Adams v National Bank of Greece S.A.; Darling v National Bank of Greece S.A.
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MORRIS |
| Judgment Date | 29 April 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0429-3 |
| Court | Court of Appeal |
| Date | 29 April 1959 |
[1959] EWCA Civ J0429-3
In The Supreme Court of Judicature
Court of Appeal
Lord Jenkins
Lord Justice Morris and
Lord Justice Ormerod
The Hon. T. G. ROCHE, Q.C. and MR N. H. LEVER (instructed by Messrs Stibbard, Gibson & Co.) appeared as Counsel for the Appellants.
MR JOHN FOSTER, Q.C. and MR MARK LITTMAN (instructed by Messrs Herbert Smith & Co.) appeared as Counsel for the Respondents.
LORD JENKINS; The Judgment about to be road by Lord Justice Morris is the Judgment, of the Court in these appeals.
The question which is raised in these appeals is whether the Appellant Bank is liable for the amounts of certain interest payments and principal sums which in the first instance became due from the National Mortgage Bank of Greoce as principal debtors on dates subsoquent to the 16th July, 1956, The amounts were due in respect of sterling mortgage bonds issued by that bank in 1927, Interest payments, on coupons duly presented, became due to various holders on dates between the 28th July, 1956, and the 22nd August, 1956, One of the actions now under appeal relates to these amounts. That action was commenced by writ dated the 17th September, 1956, Another of the actions relates to interest payments which became due on datea subsequent to the 9th August, 1956, That action was commenced by writ dated the 4th June, 1957, A third action relates to the amounts of certain principal sums which became due on the 1st December, 1957, and to certain arrears of interest. That action was commenced by writ dated the 17th January, 1958, In each case the claims endorsed on the writs were expressed to be against the Appellant Bank "as guarantors". Certain matters which were raised at the hearing of the third action have not been debated in this Court and the issues relating to the liability of the Appellant Bank are common to the three appeals.
The payment of the principal moneys and interest as they became due from the National Mortgage Bank of Greece had been guaranteed by the National Bank of Greece. The last named Bank no longer exists. The facts relating to the bonds and the circumstances under which the last named Bank came to be extinguished and the Appellant Bank came into existence are authoritatively recorded in the Speech of Viscount Simonds in the case of National Bank of Greece and Athens S.A. v. Metliss. The facts are set out on pages 510, 511 and 512 of the report in 1958 Appeal Cases, The National Mortgage Bank of Greece, the principal debtor, remains in existence but apparently does not flourish to an extent that kas enabled it to pay the sums due. The significance of the date, the 16th July, 1956, is that Greek law was then changed as a result of the passing of Legislative Decree No,3504, That decree was not in issue in the Metliss case.
Decree No. 3504 amended the provisions of paragraph 2 of Article 4 of Statute 2292 of 1953 and the amendment was to have retrospective effect. Decree No,3504 further provided for the abolition of paragraph 5 of the Royal Decree of the 26/27th February, 1953. The provisions of Decree No,3504 were as follows: "Article 1, Paragraph 2 of Article 4 of Statute 2292/53 'on the amalgamation of limited liability banking companies' is replaced as from the time it came in to force with the following: 'The Company which has absorbed another company by amalgamation or the new company created by amalgamation becomes the universal successor to the rights and obligations of the companies amalgamated without the necessity of any other formality or action, with the exception of the obligations of these companies as principal debtors, guarantors or for any other oause deriving from bonds, securities in general or contracts or any other cause and relating to loans in gold or foreign currency by bonds or otherwise payable to the bearer issued by the limited liability companies, juridical persons of public law, municipalities and communes etc. The Company which has absorbed another company or is newly created by amalgamation does not acquire nor is it considered as having acquired by virtue of this present or other statute or decree or Articles of Association published in pursuance of this present law or in any other manner the above obligations deriving from loans in gold or foreign currency until a law is passed providing the extent and the manner in which they will become subject to these obligations".
"Article 2: Paragraph 5 of Article Sole of the Royal Decree dated 26/27th February 1953 'on the amalgamation of the National Bank of Greece and the Bank of Athens by the creation of a new limited liability banking Company' is abolishod as from the time of its publication. The rights and obligations of the now limited liability banking company croated by the said docroo under the name of 'National Bank of Greece and Athens S.A.' are governod as from the time the Company was created by the relative provisions of Statute 2292/1953 as amended by the prosont law".
"Article 3: The present comes into force as from its publication in the Government Gazette". The effect of Legislative Docroo No,3504 was, therefore, that the rights and obligations of the Appellant Bank (which was created by the Royal Decree dated 26/27th February, 1953, promulgated under the provisions of Statute No.2292) were governed, as from the time that the Appollant Bank was croated, by the relative provisions of Statute 2292 as amended by the Legislative Decree No.3504, The result was that by legislation having retrospective effect there was no succession to the obligations of the National Dank of Greece as guarantors of the bonds with which this litigation is concerned.
The evidenco showed that under Greek law, if the moratorium statutes were left out of account, the Appellant Bank would have been held liable as successors to the guarantors in respect of interest coupons presented before the passing of Decrco No.5504 in actions heard before the passing of such decree, but would not have been, nor would be, hold liable in respect of coupons presented after such Decree (See the evidence of Professor Gazis at pages 28 and 29 and the evidence of Mr Zapphiriou at pagos 2, 10, 11-12 and page 21), Under Greek law, therefore, if the present claims had boen put forward against the Appellant Bank in the Greek Courts they would have failed even had there been no moratorium statutes in existence. Herein lios a difference between the claims now made and the claim made by Mr Metliss which, had there been no moratorium statutes, could have been upheld in the Greek Courts.
Upon what basis then are the present claims advanced in this country against the Appellant Bank? The answer to this must be sought by referring to the Statements of Claim. For convenience we refer to the Statement of Claim in the action commenced in 1956. Paragraphs 1-4 sot out that the plaintiffs were the bearers of certain bonds, set out the terms and the modified terms of such bonds, and record that the National Bank of Greece had unconditionally guaranteed the due payment of the principal moneys and interest. Paragraphs 6 and 7 allege that the Mortgage bank were in arrears with interest payments after coupons had been duly presented for payment and allege that notices had been given to the Appellant...
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