IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for Leave to Appeal under section 5C of the High Court of the Provinces (Special Provision) Act No. 19 of 1990 as amended by Act No. 54 of 2006.

Multiform Chemicals Limited, No. 659, Elwitigala Mawatha, Colombo 05.

Plain S.C. Appeal No. 183/2011 SC/HCCA/LA No. 334/2010 Vs.

WP/HCCA/COL/75/10 (LA)

D.C. Colombo Case No. 48202/MR Adrian Machado, Rianda Paint and Chemical Industries, No. 131/14, Thimbirigasyaya Road, Colombo 05.

Defendant AND BETWEEN Adrian Machado, Rianda Paint and Chemical Industries, No. 131/14, Thimbirigasyaya Road, Colombo 05.

Defendant-Petitioner Vs.

Multiform Chemicals Limited, No. 659, Elwitigala Mawatha, Colombo 05.

Plaintiff-Respondent AND NOW BETWEEN Multiform Chemicals Limited, No. 659, Alwitigala Mawatha, Colombo 05.

And Presently, Multiform Chemicals (Private) Limited, No. 659, Alwitigala Mawatha, Colombo 05.

Plaintiff-Respondent-Appellant Vs.

Adrian Machado, Rianda Paint and Chemical Industries, No. 131/14, Thimbirigasyaya Road, Colombo 05.

Defendant-Petitioner-Respondent Before: Hon. Vijith K. Malalgoda, P.C., J.

Hon. Kumudini Wickremasinghe, J.

Hon. Janak De Silva, J.

Counsel:

Manohara De Silva, P.C. with Sasiri Chandrasiri for the Plaintiff-Respondent-Appellant Dr. Sunil F. A. Coorey with Nilanga Perera for the Defendant-Petitioner-Respondent Written Submissions tendered on:

23.12.2011 by the Plaintiff-Respondent-Appellant

20.04.2012 by the Defendant-Petitioner-Respondent Argued on: 19.02.2024 Decided on: 18.07.2024 Janak De Silva, J.

The Plaintiff-Respondent-Appellant (“Appellant”) instituted the above styled action to recover a sum of Rs. 1,722,724/19 and interest thereon from the Defendant-Petitioner- Respondent (“Respondent”). According to the plaint, the Appellant sold raw material to the Respondent which was utilised to manufacture paint. The Appellant permitted the Respondent to make purchases on two (02) separate credit facilities payable within 30 and 60 days respectively. This action was filed as the Respondent failed and neglected to pay the amounts due and owing to the Appellant.

During the trial, originals of the purchase orders and the corresponding invoices were marked as P15 to P50(a) by the Appellant during the evidence-in-chief of the Chief Accountant of the Appellant. The Respondent objected to all these documents and moved that they be marked subject to proof.

The learned Additional District Judge overruled the objections and allowed these documents to be admitted in evidence without being subject to proof. The invoices were allowed to be marked without being subject to proof as they were documents prepared by the Appellant. The purchase orders were allowed to be marked without being subject to proof as they were prepared by the Respondent.

The Respondent appealed to the High Court of Civil Appeal of the Western Province Holden in Colombo (“High Court”). During the hearing, the Respondent informed that only the objection in relation to the purchase orders are maintained.

The High Court held that since the Respondent had denied the alleged transactions, it was possible for the Respondent, in view of Section 67 of the Evidence Ordinance, to move that the documents relevant to the transaction be marked subject to proof.

In addressing the contention of the Appellant that it was not possible for the Appellant to call the Respondent to testify, the High Court held that this issue does not arise since the Respondent had informed Court that the Respondent will testify. The High Court went on to state that in the event the Respondent failed to testify, it is possible for the trial judge to draw adverse inferences according to law.

The High Court held that the purchase orders must be marked subject to proof and varied the order of the learned Additional District judge to that extent.

The Appellant sought leave to appeal which was granted on the following questions of law:

(1) The High Court erred by failing