of notice under sections