IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal against the Judgement of the High Court of the Western Province Holden in Colombo (exercising Civil/ Commercial jurisdiction)

Seylan Bank Limited No. 69. Janadhipathi Mawatha, Colombo 01.

SC/CHC/15/2012 Plaintiff HC (Civil) 239/2004/(1) Vs.

1. Samdo Macky Sportswear (Private) Limited, No. 241, Layard’s Broadway, Colombo 14

2. Mohamed Uvais Mohamed Rushdi, No. 112, Horton Place, Colombo 07 Defendants And Now Between Mohamed Uvais Mohamed Rushdi, No. 112, Horton Place, Colombo 07.

2^nd Defendant – Appellant Vs.

Seylan Bank Limited No. 69. Janadhipathi Mawatha, Colombo 01.

Plaintiff - Respondent Samdo Macky Sportswear (Private)

Limited, No. 241, Layard’s Broadway, Colombo 14.

1st Defendant – Respondent Before: Murdu N.B. Fernando, PC. CJ., A.H.M.D. Nawaz, J. and K.K. Wickremasinghe, J.

Counsel: Rasika Dissanayake for the 2nd Defendant-Appellant Shanaka de Livera with Ms. Vihanga Dissanayake and Ms. Yashoda Silva for the Plaintiff-Respondent instructed by De Livera Associates.

Argued on: 03.10.2024 Decided on: 23.07.2025 Murdu N.B. Fernando, PC. CJ., This Appeal arises from the Judgement of the High Court of the Western Province Holden in Colombo (exercising Civil/ Commercial) jurisdiction (“the High Court”) dated

04th March, 2011.

By the said judgement the High Court granted the relief prayed for by the Plaintiff-

Respondent (“the Plaintiff” / “the Bank”) who sued the Defendants but proceeded to trial only against the 2nd Defendant, MUM Rushdi (“the Defendant”/ “the Appellant”). The docket bears out the case was laid by against the 1^st Defendant, Samdo Macky Sportswear (Private) Ltd., as a Winding Up Order had been made against such company.

The plaint dated 26th October 2004 bears out, that the Foreign Currency Unit of the Plaintiff - Bank has lent and/or advanced a Term Loan of USD 806,842.00 to the 1st Defendant Company and the 1st Defendant Company has undertaken to re-pay the Bank, on demand, the Loan together with interest, expenses and charges. However, the 1st Defendant Company failed to honour such undertaking.

Further, the plaint discloses that the 2nd Defendant promised in writing to pay the Bank on demand, the monies and to renounce all rights of sureties in law and jointly and severally be bound and liable together with the 1st Defendant Company vide, Guarantee Bond P9 The only defense taken by the 2nd Defendant in the Answer was that there was no cause of action against him and that the Guarantee Bond has no connection whatsoever to this action.

The 2^nd Defendant also pleaded, the monies referred to in the Guarantee Bond have been fully paid by the 1^st Defendant Company and that the plaint was not in compliance with many provisions of the Civil Procedure Code.

At the trial, the evidence of a Senior Manager was led on behalf of the Bank who gave evidence in respect of the financial transactions between the Bank and the 1st Defendant Company, inter-alia the mandate P3, Statement of Accounts P4 and the Loan Agreement P5 which has been signed by the 2nd Defendant as the Managing Director of the 1st Defendant Company, and the Letter of Demand P6. The 2nd Defendant did not lead any evidence or mark any documents and the learned High Court Judge entered judgement in favour of the Bank.

Upon reading of the impugned judgement, it is apparent that the only objection taken at the trial by the Defendant was as to the proof of document P7, an affidavit said to have been tendered by the Chief Officer of the Foreign Currency Unit of the Bank referring to the total sum due from the 1st Defendant Company and the fact that the Bank lodged a claim for the said sum due from the debtor, 1st Defendant Company, with the Liquidator, in the Winding Up application.

The learned High Court Judge has considered the totality of the evidence, the failure of the Defendant to challenge the evidence led on behalf of the Bank and on a balance of probability, categorically he