Order had been obtained misleading court
- Celestial Aviation Trading Limited in Ireland obtained this Enjoining Order against Aeroflot Russian Airlines for its failure to comply with the terms of a Lease Agreement between two parties
By Lakmal Sooriyagoda
The Colombo Commercial High Court yesterday issued an order suspending the operation of Enjoining Order issued against Russian Aeroflot flight. The Colombo Commercial High Court Judge Harsha Sethunge ordered to suspend its previous Enjoining Order taking into consideration facts presented by parties including the Attorney General to effect that the Enjoining Order had been obtained by misleading the court and misrepresentation of facts.
Additional Solicitor General Sumathi Dharmawardena PC appearing for the Airport and Aviation Services Ltd (second defendant) through a motion moved court to suspend the Enjoining Order with immediate effect since this order had been obtained ex-parte by misleading court. He further submitted to court that the results of this Enjoining Order is also a violation of public policy of the country.
Annexing the photographs of an attorney who had entered the Air Traffic Control division along with a fiscal officer to the case record, Mr. Dharmawardena alleged that a junior attorney representing the plaintiff has served the Enjoining Order to his client, although there was no any order had been made against him.
“Junior attorney representing the plaintiff served notices on my client instructing to stop the aircraft. Can a lawyer perform the duty of a fiscal officer while the duties of a fiscal officer are being governed by Fiscal Ordinance,”? Dharmawardena questioned. He further questioned as to why his client was served with an Enjoining Order, at that moment there was no order made against Airport and Aviation Services Ltd. He further informed the court that the Enjoining order had been obtained concealing the fact that there is a bilateral agreement between Russia and Sri Lanka for a free passage to aircrafts.
Dharmawardena alleged that the court registrar has given several telephone calls to the Airport Navigation Centre requesting to implement the court order in an unprecedented manner. He further alleged that the plaintiff has misused the powers of the judiciary for the purpose of obtaining an Enjoining Order against an aircraft putting the country at risk.
“The aircraft in question has sufficient insurance cover to operate. Due to the misrepresentation of facts, the court has power to suspend the Enjoining Order,” Dharmawardena added.
Dr. Lasantha Hettiarachchi, appearing for the Russian Airlines, submitted to court that the affidavit filed by the plaintiff Ireland Company cannot be recognised as an affidavit in the eyes of the law since there is no signature. He contended that there is no valid application before court to issue an Enjoining Order owing to the deficiencies in the affidavit.
Avindra Rodrigo PC appearing for the plaintiff Celestial Aviation Trading Limited in Ireland said the concerned affidavit is valid under the law of Ireland. However, the High Court Judge observed that the affidavit submitted to this court should have followed the provisions of the Civil Procedure Code of Sri Lanka. Mr. Rodrigo admitted the fact that his junior counsel visited the Air Traffic Control division for the purpose of serving notices to Russian Airlines.
On June 2, the Colombo Commercial High Court issued an Enjoining Order preventing a Russian Aeroflot flight from taking off within the territorial jurisdiction of Sri Lanka pursuant to a request made by Celestial Aviation Trading Limited in Ireland. The Commercial High Court reiterated that the Court did not issue any order against the Sri Lanka authorities but it was made only against the first defendant, Aeroflot Russian Airlines, regarding a contractual dispute.
Celestial Aviation Trading Limited in Ireland obtained this Enjoining Order against Aeroflot Russian Airlines for its failure to comply with the terms of a Lease Agreement between two parties.
In this application, the plaintiff company had named the Public Joint Stock Company-Aeroflot Russian Airlines and N.C. Abeywardena Acting Head of Air Navigation Services as the defendants of the petition.
Avindra Rodrigo PC with Counsel Aruna de Silva appeared for the plaintiff. Additional Solicitor General Sumathi Dharmawardena PC with SDSG Mahen Gopallawa and DSG Rajiv Gunatilleke appeared for the second defendant.
- The aircraft in question has sufficient insurance cover to operate. Due to the misrepresentation of facts, the court has power to suspend the Enjoining Order
