IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application under and in terms of Section 5C of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 as amended by High Court of the Provinces (Special Provisions) (Amendment)

Act No. 54 of 2006.

Union Bank of Colombo Limited, 64, Galle Road, Colombo 03.

Plaintiff SC Appeal No: 98/2017 DC Colombo Case No. DR/1147 WP/HCCA/COL 226/09(F)

SC/HCCA/LA/ 494/2014 Vs.

1. David Pedurupillai Dominique, Kings Court, No. 4/5, Havelock Road, Colombo 05.

2. Nallathambi Naguleswaran, No. 5/1, “F” Block, Government Flats, Colombo 04.

3. Jagathlal Abeysinghe Gunawardene, No. 3, Sarasavi Road, Nugegoda.

4. Surendra Nadan Ravindran, No. 24, Circular Road, Mabole, Wattala.

Defendants AND

1. David Pedurupillai Dominique, Kings Court, No. 4/5, Havelock Road, Colombo 05.

2. Nallathambi Naguleswaran, No. 5/1, “F” Block, Government Flats, Colombo 04.

1^st and 2^nd Defendants-Appellants Vs.

Union Bank of Colombo Limited, 64, Galle Road, Colombo 03.

Plaintiff-Respondent

3. Jagathlal Abeysinghe Gunawardene, No. 3, Sarasavi Road, Nugegoda.

4. Surendra Nadan Ravindran, No. 24, Circular Road, Mabole, Wattala.

Defendants-Respondents AND NOW BETWEEN Union Bank of Colombo PLC, 64, Galle Road, Colombo 03.

(Formerly Known as Union Bank of Colombo Limited)

Plaintiff-Respondent-Petitioner Vs.

1. David Pedurupillai Dominique, Kings Court, No. 4/5, Havelock Road, Colombo 05.

2. Nallathambi Naguleswaran, No. 5/1, “F” Block, Government Flats, Colombo 04.

1^st and 2^nd Defendants-Appellants-

Respondents

3. Jagathlal Abeysinghe Gunawardene, No. 3, Sarasavi Road, Nugegoda.

4. Surendra Nadan Ravindran, No. 24, Circular Road, Mabole, Wattala.

3^rd and 4^th Defendants-

Respondents-Respondents Before: Justice Buwaneka Aluwihare, PC Justice Kumuduni Wickremasinghe Justice A.L. Shiran Gooneratne Counsel: Dr. Romesh de Silva, PC with Shanaka L. Cooray for the Plaintiff-

Respondent-Petitioners.

Suren de Silva with Vinodh Wickremasooriya for the 1^st and 2^nd Defendants-Appellants-Respondents Argued on: 28/10/2022 Decided on: 17/02/2023 A.L. Shiran Gooneratne J.

By Plaint dated 31/05/2005, the Plaintiff-Respondent-Petitioner (hereinafter sometimes referred to as ‘the Plaintiff Bank’) filed this action No. D.C. Colombo DR/1147 against the 1^st and 2^nd Defendants-Appellant-Respondents (‘the 1^st and 2^nd Defendants’) and the 3^rd and 4^th Defendant-Respondent-Respondents (‘the 3^rd and 4^th Defendants’), under the Debt Recovery (Special Provisions) Act No. 2 of 1990 and sought to recover a sum of Rs. 3,128,247.54 together with interest against the said four Defendants.

In paragraphs 3 and 4 of the Plaint, the Plaintiff stated that the Plaintiff Bank, at the request of Nu-Tech Engineering (Pvt) Ltd, (hereinafter sometimes referred to as ‘the borrower Company’), by Agreement dated 02/09/1998, a copy of which is annexed to the Plaint marked ‘P2’, granted a banking facility in a sum of Rs. 2.5 million, to the borrower Company to finance working capital requirements and that at all times material to this action, the 1^st and 2^nd Defendants along with the 3^rd and 4^th Defendants were directors of the said company.

The relevant part of ‘P2’ is as follows:

“Banking Facilities We, the Union Bank of Colombo, are pleased to offer the following banking facility on terms and conditions stipulated below:

Borrower: Nu-Tech Engineering (Pvt) Ltd.

1. Overdraft of Rs. 2,500,000/- (Rupees Two Million Five Hundred Thousand Only)

Purpose: To finance working capital requirements.

Interest rate: 20% p.a.

Security and other documentation The following security documentation is required in connection with the facilities being offered and should be perfected prior to their use. 1. Personal Guarantee of Directors for Rs. 2,500,000/-

2. Demand Promissory Note for Rs. 2,500,000/-

3. Mortgage over motor vehicles for Rs. 2,500,000/- together with comprehensive insurance policies assigned to us covering the vehicles mortgaged and valuation reports issued by a re