011-SLLR-SLLR-2006-V-2-ANULAWATHIE-MENIKE-vs.-ABAYARATNE.pdf
CA
Anulawathie Menike Vs Abhayaratne
71
ANULAWATHIE MENIKEVSABHAYARATNECOURT OF APPEALSOMAWANSA. J. (P/CA) ANDEKANAYAKE. J.
CA 247/91 (F).
DC KEGALLE 2591/L.
MARCH 17, 2006.
Debt Conciliation Ordinance, sections 17, 18, 22, 30, 49 and 56 – Conditionaltransfer – Time limit to make an application ? – Settlement before Board -Application outside the time limit – Submitting to jurisdiction?-Challengingjurisdiction in appeal – Permissibility?
The plaintiff – respondent instituted action seeking to enforce an order made bythe Debt Conciliation Board (DCB) to re-transfer the property in suit which wastransferred to the defendant – appellant on a conditional transfer. The DCBafter inquiry entered a settlement in terms of section 30. The plaintiff – respondentcomplained to the DCB that his attempts to pay the 1 st instalment as per thesettlement failed as the appellant refused to accept same. The DCB instructed2- CM 8092
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the plaintiff respondent to institute action in the District Court to get an order ofenforcement.
The appellant in the District Court took up the position that the settlement wasbad in law and the application made to the Board has not been made withinthe stipulated time limit set out by law. The District Court held with the plaintiff-respondent. On appeal the appellant contended that since the respondentfailed to make the application to the D. C. B. within the time specified – 30 days-section 19(A)(1)-the application ought to have been dismissed in limine.
HELD:
The DCB had jurisdiction to inquire into matters of this nature generallyand therefore the Board was acting within its jurisdiction. In such asituation irregular exercise of jurisdiction can be waived by the parties
♦ which is exactly what the appellant had done, for the appellant did nottake any steps to get the certificate issued on the basis of the settlemententered into by both parties, cancelled.
It is trite law that issues relating to fundamental jurisdiction of the CourtTribunal to hear and determine a matter must be taken at the earliestopportunity and must be expressly set out. Therefore the appellant havingtaken no objection to the validity of the application and also havingsubmitted to the jurisdiction of the Board and in fact having taken onestep further by entering into a settlement, she cannot now be heard tosay the DCB acted beyond its jurisdiction or the settlement entered interms of section 30 is bad in law.
In any event-
Section 19 A does not refer to any consequences if it is not complied with.
As the trial judge has accepted the evidence of the respondent as havingbeen corroborated by the evidence of the Grama Sevaka, there was noreason to disagree with her, for it is well established that findings ofprimary facts by a trial judge who hears and sees witnesses are not tobe lightly disturbed in appeal.
APPEAL from the judgment of the District Court of Kegalle.
Cases referred to :
T. Praisoody vs. K. Gurunathepillai 74 NLR 567
Hilda Perera vs. Lawrence Perera 67 NLR 186
CA Anulawathie Menike vs Abhayaratne (Andrew Somawansa, J. (P/CA))73
Bastianpiltai Antonipillai Swamipillai and Another vs. K. GunaratnamCA 649/80 (F) DC Jaffna MB/447 CAM 17.11.1993
W. Robinson Fernando, v. Henrietta Fernando 74 NLR 57
H. G. Dharmadasa for appellant.
Rohan Sahabandu with Athula Perera for respondent.
Cur.adv.vult.
March 17,2006
ANDREW SOMAWANSA, J. (P/CA)The plaintiff – respondent instituted the instant action in the DistrictCourt of Kegalle seeking to enforce an order made by the Debt ConciliationBoard to re-transfer the property in suit to the plaintiff – respondent whichwas transferred to the defendant-appellant on a conditional transfer.
The position taken by the plaintiff – respondent (hereinafter called therespondent) is that on 19.06.1979 he made a conditional transfer of apaddy land to the defendant – appellant (hereinafter called the appellant)for a consideration of Rs. 5,000. The condition of the transfer was for theappellant to re-transfer the property to the respondent within a period oftwo years upon payment of Rs.9,200 by the respondent to the appellant.
As the respondent could not redeem the said property within the periodas stipulated in the conditional transfer, he had written to the DebtConcilliation Board seeking its intervention. The Debt Conciliation Boardafter holding an inquiry entered a settlement in terms of section 30 of theDebt Concilliation Ordinance. In terms of the settlement the respondenthad to pay to the appellant Rs.9700 in three installments the first of whichhad to be paid on or before 22nd January 1982.
The respondent made complaints to the Debt Conciliation Board thathis attempts to pay the 1 st installment as per the settlement failed as theappellant refused to accept the same. Thereafter on the instructions of theDebt Conciliation Board action was instituted in the District Court to obtainan order to enforce the order of the Debt Conciliation Board.
The appellant took up the position that the respondent failed to pay thefirst installment on the due date as per the settlement arrived at the
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Conciliation Board. She also took up the position that the settlement by theDebt Conciliation Board was bad in law, as the application made to theBoard by the respondent had not been made within the stipulated time limitset out by law. The appellant further took up the position that the applicationto the Board by the respondent had not been made according to law.
At the conclusion of the trial, the learned District judge by her judgmentpronounced on 21.06.1995 held with the respondent. It is from this judgmentthat the appellant has preferred this appeal.
When the appeal was taken up for argument, the only issue raised bythe counsel for the appellant was that since the respondent failed to makehis application within the time frame specified in the Debt ConciliationOrdinance viz: one month before the expiry of the conditional transfer, theDebt Conciliation Board had no jurisdiction to entertain or to make anorder and issue a certificate. Hence the said certificate is null and void andcannot be enforced. The appellant did not challenge the correctness of thejudgment on the facts. However counsel for the appellant has in his writtensubmissions referred to facts regarding the attempt to pay back the moneywhich I would deal with later.
It is submitted by counsel for the appellant that the Debt ConciliationBoard acted beyond its jurisdiction in that the settlement made by theDebt Conciliation Board in terms of section 30 of the Debt ConciliationOrdinance is bad in law. He submits that in terms of section 19A of theDebt Conciliation Board Ordinance an application to the Board has to bemade at least 30 days before the expiry of the period in the conditionaltransfer and that in view of the words used in the aforesaid section 19A(1): “The Board shall not entertain an application… unless that application ismade at least 30 days before the expiry of the period”. An application notmade within that stipulated period would be fatal.
In the instant action the conditional transfer had been made on19.06.1979 and the two year period within which the property may havebeen redeemed would have expired on 18.06.1981. Therefore in terms ofsection 19A(1) of the Debt Concilliation Ordinance the application to theBoard should have been made on or before 18.05.1981. Evidence of theofficer from the Debt Conciliation Board reveals that the Board received aletter sent by the respondent on 25.05.1981 though it was dated as
CA Anulawathie Menike vs Abhayaratne (Andrew Somawansa, J. (P/CA))75
Since this letter did not comply with the requirements of anapplication in terms of section 17 of the Debt Conciliation Board Ordinancethe Board had sent him a set of application forms by registered post. TheBoard had received this set of application forms perfected by the respondenton 16.06.1981 that is only 2 days prior to the expiry of the period withinwhich the property should have been redeemed by the respondent. Even if
the date to which the respondent’s letter was received istaken as the date the application was made, it is still one week short ofthe period stipulated under section 19A(1) of the Debt ConciliationOrdinance. Accordingly counsel submits that the questions to bedetermined in this appeal are:
when is an application deemed to have been made in the instantaction in terms of section 19A(1)?
whether the Debt Conciliation Board has acted exceeding itsjurisdiction in entertaining an application that was not made withinthe stipulated time limit under section 19A(1)?
Counsel submits that the question (a) has been decided in the caseT. Praisoody vs. K. Gurunathapillai 74 and Hilda Perera vs. LawrencePerera ('>(2) wherein it was held that the date an application is deemed tohave been made is the date that it had been received by the Board.
With reference to question (b) he again cited the aforesaid case ofPraisoody vs. Gurunathapillai (supra). Therefore he submits the DebtConcilliation Board in entertaining the application that did not fall withinsection 19A(1) of the Debt Conciliation Ordinance, /. e. an application notmade within 30 days before the expiry of the period, had acted in excessof its jurisdiction. Therefore the settlement entered under section 30 onsuch application is bad in law and what flows from it also is bad in law.
Section 19A(1) of the Debt Conciliation Ordinance reads as follows ”:
“The Board shall not entertain any application by a debtor orcreditor in respect of a debt purporting to be secured by anysuch conditional transfer of immovable property as is a mortgagewithin the meaning of this Ordinance unless the application ismade at least thirty days before the expiry of the period within
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which the property may be redeemed by the debtor by virtue ofany legaliy enforceable agreement between him and his creditor
It is to be noted that Somasiri an officer attached to the Debt ConciliationBoard who was called as a witness by the appellant admitted that theyaccepted the letter sent by the respondent and issued a set of printedforms to the respondent to fill up and return. At this point, it is useful toconsider section 22 of the Debt Conciliation Ordinance which reads asfollows:
“The Board may, if it is of opinion that any application issubstantially defective in any of the particulars required by section17 or section 18 return the application and order that it be amendedwithin such time as may be fixed by the Board. If the applicationis not amended as ordered by the Board it shall be deemed tohave been withdrawn by the applicant”.
Another very relevant section in the Debt Concilliation Ordinance to theissue at hand is section 49 of the said Ordinance which has given a widediscretion to the Board which reads as follows :
“It shall be the duty of the Board to do substantial justice in all matterscoming before it without regard to matters of form”
It is interesting to note that the appellant had submitted to the jurisdictionof the Board and in fact entered into a settlement. The jurisdiction of theBoard to entertain, inquire into and determine the respondent’s applicationwas not challenged in any way. No objection was taken to the validity ofthe application or the proceedings. It is trite law that issues relating to thefundamental jurisdiction of the Court or the tribunal to hear and determinea matter must be taken at the earliest opportunity and must be expresslyset out. Therefore the appellant having taken no objection to the validity ofthe application made by the respondent and also having submitted to thejurisdiction of the Board and in fact having taken a step further by enteringinto a settlement the appellant cannot now be heard to say that the DebtConciliation Board acted beyond its jurisdiction or the settlement enteredinto between the two parties in terms of section 30 of the Debt ConciliationOrdinance is bad in law. Furthermore accepting and admitting thesettlement before the Debt Conciliation Board the appellant as well as the
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Anulawathie Menike vs Abhayaratne (Andrew Somawansa, J. (P/CA))77
respondent have waived off their rights to challenge any lack of latentjurisdiction (if any) of the Board to follow any procedure.
In BastianpillaiAntonipillaiSwamipillai and Another vs. K. Gunarathnamand Others decided by S. Anandacumaraswamy, J and P Edussuriya, J.Anandacoomaraswamy, J stated ‘The only question before us is whetherthe plaintiffs followed the correct procedure and instituted the correct action.Under the provisions of the Debt Conciliation Ordinance where thesettlement is effected between the parties it is final and the debt becomesmerged in the settlement and the rights of the creditor is deemed to subsistunder the settlement. The learned counsel for the appellants submittedthat even assuming that the hypothecary decree can be entered in thiscase the purported hypothecary decree is null and void as statutoryprocedure had not been followed. This submission was not made earlierand it is taken for the first time in appeal. It is therefore not open to thedefendants to complain of this irregularity if any now”.
In the case of Robinson Fernando vs. Henrietta Fernando it was held:
“Having regard in particular to the prejudice to the plaintiff and the latestage at which the amendment of the answer was sought to be made, thedefendant was precluded by delay and acquiescence from raising theobjection to jurisdiction and that she had in fact waived it”.
It is to be seen that the Debt Conciliation Board had jurisdiction toinquire into matters of this nature generally and therefore the Board wasacting within its jurisdiction. In such a situation irregular exercise ofjurisdiction can be waived by the parties which is exactly what the appellanthad done, for the appellant did not take any steps to get the said certificateissued on the basis of the settlement entered into by both parties cancelled.In fact neither did the appellant take any objection to the settlement or tothe certificate issued thereafter nor did he institute an action to have theaforesaid certificate cancelled until the respondent instituted the instantaction.
It is interesting to note the procedure as prescribed in section 56 of theDebt Conciliation Ordinance which provides that no civil Court has theright to revise any decision made by the Debt Conciliation Board. Section56 which deals with ‘Bar of Civil actions’ reads as follows :
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'No civil court shall entertain any action in respect of –
any matter pending before the Board: or
the validity of any procedure before the Board or the legality ofany settlement”.
After the settlement and issuance of the certificate upon the settlementin the present case, if the appellant wished to challenge the said settlementor procedure followed by the Debt Conciliation Board Act, the only remedyavailable for the appellant was to challenge the same by way of a writwhich the appellant has failed to do.
In any event, section 19A does not refer to any consequences if it is notcomplied with. It does not state that the order is illegal, unlawful or void.Thus giving the impression that parties could waive their right to object ifany, and what becomes material is the intention of the parties as in theinstant case to settle the dispute via Debt Conciliation Board.
Further, the appellant has not raised an issue either before the DistrictCourt or this Court that she entered into a settlement before the DebtConciliation Board upon duress, misdirection of fact or law or for any otherreasons.
In view of the appellant submitting to the jurisdiction of the Board notraising any objection whatsoever either to the validity of the application ofthe respondent or to the proceedings had at the Board and having enteredinto a settlement thereby waiving any lack of jurisdiction on the part of theBoard cannot rely on the decision in Praisody l/s. Gurunathapillai (supra)or Hilda Perera vs. Lawrence Perera (supra) wherein the facts could bedistinguished for unlike in the present application, in those two casesproceedings were pending at the Board when a party came to court whereasin the instant application the parties had submitted themselves to thejurisdiction of the Board without any objections and the parties havingcome to a settlement and thus had come to Court after the proceedingsin the Board was concluded and the certificate issued. In the circumstancesit appears to me that the learned District Judge has come to the correctfindings and conclusion in her judgment regarding the issues relevant tothe jurisdiction or proceedings of the Debt Conciliation Board and there is
CA Anulawathie Menike vs Abhayaratne (Andrew Somawansa, J. (P/CA))79
no reason to interfere with the judgment of the learned District Judge,Kegalle.
As for facts regarding the attempt to pay back the money, evidence ofthe respondent reveal {hat he sent two people to make the payment incompliance with the settlement entered into at the Board, but the appellanthad refused. The first person to be sent to make the payment was hisuncle on 16.01.1982 but the appellant refused to accept the payment.However this uncle of his was not called to give evidence and the appellantdenied that an uncle of the respondent came to her house on 16.01.1982to made the payment. Counsel for the appellant submits that therespondent’s evidence to the effect that he sent his uncle to make thepayment is not corroborated and as the uncle did not give evidence it isonly hearsay and has no evidentiary value. However the second personthrough whom the respondent attempted to make the payment the GramaSevaka of the area was called to give evidence and he in fact corroboratedthe evidence of the respondent.
Counsel for the appellant sought to make out that the evidence givenby the respondent is contradicted by the evidence of the Grama Sevaka.He submitted that though the respondent in his evidence and in her petitionfiled in Court states that he handed over the money to the Grama Sevakato be taken with him when he went to meet the appellant, the GramaSevaka has categorically denied this. This submission appears to beincorrect for the evidence of the respondent as well as the Grama Sevakawas that though the respondent wanted to hand over the money to theGrama Sevaka to be taken with him to make the payment the GramaSevaka did not accept the money but informed the respondent that hewould first go to the house of the appellant and inquire from her as towhether she is willing to accept the money.
According to the evidence of the Grama Sevaka he did go to the houseof the appellant on 21.01.82 and this fact is admitted by the appellant.Grama Sevaka goes on to say that he did inquire from the appellant whethershe is willing to accept the money, but the appellant has refused toaccept the money and this fact was conveyed by him to the respondent.However the position of the appellant is that though the Grama Sevaka didcome to her house on 21.01.1982 it was to inquire into a complaint madeby the respondent and that the Grama Sevaka did not hand over the money.
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The learned District judge has accepted the evidence of the respondent ashaving been corroborated by the evidence of the Grama Sevaka and I haveno reason to disagree with her. For it is well established that findings ofprirmary facts by a trial judge who hears and sees witnesses are not to belightly disturbed in appeal. VideAlwis vs. Piyasena Fernando(s)
For the foregoing reasons, I see no basis to interfere with the judgmentof the learned District Judge and accordingly the appeal will stand dismissedwith costs fixed at Rs. 15,000.
EKANAYAKE, J, — / agree.
Appeal dismissed.