High Court dismisses revision appeal of Managing Directors of Built Element

By Judgment dated 26 May 2020, Criminal High Court Judge Dhammika Ganepola confirmed the Order of the Learned Magistrate of Colombo in respect of issuing Summons on the Joint Managing Directors of Built Element Ltd., Sashitharan Ganeshan, Sathiamoorthy Hari Darshan, and the Financial Controller Niranthari Thayaparan, in respect of the Magistrate Court proceedings which had been instituted by Mahenthiran Subramaniam on a Private Plaint. Mahenthiran Subramaniam alleged that an offence was committed in terms of Section 511 of the Companies Act No 7 of 2007, for preparation of false financial statements which is tantamount to an offence, and if found guilty to be liable on a conviction to either a fine not exceeding 1 million rupees, or for an imprisonment for a period not exceeding 5 years, or for both such a fine or imprisonment. When the matter was initially supported for Summons before the Magistrate Court, the Learned Magistrate, being satisfied that there were sufficient grounds for the charge on the matters set out with the Complaint in the form of the Private Plaint, Affidavit, and supporting documents, proceeded to issue Summons on the two Managing Directors and the Financial Controller of Built Element Ltd. 

The Criminal High Court, having heard the Revision application preferred by the Defendant-Petitioners, Sashitharan Ganeshan, Sathiamoorthy Hari Darshan, and Niranthari Thayaparan, and having considered the extensive submissions made by the parties, reaffirmed the Order of the Learned Magistrate, and dismissed the application of the Defendants-Petitioners with an order of costs in favour of the Plaintiff-Respondent Mahenthiran Subramaniam. The Defendant-Petitioners Sashitharan Ganeshan, Sathiamoorthy Hari Darshan, and Niranthari Thayaparan, were represented in Court by Anil Silva, President’s Counsel, who appeared with Attorneys-at-Law, K V Sri Ganesharajan on the instructions of Messrs Neelakandan and Neelakandan. The Plaintiff–Respondent Mahenthiran Subramaniam was represented in Court by Nalinda Indatissa, President’s Counsel, who appeared with Attorneys-at-Law Suresh Kariyawasm and Nishan Premathiratne on the instructions of Sanjay Fonseka.

This Judgement was entered in the backdrop where on the Summons returnable date in the Magistrate Court proceedings, the President’s Counsel appearing for Sashitharan Ganeshan, Sathiamoorthy Hari Darshan, and Niranthari Thayaparan, objected to the issuing of Summons on the basis of material suppression and lack of good faith, alleging that certain matters in respect of the Commercial High Court cases involving Built Element bearing Nos. CHC/92/2018/CO and CHC/94/2018/CO had not been placed before the Learned Magistrate. The parties made their respective oral submissions to the Learned Magistrate and subsequently submitted Written Submissions. On 10 September 2019, the Learned Magistrate made an Order confirming the Order to issue the Summons on Sashitharan Ganeshan, Sathiamoorthy Hari Darshan, Niranthari Thayaparan, and dismissed their Objections. Pursuant to the Judgement of the Criminal High Court, the trial is to be taken up in the Magistrate’s Court on 8 October 2020.

Mahenthiran Subramaniam, Amirtha Gowrie Mahenthiran, Nirja Mahenthiran, and Javier Ewing, shareholders of Built Element Ltd., have also instituted two separate actions in the Commercial High Court in respect of Built Element Ltd., which is a company with a total asset value of Rs. 7 billion, wherein certain interim orders have been granted against Built Element Ltd. by the Commercial High Court. Built Element Ltd. is primarily engaged in the manufacture of asbestos cement roofing products, where the roofing products produced by Built Element Ltd. are primarily sold through Mascons Ltd.