Debt Recovery (Special Provisions) ACT

Arrangement of Sections

1. Short title.

PART I

Institution of Action

2. Action by landing institutions for recovery of a debt.

3. Institution of action.

4. Copies of instrument, agreement or document sued on to be filed.

5. Service of decree nisi ordinarily to be by registered post.

5A. Proof of the service of decree nisi.

5B. Decree nisi may be served through a process officer.

5C. Manner of service where service is done through process officer.

6. Defendant not to appear or show cause except with leave.

6A. Order making decree nisi absolute not appealable but may be set aside.

7. Procedure where leave to appear and defend is guaranteed.

8. Court may order originals of documents filed to be made available for examination.

9. Recovering of expenses incurred in noting.

10. Roll.

11. Award of compensation.

12. Adjustment of action.

PART II

Of Special Provisions Relating to Execution

13. Decree absolute deemed to be a writ.

14. Resistance deemed to be contempt.

15. Alienation of property by judgment debt or after Institution of action.

PART III

Of Appeals

16. Proceedings in the original court not to be stayed where leave to appeal is granted.

17. Decree entered by Court of Appeal to be a writ of execution.

18. Repealed.

PART IV

Of Special Provisions

19. Casus omissus.

20. Forms.

21. Recovery of interest in excess of principal due.

22. No sum of money to be recovered as penalty for default.

23. Interest.

PART V

Miscellaneous

24. Exemptions.

25. Offences.

25A. Offences by bodies' person.

26. Pending actions.

27. Appointment of representative of deceased debtor or of deceased party to an action under this Act.

28. Effect of representative being made a party.

29. Death, insolvency or unsoundness of mind of debtor after entry of decree absolute.

30. Interpretation.

31. Sinhala text to prevail in case of inconsistency.

SCHEDULES

2 of 1990,

9 of 1994.

AN ACT to provide for the regulation or the procedure relating to debt recover by lending institutions and for matters connected therewith ok incidental thereto.

[Date of Commencement: 6th March, 1990]

1. Short title.

This Act may be cited as the Debt Recovery (Special Provisions) Act.

PART I

Institution of Action

2. Action by landing institutions for recovery of a debt.

(1) A lending institution (hereinafter referred to as the "institution”) may, subject to the provisions of subsection (2) recover debt due to it by an action instituted in terms of the procedure laid down by this Act in the District Court within the local limits of whose jurisdiction—

(a) a party defendant resides; or

(b) the cause of action arises; or

(c) the contract sought to be enforced was made.

(2) No action shall be instituted by an institution in terms of the procedure laid down by this Act, for the recovery of any loan, where the principal amount lent or advanced was less than one hundred and fifty thousand rupees.

[S 2(2) subs by s 2(1) of Act 9 of 1994.]

3. Institution of action.

An action under this Act shall be instituted by presenting a plaint in the form specified in the Civil Procedure Code.

4. Copies of instrument, agreement or document sued on to be filed.

(1) The institution suing shall on presenting the plaint file with the plaint an affidavit to the effect that the sum claimed is lawfully due to the institution from the defendant, a draft decree nisi, the requisite stamps for the decree nisi and for service thereof and shall in addition, file in court, such number of copies of the plaint, affidavit, instrument, agreement or document sued upon, or relied on by the institution, as is equal to the number of defendants in the action.

[S 4(1) subs by s 3(1) of Act 9 of 1994.]

(2) If any instrument, agreement or document is produced to court and the same appears to the court to be properly stamped (where such instrument, agreement or document is required by law to be stamped) and not to be open to suspicion by reason of any alteration or erasure or other matter on the face of it, and not to be baited by prescription, the court being satisfied of the contents contained in the affidavit referred to in subsection (4), shall enter a decree nisi in the form set out in the First Schedule to this Act in a sum not exceeding the sum prayed for in the plaint together with interest up to the date of payment and such costs as the court may allow at the time at making the decree nisi together with such other relief prayed for by the Institution as to the court may seem meet and the decree nisi shall be served on the defendant in the manner hereinafter specified.

[S 4(2) am by s 3(2) of Act 9 of 1994.]

(3) The day to be inserted in the decree nisi as the day for the defendant's appearance and showing cause, if any, against it shall be as early a day as can conveniently be named, regard being had to the distance from the defendants residence to the court, and no further time shall be given to the defendant by court thereafter for appearing and showing cause against such decree nisi.

[S 4(3) am by s 3(3) of Act 9 of 1994.]

(4) The affidavit to be filed by the institution under sub section (1) shall be made by any Director or a principal officer of such institution or by an attorney-at-law duly authorised to bring and conduct the action on behalf of the institution and which affidavit shall be made by such per son having personal knowledge of the facts of the cause of action and such person shall in his affidavit swear or affirm that he disposes from his own personal knowledge to the matters therein contained and shall be liable to be examined as to the subject matter thereof at the discretion of the Judge.

[S 4(4) subs by s 3(4) of Act 9 of 1994.]

(5) .

[Rep by s 3(5) of Act 9 of 1994.]

5. Service of decree nisi ordinarily to be by registered post.

(1) The decree nisi shall subject to the provisions of section 5B, be ordinarily served on the defendant by registered post at the address given by the defendant to the institution as the address to which process may be served on him.

(2) —

(a) Where the defendant is a public officer, the court may at its discretion, in addition to sending the decree nisi to the defendant by registered post, also forward a copy of the decree nisi, in duplicate, by registered post to the head of the department in which the defendant is employed, and it shall be the duty of such head of department to cause a copy of the decree nisi to be served personally on the defendant, and to return the others copy of the decree nisi to the court forthwith, with either an acknowledgement of receipt of the decree nisi by the defendant or with a statement of service of the decree nisi endorsed thereon and signed by the person effecting the service and countersigned by the head of the department if the head of the department has not himself effected the service.

(3) Where the defendant is not a public officer and is in the employment of another person, the court may at its discretion, in addition to sending the decree nisi by registered post to the defendant also forward a copy of the decree nisi in duplicate to the employer of the defendant at his usual place of business or, where the employer is a company or corporation, to any Secretary, Manager or other like officer of the company or corporation, and it shall be the duty of such employer or officer, as the case may be, to cause a copy of the decree nisi to be served personally on the defendant and to return the other copy of the decree nisi to the court forthwith, with either an acknowledgement of receipt of such decree nisi by the defendant or with a statement of service of the decree nisi endorsed thereon and signed by the person effecting the service and counter signed by the employer of the defendant if such employer has not himself effected the service.

(4) In this section "head of department”—

(a) when used with reference to a member of any unit of the Sri Lanka Army, Navy or Air Force, means the Commanding Officer of that unit;

(b) when used with reference to a person employed in a Provincial Council means the Secretary of that Provincial Council;

(c) when used with reference to a person employed in Provincial Public Service means the head of the department in which such person, is employed;

(d) when used with reference to a person employed in a local authority, if the local authority is a Municipal Council means the Municipal Commissioner of the Council; and if the local authority is an Urban Council or a Pradeshiya Sabha, means the Chairman of that Council or Sabha;

(e) when used with reference to any other public officer, means the head of the Department of Government in which such person is employed.

[S 5 subs by s 4 of Act 9 of 1994.]

5A. Proof of the service of decree nisi.

(1) Where a decree nisi is served by registered post on any defendant under subsection (1) of section 5 the Advice of Delivery of the registered letter in which the decree is sent, shall be sufficient proof of the service of such decree nisi on the defendant.

(2) Where a decree nisi is served by defendant under subsection (2) or (3) section 5, an acknowledgement of the receipt of the decree nisi by the defendant or a statement of the service endorsed on the duplicate of the decree nisi shall be sufficient proof the service of such decree nisi on the defendant.

(3) Where the court is satisfied that decree nisi has been sent to the defendant by registered post but no advice of delivery has been obtained in respect thereof, it shall authorise the Fiscal or any other officer authorised by court in that behalf to affix the decree nisi to some conspicuous part of the house in which the defendant ordinarily resides or in the case of a company or corporation to the usual place of business or office of such company or corporation and in such case the decree nisi shall be deemed to have been duly served on the defendant.

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