Sri Lanka Law Reports
[2007] 2 Sri L.R
Thus it will be seen that after the sale the petitioner-bank canretain only Rs. 33.25 million and any sum in excess of the Rs.33.25 million has to be deposited in the District Court. The Counselfor petitioner-bank submitted that the bank had to incur an amountof over Rs. 1.25 million to maintain and look after the saidproperties and the petitioner bank employed a security firm toprovide security to the said properties amounting to Rs.
1,394,191.35. The learned Counsel streneously contended that thepetitioner-bank is entitled to retain that sum paid to the securityagency, which the bank had incurred.
I am unable to agree with the submissions made by thelearned Counsel especially when the petitioner had agreed tolimit its claim to Rs. 33.25 million. Therefore in terms of thesettlement any sum over and above the said Rs. 33.25 millionwill have to be deposited in Court.
It is to be noted that the petitioner-bank by entering intothe said settlement had given a solemn undertaking toCourt to abide by the terms of the settlement. Once theterms of settlement as agreed upon are presented to Court,notified thereto and recorded by Court, a party cannot varythe terms of settlement to his benefit nor can he resile fromthe settlement.
A settlement recorded by the Court is a contractwhereby new rights are created between the parties insubstitution for, and in consideration of the abandonmentof the former claims or contentions of either or both ofthem. In terms of the settlement the Court can either givethe judgment or make order giving effect to the settlement.
It is settled law that once the terms of settlement as agreedupon are presented to Court, notified thereto and recorded byCourt, a party cannot resile from the settlement unless heestablishes that it was entered under duress, fraud or mistake.(See Sinne Vetoo v Messrs Upton Lfd.o), Lameer vSenaratnew. In the instant case the petitioner did not evenurge that the settlement was entered under any of thosegrounds referred to above.
Hatton National Bank Ltd. v Depositors Association of
K. A. Martin Perera and Sons and Another (Wimalachandra. J.)
In the circumstances, I am inclined to agree with thesubmissions made by the learned Counsel for the plaintiff-respondent that consequent to the said order made by thelearned Judge the petitioner-bank is obliged to deposit in Courta further sum of Rs. 1.25 million appropriated by the petitionerin violation of the terms of settlement dated 11.8.1999.
Admittedly, the petitioner-bank sold the said properties for asum of Rs. 37.50 million. In terms of the settlement, thepetitioner-bank is entitled to retain only 33.25 million. It is not indispute that the bank has deposited only Rs. 3 million.Accordingly it has no legal right to retain a further sum ofRs. 1.25 million for expenses incurred. It is to be noted that thesaid settlement neither provided for such expenses nor for anydelay on the part of the petitioner-bank in selling the properties.In violation of the terms of the settlement, the petitioner-bank,unilaterally, without the permission of Court, decided andretained Rs. 1.25 million which was over and above the sum ofRs. 33.25 million due to the petitioner-bank in terms of the saidsettlement.
In the circumstances, I am of the view that the learnedDistrict Judge was correct when she held that the parties arebound by the terms of the said settlement entered on11.8.1999.
Considering the facts and circumstances of this case, thereare no exceptional circumstances disclosed as to the illegalityof the order made by the learned Judge which has deprived thepetitioner of some right, it is to be noted that revision is adiscretionary remedy and will not be available unless theapplication discloses circumstances which shock theconscience of Court. Therefore, I see no illegality whatsoeverin the matter pleaded by the Counsel for the petitioner withregard to the impugned order.
For the reasons stated above I am of the view that there isno reason to interfere with the order of the learned DistrictJudge dated 21.9.2005. Therefore, the said order is hereby,affirmed and the application in revision is dismissed with costsfixed at Rs. 7500/=.
Sri Lanka Law Reports
{2007] 2 Sri L.R
Both parties had agreed to abide by the decision in thisapplication, in the leave to appeal application CALA No.399/2005 as well. As such, that application too is also pro-forma dismissed.
Application dismissed.