002-SLLR-SLLR-2002-V-1-MAHAWELI-AUTHORITY-OF-SRI-LANKA-v.-UNITED-AGENCY-CONSTRUCTION-.pdf
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Sri Lanka Law Reports
[2002] 1 Sri L.R.
MAHAWELI AUTHORITY OF SRI LANKA
v.
UNITED AGENCY CONSTRUCTION (PVT) LTD
SUPREME COURTWADUGODAPITIYA, J.
EDUSSURIYA, J. ANDYAPA, J.
SC (LA) NO. 23/2001PROVINCIAL HIGH COURTNOS. HC/ARB/390/99 ANDHC/ARB/478/2000SEPTEMBER 25, 2001
Appeal – Appeal to the Supreme Court from an order of the High Court undersection 37 of the Arbitration Act, No. 11 1995 – Time to apply for leave to appeal.
An Award had been made in favour of the respondent on 4th October, 1999.The High Court made an order allowing enforcement of the Award on 18th May,2001 pursuant to an application made by the respondent in terms of section31 (1) of the Arbitration Act, No. 11 of 1995. The petitioner sought leave to appealto the Supreme Court from the order of the High Court, in terms of section37 (2) of the Act. The Counsel for the respondent raised a preliminary objectionthat the application had been filed 55 days after the order of the High Court andwas, therefore, out of time.
Held:
In the absence of any provision prescribing the time for an application for leaveto appeal under section 37 (2) or any rule made by the Supreme Court undersection 43 of the Act, the petitioner should make his application within a reasonableperiod; and 55 days from the order of the High Court cannot, in all the circum-stances, be considered to be a reasonable period.
APPLICATION for leave to appeal from the judgment of the Provincial High Court.Nihal Jayamanne, PC with Ananadalal Nanayakkara for petitioner.
Wijayadasa Rajapakse, PC with S. D. Yogendra for respondent.
Cur. adv. vult.
sc
Mahaweli Authority of Sri Lanka v. United Agency
Construction (Pvt) Ltd. (Edussuriya, J.)
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December 12, 2001.
EDUSSURIYA, J.
An arbitral award had been made in favour of the respondent to the ipresent application on 4th October, 1999. Thereafter, on 3rdDecember, 1999, the present petitioner had made an application to theHigh Court to have the arbitral award set aside.
The respondent had made an application to the High Court forenforcement of the arbitral award on the same day. The High Courthad pronounced its order allowing enforcement of the arbitral awardon 18th May, 2001. The petitioner then made the present applicationfor leave to appeal from the order of the High Court to this Courton 12th July, 2001.10
Learned President's Counsel for the respondent raised a prelimi-nary objection that the application for leave to appeal has been filed55 days after the order of the High Court and is therefore out of timeand should be rejected by this Court.
Learned President's Counsel for the respondent has submitted thataccording to Rule 7 of the Rules made by the Supreme Court thetime limt prescribed even for special leave to appeal is 42 days froman order or judgment of the Court of Appeal.
Learned President's Counsel for the respondent submitted that interms of section 41 a decree entered under section 31 (6) is deemed 20to be a decree entered under the Civil Procedure Code and on thatpremise went on to contend that any appeal lodged from such adecree should comply with the provisions of section 756 of theCivil Procedure Code as section 37 (2) of the Arbitration Act setsout that an appeal from an order of the High Court is availableonly with the leave of the Supreme Court, and therefore anapplication for leave to the Supreme Court should be filed within 14days of the pronouncement of the High Court order or judgment.
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Learned President’s Counsel for the respondent contended that
an application for leave should be made to the Supreme Court,in any event, within 42 days of the pronouncement of the judgmentor order of the High Court.
The first contention that an application for leave to appeal mustcomply with section 756 of the Civil Procedure Code is not tenable,inasmuch as section 41 of the Arbitration Act only refers to the modeof execution of a decree entered by the High Court under theArbitration Act and cannot be extended to include the provisionsrelating to appeals in the Civil Procedure Code. Besides, section 756relates to appeals to the Court of Appeal from judgments or ordersof the District Court.
Learned President's Counsel for the petitioner contended that norules had been made by the Supreme Court under section 43 of theArbitration Act although it was mandatory that rules should be madeand therefore, in the absence of rules prescribing the period withinwhich an application for leave to the Supreme Court should be filed,any such application for leave which is filed within a reasonable periodshould be entertained by the Supreme Court. Learned counsel alsosubmitted that Rule 7 referred to applications for special leave fromjudgments or orders of the Court of Appeal and as such had noapplicability to applications for leave to appeal under section 37 (2)of the Arbitration Act.
Learned President's Counsel for the petitioner also contended thatin arriving at "a reasonable period" for leave to appeal to the SupremeCourt, this Court should take into consideration the fact that a periodof 60 days of the receipt of the award has been prescribed bysection 32 of the Arbitration Act as the period within which anapplication to set aside an arbitral award should be made to theHigh Court. Learned counsel further contended that Court shouldalso bear in mind that a party in whose favour an award had beenmade should apply to the High Court within one year of the date of
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Mahaweli Authority of Sri Lanka v. United Agency
Construction (Pvt) Ltd. (Edussuriya, J.)
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the award, and on that premise submitted that in deciding what lengthof time is reasonable, that too should be taken into consideration.
Firstly, it must be said that section 43 of the the Arbitration Actdoes not make it mandatory for the Supreme Court to make rules.Section 43 only sets out that the Supreme Court may make rules.
I fail to see how the period within which a party in whose favouran award has been made may apply for enforcement to the HighCourt, has any bearing on the question of what is a reasonable periodwithin which an application for leave to appeal to the Supreme Courtshould be made from an order of the High Court.7l
Learned President's Counsel was heard to contend that inasmuchas a period of sixty days of the receipt of the award was providedby section 32 to make an application to have such award set aside,a reasonable period within which an application for leave to appealto the Supreme Court from an order of the High Court should exceedsixty days.
It would be helpful in deciding this question to examine therules made by the Supreme Court relating to appeals from the Courtof Appeal.
The rules provide for a party seeking leave to appeal from ajudgment or order of the Court of Appeal to the Supreme Court to soapply to the Court of Appeal for such leave on a substantial questionof law within twenty-one (21) days since the Court of Appeal mustmake an order on such an application within twenty-one days or asset out in the proviso to Rule 23 (5) and that if no order is madewithin that period the application for leave is deemed to have beenrefused.
According to the rules a party may apply directly to the SupremeCourt for special leave to appeal within a period of forty-two (42) days
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of the judgment or order of the Court of Appeal. So that it is seenthat in providing for a period of forty-two days for presenting an 90application for special leave the Supreme Court has allowed a partywho has been unsuccessful in his application for leave to appeal inthe Court of Appeal a further period of twenty-one days within whichan application for special leave can be made.
In my view, the clear inference is that the Supreme Court in makingthe rules did not consider it necessary to go beyond a maximum offorty-two days for making an application for special leave to theSupreme Court. In deciding on these periods within which suchapplications for leave to appeal should be made we must necessarilyconclude that the Supreme Court fixed such periods as it was of the 100view that such periods were reasonable having regard to all relevantcircumstances, and also that the Supreme Court acted reasonably indoing so. In this context, also relevant, would be the question as towhether, in a situation where the appealable period from the Courtof Appeal to the Supreme Court is forty-two days, it is conceivablethat the appealable period from the High Court to the Supreme Courtshould be longer? If so, by how many days?
For the above-mentioned reasons I hold that the period offifty-five days from the date of the order of the High Court taken bythe petitioner to file his application for leave to appeal cannot be noconsidered to be a reasonable period and therefore uphold thepreliminary objection raised by the learned counsel for the respondent.
accordingly, reject this application for leave to appeal.
The respondent is entitled to costs in a sum of Rs. 2,500.WADUGODAPITIYA, J. – I agree.
YAPA, J. – I agree.
Application for leave to appeal rejected.