IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

In the matter of an appeal in terms of Section 754 (1) of the Civil Procedure Code read with Section 5 of the High Court of the Provinces (Special Provisions) Act No. 10 of 1996.

SC.CHC.APPEAL NO. 12/2015 People’s Leasing Company Limited CHC Case No. HC/C/163/MR/11 No. 67, Sir Chittampalam A. Gardiner Mawatha, Colombo 2. PLAINTIFF -Vs-

1. Selliah Sivan No. 15/15, Nawaloka Gardens, Peliyagoda.

2. Arumugam Sivan No. F 180/2/111, People’s Park Shopping Complex, Colombo 11.

3. Arumugam Thiru Chelvam No. 4C, 2/1, Ebert Place, Dickmans Road, Colombo.

DEFENDANTS AND NOW BETWEEN

2. Arumugam Sivan No. F 180/2/111, People’s Park Shopping Complex, Colombo 11.

3. Arumugam Thiru Chelvam No. 4C, 2/1, Ebert Place, Dickmans Road, Colombo.

2^ND & 3^RD DEFENDANT-APPELLANTS -Vs-

People’s Leasing Company Limited No. 67, Sir Chittampalam A. Gardiner Mawatha, Colombo 2.

PLAINTIFF-RESPONDENT BEFORE : P. PADMAN SURASENA, J ACHALA WENGAPPULI, J &

K. PRIYANTHA FERNANDO, J.

COUNSEL : Samhan Munzir instructed by P. C. De Silva for the 2^nd & 3^rd Defendant–Appellants.

Chamila Wickremanayake with Vidyani Andaramana and Ranuli Fernando for the Plaintiff - Respondent.

ARGUED &

DECIDED ON : 15-05-2024 P. PADMAN SURASENA, J.

Court heard the submissions of the learned Counsel for the 2^nd & 3^rd Defendant-Appellants (hereinafter sometimes referred to as the 2^nd & 3^rd Defendants) and the submissions of the learned Counsel for the Plaintiff–Respondent (hereinafter sometimes referred to as the Plaintiff) and concluded the argument of this case.

The Plaintiff had filed the Plaint in the instant case against the three Defendants (mentioned in the caption) praying for a judgment and decree against the Defendants, to recover from them jointly and/or severally, a sum of Rs. 3,450,322.99, the interest accrued to that sum of money at the rate of 4% per month until the date of the Plaint and the legal interest thereon from the date of the decree, until the aforesaid sum is paid in full to the Plaintiff.

The 1^st Defendant was the principal applicant (Hirer) who applied to obtain a Hire Purchase facility from the Plaintiff to purchase the Vehicle bearing No. WPKA-8900.

The 2^nd and 3^rd Defendants are the Guarantors who had signed the Agreement produced, marked P2 in that capacity.

Although, the Plaintiff has filed the Plaint naming all three Defendants, namely: the 1^st Defendant who is the principal borrower, the 2^nd and 3^rd Defendants who are Guarantors, the Plaintiff had not proceeded against the 1^st Defendant as the summons could not be served on the 1^st Defendant even after several attempts. However, the Plaintiff had proceeded with the trial against the 2^nd and 3^rd Defendants.

The learned Commercial High Court judge by his judgment dated 28-10-2014, has granted reliefs prayed for, in the Plaint against the 2^nd and the 3^rd Defendants.

Being aggrieved by the judgment dated 28-10-2014 pronounced by the Commercial High Court, the

2^nd and 3^rd Defendants have lodged the instant Appeal to this Court.

In the course of the hearing, the learned Counsel for the 2^nd and 3^rd Defendants advanced only two arguments. The first argument is that it is wrong for the Plaintiff to have proceeded with the trial only against the 2^nd and 3^rd Defendants, leaving out the 1^st Defendant who was the Hirer (the principal applicant for the facility).

The second argument is that the Statement of Accounts produced, marked P6 A does not reflect the correct sum of money due to the Plaintiff on the relevant Agreement.

Let us now advert to the first argument. We observe that the Plaintiff has had a reason to leave out the 1^st Defendant and to proceed only against the 2^nd and 3^rd Defendants. These reasons can be gathered from the journal entry No. 02 and the journal entry No. 07 respectively at pages 14 and 18 of the Appeal Brief. Accordingly, it is clear that it has not been possible to trace the 1^st Defendant to serve summons on him.

This fact has been clearly record