Dharmaratna v People's Bank (Amaratunga, J.)
DHARMARATNAvPEOPLE S BANKCOURT OF APPEALAMARATUNGA. J,
D.C. POLONNARUWA DR 118/2000OCTOBER 15, 2003
Debt Recovery (Spl.Pro) Law, No. 2 of 1990 as amended by Act, 9 of 1994- Sections 13 and 30 – Decree Nisi made Absolute – Application to executedecree – Civil Procedure Code – Section 219 – Is an overdraft a debt or aloan?
Held:(i) An overdraft arises from transactions relating to Banking. The plaintiffpetitioner has by its letters agreed to pay the amount due from him. Inthe circumstances an “Overdraft” comes within section 30 of the DebtRecovery Law.
APPLICATION in Revision from an order of the District Court of Polonnaruwa.K. S. Tillakaratne for the petitioner.
Rohan Sahabandu with Ms.Deepa Govinna for respondent Bank.
December 18, 2003
GAMINI AMARATUNGA, J.This is an application for revision to have “the order of the 01learned District Judge of Polonnaruwa in D.C. Polonnaruwa DR118/2000 set aside and declare the same a nullity and all subse-quent proceedings a nullity”. This relief sought is vague in that thepetitioner has not stated specifically what order he seeks to havedeclared a nullity. Firstly there is the ‘order’ made by the learnedJudge making the decree nisi absolute. That order has been madeon 5/5/2000. Thereafter in execution proceedings the petitionerjudgement-debtor was examined under section 219 of the Civil
Sri Lanka Law Reports
(2003] 3 Sri L.R
Procedure Code and at the end of the examination, the Attorney-at-law for the petitioner has made an application for permission tocross-examine the petitioner. The learned Judge by his ‘order’dated 6/9/2000 has refused that application. Thus there are twoorders and from the prayer it is not clear which order is the subjectmatter of this application.
However in the body of the petition the petitioner has averredthat the order making the decree nisi absolute was a nullity.Therefore I proceed to examine the petitioner’s assertion that thedecree absolute was a nullity.
The plaintiff Bank (hereinafter referred to as the Bank) filedaction under the Debt Recovery (Special Provisions) Law, No. 2 of1990 as amended by Act, No. 9 of 1994 to recover a sum of Rs.15,12,963.01 from the defendant as money due to the Bank fromhim. According to the plaint this sum was due on account of over-draft facilities provided by the Bank to the petitioner, and interestpayable for the said facilities. The Court having entertained theplaint entered a decree nisi. When it was served on the defendant-petitioner he filed an application supported by an affidavit and doc-uments seeking leave to appear and defend. After examining thematerial placed before Court by the petitioner the learned Judgehas held that the petitioner’s application did not disclose a defensewhich was prima facie sustainable. He has therefore made order on5/5/2000 making the decree nisi absolute.
The petitioner has stated in his petition filed in this Court that hehas preferred an appeal against that order. The Bank has made anapplication to execute the decree absolute which is deemed to bea writ of execution in terms of section 13 of the said Debt RecoveryAct. In execution proceedings the petitioner was examined undersection 219 of the Civil Procedure Code and the application madeby the petitioner’s counsel for permission to cross examine the peti-tioner was refused by Court on 6/9/2000. The petitioner has filedthis application on 6/10/2000 and has obtained an order from thisCourt on 19/10/2000 staying further proceedings in the DistrictCourt.
The petitioner’s contention that the decree absolute was voidand or a nullity is based on the submission that in terms of the Debt
Dharmaratna v People's Bank (Amaratunga, J.)
Recovery Act an overdraft is not a debt or a loan. A ‘Debt’ within themeaning of the Debt Recovery Act, No. 2 of 1990 as amended byAct, No. 9 of 1994, has been defined in section 30 of the Act as fol-
“Debt means a sum of money which is ascertained or capableof being ascertained or capable of being ascertained at thetime of the institution of the action, and which is in default,whether the same be secured or not or owed by any person orpersons, jointly or severally or as principal borrower or guar-antor or in any other capacity and alleged by a lending institu-tion to have arisen from a transaction in the course of banking,lending, financial or other allied business activity of that insti-tution but does not include a promise or agreement which isnot in writing.60
An overdraft arises from transactions relating to banking. TheBank in its statement of objections has stated by letter dated6/7/1999 the petitioner has agreed to pay the amount due from him.
This letter marked P9, had been referred to in paragraph 13 of theplaint and annexed to the plaint. Accordingly it is clear that Bankhad the right in law to file the action under the Debt Recovery Act.Accordingly I reject the submission that the Bank had no right to file •its action under the Debt Recovery Act and the Court had no juris-diction to entertain and deal with the action.
The petitioner’s argument that execution proceedings were also ?onull and void was based on his submission that the institution of theaction and the subsequent decree absolute was bad in law. SinceI have held that the action had been validly filed and that the Courthad jurisdiction to deal with it, the argument relating to the invalidi-ty of execution proceedings is also rejected. Accordingly I dismissthe revision application with costs in a sum of Rs. 10,000/-.
ABEYRATNE, J.I agree.
DHARMARATNA v. PEOPLES BANK