A.L. Shiran Gooneratne J.

Factual Background

[1] By Plaint dated 01/02/2013 the Plaintiff-Respondent filed this action against the 1st, 2nd and 3rd Defendants, (presently the 3rd Defendant-Appellant), and sought to recover a sum of Rs. 6,701,254/- together with interest on a Lease Agreement, granted to the 1st Defendant, secured by a Guarantee and indemnity of Lease Agreement, by the 2^nd Defendant and the 3^rd Defendant-Appellant, claiming jointly and severally the said sum and the accrued interest.

[2] In the Plaint, the Plaintiff stated that the Plaintiff and the 1st Defendant entered into a Lease Agreement bearing No. C1-09-0011EB dated 22/09/2011, P2. By the said agreement, the Plaintiff leased “the property” (1 Nissan Navara Double Cab) more fully described in the schedule to the Agreement.

[3] The 1st Defendant entered into the aforesaid lease agreement, and the 2nd and 3rd Defendants by Guarantee and Indemnity of Lease Agreement No. C1-09- 0011 jointly and severally undertook to indemnify the Plaintiff against any failure by the 1st Defendant to perform his obligations. When the 1st Defendant failed and neglected to pay to the Plaintiff the rentals due, the Plaintiff terminated the agreement and demanded “the property” and the sums due and owing to the Plaintiff from the 1st, 2nd and 3rd Defendants.

[4] The Plaintiff instituted action against the 1st, 2nd and 3rd Defendants, claiming relief jointly and severally on the lease agreement marked ‘P2’ and the guarantee bond marked ‘P8’.

[5] At the conclusion of the trial, the learned Judge of the Commercial High Court by Judgment dated 12/10/2018, ex parte against the 1st and 2nd Defendants and inter parte against the 3rd Defendant-Appellant, decided in favor of the Plaintiff.

[6] The 3rd Defendant-Appellant by Petition dated 05/12/2018 is before this Court to set aside the Judgment dated 12/10/2018, delivered by the Commercial High Court.

[7] On the date of the hearing, the 3rd Defendant-Appellant limited his submissions to the following questions of law.

1. Whether the guarantee bond (P8) was a printed form that had several blanks that were filled later with typewritten details.

2. The lease agreement was neither shown or a Sinhala translation was given to the Appellant.

3. Whether the lease agreement (P2) was lawfully terminated.

1. Validity of the Guarantee Bond (P8)

1.1 Whether the enforceability of a guarantee is affected by the addition of typewritten particulars subsequent to the guarantor’s signature.

[8] The Appellant challenges the validity of the Guarantee Bond (P8) based on several procedural infirmities which should have precluded the trial court from granting relief against him. His principal argument is that, at the time of signing, the bond contained only the printed text and the typewritten details were inserted later.

[9] The Appellant in his evidence has attempted to point out to the portions that were subsequently inserted. While the precise portions of evidence were not marked for the benefit of the Court, a careful reading of his evidence directs to such subsequent insertions to be the date of execution of the guarantee bond, the reference number of the lease agreement, the personal details of the guarantors (entered below their respective signatures), and the name and address of the lessee.

[10] However, it is crucial to note that none of these particulars were pleaded by the Appellant to be false or to amount to a misrepresentation.

[11] In support of his claim, the Appellant relied on the testimony of the Plaintiff’s witness, Belan Daminda who conceded that the blank spaces in the guarantee agreement were completed after the 3rd Defendant had placed his signature.

[12] The 3rd Defendant-Appellant, in his testimony, stated that at the time he signed the guarantee bond, the document contained only the printed part and alleged that the typewritten part was inserted later. He takes up the position that, by leaving blank spaces in the guarantee bond to be filled later, the