BANDAHAMY v. SENANAYAKE

• Jurisdiction: Sri Lanka
• Date: 28 October 1960
• Type of Document: Case report

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1960 Present : Basnayake, C.J., Pulle, J., Weerasooriya, J.,

K. D. de Silva, J., Sansoni, J., H. N. G. Fernando, J., and Sinnetamby, J.

BANDAHAMY, Appellant, and SENANAYAKE,
Respondent

S. C. 206-D. C. Kurunegala 549 / Spl.

Co-operative society-Appointment of liquidator-Dispute between liquidator and a past officer of the society-Right of liquidator to refer the dispute for compulsory arbitration-Award of arbitrator-Jurisdiction of erecting Court to test its validity-Procedure Jar enforcement of award--Requirement of notice to respondent-Co-operative Societies Ordinance (Cap. 107) (as amended by 8. 9 of Act No. 21 of 19'1.9), 88.2,36,39,40 (1) (d), 41 (h), 45 (1), 45 (2), 45 (4), 45 (5)Cooperative Societies (Special Provisions) Act .10. 17 of 1952,8. 2 -Co-operative Societies Rules of 1.950, Rule8 38 (1), 38 (13).

Judicial precedent-Binding effect thereof-Scope of rule of stare decisis Collective Court "-Courts Ordinance (Cap. 6), ss. 38, 48, 51.

The appellant was the treasurer of a co-operative society and the respondent was appointed under section 39 of the Co-operative Societies Ordinance to be the liquidator of the society. On 19th March 1949 a dispute arose between the appellant and the respondent as to whether the appellant owed the society a sum of Rs. 560/74 in respect of" leakages in textiles n. On 21st May 1052 the dispute was referred by the liquidator to the Registrar of Co-operative Societies for decision. Thereafter, an Assistant Registrar of Co-operative Societies who was empowered to exercise the functions of the Registrar referred the dispute for disposal, as arbitrator, to an inspector of the Co-operative Department. The arbitrator made his award ordering the appellant to pay the sum of Rs. 560/74 with interest. An appeal to the Registrar against the award was dismiss6'i. As the appellant failed to pay the amount of the award, the respondent made application under Rule 38 (13) of the Co-operative Societies Rules of 1950 to the District Court of Kurunegala for the enforcement of the award.

Held, (i) by PULLE, WEERASOORlYA, K. D. DE SILVA, SANSONI, H. N. G. FERNANDO, and SINNETAMBY, J. J. (BASNAYAKE, C.J., dissenting), that, under section 4f) (1) (d) of the Co-operative Societies Ordinance, as amended by section 9 of Act No. 21 of 1949. the, liquidator was entitled to refer the dispute for compulsory arbitration under section 45. !n view of section 2 (1) of the Co-operative Societies (Special Provisions) Ac No. 17 of 1952. the provisions of section 45 of the Co-operative Societies Ordinance were applicable to every such dispute notwithstanding that it had arisen prior to 24th May 1949, which was the date on which the amending Act No. 21 of 1949 came into operation.

The fact that the liquidator referred the dispute to the Registrar II for decision" could not vitiate the award of the arbitrator,

(ii) by BASNAYAKE, C.J., WEERASOORIYA, J., SANSONI, J., and H. N. G. FERNANDO, J. (PULLE, J., K. D. DE SILVA ,J., and SINNETAMBY, J., dissenting), that it is necessary' that when. the powers of a Court are invoked for the enforcement of an award as a decree of such Court (in terms of Rule 38 of Rule 38 (13) of the rules made under section 46 of the Co-operative Societies Ordinance), the party against whom the award is sought to be enforced should be noticed and given an opportunity of showing the existence of defects, even though the award does not bear any fatal flaws on its face.

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Jayasinghe v. Boragodawatte Co-operative Stores Society (56 N. I.. R. 462" approved.

(iii) by BASNAYAKE, C.J., WEERASOORIYA, J., SANSONI., H. N. G. FERNANDO J., and SINNETAMBY, J. (PULLE, J., and K. D. DE SILVA, J., dissenting), that it is open to the party against whom the award is sought to be enforced to question the validity of the award, even it the award is ex facie regular.

(iv, by BASNAYAKE, C.J., PULLE, J., WEERASOORIYA, J., SANSONI, J., and H. N. G. FERNANDO, J. (SINNETAMBY, J., dissenting), that a decision by a Bench constituted under section 51 of 1. he Courts Ordinance is not a decision of a Collective Court unless the Bench consisted of all the Judges of the Supreme Court.

(v) by PULLE, J., WEERASOORIYA, J., SANSONI, J., H. N. G. FERNANDO, J., and SINNETAMBY, J. (BASNAYAKE, C.J., dissenting), that the numerical superiority of a particular Bench is determined with reference to the number of Judges constituting that Bench, regardless of whether the Judges are unanimous or divided.

(vi) by PULLE, J., WEERASOORIYA, J., SANSONI, J., and H. N. G. FERNANDO, J. (BASNAYAKE, C.J., and SINNETAMBY, J., dissenting), that where, in a civil appeal, a decision by a Bench constituted under section 51 of the Courts Ordinance is not that of the Collective Court, its value as a precedent is subject to the principle that it is not binding on a subsequent Bench which is numerically stronger. The decision in The Pinikahana Kahaduwa Co-operative Society Ltd.. v. Herath (59 N. L. R. 562) being that of Bench of Five Judge (even though they were divided three to two) should be regarded as overruling the unanimous decision of three Judges in Jayasinghe v.Boragodawatta Co-operative Stores (56 N. L. R. 462), and a Bench constituted of seven Judges (as in the present. case) is not bound by the division in The Pinikahana Kahaduwa Co-operative Society Ltd. v. Herath (supra),

In regard to points (iv), (v) and (vi), no opinion was expressed by K. D. DE SILVA, J.

Obiter, per H. N. G. FERNANDO, J.-" The curses curiae does not require that a Bench of two Judges must follow a former decision of another Bench of two Judges."

APPEAL from a judgment of the District Court, Kurunegala.

H. V. Perera, Q.C., with D. R. P. Goonetilleke, D. S. Nethsinghe, Maureen Seneviratne and R. D. B. Jayasekera, for Debtor-Respondent Appellant.

H. W. Jayewardene, Q. C., with E. J. Cooray, E. B. Vannitamby, C.. P. Fernando and. L. C. Seneviratne, for Petitioner-Respondent.

cur. adv. vult.

October 28,1960 BASNAYAKE, C.J.

This is an appeal from an order of the District Judge allowing an application of the liquidator of the Udapola Co-operative Stores Society to enforce an award.

'The facts as stated by the liquidator, who is the respondent to this appeal, are as follows :-The Udapola Co-operative Stores Society which was registered on 10th January 1944 was carrying on business at Udapola

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until 9th March 1949. By order of the Registrar of Co-operative Societies dated 3rd December 1948 the respondent was appointed liquidator of that Society. The appellant was the treasurer and the person in charge of its textiles from 2nd February 1947 till 19th March 1949.

On the latter date a dispute arose between the appellant and the liquidator. The dispute was whether the appellant owed the Society a sum of Rs. 560/74. It was referred by the liquidator to the Registrar of...