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UNION BANK OF COLOMBO LTD.v
WIJAYAWARDANE AND ANOTHERCOURT OF APPEALWIMALACHANDRA, J.
CA (REV). 1245/06DC COLOMBO 969/DRAUGUST 31, 2006SEPTEMBER 25, 2006
Debt Recovery (Special Provisions) Act 2 of 1980 amended by Act 9 of 1994- Section 7 matter adjusted or compromised in the Supreme Court – Caseremitted to District Court – Supreme Court granting time to file answer ~Contrary to Section 7 of the Act? – Can the correctness of an order given bythe Apex Court be decided by an inferior Court?
In the action filed under the Debt Recovery Act (DR Act), the defendant soughtleave to appear and defend- District Court granted leave upon depositing asum of Rs. 17 million as security. The Court of Appeal set aside the said orderand granted unconditional leave to appear and show cause. In the SupremeCourt the matter was adjusted, with the defendants agreeing to deposit Rs. 6million, the District Court was directed to grant time to the defendants to fileanswer, if the security was deposited. When the defendants sought to file
Union Bank of Colombo Ltd. v
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answer in the District Court the plaintiff objected on the ground that thedefendants are not entitled to file answer in terms of Section 7 of DebtRecovery Act. This objection was overruled by the District Court.
The plaintiff moved in revision.
The Supreme Court is the apex Court, it is not open to the District Court todisregard the directions given by the Supreme Court.
When the Supreme Court has made order or has given a direction to ajudge of an inferior Court it is not for a suit or a Counsel to challenge suchan order on the basis that it is irregular or void or is ah invalid order. It willremain valid until it is set aside by the apex Court.
Per Wimalachandra, J.
"The said order was made by the Supreme Court with the agreement of partiesand the learned President's Counsel who was present did not object to thesaid directions being made by the Supreme Court – the District Court has nopower to review the order of the Supreme Court or to reject the defendant'sanswer.
APPLICATION in revision from an order of the District Court of Colombo.Cases referred to:
Jeyraj Femandopulle v Premachandra de Silva and Others 1996 1 SriLR 70 at 94.
Hadkinson v Hadkinson 1952 2 All ER 567 at 569.
Chuck v Cremer 7846 1 Coop. Hmp. Cott 342.
Isaacs v Robertson 1984 3 All ER 140.
Nigel Hatch PC with Ms. K. Geekiyanage for plaintiff-petitioner.
Nihal Fernando PC for 1 st defendant-respondent.
A.R. Surendran PC with K.V.S. Ganesharajah for 2nd defendant-respondent.
March 2, 2007WIMALACHANDRA, J.
The plaintiff-petitioner (plaintiff) has filed this application inrevision from the order of the learned Additional District Judge ofColombo dated 18.7.2005. The facts relevant to this application areas follows:
The plaintiff instituted action in the District Court of Colombobearing No. 969/DR against the 1st and 2nd defendant-
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respondents (defendants) under the Debt Recovery (Special *Provisions) Act No. 2 of 1990 as amended by Act No. 9 of 1994 torecover a sum of Rs. 50,763,293/66 jointly and severally togetherwith interest thereon at the rate of 20% per annum from18.07.2002. In the first instance the learned Judge entered adecree nisi and called upon the 1st and 2nd defendants to showcause against the said decree nisi. The defendants filed petitionand affidavit and sought leave to appear and defend. After aninquiry the learned Additional District Judge made an order on
granting the 1st and 2nd defendants leave to appear anddefend upon depositing a sum of Rs. 17 million as security. Beingaggrieved by the said order the 1 st and 2nd defendants filed twoseparate applications bearing No. CALA 48/2004 and 49/2004 inthe Court of Appeal. The Court of Appeal by order dated 14.6.2004allowed the applications made by the 1st and 2nd defendants andgranted unconditional leave to appear and show cause. Againstthat order the plaintiff preferred an application for special leave toappeal to the Supreme Court bearing No. SC (Spl.) LA 179/2004.
When the matter was taken up in the Supreme Court on
it appears that the parties had agreed to have thematter adjusted or comprised and the Supreme Court, accordinglymade the following order which reads as follows:
"It is agreed that the two defendants would be permitted toappear and defend the action in the District Court providedthat they deposit as security jointly sum of Rs. 6 millioncomposed of Rs. 3 million in cash and Rs. 3 million by anacceptable guarantee or guarantees, on or before 01.11.2004.The order of the District Court is amended accordingly. In theevent of such security being deposited, the District Court isdirected to grant time to file answer; in default steps would betaken according to law in the proceedings."
After the Supreme Court made the said order the parties wentback to the District Court. Upon providing the security as orderedby the Supreme Court, the defendants filed their answer as per theaforesaid consent order of the Supreme Court. The plaintiffobjected to the same being accepted by the learned District Judgeon the ground that the defendants were not entitled to file answerin this case in terms of Section 7 of the Debt Recovery (Special
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Provisions) Act as amended. However, the learned District Judgeby his order dated 18.7.2005 accepted the answers filed by thedefendants. The District Judge held that as the Supreme Court haddirected the Court to accept the answer upon the defendantsdepositing the security as stated in the order of the Supreme Court,the District Court has no power to override the direction given bythe Supreme Court. The present application in revision has beenmade against this order of the learned Additional District Judge ofColombo.
It is the position of the learned President's Counsel for theplaintiff that the Debt Recovery (Special Provisions) Act No. 2 of1990 (as amended) does not permit the filing of an answer. Thelearned Counsel contended that if the Court grants the defendantsleave to appear and defend, the provisions in Sections. 384 to 389will apply and there is no provision in the Act for a defendant to fileanswer.
The Supreme Court made the said order upon a compromise orafter an adjustment of the dispute between the parties, and theSupreme Court accordingly directed the learned District Judge toaccept the answers, provided the defendants deposit a sum ofRs. 6 million. It is to be noted that when the Supreme Court madethe said order the Counsel for both parties were present in Courtand Mr. Nigel Hatch himself was present in Court. It appears thatthe learned President's Counsel had without any demur acceptedthe order.
In my view as the Supreme Court is the apex Court, it is notopen to the District Court to disregard the directions given by theSupreme Court.
In the case of Jeyaraj FernandopuHe v Premachandra de Silvaand Others<1) at 94 it was held that when the Supreme Court hasdecided the matter is at an end, and there is no occasion for otherjudges to be called upon to review or revise the matter.
It was the contention of the learned President's Counsel for theplaintiff that the said order made by the Supreme Court is contraryto the provisions of the Debt Recovery (Special Provisions) Act, asthere is no provision in the Act to file answer. I am unable to agreewith the submissions of the learned Counsel for the plaintiff as the
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said order was made by the Supreme Court with the agreement ofthe parties and the learned President's Counsel who was present,did not object to the said directions being made by the SupremeCourt.
When the Supreme Court has made an order or has given adirection to a Judge of an inferior Court, it is not for a suit or aCounsel to challenge such an order on the basis that it is irregularor void or is an invalid order.
In the English case of Hadkinsort v Hadkinsorf2) at 569 it washeld that, it is the plain and unqualified obligation of every personagainst, or in respect of, whom an order is made by a Court ofcompetent jurisdiction to obey it unless and until that order isdischarged. The uncompromising nature of this obligation is shownby the fact that it extends even to cases where the person affectedby an order believes it to be irregular or even void in Chuck vCremeA3), Lord Cottenham, L.C., said:
"A party, who knows of an order, whether null or valid,
regular or irregular, cannot be permitted to disobey it
it would be most dangerous to hold that the suitors, ortheir solicitors, could themselves judge whether an orderwas null or valid – whether it was regular or irregular. Thatthey should come to the court and not take uponthemselves to determine such a question. That thecourse of a party knowing of an order, which was null orirregular, and who might be affected by it, was plain. Heshould apply to the Court that it might be discharged. Aslong as it existed it must not be disobeyed
The correctness of an order given by the apex Court cannot bedecided by an inferior Court. It will remain valid until it is set asideby the apex Court. It is the obligation of every person against or inrespect of, whom an order is made by a Court with competentjurisdiction to obey it unless and until that order is discharged.
In the Privy Council case of Isaacs v Robertson(4) Lord Diplockheld that the orders made by a Court of unlimited jurisdiction in theCourse of contentious litigation are either regular or irregular. If anorder is regular it can only be set aside by an appellate court; if it isirregular it can be set aside by the Court that made it on application
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being made to that Court either under rules of Court dealingexpressly with setting aside orders for irregularity or ex debitojustitiae if the circumstances warrant. In this case the Lord Diplockapproved the dictum of Romer L.J. in Hadkinson v Hadkinson(supra).
In the instant case, the Supreme Court adjusted the matter byagreement or compromise in the presence of the Counsel on bothsides and in terms of the compromise arrived at between theparties made the aforesaid order giving the directions to the DistrictJudge. In the case of Jeyaraj Fernandopulle v Premachandra deSilva and Others (supra) the Supreme Court held that a Court haspower to vary its own orders in such a way as to carry out its ownmeaning and where the language is doubtful to make it plain or toamend it. Accordingly, in the instant case if the plaintiff is of theview that the aforesaid order made by the Supreme Court isirregular he must apply to the Supreme Court which is entitled tovary the same. The District Judge is bound to carry out thedirections given by the Supreme Court and in this instance theAdditional District Judge cannot be blamed or faulted for complyingwith the directions given by the Supreme Court.
In any event I am of the strong view that the order made by theSupreme Court is in accordance with law. The Supreme Courtmade order that in the event the defendants deposit security, theDistrict Court is directed to grant time to file their answer, and indefault steps to be taken according to law. In my view this ordermust be sensibly interpreted. If the defendants deposit the securitythe defendants must be allowed to show cause why the decree nisishould not be made absolute. They can show cause by filing ananswer supported by an affidavit. Moreover, the plaintiff cannotchallenge the said order of the Supreme Court in theseproceedings when the plaintiff's Counsel who appeared in theSupreme Court did not object to the directions given by theSupreme Court. He has filed this revision application against theorder of the learned Additional District Judge. The District Court hasno power to review the order of the Supreme Court or to reject thedefendants' answers. Accordingly, the District Court was right inaccepting the defendants' answers. If the order made by theSupreme Court needs clarification, the plaintiff should have made
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an application to the Supreme Court for any such clarifications,
It is my further view that the order of the learned District Judgeis correct as the learned Judge had complied with the directionsgiven by the Supreme Court. It is not the function of this Court toreview the orders of the Supreme Court and it has no power to doso.
For the reasons stated above, I dismiss this application withcosts.
UNION BANK OF COLOMBO LTD. v. WIJAYAWARDANE AND ANOTHER