IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for Restitutio-in-Integrum under Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Court of Appeal Case No:

CA/RII/24/2024 C.H.C. Colombo Case No:

CHC/118/2023/MR New Nawaloka Medical Centre (Private) Limited

73, Sir James Peiris Mawatha, Colombo 02.

Plaintiff-Petitioner -Vs-

1. Hatton National Bank PLC. HNB Towers, 479, T.B. Jayah Mawatha, Colombo 10.

2. K.P.N. Silva

109/12A, Gothami Road, Colombo 08.

Defendant-Respondents Before: Hon. D.N. Samarakoon, J.

Counsel: Dr. Romesh De Silva P.C., with Niran Anketell instructed by Sanath Wijewardhana for the Plaintiff-Petitioner.

Priyantha Alagiyawanna and Duminda Premaratne with Thusitha Ediriweera for the Defendant-Respondents.

Supported on: 25.03.2024 (leaned counsel agreed to dispose of the matter in issue on written submissions)

Written submission tendered on: 02.04.2024 by the Plaintiff- Petitioner.

03.04. 2024 by the Defendant-

Respondent.

Decided on: 06.05.2024 D. N. Samarakoon J., On 25.03.2024 the learned counsel for the petitioner New Nawaloka Medical Centre (Private) Limited and the respondents 1. Hatton National Bank PLC and

2. K. P. N. Silva, agreed to dispose this matter by way of written submissions.

The defendant respondents in their written submissions dated 03.04.2024 raise several preliminary objections. They are, (A) The petitioner is unable in law to challenge the order of the Civil High Court (Colloquially known as “Commercial” High Court) dated 22.02.2024 in terms of the provisions of section 5(2) of the High Court of the Province (Special Provisions) Act No. 10 of 1996 (B) The petitioner is not entitled to invoke the powers of restitutio in integrum or revision when there are alternative remedies (C) There is suppression and misrepresentation in the conduct of the petitioner (D) The petitioner has failed to fulfill requirements to obtain an interim injunction in the civil High Court What is said in (D) is not raised in essence as a preliminary objection. It ranges in between preliminary intermediate and final. Hence it is also included here to consider at the commencement.

(A) The petitioner is unable in law to challenge the order of the Civil High Court (Colloquially known as “Commercial” High Court) dated 22.02.2024 in terms of the provisions of section 5(2) of the High Court of the Province (Special Provisions) Act No. 10 of 1996 (Respondent’s written submissions page 10 paragraph 4.1).

The first ground of the respondent is that the appellate jurisdiction in respect of an order or judgment of the Commercial High Court being vested in the Supreme Court. It argues that hence this court has no power to exercise a revisionary or restitutio in integrum jurisdiction in respect of such an order or judgment.

The respondent has particularly referred to 05 cases to advance its aforesaid contention. They are, (01) Australanka Exporter Pvt. Ltd. Indian Bank 2001 (2) SLR 156 in which case the Court of Appeal refused to exercise revisionary jurisdiction, in respect of an order made by the Commercial High Court in terms of section 88(2) of the Civil Procedure Code as the appellate jurisdiction over the Commercial High Court was vested exclusively in the Supreme Court.

(02) Senanayake and others vs. Koehn and others 2002 (3) SLR 381 in which the Court of Appeal in a case under section 753 of the Civil Procedure Code (Revision) refrained from examining the legality of an order made by the Commercial High Court since it considered the same as an indirect usurpation of the exclusive jurisdiction of the Supreme Court in appeal.

(03) Merchant Bank of Sri Lanka vs. Wijayawardene and others 2012 (2) SLR

01 in which the Supreme Court decided that in a matter concerning section 328 of the Civil Procedure Code if revisionary jurisdiction is given to the Court of Appeal there will be two opportunities of review available whereas the legislature has intended only one app