Sriyani Silva v Iddamalgoda and Others
v.MALSHIP BULKFERT (PVT) LTD
SUPREME COURTS.N. SILVA, CJ.
ISMAIL, J. ANDJ.A.N DE SILVA, J.
SC APPEAL No. 16/2001(HC/ARB/448/2000)
8TH JULY AND 1 ST AUGUST 2002
Arbitration – Enforcement of award – Section 31 of Arbitration Act,No. 11 of 1995 – Requirement to file the arbitration agreement or a certifiedcopy thereof – Section 31 (2) (b) (ii) of the Act.
The appellant claimant (“the claimant”) applied to the High Court in terms ofsection 31 (1) of the Arbitration Act, No. 11 of 1995 (“the Act”) for enforcementof an award which had been made in London against the respondent. One of
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the documents filed with the application was marked "D” being “a certified copyof the Bagging Contract” (viz. the Arbitration Agreement) as required by sec-tion 31 (2) (b) of the Act • Document “D” was certified ‘true copy” by the attor-ney-at-law for the respondent (and presumably filed of record by the attorney-at-law for the claimant). The respondent in his objections admitted that thedocument “D” was the Bagging Contract entered into with the claimant.
The High Court Judge overlooked the above facts and erroneously observedthat the document “D” had been certified “true copy” by the claimant and hencedismissed the application under section 31 on the ground that the said docu-ment was not duly certified to the satisfaction of the court in terms of section31 (2) (b) (ii) of the Act.
Per J.A.N.de Silva, J
“High Court Judge misdirected himself in holding that the notation
‘true copy” (on the document “D”) is the seal of the attorney- at-law forthe claimant when in fact the seal is of the attorney-at-law for the respon-dent. This is in fact a serious misdirection of fact and of law.”
In view of the admission of the document “D” by the respondent as theArbitration Agreement, the respondent could not have invited the courtto dismiss the application on the ground that there was no copy of theagreement as required by section 31 (2) (b) of the Act. The High Courtfailed to give full effect to section 31 (2) (b) (ii) of the Act.
APPEAL from the judgment of the High Court
Case referred to:
1. Kristly (Pvt) Ltd v. The State Timber Corporation (2002) 1 SRI LR 225 atPg 239
R.de Silva, PC with P.Kumarasinghe for petitioner.
Ikram Mohamed, PC with Kushan de Alwis for respondent.
Novmber 22, 2002
J.A.N.DE SILVA, J.
This is an appeal against the judgement and order dated
of the High Court, setting aside an arbitration award on
SC Cetweera S.A. v. Malship Bulkfert(Pvt) Ltd. (J.A.N. de Silva, J.)
the ground that the claimant-appellant (the appellant) has failed tocomply with section 31 (2) (b) of the Arbitration Act, No. 11 of 1995.
The appellant and the respondent entered into a BaggingContract dated 7th February 1994. A dispute arose and the saiddispute was referred to arbitration in London. The arbitration wasduly held and an award was made in London. The appellant madean application dated 8th March 2000 to the High Court of Colombo,seeking inter alia, to file the arbitration award dated 10th March1999, its reasons and the supplementary awards to be duly regis-tered and enforced for judgement and decree accordingly. Theappellant annexed several documents to the said petition. One ofwhich was the document filed of record marked “D” which was acertified copy of the Bagging Contract.
The respondent raised a preliminary objection that the appel-lant has failed to file the original Arbitration Agreement under whichthe purported awards were alleged to have been made or a dulycertified copy thereof, in terms of section 31 (2) (b) of the ArbitrationAct, No. 11 of 1995 and therefore the said application should bedismissed in limine. The learned High Court Judge upheld the saidobjection and refused the application for enforcement and dis-missed the same with costs.
At the hearing of this appeal the learned President's Counselfor the respondent submitted that the failure of the appellant to filethe original Arbitration Agreement under which the purportedawards are alleged to have been made or a duly certified copythereof, in terms of section 31 (2) of the Arbitration Act, No. 11 of1995 is fatal to the said application of the appellant.
Section 31 (2) (a) requires an application to enforce an awardto be accompanied by:
The original of the award or a duly certified copy of such award; and
The original arbitration agreement under which the award purports tohave been duly made or a duly certified copy of such agreement andthat, a copy of the arbitration agreement shall be deemed to havebeen duly certified if-
(1) It purports to have been certified by the Arbitral Tribunal or by a mem-ber of that tribunal and it has not been shown to the court it was notin fact, so certified; or
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(2) It has been otherwise certified to the satisfaction of court.
The learned High Court Judge held, inter alia that,
“The question of certification warrants the examination of the relevantposition of the law as found in section 31 (2). The copy tendered tocourt bears two certifications. One purported to have been made by apartner of a firm of solicitors in English whose seal is not placed oraffixed to such certification, which bears no date. His certification is tothe effect.
“I confirm that this is a true copy of the document submitted in theLondon Arbitration between the parties and relied upon by theArbitrator."
This conformation does not identify the document as the con-tract document containing the Arbitration Agreement nor does hestate that he possessed the document. The signatory does notdivulge the relationship he has with the arbitration proceedings orthe Arbitral Tribunal. As such this court does not consider such cer-tification as being sufficient to satisfy this court as to the documentcontaining the Arbitration Agreement, as envisaged in terms of sec-tion 31 (2) (ii) of the Act. Sub-section thereof has no applicationsince the document is not supposed to have been certified by theArbitral Tribunal or any member thereof.
Besides the purported certification by the solicitor in London,the same bears the notation “true copy” under the seal of the attor-ney-at-law for claimant, if this is correct this is a true copy of a cer-tified copy only, which is not in compliance of requirement of sec-tion 31 (2) (ii). If the document tendered is a certified copy asaverred by the claimant there cannot be any need to identify it is asa true copy. However the existence of the two notations side byside stands in the way of this court accepting the document as acertified copy because this court is unable to give preference of anyone of the two notations. The very existence of the two notationspurporting to be a certification impairs the operation of anyone ofthem or the other”.
It is observed that the learned High Court Judge misdirectedhimself in holding that the notation “true copy” is the seal of theattorney-at-law for the claimant when in fact the seal is of the attor-ney-at-law for the respondent. This is in fact a serious misdirectionof fact and of law.
SC Celweera S.A. v. Malship Bulkfert(Pvt) Ltd. (J.A.N. de Silva, J.)
It is also to be noted that the appellant filed annexed to hisapplication (to enforce the award) document marked “D” which theappellant stated was a certified copy of the Bagging Contract. Thelearned President's Counsel for the appellant drew the attention ofcourt to the objections and affidavit filed by the director of therespondent company in the High Court. In paragraph 7 (a) of theaffidavit the respondent states as follows,
“the respondent entered into the Bagging Contract marked“D” with the petitioner above”.
In these circumstances President's Counsel for the appellantsubmitted that there can be no doubt whatsoever that the docu-ment marked “D” is in truth and in fact the contract the appellantand the respondent entered into. It is my view that after havingadmitted document “D” as a true copy of the agreement the partiesentered into, the respondent cannot invite the court to dismiss theapplication on the basis that the original was not tendered to court.
It is appropriate to cite a passage from the judgement ofJustice Fernando in a similar case, namely, Kristly (Pvt) Ltd. v TheState Timber Corporation<1) “Clause (ii) requires the High Court ineach case, having regard to the facts of the case, to decidewhether the document is certified to its satisfaction. The learnedjudge erred in laying down a general rule – founded on a virtualassumption of dishonesty – which totally excludes certification byan attorney-at-law regardless of the circumstances. The positionmight have been different if the application for enforcement hadbeen rejected promptly on presentation, for then there might havewell have been insufficient reason to be satisfied that the copy wasindeed a true copy and that would have caused no injustice, as theclaimant could have filed a fresh application. But I incline to viewthat even at that stage the application should not have been sum-marily rejected. The claimant should have been given an opportu-nity to tender duly certified copies, interpreting “accompany” in sec-tion 31 (2) purposively and widely (as in Sri Lanka General WorkersUnion v. Samaranayake  2 Sri LR 268, and Nagappa Chettiarv. Commissioner of Income Tax AIR 1995 Madras 162)Undoubtedly section 31 (2) is mandatory, but not to the extent thatone opportunity and one opportunity only, will be allowed for com-pliance. In the present case, however, the order was not made
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immediately, but only after the lapse of the period of one year andfourteen days allowed for an application for enforcement. By thattime the learned judge had consolidated the proceedings: hence hecould not have ignored the certified copies filed in the STC's appli-cation, which admittedly, were identical in all material respects tothe copies tendered with the claimant's application. He had also toconsider (even if was not bound by it) the admission in the STC'sstatement of objections that those copies were “duly certified” aswell as the fact that, by then, the claimant had also tendered copiescertified in terms of clause (i). It was on all that material that thelearned judge had to decide whether the copies had been certifiedto his satisfaction”.
In the above circumstances I hold the learned High CourtJudge failed to give full effect to clause (ii) of section 31 (2) of theArbitration Act, No. 11 of 1995 when there was an admission by therespondent that the agreement marked “D" was a true copy.Therefore I allow the appeal and set aside the order dated
The High Court is directed to take steps in compliancewith Section 31 (2) (b) of the Arbitration Act, No. 11 of 1995.
The appellant will be entitled to costs in a sum of Rs.30,000/=(thirty thousand).
S. N. SILVA, CJ.-1 agree.
ISMAIL, J.-1 agree.
CELWEERA S. A. v. MALSHIP BULKFERT (PVT) LTD