Commercial High Court upholds ex parte enjoining order granted against BOI licensed entity

Monday, 15 November 2021 02:50 - - {{hitsCtrl.values.hits}}

The Commercial High Court on 27 October upheld an enjoining order granted against Western Power Company Ltd., an entity under license from the Board of Investment (BOI).

Tokyo Super Ltd. (Plaintiff) instituted this action to recover the monies due from the supply of ready-mixed concrete to the waste to energy power plant at Muthurajawela. The Plaintiff, as set out in the Plaint dated 10 March 2021, showed Court that the sub-contractor (first Defendant) of the project, who is a company incorporated in China, has already left the country defrauding the Plaintiff; and the main contractor – Evergreen New Energy Co. Ltd. (second Defendant), also a company incorporated in China, might do the same. Therefore, the Plaintiff, as set out in the Plaint, obtained an enjoining order on 10 March 2021, preventing Western Power Company Ltd. (third Defendant), the owner of the waste to energy project and also a majority-owned subsidiary of Aitken Spence PLC, from paying the second Defendant the amount owed to the Plaintiff, which the Plaintiff, as set out in the Plaint, claimed to be the only known asset in Sri Lanka of the second Defendant.

Thereafter, the second and third Defendants filed a Petition seeking to vacate the enjoining order, claiming that the third Defendant is a company registered with the BOI. Thus as per Section 26A of the BOI Act, this ex parte enjoining order should not have been granted in the first place. The Plaintiff claimed that they were unaware that the third Defendant was a BOI company as such was not available in the public domain and Section 26A of the BOI Act only applies for BOI licensed activities which the enjoining order has not curtailed.

The Commercial High Court Judge P. Hettiarachchi, pursuant to an Inquiry, issued an Order upholding the ex parte enjoining order and dismissing the Petitions to Vacate of the Defendants. The enjoining order was extended and the matter was fixed for Interim Injunction Inquiry on 26 November.

Tokyo Supermix Ltd. was represented by Dr. Harsha Cabral PC, Nishan Premathiratne AAL, and Pravi Karunaratne on the instructions of Julius and Creasy while Evergreen New Energy Co. Ltd. was represented by Suren De Silva AAL on the instructions of D. L. and F. De Saram, and Western Power Company Ltd. was represented by Naveen Perera AAL.