1.ELVITIGALA 2.JAYANTHI MALA
Vs.
CEYLINCO DEVELOPMENT BANK LIMITED

SUPREME COURT
WANASUNDERA P.C., J.
ABEYRATHNE J.
ANIL GOONERATNE J.
SC/CHC/25/2009
COMMERCIAL HIGH COURT CASE
NO. HC/CIVIL/132/2006(1)
09.09.2016.

Hire purchase Agreement - Hire Purchase of Vehicle- Guarantor- Notice of termination- installments- Carelessness of registered Attorney in preparing the Petition of appeal.

Plaintiff Respondent by agreement PI with 1st Defendant- Appellant leased the vehicle in question on monthly installments. 2nd Defendant was the guarantor. 1st Defendant defaulted in making payments as per agreement PI. Accordingly agreement was terminated. 1st Defendant although the agreement was terminated, failed to return the vehicle. High Court held in favour of Plaintiff Respondent.

HELD:

It is observed that the transaction between parties and its characteristics of a hire purchase agreement, conclude that the contract had been breached by the Appellants. Plaintiff- Respondent delivered the vehicle to the Hirer (1st Defendant- Appellant) who took immediate possession. Credit facilities made available to Hirer, who made deposit but defaulted in paying the installments. Hirer failed to purchase the vehicle by completing the payment of installments and to comply with the other conditions of the agreement or to determine the hiring by returning the vehicle to the owner (Plaintiff- Respondent).

APPEAL from the judgment the Commercial High Court.

Palitha Yaggahawita for the Defendants- Appellants.

N. R. Sivendran with Ms. S. Somarathne and Ms. A. Raman for the Plaintiff - Respondent.

October 13, 2016

ANIL GOONERATNE J.

This is a direct appeal to the Supreme Court from the Judgment delivered on 31.07.2009 by the Commercial High Court of the Western Province exercising Civil Jurisdiction (Holden in Colombo). The action itself was based on a hire purchase agreement of a vehicle. Plaintiff-Respondent namely Ceylinco Development Bank Limited, by Agreement marked P1 with the 1st Defendant-Appellant leased the vehicle in question on a monthly rental as agreed between the parties. The 2nd Defendant-Appellant was the guarantor to the said agreement. The 1st Defendant-Appellant defaulted in making payment in terms of the said agreement. The Plaintiff-Respondent by notice P2 had given notice of termination of the agreement and the agreement was accordingly terminated by letter P3. It is pleaded that notwithstanding the termination of the agreement the 1st Defendant-Appellant failed to return the vehicle in question as per the agreement and also failed to make the instalment payments.

In the Commercial High Court parties proceeded to trial on five (5) admissions and 34 issues. The learned High Court Judge after trial entered judgment in favour of the Plaintiff-Respondent. At the hearing before us the only point urged by learned counsel for the Appellants, was that the statement of account marked P6 (X3) and produced at the trial is incorrect, and the amounts reflected therein are not due and owing to the Plaintiff-Respondent. On the other hand, learned counsel for the Plaintiff-Respondent raised a preliminary objection before us that the Petition of Appeal filed of record is defective and bad in law and as such no relief could be granted in terms of the prayer to the petition i.e. prayer to the petition refer to set aside a judgment dated 05.04.2007, whereas the judgment was delivered on 31.07.2009 and not on 05.04.2007. in fact this court in open court having perused the record found the correct date of judgement was 31.07.2009. Therefore the point urged by learned counsel for the Plaintiff-Respondent was correct. This being a mistake the Appellant party could have corrected the prayer, since the body of the Petition of Appeal refer to the correct date of the judgment of the High Court. It is

either negligence or carelessness of the Registered Attorney for the Appellants. Under normal circumstances