clr/1980/1980_1_195.pdf

(1980)sum exceeding £4,000 under two "γραμμάτια" (bonds), or alternatively, the balance due under an account. The appel­ lants sought further and better particulars of the nature of the claim envisaged by the two "γραμμάτια" (bonds) and counsel for the respondent in reply stated that by such description it 5 was meant to refer to those documentsordinarily issued by the bank evidencing a deposit of money with the bank, repayable after the lapse of thirteen months and with a higher interest payable than the other deposits of lessduration. In support of theclaimtherewas evidence from therespondent 10 who stated that he was residing at Pighi village and in January, 1974 he went to the Famagusta Branch of the appellant bank together with a colleague of his and lodged the sum of £2,500 and was given a receipt therefor; thatthis documentwas payable on February 19, 1975 and the interest stipulated was 73/4%; 15 that one and a half monthsafter thefirstvisit he went alone to theBank andlodged theamountof£2,300andwas given another receipt; that when the Turkish invasion of Cyprus took place hewas forced toleavehisvillage(Pighi)inahurry andleft behind the said receipts at his home; and that as his village was still 20 under occupation there was no way for the plaintiff to collect the receipts in question. The evidence of the respondent with regard to thefirstvisit was corroborated by his colleague. When the respondent asked for the money due to him the appellants refused payment because their books were left at Famagusta,which was still underTurkish occupation,and inthe absence of such books it was very difficult to verify the claims of the depositors. Subsequently, however, they paid to himthe amount of £1000 upon his executing an indemnity bond. 25 The trial Court rejected the submission of Counsel for the 30 appellant that a claim for therecovery of money due by a bank to a customer by virtue of a deposit receipt required corrobora­ tion and held that "the claim must be resolved in the same way that any other type of civil action must be decided, that is it is for the plaintiff to prove his claim ona balance of probabilities"; 35 and having accepted the evidence of the respondent and his witnesses gave judgment for the respondent as per his claim. Uponappealcounselfor the appellant bank contended: (

1. a)That the trial Court misdirected itself as to the weight 196 1 CX.R. 5 10 15 - 20 25 30 35 National Bank of Greece v. Masonoa . and effect of the evidence adduced and drew unwar­ ranted conclusions in that the claim of therespondent was based on "γραμμάτια" (bonds)whilst ths evidence adduced was in respect of receipts of deposits ofmoney repayable after a lapse of a specified time, and the further and better particulars given by the respondent could not be deemed to be an amendmentof thestate• ment of claim which could only be amended by an order of the Court. (
2. b)That the trial Court wrongly found that the receipt evidencing the deposit of money was lost because it believed the uncorroborated evidence of the respondent which is inconsistent with itself and/or with thepleadings whichwerenotamendedand because - - it failed to consider and appreciatethecase ofAtkinson v. Bradford Third EquitableBenefit BuildingSociety [1890] 59 L.J. Q.B. 360. (
3. c)That the trial Court misdirected itself as to the law applicable in this case because (
4. a)in the exercise of its equitablejurisdiction it relied on obiter dicta of English decisions and/or secondary authorities which can be distinguished, and which are contrary to the principles of equity, viz. that equity follows the law, and that where thereis equal equity thelaw shall prevail and (
5. b)that thedicta of Lord Denningin Gillespie Bros.& Co. Ltd. v. Roy Bowles Transport Ltd. [1973] 1 All E.R. 193 were read out of context in a case which was irrelevant to the issue before the Court. (
6. d)That the principles of equity should not have been invoked because (
7. a)this would put the appellants at a disadvantage and it would defeat anotherprinciple of equity designed to ensure equality of treatment between the parties (
8. b)it would lead to inequality in breach of the principle of equality enshrined in Article 28 of the Constitution and of the maxim of equity ''equality is equity". Held,

(1)thatinits ordinaryusetheword "γραμμάτιου"(bond) connotes a document acknowledging a debt coupled with an obligation torepay it;thatfrom thefurther andbetterparticulars 197 National Bankof Greecev.Masonoa

(1980)given to counsel for the appellants, it was clarified that the documents to which he referred were those ordinarily issued by the bank evidencing a deposit of money with the bank repayable after the lapse of time; that though the statement of claim has not been amended no such amendment was needed; that the particulars given by counsel for the respondent were intended— and the trial Court rightly found so—to put the opposite party on his guard and prevent his beingtaken by surprise at the trial of the action; that, therefore, the trial Court has not misdirected itself; and that, accordingly, contention (a)must fail. 5 10

(2)That it wasnot denied that the respondent hasgiven notice to the appellant bank of withdrawal of his money; that though itwastruethat therewasastipulation intheteimsofthecontract that the receipt was not negotiable and that in the case of withdrawal of the money il was imperative to produce the receipt, 15 it was equally true that the Bank has paid the respondent the sum of £1000 without the production of the receipt; that in the Atkinson case (supra) notice of withdrawal was a condition precedent to the accruing of any cause of action; that in the present case the trial Court was aware that even if the return 20 of the deposit book was a condition precedent the Atkinson case is distinguishable once the Court had in mind that the documents were lost; that, therefore, the trial Court has not failed to consider and appreciate the Atkinson case; and that, accordingly, contention (b) must fail. 25

(3)That the existence of equitable jurisdiction to grant relief for the loss of documents has been accepted and in case of the lossofthebooktheCourtwouldexerciseitsequitablejurisdiction and not allow the absence of the receipt to stand in the way of the depositor re-claiming his money, nor would the Court 30 require the depositor to give an indemnity, the deposit book or receipt not being a negotiable instrument (see 2 Halsbury's Laws of England, 3rd edn. 174 para. 327); that equity stepped in to fill the gap and closed the door to a party's unjustified insistence on hiscontractual rightsincircumstances whichwould 35 lead to manifest injustice; that, further, equity intervened to stopthe abuseof a legalrightin an effort to moderate the rigour of the contract law, thereby ensuring that justice is done in accordance with the substantive rights of the parties (see in re Dillon[1890] 44 Ch. D. 80); that though the said dicta in the 40 198 1 C.L.R. 5 10 15 20 25 30 35 National Bank of Greece τ. Masonoa Gillespie case (supra) were obiter andwere notrelated at allto the present case theimportance ofsuch observations cannot be undermined; that the trial Court quite rightly made a brief reference tothe Gillespie case inorder toshow what is thetrend today in England in order todojustice; andthat, accordingly, contention (c)must be dismissed.

(4)Thatthejurisdiction tograntrelief for thelossofdocuments is not limited to anyparticular class of documents; that this is notacase inwhich Article 28 ofthe Constitutioncanbeinvoked orthat therewasa discrimination inthis case of the respondent proceeding to Courtto put hisclaim inthe hands ofjustice; that the mere fact that both thebank andtherespondent had lost their books shows thatit wasnecessary toproceed totheCourt and that there was nodiscrimination of any kind andthis isa caseinwhich equity should intervenetodojustice toboth parties; that the maxim "equality is equity"-does not apply tothe facts of the present case because the substratum of this rule is thata Court mayintervene andauthorise equal division of property among claimants to it in the absence of sufficient reasons or basis for its division among interested parties inanyotherway (see Snell's PrinciplesofEquity,27thed.p.36);andthat,accord­ ingly,contention(d)must, also, fail.

(5)That the bank wasinthe same position as the respondent and that wasthe reason whyequity stepped in,in order to do justice; that both parties have lost their documentsand therefore theCourtrightly heardevidence onthe-issues before it;thatthere was sufficient evidence before thetrial Court andhaving gone through such evidence, the claim was resolved inthe sameway that any other type of civil action ought tobedecided, thatis, it is for the plaintiff to prove hisclaim on a balance of probabi­ lities; and that, accordingly, theappeal must be dismissed. Appeal dismissed. Cases referred to: Pinson v. Lloyds and Nat. Prov. Foreign Bank [1941]2 AllE.R. 636 at p. 638; Atkinson v. BradfordThird EquitableBenefit Building Society [1890] 59 L.J.Q.B. 360 at pp. 362, 363; Gillespie Bros.& Co.Ltd.v. RoyBowlesTransport Ltd. [1973] 1 All E.R.193; 199 National BankofGreecev.Masonoa

(1980)Bagley v. Winsone [1952]1 All E.R.637; Inre Dillon [1890]44Ch.D.76atpp.80-81; Levison v.Patent Steam Carpet Cleaning[1977]3AllE.R.

1. Appeal. Appeal by defendants against the judgment of the District 5 Court of Famagusta (Pikis,P.D.C. and Artemis,D.J.) dated the 5th February, 1977 (Action No. 4/76) whereby they were adjudged to pay to the plaintiff the sum of £3,800.—due tohim under two bonds ("grammatia" ). P. CacoyianniSy for the appellants. A. Poetis,for the respondent. Cur. adv.vult. 10 TRIANTAFYLLIDES P.: The judgment of the Court will be delivered by Hadjianastassiou, J. HADJIANASTASSIOU J.: This is an appeal by the defendants, 15 the National Bank of Greece, from the judgment of the Full District Court of Larnaca, dated February 5, 1977, allowing the claim of the plaintiff Kyriacos K. Masonou against the defendants, in an action for the recovery of a sum of money under two "grammatia*', oralternatively, thebalance dueunder 20 an account. Theplaintiff broughtanactionagainstthedefendants claiming in the statement of claim a sum exceeding £4,000 and interest. On the contrary, the defendants, in the statement of defence repudiated the claim of the plaintiff and made it clear that they 25 weie not prepared to accept this claim. When the pleadings were closed, counsel appearing for the defendants addressed a letter dated October 5, 1976, seeking further and better particulars of the nature of the claim envisaged by the two "grammatia". On November 3, 1976, counsel for the plaintiff in reply, clarified to counsel that by that description in the statement of claim,itwasmeant torefer tothosedocuments ordinarily issued by the bank evidencing a deposit of money with the bank in question repayable after the lapse of 13 months and with a 35 higher interestpayablethan theotherdepositsoflessduration. In the course of the trial, it was made quite clear that docu200 30 1 -CL.R. NationalBankof Greeceτ.Masonoa Hadjianastassloa J. mentsdescribed as "grammatia" were theusual deposit receipts, ordinarily issued by thebank todepositors of money evidencing the indebtedness of the bank and stipulating the time of repay­ ment of the loan,which as we said earlier, was after thelapse of 5 13months. On December6, 1976, theplaintiff told theCourtthathe was residing at Pighi village and itf January, 1974, he went to the National Bank of Greecein Famagusta together with his collea­ gue, Sotiris Costi,and lodged thesum of £2,
2. Hewas given 10 a receipt upon lodging that amount. This document was pay­ able on February 19, 1975, and the interest stipulated was 7 3/4%. One and a half months after his first visit he went alone to the bank and lodged with the same bank theamount of £2,300;and thebank gavehim anotherreceipt. 15 The plaintiff, unfortunately, was forced to leave his village in a hurry, when the Turkish invasion of Cyprus took place, leaving behind the said receipts at his home. As the village of Pighi is still underoccupation, therewas noway for the plaintiff to collect the receipts in question. The plaintiff had neither a 20 copy nora photostatcopy of this receipt. When hewas invited by his counsel to give details of the contents of the receipt, counsel appearing for the defendants objected firstly because there was not an allegation in the pleadings that the receipt or lodgementof moneywas lost; andsecondly thattheactionought 25 to be brought on a lost document. In spite of the fact that in the particulars of the statement of claim reference was made to the fact that thetwo "grammatia" in question were left at Pighi village, counsel further argued that once the documents were still in existence there, as alleged by the plaintiff, and once no 30 lossor destructionwas proven,theplaintiff was estopped togive oral evidence as to the contents of those because the plaintiff cannot bring his case within the meaning of theword "lost". In the light of the evidence that the receipt evidencing the indebtedness of the defendants to the plaintiff could not be 35 traced or found for thereasons stated earlier, the trial Courtin a short ruling—having takenjudicial notice of the tragic events of 1974—overruled the objection and allowed the plaintiff to give oral evidence as to the contents of the document having been considered for all practical purposes by the Court as lost; 40 and because its pioduction was considered utterly impossible, 201 Hadjianastassioa J. NationalBank of Greeceτ. Masonoa (W80 once the area was inaccessible due to the Turkish occupation; and that it was made clear in the statement of claim that the documents were beyond the reach of the plaintiff. The plaintiff facing apparently financial difficulties visited the bank on two or three occasions to ask for the money due to 5 him, but the bank refused payment. Subsequently, the defend­ ants paid to him the amount of £1,000 only in February,
3. He repeatedly demanded payment of the balance, but the bank kept refusing; he brought the present action in order to claim the recovery of the balance. 10 Because the plaintiff was challenged in cross-examination as to whether he had actually the means enabling him to lodge those amounts in the bank, counsel called the Mukhtar of Pighi village, Pantelis Avgousti, who told the Court that he was the secretary of the Co-operative Society. He knew the plaintiff, 15 and on January 14, 1974, the plaintiff withdrew from the Co­ operative Society the amount of £1,090 having lodged with the said Society, one and a half years earlier, the sum of £1,
4. There was further supporting evidence by the person who had accompanied the plaintiff on his first visit to the Bank, Sotiris 20 Costi, who said clearly that on the 18th or 19th January, 1974, he accompanied the plaintiff to the bank in question and helped him count the money at the bank. He added that he was not counting himself, but he was giving the money to the plaintiff who was counting it after he had agreed about the interest. 25 After they counted the money, they gave him a document. Mr. Kyprianou who was, before the Turkish invasion, serving as assistant branch manager at Famagusta said that the employees of that branch of the defendants left in a hurry without taking with them the books of the bank, a fact that has created 30 many difficulties for the subsequent transactions of the banking business of the defendants. Furthermore the defendants had no alternative source of information as to the state of the accounts of the many customers of the Famagusta branch of the defendants. This statement has not been challenged; Mr. 35 Kyprianou further explained that in the absence of their books it was very difficult to verify the claims of depositors and because of the large number of customers itwas difficult for the employees of the bank to remember with accuracy who was and who was 202 1 C.L.R. National Bank of Greecev.Masonoa Hadjianastassiou J. not a customer. Furthermore, Mr. Kyprianou was unable to confirm or denywhether theplaintiff wasa depositor of the bank. He did, however, state in cross-examination that it was their practice after their displacement from Famagusta to inquire into 5 theclaims ofpersonsclaiming to bedepositors ofthebank before allowing payment of any sum of money due to them. It appears further that Mr. Kyprianou or indeed the bank must have scrutinised the plaintiff's claim whether he was a depositor before they paid to the plaintiff the amount of £1,
5. 10 As to the practice of the bank Mr. Kyprianou said that on accepting a fixed term deposit the bank invariably issued a receipt in triplicate furnishing the depositor with the first copy of the receipt. The receipts were identical in form and terms to a receipt produced before the Court exhibit 2,but the plaintiff 15 was unable to state with certainty whether the receipts issued to him were"identical to exhibit
6. He agreed, however, that the documents issued to him werebroadly speaking similar to exhibit 2 except perhaps the colour. The trial Court has accepted that the bank on accepting a deposit was invariably furnishing the 20 depositors with a receipt identical with exhibit 2filledin with the particulars of thedepositor and the money lodged with the bank. The trial Court having also dealt with the submission of counsel that the claim of the plaintiff should not be accepted— and a similar stand was taken before the Appeal Court—unless 25 supported by strict corroboration, said that:- None of the authorities quoted by learned counsel nor anything that is said in Phipson on Evidence support the view that the claim for the recovery of money due by a bank to a customei by virtue of a deposit receipt or otherwise must be corroborated before 30 sustained. The claim must be resolved in the same way that any other type of civil action must be decided, that is, it is for the plaintiff to prove his claim on a balance of probabilities. Then the trial Court having dealt with the credibility of the witnesses made this statement :35 " The plaintiff and his witnesses impressed us extremely well and we accept them as witnesses of truth. The testimony of Sotiris Costi supports in a very direct way the contention of the plaintiff that on 19th January, 1974, he deposited a sum of money with the defendants. As already 203 Hadjianastassiou J. National Bank of Greece v.Masonou

(1980)indicated the testimony of Mr. Kyprianou does lend further support to theallegation of theplaintiff that heisa depositor of the bank. We find as a fact that the plaintiff on 19th January, 1974,deposited with the defendants £2,500 payable after theexpiration of 13 months; thedeposit carried interest 5 at the rate of 7 3/4% per annum. One and a half months later he deposited a further sum with the defendants upon similar terms and conditions, this time the amount being £2,

1. On both instances the plaintiff was issued with a receipt in the terms of exhibit
2. An amount of £1,000 has 10 been refunded in accordance with the provisions of exhibit 1". Finally the Court concluded as follows :"The plaintiff has established a right to the recovery of the money and having in mind the nature of the documents 15 lost thedefendants arenot at risk ofpayingthe same amount of money over twice which is the purpose of an indemnity, for lost negotiable instruments. In the result, judgment is given for the plaintiff as per claim." On appeal the first complaint of counsel was: (a) that the 20 Court misdirected itself astotheweight and effect of theevidence adduced and drew unwarranted conclusions in that the claim of the plaintiff was based on "grammatia" whilst the evidence adduced was in respect of receipts ofdepositsof money lepayable after a lapse of a specified time, and the further and betttr 25 particulars given by the plaintiff could not be deemed to be an amendment of the statement of claim which could only be amended by an order of the Court. The trial Court, which as we have said earlier, dealt with the same argument, raised on appeal said on this point:- 30 "The word grammation is not exclusively synonymous with the documents known as bonds under English law... In its ordinary use the word "grammation" connotes a document acknowledging a debt coupled with an obligation to repay it... In our judgment the word grammation is apt 35 to cover plaintiff's claim as it was developed before us in the course of the trial and the submission made on behalf of the defendants to the contrary is dismissed." 204 1 C.L.R. National Bank of Greece ?. Masonoa Haajlanastasslou J. Having considered the argument of counsel wefindourselves unable to agree with counsel for the appellants that the trial Court misdirected itself and we endorse the statement above viz., that in its ordinary use the word "grammation" connotes 5 a document acknowledginga debtcoupled with an obligation to repay it. Furthermore, it was equally clear that from the further and better particulars given to counsel for the appellants, it was clarified that the documents to which he referred were those 10 ordinarily issued by the bank evidencing a deposit of money with the bank repayable after the lapse of time. It is true, of course, that the statement of claim has not been amended, but with respect, no such amendment was needed in our view. In Pinson v. Lloyds and Nat. Prov.Foreign Bankt [1941] 2 15 All E.R. 636—relied upon by counsel—Scott, L.J. dealing with thequestion of pleadings had this to say at p.638:- 20 25 30 35 40 "It isawell-recognised canonofpleadingthatthedefendant need not, and, indeed, ought not to plead to 'particulars', whether contained in, or delivered with, the statement of claim. Thereasonfor thatcanonisplain. Allthematerial facts constituting thecause of action ought already tohave been plainly stated in the pleading itself, as required by R.S.C., Ord. 19, r. 4, the plainest and most fundamental of all the rules of pleading. The proper function of 'particulars' is not to state the material·facts omitted from the statement of claim, in order, byfillingthe gaps, to make good an inherently bad pleading, however common that pernicious practice may have become. On this topic I made some observations in Brucev. Odhams Press, Ltd. (I),atpp.712,713([1936]1 AllE.R., atp.294),and willnot repeat them beyond sayingthat I still hold the opinion that itisnotthefunction ofparticularstotaketheplaceofnecessary averments in the pleading. Their function.is to put theoppositeparty onhis guard and prevent hisbeing taken by surprise at the trial of an action, the 'material facts' of which should have been already averred. Nor have mere statements of evidence, as such, a place in particulars, any more than in the pleading, although the dividing line between statements which contain sufficient indication to prepare the opponent's mind for what he will have to meet 205 Hadjianastassiou J. National Bank of Greece v. Masonoa

(1980)at the trial and mere statements of evidence is sometimes hard to draw, and should not invite meticulous criticism. The essential rules of modern pleading embody a commonsense view of litigation, and, if complied with substantially and in accordance with their real intention, are well-calculated to keep down the cost of litigation." 5 Turning now to the present case,and with these consideration in mind, the particulars given by counsel for the respondentplaintiff were intended—and the trial Court rightly found so— to put the opposite party on his guard and prevent him being 10 taken by surprise at the trial of the action. We think, therefore, that the argument put forward by counsel is not a convincing one and we would dismiss it. Counsel further argued that the trial Court wrongly found that the receipt evidencing the deposit of money was lost because it 15 believed the uncorroborated evidence of the plaintiff which is inconsistent with itself and/or with the pleadings which were not amended; and that it failed to consider and appreciate the case of Atkinson v. Bradford ThirdEquitable Benefit Building Society, [1890] 59 L.J. Q. B.

1. 20 The trial Court, having dealt also with the same argument expounded before us, viz., that the claim of the plaintiff should not be accepted unless supported by corroboration, and in fact strong corroboration, said:"None of these authorities nor anything that is said in 25 Phipson supports the view that a claim for the recovery of money due by a bank to a customer by virtue of a deposit receipt or otherwise must be corroborated before sustained. The claim must be resolved in the same way that any other type of civil action must bedecided, that isit isfor theplain- 30 tiff to prove hisclaim on abalance of probabilities. Within this ambit the onus of proof, as it has been repeatedly stressed, varies in direct proportion to the gravity of the allegation made and considering the nature of the claim of the plaintiffs and the position in which the defendants 35 found themselves in the absence of their books a claim of this nature must be scrutinized in the most careful manner." In Atkinson (supra) at p. 360 it was held that the stipulations 206 1 C.L.R. National Bank of Greece V. Masonou Hadlianastassiou J. as to giving notice of withdrawal, the production of the pass­ book, and the like, were conditions precedent to any liability on the part of the society to repay the loan, and that as some of them had not been fulfilled in the lifetime of Α., no cause of 5 action had accrued to him before his death, and that the Statute of Limitations did not begin to run against his administrator until letters of administration had been taken out. It was held also, per Lindley, L.J., that even if the conditions which had not been fulfilled were not conditions precedent,yet where a creditor 10 dies intestate on the day on which a debt becomes payable to him, and there is no evidence to shew whether he died before or after the time when the debt became payable, the Statute of Limitations does not begin to run against the administrator until letters of administration have been taken out. 15 20 25 30 35 40 Lord Esher, M.R., in dismissing the appeal said at pp. 362, 363:"It seems to me that this case depends upon the contract between the deceased man and the defendant society which was made at the momentwhen he deposited his money with the society. When money is deposited by a person with this society by way of loan, the society gives the depositor a loan passbook and also a copy of the rules. The amount so lent is entered in the passbook, which contains certain terms in writing. It seems to me, therefore, that the passbook contains the terms of the contract in writing, and is given to the depositor as containing the terms on which he is lending his money to the society. The terms of the contract are therefore agreed upon between the parties. The terms with regard to repayment are, that sums over 20 1.are payable back to the depositor under certaincircum­ stances. There is no liability on the part of the society to repay the deposit, and no cause of action accrues against the society until the circumstances have arisen. What are those circumstances? In the first place, there is a stipulation requiring notice of withdrawal to be given according to terms stated when the notice is given. That notice, therefore, is a condition precedent to the accruing of any cause of action. Then there is a stipulation that no money will be paid out except on the production of the investor's book, and he must either attend personally or send a written authority. That is the contract between the parties, and 207 HacQianastassloo J. National Bank of Greece v. Masonoa (1980 there is no liability imposed on the society to repay the deposit until those conditions which, in my opinion, are conditions precedent have been fulfilled. In this case they were not fulfilled in the lifetime of Thomas Atkinson, and therefore no cause of action accrued against thesociety 5 duringhislifetime. Ithasbeen saidthat the administrator, the present plaintiff, has not produced the pass-book, and that one of the conditions, therefore, has not been fulfilled. There is, however, no stipulation that the book is to be produced by him—only that the book is to be produced; 10 and as the defendants have got the book, and had it when this action was brought, that condition precedent, so far astheplaintiff isconcerned,hasbeenfulfilled; butasregards thedeceased man itwasnot fulfilled, and therefore nocause of action accrued to him during his lifetime which hecould 15 have maintained. The Statute of Limitations did not begin to run as against the administrator until letters of administration had been taken out, and therefore no cause of action accrued to the administrator until that time. That is sufficient to decide the case." 20 In the present case, there was a finding of fact that the respondent deposited with the appellant the sums of £2,500.— and £2.300.— In both instances, the respondent was issued with a receipt in the terms of exhibit
2. Furthermore, the amountof£1,000.—waspaidbytheappellantstotherespondent, 25 and the latter executed what has been referred to as an indemnity bond in the terms of exhibit
3. This document contains also a declaration by the respondent to the effect that the bank wasindebted to him for an amount of£4,800.—coupled with an affirmation that hedid not assign his rightsin that document. 30 That the respondent has given notice to the bank of withdrawal of his money was not denied. It is true, of course, that there was a stipulation in the terms of the contract that the receipt was not negotiable and that in the case of withdrawal of the money it was imperative to produce the receipt, but it is 35 equally true that thebankwithout the production of the receipt has paid the respondent the sum of £1,000.—and with this in mind we do not see in what way the trial Court has failed to consider and appreciate theAtkinson case. In that case,notice of withdrawal was a condition precedent to the accruing of any 40 cause of action. In the present case the trial Court was aware that even if the return of the deposit book was a condition 208 1 C.L.R. NationalBank of Greeceτ. Masonou Hadjianastassiou J. precedent, that case is distinguishable once the Court had in mind that the documents were lost. 5 With that in mind, the trial Court exercised its equitable jurisdiction and has not allowed the absence of the receipts to stand in the way of the depositor claiming his money. We fail to see the Court misinterpreting the substance of that case, as we think that it has followed the proper procedure. We would, therefore, dismiss this argument also. Counsel, in a full and strong argument, further contended 10 that the trial Court misdirected itself as to the law applicable in this case (a) because in the exercise of its equitable jurisdiction it relied on obiter dicta of English decisions and/or secondary authorities which can be distinguished, and which are contrary to the principles of equity, viz., that equity follows the law, and 15 that where there is equal equity, the law shall prevail; and (b) -that the dicta of Lord Denning in Gillespie Bros. & Co. Ltd. y. Roy Bowles Transport Ltd., [1973] 1All E.R. 193 were read out of context in a case which was irrelevant to the issue before the Court. 20 We think, in order to follow this argument, it is necessary to state that the trial Court made it clear that the conditions at the back of exhibit 2, stipulate, inter alia, for the production of the receipt as an essential condition "aparetitos" for the payment of the debt. It is equally useful to state that Mr. Kyprianou stated 25 to the trial Court the practice followed at Famagusta where the loss of a document was reported. The procedure followed, provided the bank was satisfied that it was a genuine case invol­ ving the loss of the relevant document,entitled the issue of a new receipt. With that in mind, the question which the Court 30 posed was whether the bank was liable to refund money to a depositor in the absence of the production of the deposit receipt. It was the case for the defendants all along before the trial Court, that the claim of the plaintiff should be dismissed despite any finding of the Court, accepting the details of the claim 35 of the plaintiff, in the absence of the production of the receipts evidencing the debt. (See Bagley v. Wmsone, [1952] 1 All E.R. 637, an authority for the proposition that where by virtue of the contractual stipulation the production of a receipt is made a condition precedent to the repayment of a deposit, the 40 banker is entitledtowithhold payment pendingsuchproduction). (See also Paget's Law on Banking 7th Edition at p. 143). 209 Hadjianastassiou J. National Bank of Greece ?. Masonou

(1980)Counsel for the plaintiff did not dispute the principle quoted, but went on to argue that the Court had equitable jurisdiction to grant relief for lost documents, and thereby relieving a party from theconsequences attendant onthelossofadocument where its production was a condition precedent to payment. 5 The existence of equitable jurisdiction to grant relief for the loss of documents has been accepted, and in case of the loss of the book, the Court would exercise its equitablejurisdiction and not allow the absence of the receipt to stand in the way of the depositor re-claiming his money. Nor would the Court require 10 the depositor to give an indemnity, the deposit book or receipt not being a negotiable instrument. (See 2 Halsbury's Laws of England, 3rd edn. 147 para. 327). In support of this proposition, Cotton, L.J., in Re Dillon, [1890]44 Ch. D. 76, had this to say at pp. 80-81:15 "It was urged that her evidence was not corroborated, and that the Court will not establish a claim against the estate of a deceased person on the evidence of the claimant alone unless it is corroborated. I do not think that this proposition is now law. Where a claimant's case depends entirely 20 on his own evidence the Judge ought to sift that evidence very carefully; but if the claimant gives evidence which is not shewn to be inaccurate in any material point, and which satisfies the Judge of its truthfulness, he ought, I think, to act upon it though it be not corroborated. In the present 25 case, moreover, I think that there are circumstances which tend to corroborate Miss Duffin's evidence If the document was lost they would require some explanation why it was not forthcoming before they paid the money; but I do not think that they could refuse to pay. I cannot think 30 that the requiring this cheque to be signed puts the account on any footing different from that of an ordinary deposit account, so as to prevent the fund from being given away as a donatio mortis causa." In the samecase, Lindley, L.J., speakingabout the requirement 35 of giving an indemnity, said at p. 83:"Even if the deposit receipt had combined with it a form of cheque, and this was filled up and signed by the depositor before the loss, it is apprehended that, as the banker could not be sued on the cheque, he would not be entitled to 40 an indemnity." 210 1 C.L.R. National Bank of Greece v. Masonou Hadjianastassiou J. It is evident that equity stepped in to fill the gap and closed the door to a party's unjustified insistence on his contractual rights in circumstances which would lead to manifest injustice. This equitable principle, as we said earlier, has been repeated in 5 re Dillon (supra), and it is quite apparent that equity intervened to stop the abuse of a legal right in an effort to moderate the rigour of the contract law, thereby ensuring that justice is done in accordance with the substantive rights of the parties. (See also 14 Halsbury's Laws of England, 3rd edn., 464-465, and 10 particularly paragraph 881 and under Q at p. 465). In a recent case, Gillespie Bros. & Co. Ltd. v. Roy Bowles TransportLtd. and Another, [1973] 1All E.R. 193, observations were made by Lord Denning, showing the modern trend of judicial authority to unfetter the hands of the Court to whatever 15 extent this isnecessary todojustice ineachcase. Lord Denning, M.R. said at p. 200:- 20 25 30 "The time may come when this proce'ss of 'construing' the contract can be pursued no further. The words are too clear to permit of it. Are the Courts then powerless? Are they to permit the party to enforce his unreasonable clause, even when it is so unreasonable, or applied so unreasonably, as to be unconscionable? When it gets to this point, I would say, as I said many years ago, '...there is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused': see John Lee & Son (Grantham) Ltd. v. Railway Executive [1949] 2 All E.R. at 584). It will not allow a party to exempt himself from his liability at common law when it would be quite unconscionable for him to do so." In Levison v. Patent Steam Carpet Cleaning[1977] 3 All E.R. 498, the dictum of Lord Denning at p. 200 applied. We are aware, of course, of the criticism made by learned Counsel for the appellants, that the statements made were obiter dictaandwerenot related at all to the present case,andweagree, 35 but with respect, one cannot undeimine the importance of such observations. The trial Court, in our view, quite rightly made a brief reference to the Gillespiecase, in order to show what is the trend today in England in order to do justice. Equity steps in when justice is required. Counsel further 40 argued that in the present case the bank was in the same position as the plaintiff. 211 Hadjlanastassioq J . National Bank of Greece τ. Masonoa

(1980)We agree that the bank is in the same position as the respondent and that is the reason why equity steps in, in order to do justice. Both parties have lost their documents—once they were left behind at Famagusta and Pighi—and the Court rightly heard evidence on the issues before it. In our view, 5 there was sufficient evidence before the Court, and having gone through such evidence, the claim was resolved in the same way that any other type of civil action ought to be decided, that is, it is for the plaintiff to prove his claim on a balance of probabi­ lities. Counsel further argued that the principles of equity should not have been invoked having regard to the facts of the present case, inasmuch as it would put the appellants at a disadvantage, and it would defeat anotherprinciple of equity designed toensure equality of treatment between the parties. Having considered this contention also, in spite of the com­ mendable efforts of counsel, we do not share his views, because the jurisdiction to grant relief for the loss of documents is not limited to any particular class of documents. But, counsel went even further and argued that theapplication of the principle 20 of equity would lead to inequality in breach of the principle of equality enshrined in Article 28 of the Constitution;and of the maxim of equity "equality is equity". In fact, counsel has invited the Court not to intervene, because there are, in the present case, conflicting equities in the sense of the two parties 25 being likewise afflicted by the same calamity from which relief is sought. With the greatest respect to the argument of counsel, this is not a case in which Article 28 can be invoked or that indeed there was a discrimination inthis case of the respondentproceed- 30 ing to Court to put his claim in the hands of justice. The mere fact that both the bank and the respondent had lost their books, shows in our view that it was necessary to proceed to the Court and that there was no discrimination of any kind, and this is a case in which equity' should intervene to do justice to both 35 parties. As to the maxim of equity, "equality is equity" we think with respect, onceagain, that this principle does not apply to the facts of the present case, and as it appears from Snell's, Principles of Equity, 27th edn.p. 36,the substratum of this rule is thata Court 40 212 10 15 1 C.L.R. National Bank of Greece v. Masonou Hadjianastassiou J· may intervene and authorise equal division of property, among claimants to it in the absence of sufficient reasons or basis for its division among interested parties in any other way. We think, therefore, that this maxim cannot be invoked either, 5 having regard to the particular facts of this case. For all the reasons we have given in this judgment,we would affirm the judgment of the Court and dismiss the appeal, once the respondent has established a right of the recovery of the money. But in the circumstances, there shall be no order as 10 to costs. Appeal dismissed. No order as to costs. 213