015-SLLR-SLLR-1991-V2-IRANGANIE-V.-ABEYRATNE-AND-OTHERS.pdf
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Seetha Weerakoon v. O.l.C. Mahendra, Police Station,
Galagedera and Others (Kulatunga, J.)183
IRANGANIE
V.
ABEYRATNE AND OTHERS
COURT OF APPEAL.
S. N. SILVA, J.
C. A. APPLICATION NO. 464/82.
APRIL 04, MAY 24, AUGUST 20 AND SEPTEMBER 08, 1991.
Certorari – Debt Conciliation Ordinance – Debtor – Agent of Debtor.
An application could be made to the Debt Conciliation Board only by adebtor or secured creditor as defined in section 64 of the Debt ConciliationOrdinance. The application should be in writing and signed by the debtor orthe secured creditor, as the case may be. Such an application could not bemade on behalf of a debtor or a creditor by any person claiming to be anagent or representative. Where an application has not been made by a deb-tor or a creditor as provided there is no valid invocation of the jurisdictionof the Board and the steps taken by the Board upon such application arenull and void and of no effect in law. Since there is no valid application, it isnot open to make an amendment to bring in a person who could validlymake an application, at a later stage.
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The provisions of the Civil Procedure Code regulate the procedure inCivil courts. They would not be applicable to proceedings in statutory tribu-nals such as the Debt Conciliation Board, unless express provision is made tothat effect. The Civil Procedure Code only regulates proceedings in civilactions. It does not give any person a right to invoke the jurisdiction of acivil court. The question whether a person has a cause of action on the basisof which an action could be filed under the Civil Procedure Code, has to bedetermined on the basis of the applicable substantive law. The substantivejurisdiction of the courts is also not laid down in the Civil Procedure Code.On the other hand, the Debt Conciliation Ordinance gives a statutory rightto certain limited categories of persons to invoke the jurisdiction of theBoard with regard to particular transactions. The jurisdiction of the Board,the procedure and the manner in which that jurisdiction copld be invokedand exercised are all laid down in the Ordinance. In the circumstances anyattempt to apply section 13 (wrong plaintiff) or 18 (addition of parties) ofthe Civil Procedure Code to applications and proceedings before the Boardwould be totally inappropriate.
Case referred to:
1. The Board of Trustees of the Tamil University Movement v. De Silvaand Another, Srikanthas’ Law Reports Vol. 1 p. 63-
APPLICATION for Writ of Certiorari to quash the decision of the DebtConciliation Board.
Faiz Musthapha P.C. with Gaston Jayakody for petitioner.
K. Balapatabendi for 1st, 7th, and 8th respondents.
Cur. adv. vult.
October 18, 1991.
S. N. SILVA, J.
The 7th Respondent Siobel Nona and her husband Nobo-singhe Appuhamy (deceased) were the owners of an undividedl/4th share of a paddy field called “Hathpatha Kumbura” ofabout two bushels paddy sowing extent. By deed No. 12309dated 23-11-1974 and attested by A. Senanayake, Notary Pub-lic (PI) they transferred this paddy field to the Petitioner for a
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consideration of Rs. 2000/-. The transfer was subject to thecondition that if the transferors paid the sum of Rs. 2,000/- tothe Petitioner within a period of five years of the date of thedeed of transfer, the Petitioner will re-transfer the paddy field.The Petitioner got possession of the paddy field according tothe deed of transfer.
On 16-10-1979 one R. P. Abeyratne, a son-in-law of thetransferors made an application under section 14(1) of theDebt Conciliation Ordinance for a settlement of the debtunder the said conditional transfer. On 27-11-1979 it appearsthat the Chairman of the Debt Conciliation Board sought tomake an amendment to this application by bringing in thenames of the transferors, as applicants, in place of R. P. Abey-ratne. Thereafter the Board decided to return the applicationfor amendment. The amended application has according to theproceedings been forwarded to the Board on 20-01-1981. Inthis application, the 7th and 8th Respondents have been addedas applicants. The matter came up for inquiry on 05-08-1981.The Petitioner objected to the amendment. The Board consi-dered the submissions made on behalf of the parties and by itsorder dated 19-01-1992 accepted the amendment. On the sameday the inquiry was concluded by the Board and a certificatewas granted in respect of the debt secured by the said condi-tional transfer. This application has-been filed for Writs ofCertiorari to quash the said decisions of the 2nd to 6thRespondents (constituting the Board), dated 19-01-1982.
It is common ground, that by the time the amended appli-cation was received the period provided for in section 19A(1)of the Ordinance before which an application should be madeto the Board had lapsed. Therefore, the main question to bedetermined is whether the application dated 19-10-1979 madeby R. P. Abeyratne could be considered as a proper invocationof the jurisdiction of the Board and whether an amendment ofthat application is permitted in law.
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Learned President’s Counsel for the Petitioner submittedthat the said R. P. Abeyratne is not a debtor within the mean-ing of section 14(1) read with the interpretation of the term‘debtor’ in section 64 of the Ordinance. Therefore, he had nolegal status or locus standi to make the application. That, theBoard acted without jurisdiction in permitting an amendmentwhere there was in law no application pending before it.
Learned Counsel for the 7th and 8th Respondents submit-ted that there is no provision in the Ordinance with regard tosubstitution or addition of parties and the matter should beconsidered in the light of section 18 of the Civil ProcedureCode. It was submitted that in terms of section 13 of the CivilProcedure Code, a Court is empowered to permit a substitu-tion of the plaintiff in an action where it has been instituted inthe name of the wrong person. In any event, it was submittedthat the Board had inherent jurisdiction to permit the additionof the 7th and 8th Respondents as applicants, in the interest ofjustice.
The Board relied on the following grounds to hold that theapplication was made within the time provided for in section19A(1).
They are:
that the application was made on 19-10-1979 by R. P.Abeyratne as an agent of the debtors and that heapprised the Board of the existence of the debt;
that the application was returned for amendment undersection 22, to include the names of the debtors as appli-cants;
that the amendment whereby the 7th and 8th Respond-ents were brought in as debtors; although received afterthe period within which an application could be made,dates back to the original application made by Abey-ratne;
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that the amendment does not alter the cause of actionand that it should be accepted since it had not beenmade malafide;
that the Board should not have regard to matters ofform but must do substantial justice.
I will now consider these grounds and the submissions oflearned Counsel, in the light of the applicable provisions of theDebt Conciliation Ordinance. The Debt Conciliation Ordi-nance introduced a statutory scheme as a departure from thegenerally applicable law and regular actions in the ordinaryCourts, intended to provide for a settlement of certain catego-ries of debts. Section 14 gives a right to a debtor or a securedcreditor to make an application to the Board to effect a set-tlement of debts. An amendment was effected in 1959 wherebythe application of the Ordinance was extended to money dueupon conditional transfers as well. This amendment alsointroduced section 19A(1) which provides that the Board shallnot entertain any application by a debtor or a creditor inrespect of such a conditional transfer unless that application ismade at least 30 days before the expiry of the period withinwhich the property may be redeemed by the debtor.
The mode of making such an application by a debtor or acreditor is expressly provided for in the Ordinance. Section 15requires that an application shall be in writing and signed bythe applicant.
The contents of an application are set out in section17(l)(a) to (g). Further particulars to be furnished may beprovided for by regulation. Section 17(l)(a) provides that theapplication should contain the name, description and place ofresidence of the applicant. The other particulars relate to thedebts in respect of which relief is sought, debts that are duefrom the applicant and particulars of the movable and immov-able properties of the applicant.
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Section 15 requires the application to be supported by anaffidavit as constituting prima facie proof of the material factsset out in the application. Section 16 is descriptive of thenature of the required affidavit.
The word “debtor” is defined in section 64 as follows:“debtor” means a person —
who has created a mortgage or charge over anyimmovable property or any part thereof, and
whose debts in respect of such property exceed theprescribed amount, and includes the heirs, executorsand administrators of such person”.
It is significant that the word “debtor” is defined by theuse of the word “means”. It follows that the word is therebyrestricted to the scope indicated in the definition section(Maxwell on Interpretation of Statutes, 12th Edition page 270).The phrase “secured creditor” is also similarly defined usingthe word “means”. By these definitions the legislature res-tricted the categories of persons who could make applicationsto the Board for relief.
It has never been contended that R. P. Abeyratne is a deb-tor as defined in section 64. Therefore, the question that comesup for consideration is whether the application could be madeby him as an agent of the debtors. It has to be observed thatthere is no reference to an agent in the provisions referredabove with regard to the making of an application and thedefinition of the word “debtor”. When these provisions areconsidered as a whole, the inference1 that has to be drawn isthat an application may be <made only by a debtor or a securedcreditor and that the application should be signed by suchdebtor or secured creditor, as the case may be. If the legisla-ture intended to permit an agent to make such an applicationon behalf of a debtor or a creditor, it would have done so byincluding specific provision to that effect. Indeed, provisions
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have been made with regard to certain matters where a debtoror a creditor could be represented by an agent. I refer to sec-tion 51 of the Ordinance which provides that any party mayappear in proceedings before the Board inter alia, by “anagent authorised in writing”. Section 38 provides that "a dulyauthorised agent of any debtor or creditor may consent to any
settlement on behalf of that debtor or creditor
andthe settlement shall be binding on that debtor or
creditor, as the case may be”. The existence of these provisionswhich expressly deal with situations where a duly authorisedagent could represent and act for a party shows that the legis-lature did not intend an application to be made on behalf of aparty by an agent. If such a matter was considered necessarythe legislature would have, to say the least, provided that theagent making an application on behalf of a debtor or a credi-tor should have written authority, as stated in the two sectionsreferred above. Therefore, the principle ground relied upon bythe Board that the application was made by an agent of thedebtor is entirely untenable.
The other grounds relied upon by the Board relate to thematter of amendment. It appears that the application wasreturned for amendment under section 22 of the Ordinance.This section clearly limits the particulars that could be the sub-ject of amendment. They are “the particulars required by sec-tion 17 or section 18These two sections relate to the
particulars that should be contained in an application. It isclear that such an amendment could be made only if there is avalid application before the Board. I am inclined to agree withthe submissions of learned President’s Counsel for the Peti-tioner that the purported application made by R. P. Abeyratnemade on 16-10-1979 is not a valid invocation of the jurisdic-tion of the Board. The application should not have been enter-tained by the Board at the outset. The Board was clearly inerror when it considered this matter as one relating to form. Itis really a matter on which the jurisdiction of the Boarddepends. If the jurisdiction of the Board is invoked by a per-
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son who is not entitled to make an application under section14 of the Ordinance, the steps taken upon such a purportedapplication are void and are of no consequence in law. There-fore the purported amendment effected after the period withinwhich an application could be made under section 19A(1) is ofno effect in law and could confer no jurisdiction on the Boardto entertain that application. Since the matter relates to aquestion of jurisdiction, the equitable considerations referredby the Board in its order and learned Counsel for the 7th and8th Respondents do not arise for consideration.
Learned Counsel for the 7th and 8th Respondents relied onthe provisions of section 13 and 18 of the Civil ProcedureCode. Section 13 deals with a situation where an action hasbeen instituted in the name of the wrong person as plaintiff. Itempowers the Court in such a situation to substitute the cor-rect person as the plaintiff.
It has to be noted that the provisions of the Civil Proce-dure Code regulate the procedure in civil courts. They wouldnot be applicable to proceedings in statutory tribunals such asthe Debt Conciliation Board unless express provision is madeto that effect. Indeed, section 50 of the Ordinance provides forthe application of certain provisions of the Civil ProcedureCode to proceedings before the Board. In the absence of anysuch provisions it would not be open to apply section 13 or 18of the Civil Procedure Code in relation to proceedings beforethe Board. There is also another matter that militates againstthis submission of learned Counsel. The Civil Procedure Codeonly regulates proceedings in civil actions. It does not give anyperson a right to invoke the jurisdiction of the Court. Thequestion whether a person has a cause of action on the basisof which an action could be filed under the Civil ProcedureCode, has to be determined on the basis of the applicable sub-stantive law. The substantive jurisdiction of the civil courts isalso not laid down in the Civil Procedure Code. Section 9 ofthe Code specifies the grounds on which territorial jurisdiction
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is determined. On the other hand the Debt Conciliation Ordi-nance gives a statutory right to certain limited categories ofpersons to invoke the jurisdiction of the Board with regard toparticular transactions. The jurisdiction of the Board, theprocedure and the manner in which that jurisdiction could beinvoked and exercised are all laid down in the Ordinance. Inthe circumstances any attempt to apply section 13 or 18 of theCivil Procedure Code to applications and proceedings beforethe Board would be totally inappropriate.
Learned Counsel for the 7th and 8th Respondents alsorelied on the judgement of this Court in the case of The Boardof Trustees of the Tamil University Movement vs de Silva andAnother, (1). The case relates to an application to the LabourTribunal made by a trade union in respect of the terminationof service of ten workmen. A preliminary objection was takenthat the application was not properly constituted because theTamil University Movement was not a legal or natural person.At that stage an application was made by the trade union forthe amendment of the caption by substituting the Board ofTrustees. Learned President allowed the amendment subject toobjection. A petition was then filed in this Court for a Writ ofCertiorari to quash that order. Soza, J. in his judgement heldthat the error in the caption is one of “name and descriptionand not of identity . Hence it is permissible to amend the cap-tion so as to substitute in the room of the erroneously des-cribed respondent, the correct respondents”. Thus it is seenthat there was a valid application to the Labour Tribunal inthat case made by a party entitled to present such application.The error was in the description of the respondent. Therefore,the judgement is no authority for the proposition that where aperson who is not entitled to present>an application has doneso, the application could subsequently be amended by bringingin the persons who are entitled in law to make such applica-tion. The passage cited by learned Counsel in the judgementrelates to the procedure in civil actions where the main ques-tion relates to the cause of action upon which the action is
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instituted. I have already held that the provisions of the CivilProcedure Code in this regard are inappropriate in relation toapplications to the Debt Conciliation Board.
For the reasons stated above I do not see any merit in thegrounds relied upon by the Board and the submissions oflearned Counsel for the 7th and 8th Respondents. I hold thatan application could be made to the Debt Conciliation Boardonly by a debtor or a secured creditor as defined in section 64of the Debt Conciliation Ordinance. The application should bein writing and signed by the debtor or the secured creditor, asthe case may be. Such an application could not be made onbehalf of a debtor or a creditor by any other person claimingto be an agent or a representative. When an application hasnot been made by a debtor or a creditor as provided, there isno valid invocation of the jurisdiction of the Board and thesteps taken by the Board upon such application are null andvoid and of no effect in law. Since there is no valid applicationit is not open to make an amendment to bring in a person whocould validly make an application at a later stage. The Boardhas no jurisdiction to entertain such an application and itshould be rejected in limine.
I accordingly allow the application and grant to the Peti-tioner the reliefs prayed for in paragraph I and II of theprayer to the petition.
Application allowed-