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As enacted
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Part III · Creation of Security Rights and Rights of Parties

26. Custody and preservation of collateral by a secured party

Official English translation. Where it differs from the Sinhala or Tamil text, the Act itself says which text prevails.

(1)

A secured party shall exercise reasonable care in the custody and preservation of any collateral in the secured party’s possession and unless otherwise agreed upon, in the case of a chattel paper or an instrument, reasonable care shall include taking necessary steps to preserve the rights against prior parties.

(2)

Unless otherwise agreed upon, if a collateral is in the possession of a secured party-

(a)

reasonable expenses, including the cost of insurance and payment of taxes or other charges incurred in obtaining and maintaining possession of the collateral and its preservation, shall be chargeable to the debtor and shall be secured by the collateral;

(b)

any risk, loss or damage, except if caused due to the negligence of the secured party, shall be on the debtor, to the extent of any deficiency in any insurance coverage;

(c)

the secured party may hold as additional security any increase or profits, except money received from the collateral, and any money so received unless remitted to the debtor, shall be applied forthwith in the reduction of the obligation secured; and

(d)

the secured party shall keep the collateral in a manner that it can be identifiable, however, fungible collateral may be co-mingled.

(3)

A secured party shall be liable for any loss or damage caused by such party’s –

(a)

failure to meet any obligation imposed by subsection (1) or subsection (2), but shall not lose the security right in the collateral;

and

(b)

use of the collateral otherwise than as authorized by subsection (4).

(4)

A secured party may use the collateral-

(a)

in the manner and to the extent provided for in the security agreement;

(b)

for the purpose of preserving the collateral or its value; or

(c)

in accordance with any order made by a court.

Part IV

Perfection

Part V

Priorities

Part VI

Registration

Part VII

General Provisions

Part VIII

Repeals and Savings

Part IX

Interpretation