RANATUNGA

002-SLLR-SLLR-2005-V-2-RANATUNGA.pdf


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Ranatunga vs Tikiri Banda (Wijayaratne. J.)
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RANATUNGAVS
TIKIRI BANDACOURT.OF APPEAL,
WIJAYARATNE J„
SRIPAVANJ,
C A NO. 1342/2001AUGUST 30, 2004OCTOBER 7, 2004
Debt Conciliation Board Ordinance No. 39 of 1941 – Sections 14, 15 – Amendedby Act 20 of 1983 – Section 19A (1) Difference between date of applicationand date application is entertained?-Should a certified copy of the Deed betendered along with the application?
The 1st Respondent made an application on 30.08.1996 to the DebtConciliation Board in terms of Section 14 of the Debt Conciliation BoardOrdinance (DCB) for the settlement of his debt to the 2nd Respondent securedby a conditional transfer.
Board entertained the application on 10. 09. 96 and ordered the issue ofNoticewhich was despatched on 14. 09. 96 and received by the 2nd Respondenton 17. 09. 96. The 2nd Respondent appeared before the Board and intimatedthat the property had been sold, thereafter the purchaser had been made aparty.
The added party objected to the application on the ground that
The application is time barred as the original application wasentertained on 10. 09. 96
That a certified copy of the Deed was not submitted with the application
The Board overruled the preliminary objection and fixed the matter forinquiry. The Petitioner sought to quash the said Order.
HELD:
(i) Upon a reading of Section 19A it is very clear that the Board cannotentertain any application unless it is made within time and the validityof the application is not determined by the entertainment of same (10.09. 96) within time but the application being made in time (30. 08. 96)
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The time taken before the order of entertaining the application is madeis a lapse of time due to administrative delay which is totally beyond thecontrol of the respondent applicant.
There is no requirement of law that a certified copy of the deed shouldbe tendered along with the application. The Board was satisfied thatthe application made together with affidavit to furnish prima facie proofof material facts was sufficient compliance with Section 15.
APPLICATION fora Writ of Certiorari.
Cases referred to .
Nachichaduwa l/s Mansoor – 1995 2 Sri LR 273
W. M. Mendis & co., l/s Excise Commissioner – 1999 1 Sri LR 351
Rohana Jayawardena for petitioner,
David Weeraratne for 1st Respondent
Cur adv vult
November 24, 2004Wijayaratne. J.
The petitioner preferred this application invoking the writ jurisdiction ofthis Court seeking the grant of a mandate in the nature of Writ of Certiorariquashing the order of the Debt Conciliation Board marked X 39 dated 19.07. 2001 and also seeking a Writ of Prohibition against the severalmembers of the Debt Conciliation Board restraining or prohibiting themfrom proceedings with the application of the 1 st respondent marked X14.
The 1st respondent made application on 30. 08. 1996 to the DebtConciliation Board in terms of section 14 of the Debt Conciliation Ordinance,No. 39 of 1941 as amended, for the settlement of his debt to the 2ndrespondent secured by a Conditional Transfer X2. The Board entertainedthe said application on 10. 09.1996 and ordered the issue of notice whichwas dispatched on 14. 09. 96 and said to have been received by the 2nd ■respondent on 17. 09. 96. The second respondent appearing before the
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Board intimated that the property had been sold and conveyed to thepetitioner on 11.09. 96 by deed marked X4. Having considered the mattersof fact elicited by the the parties, the Debt Conciliation Board (referred toas the Board) made order on 06.11.1997 directing the 1 st respondent toamend application X 14 dated 15.12.197 in terms of the order. The Board-caused notice to be issued on the petitioner who is the added party whoappeared before the Board and objected to the application of the 1strespondent being entertained on grounds that
The original application of the 1 st respondent was entertained on 10.09.1996 after the expiry of the period within which the property maybe redeemed by the debtor the 1st respondent by virtue of theagreement contained in the said deed of Conditional Transfer.
The petitioner is a bona fide purchaser of the property for valuableconsideration in the absence of any Caveat or other information ofsuch application of the 1st respondent to redeem the property.
The Board on several dates postponed the matter with the view tosettlement and finally on 19. 07. 2001 made order that the application ofthe 1 st respondent dated 30. 08.1996 has been made within the prescribedtime and the Board is entitled to proceed with the application and fixed thesame for inquiry. The petitioner thereupon preferred this application invokingthe writ jurisdiction of this Court seeking to quash the decision of theBoard and restrain them from proceeding to inquiry. The application ismade on several grounds stipulated in paragraphs 15 A to 15 E. The firstrespondent resisted the application of the petitioner and insisted that thedecision of the Board is lawful and the Board has the power and authorityof the law to proceed to inquiry into the matter.
The main thrust of the argument for the petitioner was that the applicationentertained by the Board on 10. 09. 1996 was out of time prescribed bysection 19A of the Debt Conciliation Ordinance. Section 19A (1) of theDebt Conciliation Ordinance as amended by section 2 of Act No. 20 of1983 states;
“(1) The Board shall not entertain any application by a debtor orcreditor in respect of debt purporting to be secured by any suchconditional transfer of immovable property as is a mortgage within the
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meaning of this ordinance unless that application is made before theexpiry of the period within which that property may be redeemed by thedebtor by virtue of any legally enforceable agreement between himand his creditor.”
Upon a reading of the section it is very clear that the Board cannotentertain any application unless it is made within time and the validity ofthe application is not determined by the entertainment of the same withintime but the application being made within time. The section states
“The board shall not entertain any application by a debtor
in respect of Conditional Transfer of immovable property
unless that application is made before the expiry of the
period within which that property may be redeemed”
The deciding factor, in terms of the provision of section 19A (1) is “thedate on which the application is made” and not the date on which theapplication is entertained. The petitioner concede the application uponwhich the impugned order was first made on 30.08.1996 a date at least10 days anterior in time to the date on which the redeemable period oftime expired.
The time taken before the order of entertaining the application is made,is a lapse of time due to administrative delay in the office of the Boardwhich is totally beyond the control of the 1 st respondent applicant. In thecase of Nachichaduwa Vs Mansoorin it was held
“ (4) The act of filing the petition and that of forwarding the record to theCourt of Appeal are official acts of the District Court. Any delay in filinga petition in the record cannot be attributed to the appellant.”
Applying the rule set up in that case by analogy to the facts of thepresent application, the act of entertaining the application made bydebtor within time is an official act. Any delay in making the orderentertaining the application cannot be attributed to the applicant 1 strespondent.
The debtor applicant the 1 st respondent made his application withinthe period of redeemable time, i.e. on 30. 08.-1996. The delay in making
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orders of entertaining the application on 10. 09. 1996 is no mistake,negligence or inadvertence on the part of the applicant 1st respondent.Even if it were so the rule of procedure cannot punish him or deny himjust relief. Vide the decision of W. M. Mendis and co. Vs ExciseCommissioned
The Petitioner also referred to the fact of a certified copy of the deedof Conditional Transfer not being tendered along with the application. Thereis no requirement of law that such a copy should be tendered along withthe application. The petitioner does not refer to any such' provisions requiringthe tender of a certified copy of the deed. However the document issubsequently tendered and following the rule set up in the case of W. M.Mendis & Co. (supra) that is no reason to refuse him just relief. TheBoard was satisfied that the application made together with affidavit tofurnish prima facie proof of material fact was sufficient compliance withthe requirements of section 15 and the condition of redeem is oneconceded by the petitioner. The fact that a certified copy of the deed wasnot tendered could not have caused any prejudice to the petition in thesecircumstances.
The order of the Board is lawful and within the spirit of the DebtConciliation Ordinance. There is no reason to interfere with same.The petitioner has failed to establish any grounds on which the writ jurisdictionof this court could be exercised.
The application is dismissed with costs fixed at Rs. 5000/-Sripavan, J. – I agree,
Application dismissed