Justice Prasanna declines to hear FR petition of Mendis Company

By S.S. Selvanayagam

Justice Prasanna S.Jayawardane yesterday (28) declined to be a member of the Supreme Court Bench to hear the Fundamental Rights petition filed by W.M. Mendis & Company Ltd.

The Petition came up before Justices Sisira J. De Abrew, Prasanna S. Jayawardane and Murdu N.B. Fernando.

As Justice Jayawardane declined to hear the matter as he had been one of the panel members of the Presidential Commission on the Treasury bond scam, it was deferred for 3 April for granting of Leave to Proceed.

A leading distillery company, W.M. Mendis & Company Ltd. – the subsidiary of Perpetual Capital Holdings – has filed a Fundamental Rights violation petition before the Supreme Court contesting the restriction on its accounts by the Monetary Board of the Central Bank.

The petition was filed by it and its Chairman Arjun Joseph Aloysius citing the Monetary Board, Central Bank Governor Dr. Indrajit Coomaraswamy, Deputy Governor C.J.P. Siriwardana, Acting Director of the Department of Supervision of Non-Bank Financial Institutions W. Ranaweera, Perpetua; Treasuries Ltd. and the Attorney General as Respondents.

The 1st Petitioner company Mendis & Company Ltd. was established in 1947 and is engaged in the business of distilling, manufacturing, bottling, distributing and marketing a variety of spirits in the country and is a 99%-owned subsidiary of Perpetual Capital Holdings Ltd.

Petitioners state that the accounts maintained in licensed banks and CDS accounts maintained in the Colombo Stock Exchange by the individuals and entities related to Perpetual Treasuries Ltd. have been restricted.

They state that the said “restriction” had been imposed on 24 bank accounts of the 1st Petitioner company.

They state that in the meantime, the Chief Executive Officer (CEO) of the 1st Petitioner by letter dated 29 January informed the Central Bank Governor that the restrictions placed on the bank accounts of the 1st Petitioner have had a direct and severely detrimental impact on the business of the company, in as much as the company was unable to make/meet inter alia: Statutory commitments to the Government of Sri Lanka (Excise and VAT); commitments to banks, State banks, mainly Bank of Ceylon and People’s Bank (loan installments, interest payments and future facilities from banks); commitments to suppliers and risk from frustrated suppliers; and commitments to employees.

Petitioner state that it was requested that the said restrictions be removed particularly considering the magnitude of the impact, resulting in loss of livelihood of the employees of the 1st Petitioner.

Petitioners lament that the Respondents failed and/or refused to release the requisite funds to keep inter alia the 1st Petitioner company afloat, despite agreeing to do so at the meeting held on 30 January and the CEO of the 1st Petitioner.

They aver that in order to investigate the financial affairs of the 1st Petitioner, there is no need or requirement to freeze or restrict the bank accounts of the 1st Petitioner and allege thus the decision to freeze the said accounts amounts to a mala fide and corrupt act designed to cripple the business activities of the 1st Petitioner.

Petitioners state that the 1st Petitioner Company has a staff strength of 323 employees and that the company is unable to pay their salaries and statutory payments such as EPF and ETF.

Petitioners state that irreparable loss and damage would be caused to the Petitioners and the instant application be rendered nugatory unless the Supreme Court grant and issue interim

They are asking the Court to grant and issue a declaration that the purported decision of the 1st and/or 2nd Respondents, to “restrict” in the first instance the accounts of the 1st Petitioner constitutes an infringement of the Fundamental Rights guaranteed to the Petitioners by Article 12(1) of the Constitution.

They are asking the Court to grant and issue a declaration that the failure and and/or refusal to date, of the 1st to 4th Respondents and/or any one or more of them, to release the funds required to meet the expenditure and obligations and keep afloat the 1st Petitioner who is subject to the said “restriction”, despite it having been undertaken by them at the meeting held on 30 January, constitutes an infringement and/or continuing infringement of the Fundamental Rights guaranteed to the Petitioners by Article 12(1) of the Constitution.

President’s Counsel Gamini Marapana with Nalin Marapana appeared for the Petitioner Company Mendis & Company Ltd. Senior Additional Solicitor General Yasantha Kodagoda appeared for the Attorney General.