PEOPLE'S BANK AND SEVEN OTHERS V. YASASlRl KASTHURIARACHCHI

PEOPLE'S BANK AND SEVEN OTHERS
V. YASASlRl KASTHURIARACHCHI

SUPREME COURT
TILAKAWARADANE, J.
SRIPAVAN, J., AND
RATNAYAKE, J.
S. C. APPEAL NO. 11/2010
S. C. (SPL.) L.4. NO 294/2009
C. A. (WRIT) NO. 188/2009
JUNE 30TH 2010
JULY 2ND, 9TH 2010

Constitution Article (4c) - Civil Procedure Code - Section 34, 207 and 406 -principle of res judicata - a final judgment passed by a competent court, having jurisdiction, will bar a subsequent action between the same parties upon the same cause of action? Collateral estoppel - Parate erecution - Peoples Bank Act 29 of 1981 - 32 of 1996

The Court of Appeal issued a restraining order against the Respondent - Appellants from proceeding with the auction and sale of the property scheduled on 7th November 2009, until the final determination of the aforesaid application by the Court of Appeal.

The Supreme Court granted Special Leave to Appeal on the following issues -

(1) Does the order of the Court of Appeal dated 5th November 2009 nullify and/or stay and/or suspend the Court of Appeal judgment in the Writ Application bearing No. 1268/98 and the judgment of the Supreme Court in Case No. S.C. (Spl.) L.A. 60/08?

(2) Does the Commercial High Court of Colombo Case No. 213/07/MR bar the Respondent - Appellant from proceeding with the sale by public action of properties set out in the Resolution dated loth July 1997?

Held:

(1) The decision of the Supreme Court dated 3rd December 2008 denying leave to appeal against the judgment of the Court of Appeal decision dated 2gth February 2008, whereby the Court of Appeal held that the Parate Resolution dated 10th July 1997 was valid and refused to quash the said Resolution is final and conclusive and cannot be reviewed and or rescinded by any other Court. The judgment of the Supreme Court in S.C. (Spl.) L.A. 60/08 [C.A. Application 1268/98 acts as a complete bar to a proceeding by the same party which once again seek to question the validity of Parat Resolution dated loth July 1997.

In light of the judgment of the Supreme Court in S.C. (Spl.) L.A. 60/08, the later Application in C.A. Writ 188/09 cannot also succeed in view of the principle of 'collateral estoppel' whereby a party is barred from re-litigating an issue already finally determined against such party in an earlier decision.

(2) When there is a strong prima-facie case in favour of the party seeking the relief, it is permissible to grant interim relief which give substantially the whole of the relief claimed in the action.

Per Shiranee Tilakawardane, J., -

"The Petitioner - Respondent has also raised the objection that this Court, in granting an interim order to proceed with the sale by the Respondent -Appellant, has acted per incuriam - or that this Court cannot by way of interim order grant the final relief prayed for in an Application.

In this context it is relevant to refer to the decision of the Court of Appeal in Shell Gas Lanka Limited v. Samyang Lanka (Pvt.) Limited (1) , where the Court held that it is permissible to grant interim relief which gave substantially the whole of the relief claimed in the action, especially as the facts in this case disclose plainly that there is a strong prima facie case in favour of the party seeking tht relief."

(3) The Petitioner - Respondent was presented with ample opportunity to raise issues of fraud and illegality against the Resolution.

Having failed to raise such an argument in the intervening years, the belatedness of this defence clearly reflects that this is an afterthought and indicative of a concoction and clearly manipulative and abuse of legal process.

Case referred to:

Shell Gas Lanka Limited v. Samyang Lante (Pvt.) Limited - (2005) 3 Sri L.R. 14

APPEAL from an interim order of the Court of Appeal.

S.A. Parthalingam, P.C., with Kushan D Alwis, Hiran Jayasuriya and Nishkan Parthalingam for the Respondent - Appellants.

Faiz Musthapa, P.C., with Anil Silva,

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