IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Lanka Orix Leasing Company Plc

100/1, Sri Jayawardenapura Mwatha, Rajagiriya.

Plaintiff Vs.

SC (CHC) Appeal No. 23/2016 HC. (Civil) NO. 477/09/MR

1. Meera Mohideen Mohammadu Azar No.329, Jumma Mosque, Meerauwodai, Oddamawaddi. 2. Gopalan Kamalanathan, Visnu Kovil Road, Kiran.

3. Gopalan Padma Yogan, Kumaralaya Veethi Kiran.

Defendants AND

2. Gopalan Kamalanathan, Visnu Kovil Road, Kiran.

3. Gopalan Padma Yogan, Kumaralaya Veethi Kiran.

2nd and 3rd Defendants-

Petitioners Vs.

Lanka Orix Leasing Company Plc

100/1, Sri Jayawardenapura Mwatha, Rajagiriya.

Plaintiff-Respondent

1. Meera Mohideen Mohammadu Azar No.329, Jumma Mosque, Meerauwodai, Oddamawaddi.

1st Defendant-Respondent AND NOW BETWEEN

2. Gopalan Kamalanathan, Visnu Kovil Road, Kiran.

3. Gopalan Padma Yogan, Kumaralaya Veethi Kiran.

2^nd and 3^rd Defendant-Petitioner-

Appellants Vs.

Lanka Orix Leasing Company Plc.

100/1, Sri Jayawardenapura Mwatha, Rajagiriya.

Plaintiff-Respondent-

Respondent

1. Meera Mohideen Mohammadu Azar No.329, Jumma Mosque, Meerauwodai, Oddamawaddi.

1st Defendant-Respondent-

Respondent BEFORE : PRIYANTHA JAYAWARDENA, PC.J.

A.H.M.D. NAWAZ, J.

ACHALA WENGAPPULI, J.

COUNSEL : Senaka de Silva for the 2nd & 3rd Defendant-Petitioner-

Appellants.

Shanaka De Livera with Miss. Devni Yasara Abeygunawardana, AAL instructed by De Livera Associates for the Plaintiff-Respondent-Respondent.

No appearance for the 1st Defendant-Respondent-

Respondent ARGUED ON : 07th June, 2023 DECIDED ON : 27^th February, 2024 ACHALA WENGAPPULI, J.

This is a direct appeal preferred by the 2nd and 3rd Defendant-

Petitioner-Appellants (hereinafter referred to as the “1st and 2nd Appellants” respectively) seeking to set aside an order pronounced by the Commercial High Court on 13.05.2016. With the pronouncement of the said order, the Commercial High Court dismissed their application under Section 86(2) of the Civil Procedure Code, by which they sought to set aside the ex parte decree that had been served on them.

The 1st Defendant-Respondent-Respondent entered into an agreement with the Plaintiff-Respondent-Respondent Company (hereinafter referred to as the “Respondent Company”) in September 2008, to purchase a vehicle morefully described in the schedule A to the plaint and to pay its value in 48 instalments of Rs. 51,611.00, at the interest rate calculated at 31% per annum. The two Appellants stood as the guarantors for the said 1st Defendant- Respondent-Respondent. The 1st Defendant-Respondent-Respondent, after payment of a sum of Rs. 103,642.00, had fallen into arrears. The said agreement was terminated on 20.12.2008. The Respondent Company had thereupon instituted the instant action on 22.09.2009, seeking to recover its dues from the three defendants. It also sought to recover possession of the said vehicle.

With institution of the instant action before the Commercial High Court, the Respondent Company moved that summonses be served on the three defendants by way of registered post as well as through the Fiscal of the District Court of Batticaloa, since they are resident in that jurisdiction. Upon an order of Court made to that effect, the Registrar of the Commercial High Court, by way of a Precept, conveyed the said order of Court to the Fiscal of the District Court of Batticaloa.

The entry made on 25.11.2009 in the case record by the Registrar of the Commercial High Court indicated that the Fiscal of Batticaloa Court had reported back of the confirmation of personal service of summonses on the 1st and 2nd Appellants on 16.11.2009. This factor was then brought to the notice of Court by Journal Entry No. 2 of the same date. He further reported that the summons issued on the 1st Defendant-Respondent-Respondent could not be served as he was not found in the given address. However, the 1st and 2nd Appellants did not present themselves before the original Court on that day (02.12.2009) nor did they file answer through an Attorney-at- Law. The Court had