BALASOORIYA

Vs.

PIYASIRI AND OTHERS

COURT OF APPEAL
NAWAZ, J.
CA/WRlT/342/2012

Writ of certiorari-Recovery of Loans by Banks (Special Provisions) Act, No.4 of 1990 as amended by Act Nos. 1 of 2011 and 19 of 2011, section 5A-Parate execution-Article 75 of the Constitution-Retrospective effect-Resolution adopted prior to the enactment of Act No. 1 of 2011- Hansard as an aid to interpretation

The petitioner sought to quash a resolution adopted by the board of directors of the 7th respondent bank dated 17th June 2003 which led to the sale of mortgaged properties in 2012. The petitioner argued that inter alia in view of section 5A(1) introduced by the Recovery of Loans by Banks (Special Provisions) (Amendment) Act, Nos.1 of 2011 and 19 of 2011, the bank was not entitled to proceed with the auction to recover outstanding dues as the principal amount borrowed by the petitioner was less than Rs. 5 million.

Held:

1. Section 5A(1) of the Recovery of Loans by Banks (Special Provisions) Act is prospective and it is applicable only to a resolution adopted by a bank after 28th January 2011. The legislature must manifest retrospectivity on the face of the statute and the relevant amendment does not display this intention.

2. If the legislation is unambiguous or clear, the application of parliamentary material to statutory construction is not warranted.

Cases referred to:

1. Pepper (Inspector of Taxes) v. Hart (1993) AC 593; (1992) 3 WLR 1032
2. R v. Chayton (2010) UKSC 52
3. J.B. Textiles Industries Ltd v. Minister of Finance and Planning [1981]1 Sri LR 156
4. S.K. Rahuman Maulana v. People's Bank (2004) Volume 1 Hulftsdorp Law Journal 510

5. Duport Steel v. Sirs (1980) I WLR 142
6. De Silva v. Jeyaraj Fernandopulle and others [1996] 1 Sri LR 70
7. Hettiaarachchi v. Seneviratne, Deputy Bribery Commissioner and others (No.2) [1994] 3 Sri LR 293
8. Gunasekera and others v. Ravi Karunanayake [2006] 3 Sri LR 16
9. Shiyam v. Officer-in-Charge,Narcotics Bureau and another [2006] 2 Sri LR 156

APPLICATION for Writs of Certiorari, Mandamus and Prohibition.

Asthika Devendra with Lilan Warusawithana and Sunali Jayasuriya Wasantha for the Petitioner.

Kush an de Alwis, P.C., with Kaushalya Navaratne for 1st to 7th Respondents.

cur. adv. vult.

April 29, 2019

NAWAZ, J.

This application for judicial review raises the question whether a resolution adopted by a bank, prior to the enactment of Recovery of Loans by Banks (Special Provisions) (Amendment) Act, No. 1 of 2011, could be acted upon to conduct a parate execution and recover outstanding dues from a borrower, even when the principal amount borrowed is less than Rs. 5 million. Does the bank act ultra vires in acting upon a pre-amendment resolution and proceeding to auction? Is the Recovery of Loans by Banks (Special Provisions) (Amendment) Act, No.1 of 2011 retrospective so as to nullify the pre-amendment resolution? These are the questions that arise in these proceedings.

The learned counsel for the Petitioner Mr. Asthika Devendra has strongly contended that the Amendment Act, No. 1 of 2011 is retrospective and this retrospectivity is manifest upon a perusal of the speech made by the relevant Minister who introduced the bill on 06th January 2011. The Hansard of Parliamentary proceedings on 06th January 2011 figured prominently in the argument for retrospectivity Mr. Devendra put forward. A recourse to extrinsic aid to statutory interpretation is consequent upon this argument and the learned counsel relied on the seminal case of Pepper (Inspector of Taxes) v. Hart1 which holds that Parliamentary material is a permissible aid to statutory interpretation. Interestingly,

the spirit of Pepper v. Hart lives on in many a jurisdiction and in 2010, a nine-judge bench of the Supreme Court of the United Kingdom cited Pepper as an authoritative pronouncement of Parliamentary privilege, see R v. Cheyton2

Long before the advent of this case, our courts acknowl