Sri Lanka Law Reports
(2003] 3 Sri L.R
BANK OF CEYLONvLEELA DE SILVACOURT OF APPEALAMARATUNGA, J.
CALA 304 / 2002 (LG)
D.C.TANG ALLA 2643/LFEBRUARY 25, 2003MAY 28, 2003
Bank of Ceylon Ordinance – Section 19 – Amendment Act, No. 54 of 2000 -Applicability of the Amendment – Prospective or Retrospective – InterpretationAct, Amendment No. 18 of 1972 – Section 22 – Its applicability – Entertain? -Constitution, Article 23( 1) – Civil Procedure Code section 545.
The effect of the Amendment is to take away the right of any personto bring an action to invalidate the Resolution and the auction there-under on any basis described in the section and to take away thejurisdiction of Courts to entertain any such action. There is nothingin the Amending Act to show that its provisions had retrospectiveoperation and application.
Bank of Ceylon v Leela de Silva
When action was (before the Amending Act was passed) institutedthere was nothing in section 19 of the Bank of Ceylon Ordinance toattract provisions of section 22 as a bar to the plaintiff’s action.
The word “entertain” in section 19 has been used in the sense“acceptance” while in Sinhala is “ toad coj^® or 8§a>jzn©" it does notconnote an ongoing process.
AN APPLICATION for leave to appeal from an Order of the District Court of
Cases referred to:
1. Alagakawandi v Mulumal (1920)22 NLR 111.
Gamini Marapana P.C., with Navin Marapana for defendant-appellant.
Nihal Fernando with Ms.Dilani Somadasa for plaintiffs-respondents.
December 17, 2003GAMINI AMARATUNGA, J.
This is an appeal with leave to appeal granted by this Court. 01The plaintiffs-respondents filed action against the defendant-appel-lant Bank (hereinafter referred to as the Bank) seeking a declara-tion that the resolution passed by the Board of Directors of theBank had no force or effect in law and that the Bank had no right toauction the property described in the schedule to the plaint. Theplaintiffs also sought a permanent injunction and an interim injunc-tion preventing the Bank from proceeding to sell the said propertyby public auction. This action has been filed on 3/1/2000. On16/7/2002, the District Court having considered the material placed 10before it, issued an interim injunction as prayed for by the plaintiffs.
One of the grounds urged on behalf of the Bank against the grant-ing of an interim injunction was that in view of the amendmentbrought to section 19 of the Bank of Ceylon Ordinance by Bank ofCeylon (Amendment) Act, No. 54 of 2000, the Court had no juris-diction to grant the injunction sought by the plaintiffs. This amend-ment was certified by the speaker on 18/8/2000 and came intooperation from that date when the plaintiffs’ action was pending inthe District Court.
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The learned District Judge held that the amending Act did notapply to the pending action of the plaintiffs. The Bank, which con-tends that the amendment applies to the plaintiffs’ action haspreferred this appeal. Section 19 of the Bank of CeylonOrdinance empower the Board of Directors of the Bank to adopta resolution to sell by public auction any property mortgaged tothe Bank as security for any loan etc. in respect of which defaulthas been made, to recover the whole of the unpaid portion of theloan together with the interest. The amending Act added the fol-lowing provision at the end of section 19.
“It shall not be competent for the borrower or any per-son claiming through or under any disposition whatso-ever of the right, title or interest of the borrower to andin the property made or registered subsequent to thedate of the mortgage to the Bank, in any court to moveto invalidate the said resolution or the subsequent salefor any cause whatsoever and no court shall entertainany such application.”
The effect of this amendment is to take away the right of anyperson to bring an action to invalidate the resolution and the auc-tion thereunder on any basis described in the section and to takeaway the jurisdiction of Courts to entertain any such action.There is nothing in the amending act to show that its provisionshave retrospective operation and application. Therefore webegin with the conclusion that the provisions of the amendingAct, including the part added to section 19 of the principal enact-ment, have no retrospective application.
When the law is altered during the pendency of the action andin the absence of any indication that the change should apply topending actions, the ordinary rule is that the rights of the litigantsare to be governed by the law in force when the action was com-menced. In other words rights of the parties are determined as atthe date of the action. “In general, when the law is altered duringthe pendency of an action, the rights of the parties are decidedaccording to the law as it existed when the action was begununless the new statute shows a clear intention to vary such rights.”Maxwell-Interpretation of Statutes (12th Ed) page 220. There is nosuch clear intention to be gathered from the amending Act.
Bank of Ceylon v Leela cfe Silva
The submission of the Bank, as set out in the written Submis-sions tendered by the learned President’s Counsel is that in theamending Act the word "entertain” has been used to describe anon going process. The submissions cite examples from BlacksLaw Dictionary 7th Edition (1999) page 552; Stroud’s JudicialDictionary 5,h Edition (1986) page 853 and several IndianDecisions. However a clear example of the meaning of the word“entertain” used in legislation in Sri Lanka is provided by section46(2) of the Civil Procedure Code which enacts that “Before theplaint… is allowed to be filed, the Court may, if in its discretion itshall think fit, refuse to entertain the same….” This section clear-ly shows that the word entertain has been used in the sense
It does not
connote an ongoing process, in order to connote the ongoingprocess the word used is ‘maintain’. See section 545 of the CivilProcedure Code (formerly numbered as section 547). See alsoAlagakawandi v Muttumal C) (1920).
According to article 23(1) of the Constitution ‘All laws and sub-ordinate legislation shall be enacted or made and published inSinhala and Tamil, together with a translation thereof in English.The relevant part of the Sinhala text of the amendment of 2000
The other argument made on behalf of the appellant was thatthe plaintiffs-respondents cannot maintain their action in view ofthe provisions of section 22 of the Interpretation Ordinance asamended by Act, No.18 of 1972. Section 22 of the InterpretationOrdinance was intended to take away the jurisdiction of Courts ina certain category of cases. Where there is in any enactment the
said so. In view of the clear and unambiguous Sinhala word usedby the Legislature we do not have to attempt to interpret themeaning of the English word ‘entertain’ used in the English trans-lation of the amending Act.
The Legislature has not
This makes it very clear that the effect of the amendment is toprevent courts from accepting such an application. It applies tothe future. If the Legislature intended to make the new provisionapplicable to pending actions the legislature could have used the
‘acceptance’ which in Sinhala is
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expression ‘shall not be called in question in any Court’, or anyother expression of similar import, in relation to any order, deci-sion or determination which any person or authority is empow-ered to make under such enactment, no court shall have juris-diction to pronounce upon the validity of such order or decision. 100
The argument of the appellant, based on the said section 22is tenable, if at all, in view of the amendment made by the Act,
No. 54 of 2000. Before it was enacted, there was nothing in sec-tion 19 of the Bank of Ceylon Ordinance to make the provisionsof section 22 of the Interpretation Ordinance applicable to a res-olution passed under that section. Therefore when the plaintiff’sfiled their action (before the amending Act was passed) therewas nothing in section 19 of the Bank of Ceylon Ordinance toattract the provisions of section 22 of the InterpretationOrdinance as a bar to the plaintiff’s action. As I have already indi- nocated, the rights of the parties are decided as at the date of theplaint (action). A provision of law which bars actions similar to theaction brought by the plaintiffs was not in existence at the timethe plaintiffs’ action was filed. Act, No.54 of 2000 has no retro-spective effect. Accordingly the amended section 19 cannot beused to invoke the provisions of section 22 of the InterpretationOrdinance to scuttle the plaintiffs’ action. I therefore reject theappellant’s argument based on section 22 of the InterpretationOrdinance. In the result I uphold the learned trial Judge’s con-clusion that the Bank of Ceylon (Amendment) Act, did not apply 120to the pending action of the plaintiffs. The appeal is therefore dis-missed with costs in a sum of Rs.5000/-.
ABEYRATNE J.I agree.