IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal to the Supreme Court in terms of Sections 5 and 6 of the High Court of the Provinces (Special Provisions) Act No. 10 of 1996 read with Chapter LVIII of the Civil Procedure Code.

S.C. (C.H.C) Appeal No. 69/2013 Shahla Cassim, S.C.HC.LA. No. 74/2012 No. 14, Sulaiman Avenue, Case No. HC (Civil) 4/2010/MR Colombo 05. PLAINTIFF Vs.

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

DEFENDANT AND NOW BETWEEN Shahla Cassim, No. 14, Suleiman Avenue, Colombo 05.

PLAINTIFF-APPELLANT Vs.

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

DEFENDANT-RESPONDENT Before: P. Padman Surasena J A.L. Shiran Gooneratne J Arjuna Obeyesekere J Counsel: Rozali Fernando instructed by F.J. & G. De Saram for the Plaintiff-

Appellant.

Dulna De Alwis with Kamal Dissanayake for the Defendant-

Respondent.

Argued on: 08.02.2022 Decided on: 22.09.2023 P. Padman Surasena J:

The Plaintiff-Appellant instituted action relevant to the instant case in the District Court of Colombo against the Defendant-Respondent praying inter alia, for Specific Performance of the Agreement of Sale bearing No. 749 dated 28.06.2002 produced marked P 1 (hereinafter sometimes referred to as the Agreement) and an order directing the Defendant-Respondent to execute a Deed of Transfer to have the land which is the subject matter in the Agreement (P 1) transferred to the Plaintiff-Appellant. With the establishment of the Commercial High Court, the proceedings of the case were later transferred to the Commercial High Court.

After the conclusion of the trial, the learned Commercial High Court Judge by his judgment dated 30^th May 2013, had concluded that the contract entered into by the parties as per the Agreement of Sale bearing No. 749 dated 28.06.2002 (P 1) has come to an end due to the impossibility of performance or frustration. The learned Commercial High Court Judge has further held that the Defendant-Respondent is entitled to receive from the Defendant- Respondent, a sum of Rs. Four Million (Rs.4,000,000/-) which is the sum of money paid as the advance payment by the Plaintiff-Appellant as per the Agreement (P 1) with the legal interest thereon since 01.11.2002. Being aggrieved by the judgment of the learned Commercial High Court Judge, the Plaintiff-Appellant has lodged the instant appeal to this Court seeking to set aside the judgment of the Commercial High Court dated 30^th May 2013.

Before I proceed any further, let me briefly set out the background facts of the case. The Plaintiff-Appellant on 28^th June 2002, had entered into the Agreement of Sale (P 1) with Pramuka Savings and Development Bank Ltd. (hereinafter sometimes referred to as Pramuka Bank) to purchase the land (belonging to Pramuka Bank) described in the schedule thereto, for a price of Thirty-Five Million Rupees (Rs.35,000,000/-). At the time of execution of the said Agreement the Plaintiff-Appellant had paid a sum of Four Million Rupees (Rs. 4,000,000/-) as an advance payment. As per the Agreement, the Plaintiff-Appellant had undertaken to pay the remainder on or before 30.10.2002.1 On 25.10.2002 the Monetary Board of the Central Bank of Sri Lanka (CBSL) had issued an order directing Pramuka Bank to forthwith suspend its business. CBSL by the said order prohibited carrying out any business transactions by Pramuka Bank with immediate effect. This is evident by the letter dated 25^th October 2002 produced marked V 2(a). Subsequently, in the year 2007, by press release dated 31.07.2007 marked P 13 it is apparent that the Government had established a state bank by the name of ‘Sri Lanka Savings Bank Limited’ (the Defendant-Respondent in the instant appeal) to take over the business of Pramuka Bank. The order vesting the business of Pramuka Bank in the Defendant-Respondent with effect from 01.08.2007 has been produced marked P 14.

The Plaintiff-Appellant claims that by virtue of the vesting order marked