022-NLR-NLR-V-66-V.-SINGARAM-Appellant-and-S.-M.-SARIFDEEN-Respondent.pdf
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ABEYESUNDERE, J.—Singaram v. Sarifdeen
Present: Abeyesundere, J., and Sri Skanda Rajah, J.SING ARAM, Appellant, and S. M. SARIFDEEN, Respondent8. G. 452/62—D. C. Colombo, 7833
Debt Conciliation Ordinance (Cap. 81)—Sections 19 and 56 (a) (i) (ii)—DebtConciliation Board—Scope of its jurisdiction.
Where a mortgagor’s application for settlement of his debt is dismissed by theDebt Conciliation Board on account of the failure of the mortgagor to appearon the day fixed for the inquiry, and the mortgagee thereafter institutes actionin a civil court upon the mortgage bond, the Board has no jurisdiction to vacatesubsequently its previous order of dismissal, even with the consent of the parties.In such a case, a settlement effected by the Board after the vacation of theorder of dismissal is null and void and does not affect the right of the mortgageeto proceed with his action in the civil court.
PPEAJL from a judgment of the District Court, Colombo.
T.Parathalingam, for the plaintiff-appellant.
No appearance for the defendant-respondent.
Cur. adv. vult.
March 20, 1964. Abeyesundere, J.—
The defendant-respondent mortgaged an allotment of land to theplaintiff-appellant by Bond No. 1953 dated 30th July, 1957, as securityfor a loan of Rs. 3,000 which he obtained from the plaintiff-appellant.An application to effect a settlement of the debt owed by the defendant-respondent to the plaintiff-appellant was made by the defendant-respondent to the Debt Conciliation Board under the Debt ConciliationOrdinance and that application was dismissed by -the Board on 25thJuly, 1961, as the defendant-respondent failed to appear on the day fixedfor the inquiry. On 31st July, 1961, the plaintiff-appellant institutedin the District Court of Colombo action No. 7833 against the defendant-respondent on the aforesaid mortgage bond.* By letter dated 25thSeptember, 1961, the Secretary of the Debt Conciliation Board informed theplaintiff-appellant that the order dismissing the defendant-respondent’sapplication was “ now vacated” and that an inquiry into that applicationwould be held on 10th October, 1961, at 9 a.m. According to the proceed-ings of the Debt Conciliation Board on 13th December, 1961, a settlementof the debt owed by the defendant-respondent to the plaintiff-appellantwas effected.
The second and third issues at the trial of the plaintiff-appellant’saction in the District Court of Colombo were as follows :—
“ (2) Can the plaintiff have and maintain this action in view of thesettlement arrived at before the Debt Conciliation Board on 13.12.1961 ?
If not, has this Court jurisdiction to entertain this action ? ”
ABEYESmsTDERE, J.—Singatam v. Sarifdeen
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The learned Additional District Judge who tried the plaintiff-appellant’saction dismissed it holding that it was “ barred under section 56 (a) (i)and (a) (ii) ” of the Debt Conciliation Ordinance and answering the twoaforesaid issues in the negative. The plaintiff-appellant has appealedfrom the judgment and decree of the learned Additional District Judge.
On the date on which the plaintiff-appellant’s action was entertainedby the District Court of Colombo there was no application pending beforethe Debt Conciliation Board in regard to the defendant-respondent’sdebt to which that action related. Therefore section 56 (a) (i) of theDebt Conciliation Ordinance which provides that no civil court shallentertain any action in respect of any matter pending before the DebtConciliation Board was no bar to the entertainment of the plaintiff-appellant’s action by the District Court of Colombo.
After the order of dismissal of the defendant-respondent’s applicationwas vacated by the Debt Conciliation Board on 25th September, 1961,that application was revived and an inquiry into it was fixed for 10thOctober, 1961. The plaintiff-appellant’s action was pending before theDistrict Court of Colombo at the time when the defendant-respondent’sapplication to the Debt Conciliation Board was revived. The revivalof the defendant-respondent’s application was tantamount to the enter-tainment by the Debt Conciliation Board of an application by thedefendant-respondent in respect of the debt which was the matter directlyand substantially in issue in the action previously instituted in theDistrict Court of Colombo by the plaintifif-appella it. The revival of thedefendant-respondent’s application to the Debt Conciliation Boardwas in contravention of section 19 of the Debt Conciliation Ordinancewhich prohibits the Debt Conciliation Board from entertaining any appli-cation by any debtor or creditor in respect of a debt which is the matterdirectly and substantially in issue in a previously instituted action whichis pending in any court between the same parties. Therefore all theproceedings before the Debt Conciliation Board on such revived applicationof the defendant-respondent, including the settlement effected on 13thDecember, 1961, are invalid.
The learned Additional District Judge has misdirected himself inholding that the plaintiff-appellant’s action is also barred by section56 (a) (ii) of the Debt Conciliation Ordinance which provides that no civilcourt shall entertain any action in respect of the validity of any procedurebefore the Debt Conciliation Board or the legality of any settlement. Theplaintiff-appellant’s action is on the mortgage bond and not in respect ofthe validity of such procedure or the legality of such settlement.
There is no provision of the Debt Conciliation Ordinance which maybe applied to deprive the District Court of Colombo of jurisdiction to trythe plaintiff-appellant’s action. I set aside the judgment and decreeentered by the learned Additional District Judge and I order that theplaintiff-appellant’s action be retried by another judge of the DistrictCourt of Colombo.
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SRI S RAND A RAJAH, J.—Singaram v. Sarifdeen
Sri Skanda Rajah, J.—
This is an appeal from the judgment of one of the Additional DistrictJudges of Colombo dismissing the plaintiff’s action on.a mortgage bondon the grounds that it is barred by section 56 (a) (i) and (ii) of the DebtConciliation Ordinance Cap. 81.
The decision of this appeal involves the effect of the following provisionsof the Debt Conciliation Ordinance :
Section 19 : The Board shall not entertain any application by anydebtor or creditor in respect of a debt which is the matter directlyand substantially in issue in a previously instituted action whichis pending in any court between the same parties ….
Section 56 : No civil court shall entertain—
' any action in respect of—
(j) any matter pending before the Board ; or
the validity of any procedure before the Board or the legality ofany settlement;
In each of these sections the word used is “ entertain ” and not“ maintain ”.“ Entertain ” means to receive. “ Maintain ” means to
continue. What is prohibited by section 19 is the receipt by the Boardof any application in respect of a previously instituted action which ispending in any court. Section 56 prohibits the receipt by a civil courtof any plaint in respect of (i) any matter pending before the Board and
the validity of any procedure before the Board or the legality of anysettlement.
The facts briefly are :The defendant-respondent (hereinafter referred
to as the debtor) filed an application before the Debt Conciliation Board(hereinafter referred to as the Board) in respect of this mortgage debt ;but, it was dismissed by the Board on 25.7.1961, because the debtorwas absent. The plaintiff-appellant (hereinafter referred to as thecreditor) filed this action in the District Court of Colombo on 31.7.1961.Thereafter, by letter B2 of 25.9.1961 the Secretary of the Board intimatedto the creditor “ the order dismissing the application is now vacated ”and requested the creditor to attend an inquiry. Ultimately, on
a settlement was arrived at between the creditor and debtorbefore the Board. Then on 12.3.1962 the debtor filed answer in thiscase pleading, inter alia, that (A) the creditor “ cannot have and maintain
SRI SKANDA RAJAH, J.—Singaram v. Sarifdeen
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this action in view of the provisions of section 56 (a) (i) of the DebtConciliation Ordinance, Cap. 81, inasmuch as the defendant’s applicationwas pending before the Board at the date of the institution of this action ”by the creditor and (B) the debtor had been granted time by the Board tosettle the creditor’s claim. At the trial the following issues were raised :—
What amount is due to plaintiff on the bond sued upon ?
Can the plain tiff have and maintain this action in view of the
settlement arrived at before the Board on 13.12.1961 ?
If not, has this court jurisdiction to entertain this action ?
Issue 1 was not answered by the learned Judge. He, however,answered issues 2 and 3 in the negative.
It is clear from the facts set out above that when this action was filedon 31.7.1961 the application before the Board had already been dismissedand was, therefore, not “pending before the Board ”. Therefore, section56 (a) (i) did not preclude the District Court from “ entertaining ” orreceiving the plaint in this action. Once this action was entertained orreceived by the District Court the provisions of section 19 deprived theBoard of jurisdiction or power to entertain or receive “ any application ”by the debtor in respect of this debt—not even an application to vacatethe order of dismissal made on 25.7.1961. It had no jurisdiction orpower to vacate the order of dismissal even with the consent of the parties.Where no jurisdiction exists parties cannot confer jurisdiction even byconsent. For instance, a Court of Bequests has no jurisdiction or powerto entertain a matrimonial action. Parties to a matrimonial actioncannot confer jurisdiction on it even by consent.
There is a clear distinction between the jurisdiction of a Court or tribunalto entertain, try and determine a matter and the erroneous action of suchCourt or tribunal in the exercise of that jurisdiction. The former involvesthe power to act at all while the latter involves the authority to act in theparticular way in which the Court or tribunal does act. In tbe case ofusurpation of power the proceedings are an absolute nullity, (vide thejudgment of Sri SkaDda Bajah, J., in S. C. 25/62 (Inty.)—D. C. Kurune-gala No. 767/P : S. C. Minutes of 24.2.1964).
All orders made by the Board after the institution of this action on31.7.1961, including the settlement arrived at on 13.12.1961, weremade without jurisdiction or in usurpation of power and were, therefore,an absolute nullity. The learned judge had jurisdiction to make such adeclaration.
In the case of Fernandopulle v. Perera Appuhamy1 Nagalingam, J.,said, “ It has, however, been pointed out that a Court cannot go into tbequestion of the validity of the proceedings before tbe Board in view ofsection 56 (a) (ii) of the Ordinance. I do not think this contention isentitled to succeed. For one thing, it is open to a party to impeach a
1 {1950) 52 N. L. R. 204 at 206.
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SRI SKANDA RAJAH, J.—Singaram v. Sarifdeen
judgment or pioceeding before another Court or tribunal as one enteredor had beyond jurisdiction of such Court or tribunal. For another,section 56 does not say that the validity of the proceedings before theBoard cannot be canvassed in a Court of Law. What it does say is that aCourt cannot entertain an action in respeot of the validity of any procedurebefore the Board, which is entirely a different matter. The contentionraised relates to the want of jurisdiction of the Court while the provision ofthe Ordinance prevents the regularity or the validity of the conduct of thebusiness before the Board being called in question
If the learned Judge, to whom this case was cited, had given carefulconsideration to the passage quoted above he could not have failed torealise that section 56 {a) (ii) would not be applicable as this was an actionon the mortgage bond and not “ an action in respect of the validity ofany procedure before the Board or the legality of any settlement. ”
He should have answered issues 2 and 3 in favour of the plaintiff.
I would, therefore, allow the appeal with costs and direct that the trialdo proceed, before another Judge, in respect of issue No. 1.
Appeal allowed.