018-SLLR-SLLR-2005-V-3-NATIONAL-DEVELOPMENT-BANK-vs.-RUPASINGHE-AND-OTHERS.pdf
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NATIONAL DEVELOPMENT BANKVS.
RUPASINGHE AND OTHERS
COURT OF APPEALSOMAWANSA. J.(P/CA) ANDWIMALACHANDRA.J.
CALA 21/2004 (LG).
DC MAWANELLA 639/L.
MAY 12, 2005.
National Development Bank of Sri Lanka – Parate execution – Section 53 -Interim injunction issued – Wider than which was sought – Property situated inMawanella – Resolution passed in Colombo – Cause of action – Where ? -Damages quantified – Injunction available?
The District Judge of Colombo issued an interim injunction against thedefendant – petitioner Bank preventing the Bank from taking any further stepsin respect of the auction sale of the property ; the interim injunction issued hasenjoined the defendant-petitioner Bank from transferring the property in termsof section 51.
The defendant – petitioner Bank sought leave to appeal from the said order.HELD :
The interim injunction issued is much wider than the relief sought bythe plaintiff-respondents themselves.
Jurisdiction of court is limited and restricted to what is prayed for andno other relief could be granted by Court if not prayed for.
HELDFURTHER:
Court has not considered that the plaintiff-respondents have quantifiedthe damage and whether an injunction would lie or not has not beenconsidered by the District Judge.
■ The plaintiffs-respondents are not challenging the manner in which
the auction was held. The main dispute was not in respect of theownership but was in respect of the 1sl defendant-petitioner’s decision
CANational Development Bank vs. Rupasinghe93
and Others (Somawansa, J. (P/CA))
to proceed with parate execution, the culmination of the 1sl defendant-petitioner taking such steps was based on the resolution that wasadopted in Colombo at the address of the 1sl defendant-petitioner inColombo.
The cause of action would have accrued at the 1s' defendant-petitioner’saddress in Colombo, District Court of Mawanella has no jurisdiction andaccordingly no interim injunction could be issued.
APPLICATION for leave to appeal from an order of the District Court of Mawanellawith leave being granted.
Case referred to:
Surangi vs. Rodrigo 2003 3 SRI LR 35
Romesh de Silva, P. C. with Geethaka Gunawardane for 1st defendant-petitioner.
Anil Silva with Ganesh Dharmawardane for plaintiffs-respondents.
Cur.ad.vult.
JOly 22, 2005.
ANDREW SOMAWANSA, J. (P/CA)As per minute dated 31.03.2005 when this application for leave toappeal was taken up both parties agreed to tender written submissions onthe question of leave as well as the main matter and parties were directedto tender their written submissions on 12.05.2005. However on 12.05.2005the plaintiffs-respondents were absent and unrepresented and failed totender their written submissions even thereafter.
The 1 st defendant-petitioner in this leave to appeal application is seekingto set aside the order of the learned District Judge of Mawanella dated
whereby the Court issued an interim injunction against the 1stdefendant-petitioner Bank preventing the 1st defendant-petitioner fromtransferring the property in terms of section 53 of the NDB Act.
The relevant facts are that the plaintiffs-respondents instituted the instantaction in the District Court of Mawanella on 19.08.2003 in order to preventa parate execution sale taking place on the same date viz: 19.08.2003.
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■The 1s' defendant-petitioner filed his objections and took up the positionthat the sale had already taken place. The certificate of sale dated19.08.2003 (on which date the instant action was instituted) was markedD 15. After the conclusion pf the inquiry into the application for interiminjunction, Court made order allowing an interim injunction and furtherdirected the 1s' defendant-petitioner Bank not to take any steps in terms ofsection 53 of the NDB Act to dispose of or transfer the property.
One of the matters raised by counsel for the 1S1 defendant-petitioner isthat the interim injunction that was issued is much wider than that whichwas sought for by the plaintiffs-respohdents. I would say there is force inthis argument. It is to be seen that the interim injunction that was soughtby the plaintiffs-respondents was only to prevent the 1S1 defendant-petitionerBank from taking any further steps in respect of the auction sale of theproperty described in the schedule to the plaint. The prayer to the plaintmore particularly sub paragraphsoa ‘S’) of the prayer to the
Dlaint reads as follows :
The application for interim injunction was supported on 20.08.2003 andthe Court issued notice of interim injunction only to be served on the 1S1defendant-petitioner. Copy of the notice of interim injunction is marked Bwhich reads as follows:
CA
National Development Bank vs. Rupasinghe
and Others (Somawansa, J. (P/CA))
95
Thus it is to be seen that the interim injunction that has been ultimatelyissued and the order made by the learned District Judge is much widerthan the relief sought by the plaintiffs-respondents themselves. It is settledlaw that the jurisdiction of Court is limited and restricted to what is prayedfor and no other relief could be granted by Court not prayed for.
In the case of Surangivs. Rodrigd') the facts were :
By her plaint the plaintiff-petitioner claimed a divorce on maliciousdesertion/constructive malicious desertion. She also averred that a causeof action has accrued to her to recover damages of Rs. 700,000/- by wayof permanent alimony. The defendant respondent contended in his answerthat, the plaintiff has no right to claim damages. The plaintiff after herevidence was led, raised an issue whether the plaintiff was entitled topermanent alimony in a sum Rs. 700,000/-. This was objected to on thebasis that there is no prayer to permanent alimony and no issue had beenframed relating to payment of alimony: This was upheld.
The interim injunction sought for by the plaintiffs-respondents do notspeak of section 53 of the National Development Bank of Sri Lanka Actnor does it speak of transfer of property. The notice of interim injunctionsis also in line with paragraph of the prayer to the plaint. In thecircumstances the 1sl defendant-petitioner Bank was called upon to showcause only in respect of the interim injunction prayed for by the plaintiffs-respondents. The 1s' defendant-petitioner too showed cause only in respectof the interim injunction sought for by the plaintiffs-respondents and noticeof which was served on him. However the interim injunction issued as perthe order dated 12.01.2004 marked ‘H’ has enjoined the 1st defendant-petitioner from transferring property in terms of section 53 of the NDB Act.The last sentence of the order reads as follows :
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On leave been sought:It was held:
“1. No court is entitled to or has jurisdiction to grant reliefs to a partywhich are not prayed for in the prayer to the plaint.
2. In the absence of a prayer for alimony, the Court was correct inrefusing to allow the petitioner to frame an issue relating to alimony."
Thus it is to be seen that the interim injunction sought for is only toprevent any steps being taken in respect of the auction sale and when thenotice of interim injunction was issued the sale had already taken placeand the learned district Judge has erred in issuing an interim injunctionpreventing the 1sl defendant-petitioner from taking any steps to auction theproperty when the sale had already taken place. As Row in his work tiledLaw of Injunctions 6lh Edition Vol. (1) page 304 states:
“Where events occur after filing of the bill which renders an injunctionunnecessary or ineffectual it will ordinarily be refused”.
In any event, the learned District Judge has erred in granting an interiminjunction which is much wider in scope than what was prayed for andnotice that was served on the 1st defendant-petitioner to show cause.
Another matter raised by the counsel for the 151 defendant-petitioner isthat the plaintiffs-respondents have quantified their damages and thereforeno injunction would lie. It is to be seen that the property mortgaged was tocover a loan of Rs. 3.8 million plus the interest and other charges. Theplaintiffs-respondents in any event has as a final relief prayed for damagesin a sum of Rs. 10 million as per paragraph ‘c of the prayer to the plaint,three times the loan that was granted by the 1s' defendant-petitioner. Itappears that the learned District Judge erred in not considering this fact.
It is also contended by counsel for the 151 defendant-petitioner that thelearned District Judge erred when he came to a finding that as the propertythat was sold lies within the jurisdiction of the District Court of Mawanella,the District Court of Mawanella had jurisdiction. Here again as submittedby counsel for the 1st defendant-petitioner the main relief claimed by theplaintiffs-respondents is to prevent the 1sl defendant-petitioner Bank fromtaking steps to effect parate execution of sale of property. The title of theplaintiffs-respondents were never in dispute so was the 1st defendant-
CANizam vs. National Development Bank (Somawansa, J. (P/CA))97
petitioner’s rights flowing from the title of the plaintiffs-respondents whomortgaged their rights to the 1s' defendant-petitioner. The plaintiffs-respondents are not challenging the manner in which the auction washeld.
The learned District Judge in his order has come to a finding that as theproperty that was sold is situated within the jurisdiction of the DistrictCourt of Mawanella, the District Court of Mawanella had jurisdiction. Asstated above the main dispute was not in respect of the ownership butwas in respect of the 1sl defendant-petitioner's decision to proceed withthe parate execution. The culmination of the 1st defendant-petitioner takingsuch steps was based on the resolution that was adopted in Colombo atthe address of the 1st defendant-petitioner in Colombo. Thus a cause ofaction if any would have accrued at the 1sl defendant-petitioner’s addressin Colombo. In the circumstances the District Court of Mawanella had nojurisdiction to hear and determine this action and accordingly no interiminjunction could be issued by the Court.
For the foregoing reasons leave to appeal is granted and the order ofthe learned District Judge dated 12.01.2004 is set aside and the interiminjunction will stand dismissed with costs of this application fixed at Rs.10,000/-.
WIMALACHANDRA, J. — I agree.
Application allowed.Interim injunction set aside.