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

Sri Lanka Telecom Ltd, Lotus Road, Colombo 01.

Plaintiff Vs.

Global Electroteks Limited, Unit C 17, Poplar Business Park, 10, Preston Road London E14 9 RL, United Kingdom.

Defendant SC (CHC) Appeal No.05/2011 HC (Civil) No. 207/2003 (1)

AND NOW Sri Lanka Telecom Ltd, Lotus Road, Colombo 01.

Plaintiff - Appellant Vs.

Global Electroteks Limited, Unit C 17, Poplar Business Park, 10 Preston Road London E14 9 RL, United Kingdom.

Defendant – Respondent Before: Sisira J. de Abrew J., Murdu N.B.Fernando, PC J. and S. Thurairaja PC J.

Counsel: Dr. K. Kanag-Isvaran PC with Lakshman Jayekumar instructed by Julius and Creasy for the Plaintiff – Appellant.

Manoj Bandara with Hasitha Gamage instructed by Sudath Perera Associates for the Defendant- Respondent.

Argued on: 08.02.2021 Decided on: 31.05.2021 Murdu N.B. Fernando, PC. J.

This appeal arises from the judgement of the High Court of the Western Province holden in Colombo (“the High Court”) dated 03-09-2010.

By the said High Court judgement, the learned judge of the High Court dismissed the action filed therein subject to taxed costs.

Being aggrieved by the said judgement, the Plaintiff-Appellant (“the Plaintiff”) came before this Court by Petition of Appeal dated 14-10-2010 and moved inter-alia to set aside the judgement of the High Court and to grant relief as prayed for in the plaint.

The factual matrix of this application albeit brief is as follows;

01. The Plaintiff-Appellant, Sri Lanka Telecom entered into a Telecommunication Services Agreement (“the agreement”) with the Defendant-Respondent (“the Defendant”), a company based in the United Kingdom dated 29-06-2001. This agreement was executed by the Chief Executive Officer of Sri Lanka Telecom and the Directors of the Defendant company B.A.C Abeywardena and R.S. Jayatilleka and was for providing inter connection services;

02. By the said agreement “P1”, the Defendant being the ‘customer’ of the ‘operator Sri Lanka Telecom the Plaintiff, originates a voice call or data transmission (“traffic /calls”) on the licensed system of Sri Lanka Telecom, which culminates or terminates with a customer of another operator, operating another licensed system in another country and vice versa. This process of ‘interconnection’ is achieved by installing a communication link between the systems of the respective operators.

03. In terms of said agreement, the Plaintiff agreed and under took to provide the Defendant traffic/calls and the Defendant agreed and under took to obtain the interconnection services at the below mention rates.

- For traffic/ calls originating from Sri Lanka.

• for the 1^st 100,000 minutes per month at the rate of US $ 0.30 cents per minute;

• for the next 100,000 to 500,000 minutes per month at the rate of US $ 0.25cents per minute; and • for the next 500,000 to 1,500,000 minutes per month at the rate of US $ 0.20 cents per minute.

• The above rates were subject to the Defendant bringing a minimum volume of 1,500,000 minutes traffic/calls per month. (If the Defendant fails to bring such traffic, the defendant is liable to pay for the full committed fee for the traffic/calls.)

- For traffic/calls originating from the United Kingdom.

• US $ 0.20 cents per minute for any volume of traffic/calls and there was no committed volume of traffic.

04. The agr eement was valid for a period of one year. The industry norm was each party invoice the other and the party that owes the greater amount set-off the sum owed to itself and make good the balance owed to the other party.

05. In the instant case, there was an imbalance of two-way traffic between Sri Lanka and the United Kingdom. Traffic originating from United Kingdom was greater and the Defendant had to make payment to the Plaintiff, Sri Lanka Telecom. The payments were based on the monthly invoices, monthly incoming telephone sta