IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In matter of an application for Leave to Appeal from the Order of the High Court of the Western Province holden in Colombo.

In the matter of Green Lanka Shipping Limited Green Lanka Tower, 46/46, Nawam Mawatha, Colombo 02.

S.C Leave to Appeal No: SC/HC/LA/40/2018 High Court No: HC (Civil) 49/2016(CO)

Evergreen Marine Corporation (Taiwan) Limited No.166, Sec 2, Mingsheng East Road, Taipei 104, Taiwan, Republic of China.

Petitioner AND NOW Green Lanka Shipping Limited Green Lanka Tower, 46/46, Nawam Mawatha, Colombo 02.

Company Ordered to be Wound Up - Petitioner VS

1. Evergreen Marine Corporation (Taiwan) Limited No.166, Sec 2, Mingsheng East Road, Taipei 104, Taiwan, Republic of China.

Petitioner- Respondent

2. Mercantile Investments &

Finance PLC No. 236, Galle Road, Colombo 03.

Creditor- Respondent

3. G.J David SJMS Associates, Chartered Accountants, Level 03, No.11, Castle Lane, Colombo 04.

Liquidator- Respondent Before: Jayantha Jayasuriya PC CJ., Vijith K. Malalgoda, PC J. and Murdu N.B. Fernando, PC J.

Counsel: S.A. Parathalingam PC with Nishkan Parathalingam, Ms. Olivia Thomas instructed by Anoma Goonethilake for the Company Ordered to be Wound up - Petitioner.

Suren de Silva instructed by D.L and F de Saram for the Petitioner- Respondent. Harsha Amarasekara P.C. with Kanchana Peiris instructed by Paul Ratnayake Associates for the Creditor – Respondent.

Nihal Fernando P.C. with Rohan Dunuwille and Anushka Weerakon instructed by Thivanka Pussewela for the Liquidator – Respondent.

Argued on: 12.06.2019, 22.11.2019 and 18.12.2019.

Decided on: 21.10.2021 Murdu N.B. Fernando, PC. J.

This Leave to Appeal Application arises from an Order of the High Court of the Western Province, exercising Civil (Commercial) jurisdiction, holden in Colombo (“the High Court”) dated 29^th March, 2018.

By the said Order, the learned judge of the High Court, revoked its earlier Order dated

22^nd February, 2018 and re-issued notice on the liquidator in terms of the relevant rules, in a winding-up application filed in the High Court under the Companies Act No 07 of 2007 (“Companies Act”).

Being aggrieved by the said High Court Order, Green Lanka Shipping Limited, the Company Ordered to be Wound up- Petitioner, came before this Court on 17^th April, 2018 in a Leave to Appeal Application and moved for Leave to Appeal and to set aside the Order dated 29^th March, 2018 and also to grant and issue interim relief to stay and suspend the said Order pending the determination of this application.

In the Leave to Appeal Application filed before this Court, the Company Ordered to be wound up - Petitioner, Green Lanka Shipping Limited (“Green Lanka Ltd”), named three parties as Respondents. They are;

(i) Evergreen Marine Corporation (Taiwan) Limited, the Petitioner –

Respondent;

(ii) M ercantile Investments and Finance Limited, the Creditor- Respondent; and (iii) G. J. David of SJMS Associates, the Liquidator- Respondent.

When this Application for Leave to Appeal was taken up before this Court on 12^th June, 2019 the learned Counsel for the Petitioner- Respondent and the learned Presidents’ Counsel appearing for the Creditor- Respondent and Liquidator- Respondent (collectively referred to as the “Respondents”) raised a number of preliminary objections and moved that the Leave to Appeal Application be dismissed in limine.

The said preliminary objections are as follows: -

(i) there is no valid proxy granted on behalf of the Petitioner (Green Lanka Limited)

filed of record;

(ii) the affidavit filed in support of the petition filed of record cannot be acted upon, since the deponent is not a director of the Petitioner Company, Green Lanka Ltd.; and (iii) the Leave to Appeal Application filed is defective, since all parties who were represented at the High Court, have not been made parties to the application filed in this Court.

Having heard all the parties before this Court with regard to the above preliminary objections and also