PEOPLE'S BANK

Vs.

GUNASEKERA AND ANOTHER

SUPREME COURT
ALUWIHARE, J.
JAYAWARDENA, J.
SURASENA, J.
SC/CHC/APPEAL/43/2012
HC COLOMBO (CIVIL) 276/2007/MR
MARCH 26, 2019

Evidence Ordinance, sections 61, 62, 63, 64, 65, 90A, 90C, 90D and 130(3)- Chapter VI on Banker's books-Primary evidence-Secondary evidence-Certified copies

The plaintiff bank instituted action against the defendants to recover a sum of money under a guarantee bond that had been executed by the defendants in favour of the plaintiff bank for money due to the plaintiff from a different company. The Commercial High Court held in favour of the plaintiff bank. On appeal, the 2nd defendant-appellant, relying on Agostinu v. Kumaraswamy 59 NLR 132, argued that interalia the Commercial High Court erred when it accepted the statement of accounts certified by the chief manager of the special assets unit of the plaintiff bank to prove that the money was due to the plaintiff from the said company.

Held:

1. Analysis of the Evidence Ordinance reveals that the evidentiary provisions in Chapter VI on "banker's books" are standalone provisions which operate independently of the general provisions contained in the Evidence Ordinance relating to proof of documents. Any document which falls within the meaning of "banker's books" can be proved by producing a certified copy, as stipulated in section 90C of the Evidence Ordinance.

2. Every party, if it is so desired, is afforded an opportunity to have originals inspected in terms of section 90E of the Evidence Ordinance. The appellant could have exercised this right before the trial court.

3. The said statement of accounts being a document falling within the meaning of "banker's books" need not be admitted as secondary evidence under any of the instances in section 65 of the Evidence Ordinance, save for subsection (6) of that section. P9(a) has rightly been admitted by the Commercial High Court.

Agostinu v. Kumaraswamy 59 NLR 132 distinguished.

Cases referred to:

1. Agostinu v. Kumaraswamy 59 NLR 132
2. Waterhouse v. Wilson Baker (1924) All ER 775
3. Parnell v. Wood (1892) 66 L.T. 670
4. L. Edrick De Silva v. L. Chandradasa De Silva 70 NLR 169

APPEAL from the Judgment of the Commercial High Court.

Harsha Soza, P.C., with Rajindh Perera for the 2nd Defendant-Appellant.

Kushan D'Alwis, P.C., with Kaushalya Nawarathne and Gihini Yapa for the Plaintiff-Respondent.

cur. adv. vult.

October 11, 2019

SURASENA, J.

The Plaintiff-Respondent (hereinafter sometimes referred to as the Plaintiff) filed the plaint relevant to this case in the Provincial High Court of the Western Province against three Defendants who are the 2nd

Defendant-Appellant (hereinafter sometimes referred to as the Appellant or the 2nd Defendant), and the Defendant-Respondents (hereinafter sometimes referred to as the 1st Defendant and the 3rd Defendant respectively).

The said plaint has been filed on the basis that a cause of action has arisen against the said Defendants to recover a sum of Rs. 10,000,000 (Ten million Rupees) from them together with interest thereon. It is the position of the Plaintiff that the Defendants are obliged in law to pay the said sum of money upon a guarantee bond dated 29-11-1994 produced marked P5. The said guarantee bond is a personal guarantee executed by the Defendants in favour of the Plaintiff for the money due to the Plaintiff Bank from Wang Lanka Apparels (Pvt) Ltd.

The Plaintiff has taken steps to recover this money from the Defendants as the said Wang Lanka Apparels (Pvt) Ltd has defaulted the amount of money payable by it to the Plaintiff.

After the conclusion of the trial, learned Provincial High Court Judge had held that the Plaintiff Bank is entitled to the Judgment against the 2nd Defendant as prayed for in paragraphs (a) and (b) of the prayer to plaint.

Arguments advanced by the learned President's Counsel for the 2nd Defendant-Appellant are twofold. In essence, they are as follows.