IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Sri Lanka Savings Bank Limited, No. 110, D.S. Senanayake Mawatha, Colombo 08.

Plaintiff SC APPEAL NO: SC/CHC/APPEAL/81/2014 CHC NO: HC (CIVIL) 283/2001 Vs.

01. Globe Investments (Private) Limited, No. 233/8, Cotta Road, Colombo 08.

Presently at: No. 65/09, Wickramasinghe Mawatha, Battaramulla.

02. Nirmala Anura Fernando, No. 233/8, Cotta Road, Colombo 08.

Presently at: No. 65/09, Wickramasinghe Mawatha, Battaramulla.

03. Estelita Rozobelle Dolores Fernando, No. 233/8, Cotta Road, Colombo 08.

Presently at: No. 65/09, Wickramasinghe Mawatha, Battaramulla.

Defendants AND NOW BETWEEN Nirmala Anura Fernando, No. 233/8, Cotta Road, Colombo 08.

Presently at: No. 65/09, Wickramasinghe Mawatha, Battaramulla.

2^nd Defendant-Appellant Vs.

01. Sri Lanka Savings Bank Limited, No. 110, D.S. Senanayake Mawatha, Colombo 08.

Plaintiff-Respondent

02. Globe Investments (Private) Limited, No. 233/8, Cotta Road, Colombo 08.

Presently at: No. 65/09, Wickramasinghe Mawatha, Battaramulla.

1^st Defendant-Respondent

03. Estelita Rozobelle Dolores Fernando, No. 233/8, Cotta Road, Colombo 08.

Presently at: No. 65/09, Wickramasinghe Mawatha, Battaramulla.

3^rd Defendant-Respondent Before: Hon. Justice Priyantha Jayawardena, P.C.

Hon. Justice A.H.M.D. Nawaz Hon. Justice Mahinda Samayawardhena Counsel: Shivan Coorey with Manjula Fernandopulle for the 2nd Defendant-Appellant.

Erusha Kalidasa for the Plaintiff-Respondent.

Argued on : 08.09.2022 Written submissions:

by the Plaintiff-Respondent on 26.03.2021 and 03.10.2022.

Decided on: 28.02.2024 Samayawardhena, J.

Introduction The plaintiff filed this action against the three defendants in the Commercial High Court of Colombo seeking to recover a sum of Rs. 19,810,648.00 together with interest at a rate of 32% per annum on a sum of Rs. 12,574,121.12 with 1% Business Turnover Tax and 6.5% National Security Levy. The 1st defendant, who is the borrower, is an incorporated company and the 2nd and 3rd defendants are the guarantors to the loan. The address stated in the summons for all three defendants is No. 233/8, Cotta Road, Colombo 8 which appears to be the registered address of the 1^st defendant company. However, in the guarantee agreement marked P9 the address of the 2^nd and 3^rd defendant guarantors is given as No. 3, Torrington Avenue, Colombo 7. Summons issued on the defendants to be served through the fiscal could not be served on two occasions since the premises were reportedly closed but on the third occasion on 10.05.2002 the fiscal reported personal service of summons on all three defendants (in that the 2^nd defendant reportedly accepted his summons and that of the 1^st defendant company). The defendants did not respond to summons and the case was fixed for ex parte trial and the judgment was delivered against all three defendants as prayed for in the plaint. The ex parte decree was reportedly served on all three defendants on 15.11.2002 in the manner the summons was served. The plaintiff did not take steps until 2008 to make an application for the execution of writ. The notice of the application for writ was reported to have been served on a different person at a different address, namely, the Manager of Rhythm Collection (Pvt) Ltd of No. 10/209, 4^th Floor, Union Place, Colombo 2.

The 2nd defendant filed an application in terms of section 839 read with section 86(2) of the Civil Procedure Code by petition dated 19.10.2009 supported by affidavit and documents seeking to set aside the ex parte judgment and decree on the basis that he did not reside at No. 233/8, Cotta Road, Colombo 8 but was overseas at the time summons and decree were reported to have been served on him.

At the inquiry into this matter the 2nd defendant gave evidence. He produced two of his passports marked P1 and P2. He also called an officer from the Department of Immigration and Emigration as a witness to corroborate the fact that he had been overseas during the relevant period. The plaintiff