013-SLLR-SLLR-2005-V-3-MAWSOOK-vs.-PEOPLES-BANK.pdf
CA
Mawsook vs People's Bank
63
MAWSOOKVS
PEOPLE'S BANKCOURT OF APPEAL.SOMAWANSA, J. (P/CA) ANDWIMALACHANDRA, J.
CA 102/2004(REV).
DC BATTICALOA 8691/M.MAY 13,2005.
Debt Recovery (Special Provisions) Act, No. 2 of 1990, amended by Act, No.09 of 1994 – Defendant directed to deposit money or provide security to defendthe action – Does leave to appeal lie? – Recovery of Loans by Banks (SpecialProvisions) Act, No. 4 of 1990 – Compared – Exercising revisionary jurisdiction- Civil Procedure Code, sections 756 and 763.
The defendant-petitioner sought to revise the order of the District Court ofBatticaloa directing the defendant-petitioner to deposit money or provide securityto defend the action. It was contended by the plaintiff-respondent that revisiondoes not lie as the proper remedy is by way of leave to appeal.
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HELD:
The defendant-petitioner's only explanation as to why he did not comeby way of a leave to appeal application is that he had no right of appealis without merit the proper remedy is by way of a leave to appealapplication.
Furthermore, no exceptional circumstances have been urged.
APPLICATION in revision against the order of the District Court of Batticaloa.
Cases referred to :
Dassanayake vs. Sampath Bank (2002) 2 Sri LR 268 (distinuguished)
Bandara vs. People's Bank (2002) 2 Sri LR 21
Rustom vs. Hapangama 1978 – 80 Vol. (I) SLR 352
H. G. Hussain with A. H. K. Sepali for petitioner.
Naveen Marapana for respondent.
Cur. adv. vult.
July 29, 2005.
ANDREW SOMAWANSA, J. (P/CA)This is an application for revision seeking to set aside the order of thelearned District Judge of Batticaloa dated 19.12.2003 directing thedefendant-petitioner to deposit money in a sum of Rs. 3 million or providesecurity to the value of Rs. 6 million to defend the action.
When this application was taken up for hearing counsel for the plaintiff-respondent raised two preliminary objections one of which has a directbearing on the maintainability of this action. They are as follows :
Can the stay order be operative when the other two defendants havenot moved this Court canvassing the impugned order of the learnedDistrict Judge of Batticaloa.
Is the petitioner entitled in law to move this Court by way of revisionwhen the remedy by way of leave was available to the defendant-petitioner.
Mawsook vs People's Bank (Somawansa, J. (P/CA))
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CA
Both parties agreed to tender written submissions on the aforesaidpreliminary objections and have tendered their written submissions.
In the written submissions tendered by counsel for the plaintiff-respondenthe has indicated that he restricts his objections to the aforesaid 2ndobjection only in view of the fact that he has come to know that 2nd and3rd defendants have not been served with summons in the original Court.It appears that he is well advised for it appears that summons have beenserved only on the defendant-petitioner and the objection taken is withoutany merit.
As for the 2nd objection counsel for the plaintiff-respondent submitsthat the impugned order was made on 19.12.2003 and as per paragraph 6of the petition tendered to this Court the petitioner states that he receiveda certified copy of the order on 24.12.2003. Therefore if the defendant-petitioner seeks to challenge the said order he had ample time to file aleave to appeal application in this Court seeking to challenge the saidorder. He submits that the defendant-petitioner has not given anyexplanation as to why he did not file a leave to appeal application and inany event he does not state anywhere in his petition that any exceptionalcircumstances exists that would give him the right to move this Court inrevision. I would say there is force in this argument.
In his written submissions tendered by the defendant-petitioner, counselsubmits that the application of the defendant-petitioner arises from anorder made in the course of proceedings and as such the only remedyavailable as the law stood is by way of revision as decided in the case ofDassanayakevs. Sampath Bank Ltd<1). In the circumstances the defendant-petitioner is entitled to prosecute this application as presently preferred tothis Court. He further submits that the defendant-petitioner has no otheralternative remedy other than to move in revision as decided by anotherdivision of this Court is without any merit and I would say is misconceivedfor the simple reason is that the question considered in Dassanayakevs.Sampath Bank Ltd (Supra) is Section 16 in the Recovery of Loans byBanks (Special Provision) Act No. 4 of 1990 and no doubt jurisdiction exercisedby the District Court under Act No. 4 of 1990 is in the nature of specialjurisdiction created by the Act and does not permit a party who is dissatisfiedwith an order made in the course of proceedings under it to seek relief byway of leave to appeal. However the instant action instituted against the
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defendant-petitioner is as admitted in the written submissions tenderedon his behalf in terms of the provisions of the Debt Recovery Act as statedin the very first paragraph of his written submissions. In the circumstances,neither the provisions contained in Act No. 4 of 1990 or the decision inDassanayakevs. Sampath Bank Ltd.(supra), would be applicable to thefacts of the instant action. The fact that the instant action is instituted interms of the provisions of the Debt Recovery Act is admitted by thedefendant-petitioner in his petition as well as in his affidavit supporting thepetition. In the circumstances, the provisions that would be applicable tothe issue at hand is clearly the provisions contained in the Debt Recovery(Special Provisions) Act No. 2 of 1990 as amended by Act No. 9 of 1994.In the case of Bandara vs. The Peoples Bank (?> Court considered theprovisions of the aforesaid Act No. 2 of 1990 as amended by Act No. 9 of1994 wherein the facts were as follows:
After institution of the action, the trial Judge acting under the provisionsof the Debt Recovery Act, having entered decree nisi, subsequently madeit absolute. Thereafter, the fiscal executed the writ.
The petitioner contends that he was not served with notice of executionof decree, although he has preferred an appeal against the decree absolute.
It was held that:
"The Debt Recovery (Special Provisions) Act is an Act which hascreated special jurisdiction and it is a procedure whereby no right ofappeal has been bestowed on a party aggrieved by a decree absolute."
It was observed by Court that:
"The only remedy which was available to the defendant-petitioner interms of section 16 of the Debt Recovery (Special Provisions) Act wasto have sought relief by way of leave to appeal against the order dated13.11.1996 making the decree nisi absolute which the defendant failedto avail himself".
It is pertinent at this stage to refer to Part III of the aforesaid Act No. 2of 1990 wherein sections 16 and 17 reads as follows:
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CAMawsook vs People's Bank (Somawansa, J. (P/CA))
Section 16. Subsection (7) of section 756 of the Civil Procedure Codeis hereby amended by the addition of the following proviso at the endthereof
“Provided however that in an application for leave to appeal in respectof any order made in the course of any action instituted under the DebtRecovery (Special Provisions) Act No. 2 of 1990 proceedings in theoriginal court shall not be stayed when Leave to Appeal is grantedunless the Court of Appeal otherwise directs and the Court of Appealshall where it decides to grant Leave to Appeal call upon the appellantto give security in cash or by a guarantee from a banker for thesatisfaction of the entire claim of that plaintiff or such part thereof, asthe court deem fit in all the circumstances of the case, in the event ofthe appeal being dismissed”.
Section 17 Section 763 of the Civil Procedure Code is hereby amendedby the addition immediately after paragraph (b) of subsection (2) of thatsection, of the following
"Provided that in the case of decrees entered under the provisions ofthe Debt Recovery (Special Provisions) Act No. 2 of 1990 the securityto be given by the judgment debtor shall be the full amount of the decreedsum or such part thereof as the court deem fit in all the circumstancesof the case”.
It appears to me that the defendant-petitioner has filed a flawedapplication, abused the process of Court and obtained an ex-parte stayorder effectively circumventing the aforesaid provisions in Part III of ActNo. 2 of 1990 which is a clear abuse of the process of Court.
It is to be seen that the defendant-petitioner's only explanation as towhy he did not come by way of a leave to appeal application is that he hadno right of appeal is without any merit. Furthermore, he does not state- anywhere that any exceptional circumstances exist that would give himthe right to invite this Court to invoke its revisionary jurisdiction despitethe fact that inexcusably the defendant-petitioner has not availed himselfof the proper remedy that was available to him. In this respect I would referto the leading decision on this point, the case of Rustom vs. Hapangama& Co.(3) at 352. The head note reads as follows :
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The trend of authority clearly indicates that where the revisionarypowers of the Court of Appeal are invoked the practice has been thatthese powers will be exercised if there is an alternative remedy available,only if the existence of special circumstances are urged necessitatingthe indulgence of this Court to exercise its powers in revision.
The appellant has not indicated to Court that any specialcircumstances exist which would invite this Court to exercise its powersof revision, particularly since the appellant had not availed himself ofthe right of appeal under section 754(2) which was available to him.
For the foregoing reasons, I would uphold the objection taken by thecounsel for the plaintiff-respondent and dismiss the application for revisionwith costs fixed at Rs. 10,000/-.
WIMALACHANDRA, J. -1 agree.
Application dismissed.