Given below is the Newspaper article that appeared on the Daily News of 15th March 2006.
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Colombo District Court reinstates Hettiarachchi Group at Multi-vision
COLOMBO: The Colombo District Judge G. A. D. Ganepola lifted the enjoining order against the Hettiarachchi Group on Friday March 10 which was obtained on June 13 last year on an ex parte basis by Chalmway Proprietary Ltd one of the shareholders of Ruhuna 2001 Multivision (Pvt.) Ltd.
The case:
Chalmway filed an action under the sections 210 and 211 of the Companies Act with the case number HC (Civil) 2/2004 (2) on the 24th of March 2004 against Multivision naming it the 1st Respondent and making all the shareholders and the directors respondents.
On the 21st April 2005 the Commercial High Court Judge A. W. A. Sallam held that the shares issued to Osni Lanka Company (Private) Limited were issued incorrectly and were annulled. The said Order has been appealed by Multivision and the Hettiarachchi Group and is currently pending in the Supreme Court of Sri Lanka.
Chalmway Proprietary Limited of Australia took control of Multivision in July 2005 pursuant to an Enjoining Order obtained by Chalmway claiming that a new Board of Directors have been appointed and the Board of Directors controlled by the Hettiarachchi Group has ceased to exist.
Australian citizen, James Scobie and others representing Chalmway filed the said action with case number 7284 SPL in the Colombo District Court on the 27th of April 2005 stating that since the shares that were issued to Osni Lanka were annulled by the Commercial High Court Order, the remaining two shareholders, namely, Chalmway and the Southern Development Authority have passed a Special Resolution to amend the Articles of Multivision, thereby removed the Hettiarachchi Group from control of Mulitivision.
Defendants in the case, the Hettiarachchi Group, claimed that the said James Scobie has sworn to an affidavit as the Managing Director of Multivision whereas he has been working illegally in Sri Lanka on a Tourist Visa and that the matter in hand is a commercial matter hence the District Court has no jurisdiction along with their objections.
whilst dismissing the said claims, the Additional District Judge G. A. D. Ganepola held that the Enjoining Order against the Hettiarahchi Group should be dismissed with costs against the Plaintiffs. In his Order, Judge Ganepola has stated that the problem as to whether the appointment of new Directors has been duly done by amending the relevant section of the constitution of the company arises.
If the appointment of the said new Directors were not dully done, it cannot be accepted that there exists prima facie case to obtain relief prayed for in the plaint by the Plaintiffs.
In such circumstances, it is clear that by the issue of the Interim Injunction will cause a grater loss to the Defendants than the loss that may cause to the Plaintiffs by the non-issue of the Interim Injunction prayed for by the Plaintiffs.
By way of a Further Order Judge has stated that 'the relevant amendment of the Multivision constitution and all steps such as appointment of new Directors has been done based on the Final Order of the Commercial High Court case. However, the Plaintiffs have not disclosed to Court up to this moment that the Defendants have preferred an Appeal against the said Final Order of the Commercial High Court.
From this it appears that the aforesaid Order of the Commercial High Court on which the Plaintiff's case is based, is not a Final Order. Therefore, if an Interim Injunction is issued as prayed for by the Plaintiff it would result in acting on a decision which is still subjected to argument and where a final decision is not given by Court up to now.
If acted so, it may be a violation of the rights of the defendants (Hettiarachchi Group). Furthermore, on account of the said Appeal, the right of the Plaintiffs to act as Directors of Multivision is still being debated.
Therefore, I am not satisfied prima facie with regard to the legal right of the Plaintiffs to have and maintain this case and I conclude that the application of the Plaintiffs for Interim Injunction should be dismissed.
Accordingly, as it appears that the duty and the responsibility of disclosing essential and important matters have been neglected by the party of the Plaintiffs and for that reason, too, I hereby conclude that the Plaintiffs are not entitled to obtain and Interim Injunction."
S. A. Parathalingam, President's Counsel and M. U. M. Ali Sabry, Attorney-at-Law instructed by Paul Ratnayake Associates appeared on behalf of the Defendants, the Hettiarachchi Group. K. Kanagiswaran, President's Counsel and Avindra Rodrigo and Manoj Bandara, Attorneys-at-Law instructed by F. J. and G. de Saram appeared on behalf of the Plaintiffs.
Nihal Hettiarachchi, Chairman of Multivision stated that "soon after the order of the Court, we visited the Multivision premises to resume duties, but we were restrained by certain people who are currently occupying the premises including one Gerald Junkeer. Said Gerald Junkeer is not even a Director or a shareholder of Multivision, but simply a thug who has been hired by the Australians to oust us from the Company by using methods other than legal.
These people have been spending the shareholders' money of an Australian Public Company by making the shareholders believe that their Company have ownership in Multivision without informing them of the ground situation. Now the shareholders are taking action against them in Australia", he added.
It is learnt that there was a minor confrontation when Hettiarachchi and his staff attempted to move in and take control of the Company as he was entitled by the Order of the Court.
"We were threatened and a weapon was pointed at me by the thugs who were in control of the Multivision premises", Hettiarachchi added. At a previous occasion on 16th December 2004 a hand grenade was thrown at the residence of Hettiarachchi in connection to this dispute and an inquiry is still being held in this regard.
"We acquired Multivision from its ultimate owner in Canada back in 2001 when the Company was faced with a winding up action and most of the pay television channels were disconnected for non payment. In 2004, the same people who sold Multivision to us have arranged to sell the same company under its fully owned subsidiary, Chalmway, when we have made it a profitable venture and thereby defrauded our investment.
It was the new claimant for Multivision. HLT Limited of Australia, who appeared as Chalmway and filed the cases in Sri Lanka", Hettiarachchi explained to the Daily News.
"It was disheartening to see some Sri Lankans helping these Australian swindlers outside of legal procedures to defraud us, simply for a profit out of the dispute", stated Mr. Hettiarachchi who went on to say that "it is not the Australians who are not letting us go back into Multivision, but those Sri Lankans including Gerad Junkeer, who has no investment or any position whatsoever."
Currently there is another case which has been field by the Hettiarachchi Group in the Commercial High Court with the case number HC (Civil) 246/2005 (1) seeking certain reliefs including an order of court directing Rystar and Chalmway to transfer all their shares held in Multivision to the Hettiarachchi Group controlled Osni Lanka; and a permanent injunction preventing Rystar and Chalmway and/or their servants, agents and all those acting under and through them from in any way dealing and/or voting on the said shares.
The Hettiarachchi Group has filed the said action based on certain Convertible Secured Promissory Notes and corresponding Securities Pledge agreements that were issued by Rystar Communications Limited of Canada at the time of acquiring Multivision from Rystar back in 2001.
The Hettiarachchi Group has complained that Rystar and Chalmway are attempting to transfer the shares they own in Multivision to the said HLT Limited of Australia and since those shares should only be owned by Osni Lanka, the Hettiarachchi Group has requested the Court to maintain the status quo until the final determination of the matter.
Originally Posted on Thursday March 23, 2006 - 10:12am (IST)
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