IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application for Mandates in the nature of Writs of Certiorari, Mandamus and Prohibition under and in terms of Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Case No: CA WRIT/598/2023

1. Mahesh Corporation (Pvt) Ltd.

No.61, Daluwakotuwa, Kochchikade

2. Wewalage Michael Mahesh Fernando No.256, Welihena South, Kochchikade Petitioners Vs.

1. Sampath Bank PLC Head Office, No. 110, Sir James Peiris Mawatha, Colombo 02. 2. Mr. H. Amarasekara Chairman, Sampath Bank PLC, Head Office, No.110, Sir James Peiris Mawatha, Colombo 02.

3. Mr. R. Silva Deputy Chairman Sampath Bank PLC, Head Office, No.110, Sir James Peiris Mawatha, Colombo 02.

4. Mr. N. Fernando Managing Director Sampath Bank PLC

5. Mr. D. De S Wijeyeratne Director Sampath Bank PLC

6. Ms. A. Nanayakkara Director Sampath Bank PLC

7. Mr. S. Weerawarna Director Sampath Bank PLC 8. Mr. V. Kulatilaka Director Sampath Bank PLC

9. Ms. K. Jayawardena Director Sampath Bank PLC

10. Mr. V. Hirdaramani Director Sampath Bank PLC

11. Mr. H. Cabral Director Sampath Bank

12. Mr. A. De Vas Gunasekara Director/ Chief Financial Officer Sampath Bank PLC

4^th to 12^th Respondents, all of Head Office, No. 110, Sir James Peiris Mawatha, Colombo 02.

13. P K E Senapathi, Chartered Auctioneer, No. 134, Baddegana Road, Kotte.

Respondents Before: Hon. Dushmanta N. Samarakoon, J.

Hon. Neil Iddawala, J.

Counsel: Sanjeewa Dasanayake with N. Fernandopulle instructed by Dhammika Jiminige for the Prtitioners.

Chandaka Jayasundara P. C., with Vishmi Fernando instructed by Senaka Hewawitharana for the 01st Respondent.

Supported on: 16.10.2023 Written submission tendered on: 20.10.2023 by the petitioners

23.10.2013 by the Respondents.

Decided on: 10.11. 2023 Dushmanta N. Samarakoon, J The word for “foreclosure” in French is “Saisie,” pronounced as “Sisee.” It had been borrowed from Old High German “sazjan” and the French term shares its route with English “seize, [saisisse (French): meaning, definition - WordSense].” In RAMACHANDRAN AND ANOTHER (SC APPEAL No. : 5/2004) ANANDASIVA AND ANOTHER (SC APPEAL NO.:9/2004) vs. HATTON NATIONAL BANK AND OTHERS, the Five Judge Bench decision of the Supreme Court dated 15th April 2005, His Lordship Sarath N. Silva, Chief Justice examining the origin of parate execution said, “The extent to which "parate execution" was permitted in Roman Law, Roman-Dutch Law and in South Africa is set out succinctly in the following passage by R. W. Lee in the book referred to above at page 200 and 201.

"In the Roman Law a mortgagee ultimately acquired a power of sale which could not be excluded by express agreement. This right, however, was enjoyed only by a first mortgagee. He could also, under the -Empire, obtain an order of foreclosure (impetratio dominii). In , the Roman-Dutch Law neither of these remedies is generally available. Foreclosure is unknown and sale cannot be effected except with the consent of the debtor. The normal mode of realizing a mortgage is by obtaining a judgment of the Court and taking out a writ of execution. In South Africa, if the mortgaged property is immovable, an order of Court is required declaring the property executable.”

The 1st respondent bank has passed a resolution under section 04 of Recovery of Loans by Banks (Special Provisions) Act No. 04 of 1990 to auction two properties mortgaged to it by the 2nd petitioner, Wewalage Michael Mahesh Fernando in order to obtain a loan for the 1st petitioner, Mahesh Corporation (Pvt) Ltd. The two petitioners seek writs of certiorari, prohibition and mandamus, the latter, to compel the respondents to implement the concessions the petitioners say they are entitled to under the Central Bank Directives and or Circulars.

On the date the learned counsel for the petitioner supported the writ application for notice, the learned President’s Counsel for the 1^st respondent bank objected to the issue of notice and granting of inte