D E KKETSER, J.—Sena nay ah e. v. Senanayake
1971 Present: Samcravvickrame, J., and Thamotheram, J.T. PRAISOODY and another, Appellants, and
K.GUP>,UNATIiAPILLAT and another, Respondents
S.C. 3G2/6S (F)—D. C. Chavakachcheri, 3164jL
Debt Conciliation Ordinance (Cap. Si)—Sections 10A (1), 49, 50—Conditional transferof immovable property—Debtor's application for relief—Time limit—Computation—Dorm of application under the Ordinance.
Where tho transferor in n “conditional transfer of immovable property "seeksrelief under tho Debt Conciliation Ordinance, tho period of thirty days withinwhich section 19A (1) of tho Ordinance requires that his application should bomade must bo computed according to the well known principle that in calcula-ting a period within which an act is required to bo done, tho day from or afterwhich such period is to be commenced is excluded.
(1954) 56 N. L. D. 566.
CCSSAMEKA'iVICKRAME, J.—Praisoody v. Ourunalhapillai
When the Board considers whether an application for relief ia in properform, section 49 of the Debt Conciliation Ordinance empowers the Board toentertain the application if it substantially conforms to the requirements ofthe relevant provisions.
Appeal from a judgment of tho District Court, Chavakachcheri.
Chellappah, for tho defendants-appellants.S. Sharvananda, for tho plaintiffs-rcspondents.
Cur. adv. vult.
December 9, 1971. Samerawickkajie, J.—
Much argument was addressed to us as to whether the District Courthad jurisdiction to consider whether tho order of the Debt ConciliationBoard holding that tho application had boon made in time was or wasnot correct but I find that tho matter may bo decided simply on thofacts.
By deed No. 4183 dated 22.8.19C0 tho defendants convoyed a land totho plaintiffs subject to the condition that if the defendants paid a sumof Its. 5,000 and interest within a period of five years from the date of• execution of tho deed tho plaintiffs should executo a retransfer to them.It is a well known principle that in calculating a period within whichan act is required to be done, the day from or after which such periodis to be commenced is excluded—vide Wickramasooriya v. Appu SingJio x,
1 N. L. It. 178. As the deed was executed on 22.8.I960 the five yearperiod commenced to run from 23.8.I960 and ended at midnight on22.8.1965.
Section 19. A (1) of the Debt Conciliation Ordinance reads :—
“ Tho Board shall not entertain any application by a debtor orcreditor in respect of a debt purporting to bo secured by any suchconditional transfer of immovable property as is a mortgage withinthe moaning of this Ordinance unless that application is made atleast thirty days before tho expiry of tho period within which thatproperty may bo redeemed by the debtor by virtue of any legallyenforceable agreement between him and his creditor.”
As the period within which this property could bo redeemed in termsof Deed No. 41S3 ended at midnight on 22nd August, 1965, the appli-cation had to bo made thirty days before that time. Tho applicationtherefore had to be made before the 24th of duly, 1905. The applicationmarked D1 had been posted on 22nd July, 1965 and had been received 1
1 (1305) 1 N. L. R. 17S.
Itashccm v. Ekanayake
at tho office of tho Debt Conciliation Board on 23rd Juty, 19G5. TJioapplication was accordingly made in time and was pending from 23rdJuly, 19G5.
Learned counsel for the plaintifFs-respondents made tho point thatthe application was not in proper form. As stated by tho Beard inits order it substantially conforms to the requirements of tho relevantprovisions. Section 49 provides that, “ it shall be the duty of the Boardto do substantial justice in all matters coming before it without regardto matters of form.” The Debt Conciliation Board itself regarded itas sufficiently complying with the requirement and was prepared toact on it. I do not think that this point can be upheld.
The main matter argued before us was whether the application wasor was not made in timo and, if it was in fact made out of time, thoeffect of the order of the Debt Conciliation Board holding the contrary.In view of my finding that tho application was made in time it waspending at the timo this action was filed on 24th January, 1966. Section60 prohibits a civil Court from entertaining any action in respect of anymatter ponding before the Board. I therefore hold that the objectionraised by the defendants-appcllants that the Court had no jurisdictionto entertain tho plaintiffs’ claim should have been upheld.
Accordingly I allow the appeal, setasidethe order of the learned DistrictJudge and direct that order be entered dismissing the plaintiffs’ actionwith costs. Tho defendants-appcllants will also be entitled to costs ofappeal.
Thajsiotheram, J.—I agree.
T. PRAISOODY and another, Appellants, and K. GURUNTHAPILLAI and another, Respond