IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal under Section 5(1) of the High Court of the Provinces (Special Provisions) Act No. 10 of 1996 read together with Section 6 thereof, Sections 754(1), 755(3) and 758 of the Civil Procedure Code and Article 128 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

SC (CHC) Appeal No. 37/2011 Commercial High Court of Colombo Case No. HC (Civil) 285/2006(1)

Pan Arch Architecture (Pvt) Limited, 19-D, Ocean Tower, Station Road, Colombo 4.

Plaintiff vs (1) Neat Lanka (Pvt) Limited, 47A Prince Street, Colombo 11.

And also at No. 50 1/11, Colombo Plaza, Wellawatte.

(2) Neat Property Developers (Pvt) Limited, 51, Vipulasena Mawatha, Colombo 10. Defendants And now between Pan Arch Architecture (Pvt) Limited, 19-D, Ocean Tower, Station Road, Colombo 4.

Plaintiff – Appellant vs (1) Neat Lanka (Pvt) Limited, 47A Prince Street, Colombo 11.

And also at No. 50 1/11, Colombo Plaza, Wellawatte.

(2) Neat Property Developers (Pvt) Limited, 51, Vipulasena Mawatha, Colombo 10.

Defendants – Respondents Before: Vijith K. Malalgoda, PC, J Mahinda Samayawardhena, J Arjuna Obeyesekere, J Counsel: Geoffrey Alagaratnam, PC with Suren Fernando for the Plaintiff –

Appellant Argued on: 29^th May 2023 Written Tendered on behalf of the Plaintiff – Appellant on 7^th June 2023 Submissions:

Decided on: 13^th October 2023 Obeyesekere, J The Plaintiff – Appellant [the Plaintiff] instituted action in the High Court of the Western Province exercising Civil jurisdiction and holden in Colombo [the Commercial High Court] on 7^th December 2006 against Neat Lanka (Private) Limited, the 1^st Defendant – Respondent [the 1^st Defendant] and Neat Property Developers (Private) Limited, the 2^nd Defendant – Respondent [the 2^nd Defendant], claiming that the Defendants are jointly and severally liable to pay the Plaintiff a sum of Rs. 10,200,000 for the architectural and consultancy services provided by the Plaintiff to the Defendants and seeking to recover the said sum of money together with interest from 28^th September 2006. While each of the Defendants filed answer denying liability, the 2^nd Defendant preferred a claim in reconvention against the Plaintiff, necessitating the filing of a replication by the Plaintiff denying the said claim.

Admissions and Issues having been raised on behalf of all parties, the case proceeded to trial with the Plaintiff leading the evidence of two witnesses, namely Kumudu Munasinghe, its Managing Director and Lakkana Abeynayake, who had served as the Chief Executive Officer of the 2^nd Defendant at the time relevant to the impugned transaction. Sanjeeva Senaratne, a director and shareholder of the 1^st and 2^nd Defendants gave evidence on behalf of the Defendants. On 16^th September 2011, the learned Judge of the Commercial High Court entered judgment in favour of the Plaintiff but only against the 1^st Defendant.

Aggrieved, the 1^st Defendant filed an appeal in this Court against the said judgment. The Plaintiff too filed an appeal complaining that the learned Judge of the Commercial High Court erred when he failed to hold against the 2^nd Defendant, as well, in spite of having answered the issues relating to the 2^nd Defendant in a manner favourable to the Plaintiff. Both appeals were taken up together for argument on 29^th May 2023, on which date the learned President’s Counsel for the Defendants informed this Court that he has received instructions from the Defendants that both companies are presently defunct and for that reason, the 1^st Defendant is not interested in pursuing with the appeal filed by it and the

2^nd Defendant will not participate in the appeal filed by the Plaintiff.

The learned Counsel for the Plaintiff, Geoffrey Alagaratnam, PC informed this Court that he has received instructions to proceed with the appeal of the Plaintiff. Accordingly, this Court proceeded to hear Mr. Alagaratnam, PC, who submitted that while the findings of the Commercial H