016-SLLR-SLLR-2005-V-2-JAYAWARDENA-AND-OTHERS-vs-SAMPATH-BANK.pdf
CA Jayawardena and Others us Sampath Bank (Gamini Amaratunga, J) 8 3
JAYAWARDENA AND OTHERSVSSAMPATH BANKCOURT OF APPEALAMARATUNGAJWIMALACHANDRAJCALA APPL.416/2003D.C.COLOMBO 6468/SPLOCTOBER 22, 2004NOVEMBER 1,2004
Recovery of Loans by Banks (Special Provisions) Act 4 of 1990 – Section 15,15(2), 16(1) – Civil Procedure Code – cap. 24-Parate Execution – Bank purchas-ing property '- application to District Court to obtain possession under Sum-mary Procedure – Decree Nisi made absolute – is it a Interlocutory Order ?
On the Preliminary Objections raised :
Held:
Section 16 of the Recovery of Loans by Banks Act does not provide thatan appeal direct or with leave is available against an order under Sec-tion 16 – Order to obtain delivery of possession of the property pur-chased at the auction.
A right of appeal must be specifically provided for. In the absence of aspecific right of appeal and in the absence of any provision in the Actincorporating the provisions of the civil procedure code, there is noright to make an application for Leave to Appeal.
Quarere
Since Section 16 by reference incorporates Cap. 24 of the civilprocedure code – Does a Direct appeal lie?
APPLICATION for Leave to Appeal from an Order of the District Court ofColombo.
Case Referred to:
1. Martin vs Wijewardena -1989 – 2 Sri LR 409
Ikram Mohamed P.C., with Thisath Wijegunawardena and M.C.M. Muneerfor Petitioner.
S4
Sri Lanka Law Reports
(2005) J Sri L. R.
Palitha Kumarasinghe with H. Wijegunawardena for the Respondent
cur .adv. vult.
July 11,2005Gamini Amaratunga J.
This is an application for leave to appeal against an order made bythe District Court of Colombo under section 16 of the Recovery of LoansBy Banks (Special Provisions) Act No. 4 of 1990. The 1st and 2nd peti-tioners mortgaged to the respondent Bank, premises No. 87, belonging tothe 1st petitioner, as security for a loan obtained by the 3rd petitionercompany. When the 3rd petitioner company defaulted to pay the loan, theBoard of Directors of the respondent Bank adopted a resolution under andin terms of Act No. 4 of 1990 to sell the mortgaged property by publicauction.
At the auction the respondent Bank itself purchased the property.Thereafter in terms of section 15 of Act No. 4 of 1990, a certificate of salewas signed by the Board of Directors of the respondent Bank. In terms ofsection 15(2) such certificate is conclusive proof with respect to the saleof the property. Thereafter the respondent Bank, under section 16(1) ofAct No. 4 of 1990 made an application to the District Court of Colombo toobtain an order for the delivery of possession of the property purchasedby it at the auction. This application was made by way of summaryprocedure under Chapter 24 of the Civil Procedure Code.
The learned District Judge having considered the application issueda decree nisi. After it was served on the petitioners, they appeared andraised certain legal objections and the learned judge having consideredthe submissions, made the decree nisi absolute. The petitioners now seekleave to appeal.
The learned counsel for the respondent Bank raised a preliminaryobjection to the effect that there is no right to make a leave to appealapplication against an order made under section 16 of Act No. 4 of 1990.The Act No. 4 of 1990 had been passed in order to permit the Banksdefined in it to resort to parate execution to recover the loans granted bythose Banks. The Act does not contain a provision bringing in the
CA
Jayawardena and Others vs Sampath Bank (Gamini Amaratunga, J)8 5
provisions of the Civil Procedure Code to cater to situations not covered bythe provisions of the Act. Section 16 enables a purchaser to apply to theDistrict Court to obtain an order for the delivery of possession. That is theonly instance under the Act where recourse to ordinary courts is permis-sible. Section 16 or any other provision of Act No. 4 of 1990 do not providethat an appeal, direct or with leave, is available against an order madeunder Section 16. A right of appeal must be specifically provided for. Sucha right cannot be. implied. Martin vs. Wijewardana('K In the absence of aspecific right of appeal given by Act No. 4 of 1990 and in the absence ofany provision in Act No. 4 of 1990 incorporating the provisions of the CivilProcedure Code, there is no right to make an application for leave toappeal. Accordingly l uphold the preliminary objection.
One may argue that since section 16 of Act No. 4 of 1990, by refer-ence incorporates chapter 24 of the Civil Procedure Code, a right of appealis available against an order absolute entered under that chapter. An orderabsolute entered under section 387 of the Code is a final order. In thatevent the proper remedy is not an application for leave to appeal but adirect appeal.
For those reasons I hold that the petitioners’ leave to appeal applica-tion is misconceived in law. I therefore dismiss the application with costsin a sum of Rs. 10000.
WIMALACHANDRA J. — I agree,
Preliminary objection upheld. Application dismissed.