018-SLLR-SLLR-1995-2-PERERA-V.-PEOPLES-BANK.pdf
84
Sri Lanka Law Reports
[1995] 2 Sri L.R.
PERERA
v.
PEOPLE’S BANK
SUPREME COURTG. P.S. DE SILVA, C.J.,
KULATUNGA, J.
RAMANATHAN, J.
S.C. NO. 131/94
A. NO. 612/93
C. COLOMBO NO. 80/DRMARCH 31 AND APRIL 27, 1995
Debt Recovery (Special Provisions) Act 2 of 1990 – Decree Nisi – Leave toappear conditionally – Order stayed by Court of Appeal till 6.9.1993 – On 6.9.93defendant absent – Decree Nisi made absolute by District Court – Is it PerIncuriam as there was an order extending the stay order from 6.9.93 by Court ofAppeal? – Defendant in default – Attracts S. 6(3) of Act. No. 2 of 1990.
The plaintiff-respondent-Bank instituted proceedings under the provisions of theDebt Recovery (Special Provisions) Act No. 2 of 1990, to recover Rs. 3.5. million.The District Court entered decree nisi. The defendant moved for unconditionalleave to appear and show cause. The District Court made Order on 17.8.93 todeposit a sum of Rs. 3.5 million on or before 1.9.93, as a precondition to the grantof Leave to appear and show cause. The Court of Appeal acting in Revisionstayed the said Order till 6.9.1993. When the case was called on 6.9.1993, in theDistrict Court, the defendant was absent and the decree was made absolute.Unknown to the District Court, the defendant had on 6.9.93 obtained from theCourt of Appeal an Order to extend the Stay Order till 21.9.93. The defendantonce again moved the Court of Appeal to set aside the Order of the District Courtdated 6.9.93. This was refused.
Held:
There was default on the part of the defendant on 6.9.1993 to appear in theDistrict Court.
The defendant had failed to deposit the required sum of money; he wasabsent and unrepresented; and the District Court was not informed that anapplication was being made in the Court of Appeal to extend the ‘Stay Order'.
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Perera v. The People's Bank(G. P. S. de Silva, C.J.)
85
Revision is a discretionary remedy and the conduct of the defendant is a matterwhich is relevant. The defendant's conduct disentitles him the relief by way ofrevision.
APPEAL from the Judgment of the Court of Appeal.
£ D. Wickremanayake for the Defendant-Appellant.
S.A. Parathalingam with Ian Fernando lot the Plaintiff-Respondent.
Cur. adv. vult.
May 12,1995.
P. S. DE SILVA, CJ.
The plaintiff-respondent Bank (the plaintiff) instituted theseproceedings in the District Court under the provisions of the DebtRecovery (Special Provisions) Act, No. 2 of 1990 for the recovery of asum of Rs. 3.5 million with interest from the defendant-appellant (thedefendant). The District Court entered decree nisi which was servedon the defendant. The defendant filed petition and affidavit along withcertain documents and moved for unconditional leave to appear andshow cause against the decree nisi. Written submissions were filedby the parties. The District Court by its order dated 17th August 1993rejected the defendant’s prayer for unconditional leave and orderedthe defendant to deposit a sum of Rs. 3.5 million to the credit of thecase on or before 1st September, 1993 as a precondition to the grantof leave to appear and show cause. The defendant by his applicationin revision dated 25.8.93 sought, inter alia, to set aside the aforesaidorder of the District Court dated 17th August 1993.
The sum of Rs. 3.5 million had to be deposited to the credit of thecase on or before 1st September, 1993. On 1st September 1993 thedefendant moved the Court of Appeal and obtained a stay ofproceedings till 6th September 1993. When the case was called inthe District Court on 1st September 1993 (pursuant to the order of theDistrict Court dated 17.8.93) the court was then informed of the ordermade by the Court of Appeal staying proceedings until 6thSeptember 1993. The District Court accordingly made order on 1stSeptember 1993 staying further proceedings till 6th September 1993.The District Court further directed that the case be called on 6thSeptember 1993 (vide J. E. of 1.9.93).
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Sri Lanka Law Reports
[1995] 2 Sri L.R.
When the case was called in the District Court on 6.9.93 Counselfor the plaintiff-Bank moved the court to have the decree nisi madeabsolute. The District Court allowed the application and made thedecree nisi absolute. In the meantime, unknown to the DistrictCourt, the defendant has obtained an order from the Court of Appealon the same day (6th September 1993) extending the stay order till21.9.93.
In a subsequent application in revision dated 16th September1993, the defendant sought to set aside the order of the District Courtdated 6.9.93 whereby the decree nisi was made absolute. At thehearing before us, Mr. Parathalingam for the plaintiff-Bank raised apreliminary objection, namely, that the order of the District Courtmaking the decree nisi absolute concluded the proceedings and thatno useful purpose would now be served by setting aside the order ofthe District Court dated 17th August 1993. At the hearing beforeus, Mr. Parathalingam for the Plaintiff-Bank and Mr. E. D.Wickremanayake for the defendant made their submissions bothorally and in writing only on the preliminary objection.
The principal submission of Mr. Wickremanayake was that theorder of the District Court made on 6th September 1993 was an ordermade per incuriam. Mr. Wickremanayake strenuously contended thatthere was a stay order issued by the Court of Appeal operative till 6thSeptember and that the stay order was extended on the 6thSeptember itself till 21st September 1993, Counsel strongly urgedthat the order of the District Court dated 6th September was clearlyan order made per incuriam in view of the stay order granted by theCourt of Appeal. On the other hand, Mr. Parathalingam argued thatthe defendant was in default and the District Court rightly made thedecree nisi absolute in terms of the provisions of section 6(3) of theDebt Recovery (Special Provisions) Act No. 2 of 1990.
On 6th September 1993 the case was called before the DistrictCourt. It was called for the purpose of ascertaining whether thedefendant had complied with the order dated 17.8.93 which requiredhim to deposit Rs. 3.5. million to the credit of the case. The defendantwas fully aware of the purpose for which the case was being calledon 6.9.93 as is evidenced by the motion dated 1.9.93 filed on behalf
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Perera v. The People's Bank (G. P. S. de Silva, C.J.)
87
of the defendant in the Court of Appeal. It is not disputed that thedefendant had failed to deposit the required sum of money. What ismore, the defendant was absent and unrepresented. The Court wasnot informed that an application was being made in the Court ofAppeal to extend the “Stay Order". There was no intimation to thecourt that the money would be deposited in the course of the day.There was complete silence on the part of the defendant. These werethe particular circumstances in which the Court allowed theapplication made on behalf of the plaintiff-Bank and proceeded tomake the decree nisi absolute. On a consideration of the totality ofthese facts I am inclined to the view that there was a “default” on thepart of the defendant on 6.9.93 to appear in court.
In any event, revision is a discretionary remedy and the conduct ofthe defendant is a matter which is intensely relevant. I hold that theconduct of the defendant disentitles him to relief by way of revision inthe facts and circumstances of this case. The appeal is accordinglydismissed but without costs.
KULATUNGA, J. – I agree.
RAMANATHAN, J. – I agree.
Appeal dismissed.