MOHINUDEEN AND OTHERS
v.BANK OF CEYLON
COURT OF APPEALEDUSSURIYA, J.
A. NO. 896/85
C. COLOMBO 16939/LSEPTEMBER 9. 1997
Civil Procedure Code – S.247Application – Interim Injunction – FraudulentConveyance – balance of convenience – Serious question of law – laches.
The Defendant – Respondent instituted action 8865/M for the recovery ofa certain sum of money and obtained an exparte decree on 22. 11. 1991.On 14. 07. 94 the Fiscal seized the property described in the schedule tothe plaint in the instant case 16939/L in execution of the Decree in 8865/M.The claim of the petitioners that they are the owners of the seized propertywas dismissed after Inquiry. On 26. 11.1995 the Petitioners filed theinstant case 16939/L – under S. 247 of the Code and sought to have theproperty released, from seizure. Their claim was rejected. On 02. 05.1995 the Petidoners instituted another action 4357/SR seeking an injunctionrestraining the Respondent from taking steps to execute the Writ in case8865/M. The application was refused. Thereafter on 21.07.1995 the presentapplication for an Interim Injunction was made In case No. 16939/L, whichwas refused after inquiry. The Petitioner seeks to revise the Order, refusingthe interim Injunction. The Petitioners are the children of the Judgment -Debtor In 8865/M.
In considering whether to grant an interlocutory injunction the rightcourse for a Judge is to look at the whole Case, he must have regardto not only to the strength of the claim but also the strength of thedefence and then decide what Is best to be done. The court must besatisfied that there is a serious question to be tried at the hearing andthat on the facts before it there is a probability that the plaintiff isentitled to relief.
In this instance when considering the whole case it is seen that thereis no probability that the petitioner will succeed in obtaining the reliefsprayed for. It is seen that the Petitioners are the children of theJudgment debtor and the deed of conveyance to them by the judgment
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debtor was on 24. 08. 1993 after the exparte decree was enteredagainst him on 22. 11. 92. Further for 10 months the judgmentdebtor in 8865/M, the donor on the Deed of Gift did not take anysteps to have the exparte decree set aside within a reasonable time.The application for interim injunction had been made one year afterthe property was seized. This delay stands against the petitioners. Allthis leads one to the irresistible inference that the judgment debtorand the petitioners (father and sons) were hand in glove on this.
AN APPLICATION in Revision from the order of the Distrct Court of
Cases referred to :
Hubbard v. Vosper – (1972) 2 QB 84. 1972 1 AII.E.R. 1023.
Jlnadasa u. Weerastnghe – (1929) 31 NLR 33.
Preston v. Luck – (1884) 27 at 497.
Silva v. Mack – 1 NLR 131.
Silva v. Mendls – 5 NLR 252.
Mukthar v. Ismail – 64 NLR 293.
Silva v. Ibrahim Rowter – 10 NLR 56.
Atukorale v. Atukorale – 71 NLR 369.
Romesh de Silva. P.C.. with Palltha Kumaraslnghe for Petitioner.
N. S. A. Goonetillake. P.C.. with M.E. Wlckremaslnghe for Defendant
Cur. adv. vult.
June 19, 1997.
EDUSSURIYA, J.This is an application to revise the order of the learnedAdditional District Judge refusing an application for an interiminjunction preventing the Defendant judgment-creditor in D.C.Colombo Case No. 8865/M from taking any steps to sell theproperty described in the schedule to the plaint in the executionof the writ issued in case No. 8865/M.
The Defendant-Respondent instituted action No. 8865/Mfor the recovery of a sum of Rs. 19,811,503/92 from thePetitioner and obtained an ex-parte decree on 22nd November
CAMohinudeen and Others v. Bank of Ceylon
1991. Then on 14th July 1994 the Fiscal seized the propertydescribed in the schedule to the plaint in this case 16939/L inexecution of the decree in case No. 8865/M. Thereafter the claimmade by the Petitioners on 14th July 1994 on the ground thatthey are the owners of the seized property was dismissed afterdue inquiry. It was disclosed at that inquiry that the claimantswho are the present Petitioners are the issues (“children”) of theDefendants in D.C. Colombo Case No. 8865/M in which writwas issued. Then on 26th January 1995 the Petitioner filed thisaction No. 16939/L under Section 247 of the Civil ProcedureCode seeking a declaration that the seized property is not liableto be seized in execution of the judgment in D.C. Colombo CaseNo. 8865/M and to have the property released from seizure. On14th March 1995 the Petitioners made an application to revisethe dismissal of their claim and it was dismissed by the Courtof Appeal. Then on 02nd May 1995 the Petitioners institutedanother action, namely, case No. 4357/SR seeking an injunctionrestraining the Respondent from taking steps to execute the writin case No. 8865/M. That application was refused. Thereafter,on 21s1 July 1995 the present application for an interiminjunction was made in the present case 16939/L which wasrefused after due inquiry and the present application beforethis Court is to revise and set aside the order of the learnedAdditional District Judge refusing the interim injunction andfor the issue of the interim injunction as prayed for in the petitiondated 21st July 1995. The main contention of the Petitioner’sCounsel at the hearing of the application was that although thelearned Additional District Judge had held in his order that thePetitioners had failed to make out a prima facie case and wereas such not entitled to an interim injunction, the Petitionershad in fact made out such a case in as much as they were theowners of the seized property as at the date of the seizure. Itwas also contended that the learned Additional District Judgehad erred in using against the Petitioners, the finding of theDistrict Judge, namely that there was a conveyance in fraud ofthe creditors in the District Judge’s order refusing the claimmade at the seizure by the Petitioners. It was also submittedthat the balance of convenience favours the Petitioners as theproperty is under seizure.
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Although, the Additional District Judge has referred in hisorder to the reasons for the rejection of the Petitioners claim atthe claim inquiry, the Additional District Judge has not refusedthe application for interim injunction on that ground alone.
In Hubbard v. VosperIU, Lord Denning M.R. said “inconsidering whether to grant an interlocutory injunction, theright course for a judge is to look at the whole case. He musthave regard not only to the strength of the claim but also thestrength of the defence and then decide what is best to be done".
I may also refer to the judgment in Jinadasa o.Weerastnghe(2>, where in Dalton J. used the language of Cotton
G. In Preston v. Luck131, namely, that “the Court must besatisfied that there is a serious question to be tried at the hearingand on the facts before it there is a probability that the Plaintiffis entitled to relief’’.
In this instance when considering the whole case it is seenthat there is no probability that the Petitioners will succeed inobtaining the reliefs prayed for in the plaint.
Firstly, the conveyance to the Petitioners (issues – “children")by the judgment-debtors (father) was on 24,h August 1993 afterthe ex-parte decree was entered against him on 22nd November1992.
Secondly, although the judgment debtor (Defendants) incase No. 8865/M has filed petition and affidavit to set aside theex-parte decree, that was done on 26th May 1995 even thoughthe judgment-creditor (Defendant in 8865/M) must certainlyhave known that an ex-parte decree had been entered againsthim at the latest by 14th July 1994 when the property was seizedin execution. So that for ten (10) months the judgment-debtor(Defendants) in 8865/M, the donor on deed of gift No.3584 of 24th August 1993 to the Petitioners (donees) did nottake any steps to have the ex-parte decree set aside. This clearlyshows, that although he knew about the ex-parte decree againsthim, the donor on the deed 3584 did not bother to take steps
Mohlnudeen and Others v. Bank of Ceylon
to have the ex-parte decree vacated, because, In my view heknew all along of the case against him, and summons had beenserved on him and he never appeared in answer to summonsbecause he had taken steps to thwart the Respondent by giftingthe property to his sons and daughter and he only filed petitionand affidavit to assist the Petitioner's in this case and that tooafter this case was instituted. Besides, the judgment-debtor incase No. 8865/M has not sought to vacate the ex-parte decreewithin reasonable time. All this leads one to the irresistibleinference that the judgment-debtor and the Petitioners (fatherand sons) were hand in glove on this.
I may also add that this application for interim injunctionhad been made one year after the property was seized. Thisdelay also stands against the Petitioners.
The Petitioner’s Counsel referred this Court to the decisionsin Silva v. Mack141, Silva v. Mendis151, Mukthar v. Ismail'61, Silvav. Ibrahim Rowter'71, Atukorale v. Atukorale181. Thesejudgments though relating to action instituted under Section247 of the Civil Procedure Code have no applicability to thepresent application relating to the issue of an interim injunction.
For the above mentioned reasons this application isdismissed and consequently any stay order issued also lapses.
The Petitioners and their father, the judgment-debtor in caseNo. 8865/M have left no stone unturned in their endeavour tothwart the Respondent. I therefore award the Respondent costsin a sum of Rs. 21,000/- payable by the Petitioners.