monthly journals july 2012

Mobile : 01744-399207

Tel : 9571389

Vol. I JULYThe

(A Monthly Law Report)

FIFTH ISSUE

CONTENTSAppellate Division 49-64 High Court Division 325-388

Lawyers & Jurists

Cit 1 LNJ (AD), 1 LNJ etc.

Lawyers & JuristsLawyers & Jurists2012

Cheif Editor :Syed Mokaddas Ali, Advocate, Supreme CourtEditor :Borun Kumar Biswas, AdvocateReporters :M. Arif Billah, Bar-at-Law :SK. Reajul Haque, Advocate, Supreme Court :Md. Ashik Ferdous, Advocate, Supreme Court :Md. Faruk Hossain, Advocate

Appellate Division1. Government of Bangladesh and others. VS Md. Jahangir Alam and others. (Civil) 49

High Court Division1. Abul Basher and another VS The State (Criminal Appeal) 3492. AKM Fayekuzzaman VS The State and another (Criminal Revision) 3413. Brigadier (Retd.) A.H.M Abdullah VS Govt. of Bangladesh & others (Spl. Original) 3324. Helena Bewa and others VS Md. Mohshin Ali and others (Civil) 3625. Md. Alauddin Kazi and others VS Government of Bangladesh and another. (Civil) 3566. Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Civil) 3867. Startus Construction Company VS Govt. of Bangladesh and others (Sta. Original) 3258. The State VS Ashraf Ali and others (Criminal Appeal) 371 STATUTES gvwbjvwis cwZiva AvBb 2012 (2012 mbi 5 bs AvBb) 49 mvm weivax AvBb, 2009 (2012 mbi 6 bs AvBb) 61For 2012 : (1) Annual subscription paid in advance is Tk. 600/- per 12 issues + Tk. 100/- as postage (postage free for Advocates only) (2) Annual subcription not paid in advance is Tk. 700/- per 12 issues (including postage charge for 12 issues) for LNJ of 2012. Advance may be sent in by bank draft in the name of The Lawyers & Jurists A/C (3) For direct delivery price of current single issue is Tk. 50/-, Online Version Available at : Website : www.lawyersnjurists.com

Publisher : A. M. Masum (Bar-at-Law)E-mail : [email protected]

Reg. No. DA-6152

I LNJ (2012) INDEX

APPELLATE DIVISION Constitution of Bangladesh, 1972 Article 102 Legitimate expectation of work-charged employees of PWD to be transferred to regular establishment in phases has become a right Following the principles enunciated in the Memo dated 28.03.1969 and other subsequent memorandums till 1987, 6,654 work-charged employees were transferred in phases to regular establishment at the rate of 50% of the leftover work-charged employees. There are still 1906 work-charged employees left in the PWD and the authorities of the PWD sent a proposal to the Ministry of Establishment for regularisation of 951 work-charged employees which is 50% of the left-over 1906 work-charged employees. This step was taken in accordance with the long standing practice based on the various office-Memorandums since 1969. But in the meantime, the Memorandum dated 31.10.2006 made a departure from the earlier practice and introduced a new criteria, such as, that transfer of 50% of the total work-charged employees to the regular establishment, can be done once only. As a matter of public law, it is expected that the concerned authority shall always act reason-ably in the circumstances and not arbitrarily. It must observe the rules of natural justice and act fairly in carrying out their decision making process. An expectation may be crystallized into a reality from the representations expressed on behalf of the concerned authority or from their consistent conduct and regular practice which is expected to continue unabated. Government of Bangladesh and others Vs. Md. Jahangir Alam and others (Civil). 49.

Evidence Act (I of 1872) Section 115 If a public authority promises to follow certain procedure and which is actually acted upon, for years together, it should follow the said procedure, unless of course, some legal impediment has been created against it. Government of Bangladesh and others Vs. Md. Jahangir Alam and others (Civil). 49.

HIGH COURT DIVISION

Arbitration Act (I of 2001) Section 42 (2) and 43 (1) (a) (IV) It appears that no counter claim was filed by the Department concerned. The Arbitral Tribunal travelled beyond its jurisdiction in entertaining and deciding issues which had not been referred to by the contending sides. It would become difficult, if not impossible to sever the determinable issues from the non determinable issues referred to the Tribunal from the final Award which is not before the Court. The impugned order including the modified order are set aside. Startus Construction Company Vs Govt. of Bangladesh and others (Spl. Original) 325.

Code of Civil Procedure (V of 1908) Order VII, rule 11 Limitation Act (IX of 1908) Article 120 The exchange deed was registered on 19.09.1976 when the cause of action was shown on 19.08.1976. It can safely be said that the cause of action as shown by the plaintiff is not correct, rather , it is false and also that S. A. khatian has been finally published in 1970 and hence the cause of action having not been proved the suit is barred by limitation. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil). 362.

Code of Civil Procedure (V of 1908) Order I, rule 10 Whether the Deputy Commissioner had authority or jurisdiction to execute and register the exchange deed in between the parties , before registering the same whether he has consulted S. A. and R.S. Khatian, whether the power of attorney was genuine or not are to be resolved in the suit for which the Deputy Commissioner is a necessary party to the suit. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil). 362.

Code of Civil Procedure (V of 1908) Order VIII, rule 10 Order IX, rule 13 Order XLIII, Rule 1(b) After rejecting the defendants application for adjournment the learned judge passed the ex-parte judgment. Neither the newly appointed lawyer then filed application for further adjournment nor did he take part in the hearing nor did he retire from the suit. It was fixed on 06.02.2006 for filing written statement. In default the court will take ex-parte decision. No written statement was filed on the fixed date. The Court passed the judgment for failure of the

I LNJ (2012) 50 INDEX

defendants to file the written statement which comes within the purview of Order VIII, rule 10 of the Code. An order passed under Order VIII, rule 10 of the Code is an appealable order under order XLIII, rule 1(b) of the Code. But in India the provision of appeal has been deleted. Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Civil). 386.

Code of Criminal Procedure (V of 1898) Sections 265 C and 439 Negotiable Instruments Act (XXVI of 1881) Section 138

There is sufficient materials before the High court Division for believing that the accused petitioner committed no offence under section 138 of the Negotiable Instruments Act and as such there will be substantial injustice if this court does not interfere in this case and there will be fragrant violation of justice. The High court Division under section 439 of the Code having supervisory jurisdiction can scrutinize and can go into the fact of a case to examine the propriety of the order passed under section 265C of the Code of Criminal Procedure. Hence the application by the accused petitioner under section 265C of the Cr.P.C. is maintainable against the order of framing charge against the accused. AKM Fayekuzzaman Vs. The State and another (Criminal Revisional) 341.

Code of Criminal Procedure (V of 1908) Section 115

The finding of the court of appeal below and the trial court as well is contrary to the evidence on record and also is a product of misreading and non-consideration of material evidence on record in as much as in the present case the plaintiff had produced their kabala, S.A. Khatian and the rent receipt in the trial court to show their continuous possession but the courts below failed to consider the same as a result of which the judgment and decree of the Court below is set aside and the suit is decreed. Md. Alauddin Kazi and others Vs. Govt. of Bangladesh and another (Civil). 356.

Code of Criminal Procedure (V of 1898) Sections 164 & 364 Evidence Act (I of 1872) Section 24 After going through the cross-examination of PW.17 and PW.20, who are confessional statement recording Magistrate and I.O. respectively, a reasonable suspicion could give rise in the mind of a prudent man that condemned prisoner Ashraf Ali might have been tortured when he was under police remand for 3 days and after such remand several injuries were found on his body which made the confessional statement untrue and not voluntary and it is unsafe to base conviction only on such a confessional statement which is doubtful and questionable. Moreso, the recording Magistrate did not fill up the column Nos. 8, 9 and 10 of the form for which it is difficult to hold that the confessional statement made under sections 164, Cr.P.C. is a voluntary and same was recorded in compliance with the mandatory provision of law. The State Vs. Ashraf Ali and others (Criminal Appeal). 371.

Code of Criminal Procedure (V of 1898) Sections 339 B (1)

In the notification Police Station case number had been mentioned as Nator Police Station but the present case is Naldanga Police Station Case No.3 dated 05.04.2003. Thus, this notification can not be said a proper and legal notification and subsequent proceeding is illegal and it vitiates the trial, so far the absconding accused persons are concerned. The State Vs. Ashraf Ali and others (Criminal Appeal). 371.

Code of Criminal Procedure (V of 1898) Sections 342

The learned Tribunal is not justified in ignoring the statements of the said accused persons recorded under section 342 of the Code of Criminal Procedure and by such non-consideration the merit of the case had been materially affected. The State Vs. Ashraf Ali and others (Criminal Appeal). 371.

I LNJ (2012) INDEX

Constitution of Bangladesh, 1972 Article 102 (1)(2)(a)(ii) Motor Vehicles Ordinance (LV of 1983) Sections 105,140,152 and 156 Police Regulation Bengal, 1943 Regulations 33 and 260 Police Act (V of 1861) Section 23 Dhaka Metropolitan Police Ordinance, 1976 Sections 16 (e) and 161 Police Officer (Special Provision) Ordinance (LXXXIV of 1976) Sections 2(b),4,5,12 & 48

The Petitioner, a retired Officer in the rank of Brigadier of the Bangladesh Army, has challenged the Charge Report submitted under section 105 of the Motor Vehicle Ordinance, 1983 issued by the Police Officer, the Respondent No. 10 alleging contravention of sections 140,152 and 156 of the said Ordinance. It is contended on behalf of the petitioner that respondent No. 10, despite being informed by the petitioners wife that she was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public. Such action of respondent No. 10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976. Brigadier (Retd.) A.H.M Abdullah Vs. Govt. of Bangladesh & others (Spl Original. 332.

Nari-O-Shisu Nirjaton Daman Ain (XVIII of 1995) Sections 10(2) & 14 Evidence Act ( I of 1872) Section 45

Scanning the evidence of PWs it is evident that the allegation regarding demand of dowery has not been substantiated and the alleged occurrence does not come within the ambit of section 10(2) of the Ain. On appreciation of the evidence on record it appears that the main allegation against the accused appellants that they firstly assaulted the victim and then poured poison into his mouth have not been proved. It is settled principle that the positive evidence in a case is that of the eye witness who had seen and narrated the occurrence. The evidence of a medical man or an expert is merely an opinion which only lends corroboration to the direct evidence. These glaring inconsistencies between the existence of the injuries on the dead body of victim as found by the post mortem doctor and the evidence of the prosecution witnesses about the injuries caused by the appellants irresistibly lead us to a conclusion that the occurrence did not take place in the manner as alleged by the prosecution. Such failure to exhibit the original copy of the post-mortem report, the possibility of such carbon copy being a fabricated copy cannot be ruled out. The learned Judge of the trial court below substituted moral conviction for legal evidence which is not allowed in law and, thus the impugned judgment and order of conviction and sentence is illegal and liable to be set aside. Abul Basher and another Vs. The State (Criminal Appeal) 349.

Transfer of property Act (IV of 1882) Section 118

As the defendant got decree against Monimohan and such decree is still in existence. Neither plaintiff nor his predecessor challenged the said decree. Plaintiff has no right, title and interest in the suit property by exchange deed even if it is found that the exchange is genuine, the plaintiffs have no ownership of the suit property because of such decree has extinguished the plaintiffs title. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil). 362.

Editor: Advocate Borun Kumar Biswas, Mobile: 01711-354773, Printed & Published by : A. M. Masum, Bar-at-Law, M.L. -Hotel Tower Ltd. (10th Floor), 208, Shahid Sayed Nazrul Islam Saroni, Bijoy Nagar, Dhaka-1000, Bandhu Printing Press, 149, R. K. Mission Road, Motijheel, Dhaka-1000, Correspondent Address: Md. Nazrul Islam, Manager, LNJ Sales Center, 64/C/3, R. K. Mission Road, Gopibag, Dhaka-1203, Bangladesh. Mobile: 01913-775750, 01199-047076, E-mail: [email protected]

APPELLATE DIVISION Constitution of Bangladesh, 1972 Article 102 Legitimate expectation of work-charged employees of PWD to be transferred to regular establishment in phases has become a right Following the principles enunciated in the Memo dated 28.03.1969 and other subsequent memorandums till 1987, 6,654 work-charged employees were transferred in phases to regular establishment at the rate of 50% of the leftover work-charged employees. There are still 1906 work-charged employees left in the PWD and the authorities of the PWD sent a proposal to the Ministry of Establishment for regularisation of 951 work-charged employees which is 50% of the left-over 1906 work-charged employees. This step was taken in accordance with the long standing practice based on the various office-Memorandums since 1969. But in the meantime, the Memorandum dated 31.10.2006 made a departure from the earlier practice and introduced a new criteria, such as, that transfer of 50% of the total work-charged employees to the regular establishment, can be done once only. As a matter of public law, it is expected that the concerned authority shall always act reason-ably in the circumstances and not arbitrarily. It must observe the rules of natural justice and act fairly in carrying out their decision making process. An expectation may be crystallized into a reality from the representations expressed on behalf of the concerned authority or from their consistent conduct and regular practice which is expected to continue unabated. Government of Bangladesh and others Vs. Md. Jahangir Alam and others (Civil). 49.

Evidence Act (I of 1872) Section 115 If a public authority promises to follow certain procedure and which is actually acted upon, for years together, it should follow the said procedure, unless of course, some legal impediment has been created against it. Government of Bangladesh and others Vs. Md. Jahangir Alam and others (Civil). 49.

HIGH COURT DIVISION

Code of Civil Procedure (V of 1908) Order VII, rule 11 Limitation Act (IX of 1908) Article 120

The exchange deed was registered on 19.09.1976 when the cause of action was shown on 19.08.1976. It can safely be said that the cause of action as shown by the plaintiff is not correct, rather , it is false and also that S. A. khatian has been finally published in 1970 and hence the cause of action having not been proved the suit is barred by limitation. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil). 362.

Code of Civil Procedure (V of 1908) Order I, rule 10

Whether the Deputy Commissioner had authority or jurisdiction to execute and register the exchange deed in between the parties , before registering the same whether he has consulted S. A. and R.S. Khatian, whether the power of attorney was genuine or not are to be resolved in the suit for which the Deputy Commissioner is a necessary party to the suit. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil). 362.

Arbitration Act (I of 2001) Section 42 (2) and 43 (1) (a) (IV) It appears that no counter claim was filed by the Department concerned. The Arbitral Tribunal travelled beyond its jurisdiction in entertaining and deciding issues which had not been referred to by the contending sides. It would become difficult, if not impossible to sever the determinable issues from the non determinable issues referred to the Tribunal from the final Award which is not before the Court. The impugned order including the modified order are set aside. Startus Construction Company Vs Govt. of Bangladesh and others (Spl. Original) 325.

Constitution of Bangladesh, 1972 Article 102 (1)(2)(a)(ii) Motor Vehicles Ordinance (LV of 1983) Sections 105,140,152 and 156 Police Regulation Bengal, 1943 Regulations 33 and 260 Police Act (V of 1861) Section 23 Dhaka Metropolitan Police Ordinance, 1976 Sections 16 (e) and 161

I LNJ (2012) INDEX

Police Officer (Special Provision) Ordinance (LXXXIV of 1976) Sections 2(b),4,5,12 & 48

The Petitioner, a retired Officer in the rank of Brigadier of the Bangladesh Army, has challenged the Charge Report submitted under section 105 of the Motor Vehicle Ordinance, 1983 issued by the Police Officer, the Respondent No. 10 alleging contravention of sections 140,152 and 156 of the said Ordinance. It is contended on behalf of the petitioner that respondent No. 10, despite being informed by the petitioners wife that she was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public. Such action of respondent No. 10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976. Brigadier (Retd.) A.H.M Abdullah Vs. Govt. of Bangladesh & others (Spl Original. 332.

Code of Criminal Procedure (V of 1898) Sections 265 C and 439 Negotiable Instruments Act (XXVI of 1881) Section 138

There is sufficient materials before the High court Division for believing that the accused petitioner committed no offence under section 138 of the Negotiable Instruments Act and as such there will be substantial injustice if this court does not interfere in this case and there will be fragrant violation of justice. The High court Division under section 439 of the Code having supervisory jurisdiction can scrutinize and can go into the fact of a case to examine the propriety of the order passed under section 265C of the Code of Criminal Procedure. Hence the application by the accused petitioner under section 265C of the Cr.P.C. is maintainable against the order of framing charge against the accused. AKM Fayekuzzaman Vs. The State and another (Criminal Revisional) 341.

Nari-O-Shisu Nirjaton Daman Ain (XVIII of 1995) Sections 10(2) & 14 Evidence Act ( I of 1872) Section 45

Scanning the evidence of PWs it is evident that the allegation regarding demand of dowery has not been substantiated and the alleged occurrence does not come within the ambit of section 10(2) of the Ain. On appreciation of the evidence on record it appears that the main allegation against the accused appellants that they firstly assaulted the victim and then poured poison into his mouth have not been proved. It is settled principle that the positive evidence in a case is that of the eye witness who had seen and narrated the occurrence. The evidence of a medical man or an expert is merely an opinion which only lends corroboration to the direct evidence. These glaring inconsistencies between the existence of the injuries on the dead body of victim as found by the post mortem doctor and the evidence of the prosecution witnesses about the injuries caused by the appellants irresistibly lead us to a conclusion that the occurrence did not take place in the manner as alleged by the prosecution. Such failure to exhibit the original copy of the post-mortem report, the possibility of such carbon copy being a fabricated copy cannot be ruled out. The learned Judge of the trial court below substituted moral conviction for legal evidence which is not allowed in law and, thus the impugned judgment and order of conviction and sentence is illegal and liable to be set aside. Abul Basher and another Vs. The State (Criminal Appeal) 349.

Code of Criminal Procedure (V of 1908) Section 115 The finding of the court of appeal below and the trial court as well is contrary to the evidence on record and also is a product of misreading and non-consideration of material evidence on record in as much as in the present case the plaintiff had produced their kabala, S.A. Khatian and the rent receipt in the trial court to show their continuous possession but the courts below failed to consider the same as a result of which the judgment and decree of the Court below is set aside and the suit is decreed. Md. Alauddin Kazi and others Vs. Govt. of Bangladesh and another (Civil). 356.

Transfer of property Act (IV of 1882) Section 118

As the defendant got decree against Monimohan and such decree is still in existence. Neither plaintiff nor his predecessor challenged the said decree. Plaintiff has no right, title and interest in the suit property by exchange deed even if it is found that the exchange is genuine, the plaintiffs have no ownership of the suit property because of such decree has extinguished the plaintiffs title. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil). 362.

Code of Criminal Procedure (V of 1898)

I LNJ (2012) INDEX

Sections 164 & 364 Evidence Act (I of 1872) Section 24 After going through the cross-examination of PW.17 and PW.20, who are confessional statement recording Magistrate and I.O. respectively, a reasonable suspicion could give rise in the mind of a prudent man that condemned prisoner Ashraf Ali might have been tortured when he was under police remand for 3 days and after such remand several injuries were found on his body which made the confessional statement untrue and not voluntary and it is unsafe to base conviction only on such a confessional statement which is doubtful and questionable. Moreso, the recording Magistrate did not fill up the column Nos. 8, 9 and 10 of the form for which it is difficult to hold that the confessional statement made under sections 164, Cr.P.C. is a voluntary and same was recorded in compliance with the mandatory provision of law. The State Vs. Ashraf Ali and others (Criminal Appeal). 371.

Code of Criminal Procedure (V of 1898) Sections 339 B (1)

In the notification Police Station case number had been mentioned as Nator Police Station but the present case is Naldanga Police Station Case No.3 dated 05.04.2003. Thus, this notification can not be said a proper and legal notification and subsequent proceeding is illegal and it vitiates the trial, so far the absconding accused persons are concerned. The State Vs. Ashraf Ali and others (Criminal Appeal). 371.

Code of Criminal Procedure (V of 1898) Sections 342

The learned Tribunal is not justified in ignoring the statements of the said accused persons recorded under section 342 of the Code of Criminal Procedure and by such non-consideration the merit of the case had been materially affected. The State Vs. Ashraf Ali and others (Criminal Appeal). 371.

Code of Civil Procedure (V of 1908) Order VIII, rule 10 Order IX, rule 13 Order XLIII, Rule 1(b)

After rejecting the defendants application for adjournment the learned judge passed the ex-parte judgment. Neither the newly appointed lawyer then filed application for further adjournment nor did he take part in the hearing nor did he retire from the suit. It was fixed on 06.02.2006 for filing written statement. In default the court will take ex-parte decision. No written statement was filed on the fixed date. The Court passed the judgment for failure of the defendants to file the written statement which comes within the purview of Order VIII, rule 10 of the Code. An order passed under Order VIII, rule 10 of the Code is an appealable order under order XLIII, rule 1(b) of the Code. But in India the provision of appeal has been deleted. Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Civil). 386.

Constitution of Bangladesh, (V of 1908) Order XXXVIII, Rule 5 Artha Rin Adalat Ain (VIII of 2003) Section 12(3)

It appears that the Dutch Bangla Bank Ltd. in compliance with the provisions of section 12 (3) of the Artha Rin Adalat Ain, 2003 published auction notice and the Bank requested the petitioner to execute the mortgage deed but the petitioner did not do the same . On the contrary the petitioner borrower was trying to transfer the schedule properties in order to defeat the decree that might be passed in the Artha Rin Adalat suit and hence the learned judge of the Artha Rin Adalat has rightly passed the impugned order for attachment of the scheduled properties before judgment under Order XXXVIII, Rule 5 of the Code. Khaled Jamel Ahmed Adel & another Vs. Artha Rin Adalat 3, Dhaka & others (Spl. Original) 393.

Editor: Advocate Borun Kumar Biswas, Mobile: 01711-354773, Printed & Published by : A. M. Masum, Bar-at-Law, M.L. -Hotel Tower Ltd. (10th Floor), 208, Shahid Sayed Nazrul Islam Saroni, Bijoy Nagar, Dhaka-1000, Bandhu Printing Press, 149, R. K. Mission Road, Motijheel, Dhaka-1000, Correspondent Address: Md. Nazrul Islam, Manager, LNJ Sales Center, 64/C/3, R. K. Mission Road, Gopibag, Dhaka-1203, Bangladesh. Mobile: 01913-775750, 01199-047076, E-mail: [email protected]

I LNJ (2012) Khaled Jamel Ahmed Adel and another Vs. Artha Rin Adalat No. 3, Dhaka and others (F.R.M. Nazmul Ahasan, J.) 393

HIGH COURT DIVISION (Original Jurisdiction)

Ms. Zinat Ara, J.. and

Mr. F.R.M. Nazmul Ahasan, J.

Judgment 14.12.2011

} } }

Khaled Jamel Ahmed Adel and another

...Petitioners Vs.

Artha Rin Adalat No. 3, Dhaka and others

...Opposite Parties

Constitution of Bangladesh, (V of 1908) Order XXXVIII, Rule 5 Artha Rin Adalat Ain (VIII of 2003) Section 12(3)

It appears that the Dutch Bangla Bank Ltd. in compliance with the provisions of section 12 (3) of the Artha Rin Adalat Ain, 2003 published auction notice and the Bank requested the petitioner to execute the mortgage deed but the petitioner did not do the same . On the contrary the petitioner borrower was trying to transfer the schedule properties in order to defeat the decree that might be passed in the Artha Rin Adalat suit and hence the learned judge of the Artha Rin Adalat has rightly passed the impugned order for attachment of the sched-uled properties before judgment under Order XXXVIII, Rule 5 of the Code. ...(16, 18 & 19)

Mr. Moudud Ahmed with Mr. A.M. Mahbub Uddin, Advocates

....For the Petitioners .

Mr. Rokon Uddin Mahmud with Mr. Md. Ashraf Uddin Bhuiyan, Advocates

....For the Respondents.

Judgment

F.R.M. Nazmul Ahasan, J: This Rule Nisi obtained under Article

102 of the Constitution of the People's Republic of Bangladesh calls upon the respondents to show cause as to why the impugned order dated 16.02.2010 passed by the respondent No. l, in Artha Rin Suit No. 89 of 2009), allowing the application for attachment before the judgment, filed (writ petition) should not be declared to have been passed without lawful authority and is of no

*Writ Petition No. 2520 of 2010.

legal effect.

2. The short facts relevant for disposal of this Rule are as under:

The Respondent No. 2, Dutch Bangla Bank Limited (shortly, the Bank), as plaintiff, filed a Artha Rin Suit being No.89 of 2009 stating, inter alia, that during the course of business on 06.10.1997 the defendant No. l, Company opened an account being Current Account No. 10123004826 with the plaintiff Bank in the name of defendant No.l, Company "K & K Tops Textile Mills Ltd." for its business purposes. Subsequently, the said account number has been renumbered as 0101110000004092; that thereafter, at the request of the defendant No. 1, Company Bank sanctioned a letter of Credit Limit of Tk.90.00 million for opening irrevocable letters of Credit for import of Raw Materials and loan against Trust Receipt for retiring documents under the Letters of Credit vide its Sanction Letter No. DBBL/ LO/CO/3.03.01/97 dated 21.08.1997 in favour of the defendant No.l Company; that the Bank renewed and enhanced the facilities from time to time; that thereafter, the Bank re-arranged the aforesaid facilities in the manner such as reduction of regular Letter of Credit limit from Tk.300.00 million to Tk.270.00 million and allowing free option for opening sight and nuance letter of credit, LTR sub limit, Encash-ment of FC FUND / Term Deposit that has been built up over the period for adjustment of LTR outstanding and conversion of remaining liabilities into a term loan amount of Tk. 108.77 for adjustment purpose within a period of 5 years on 31.03.2004 which was duly accepted by the defendant. The said credit facilities sanctioned in favour of the Company were secured by the securities/charge documents executed by the defe-ndant Company. In addition to the charge documents the Company mortgaged its landed property by mortgaged deed No. 8385 dated 15.10.1997 along with a registered power of attorney being No. 8386 dated 15.10.1997 empowering the plaintiff to sell the mortgaged property. The defendant Nos. 2 and 3 created equitable mortgaged on their landed property as collateral security against the aforesaid credit facilities by way of depositing title deeds dated 02.02.2000 and 17.02.2004.

3. Thereafter, on 19.10.2009 the Bank filed an

Khaled Jamel Ahmed Adel and another Vs. Artha Rin Adalat No. 3, Dhaka and others (F.R.M. Nazmul Ahasan, J.) I LNJ (2012) 394

application under Order XXXVIII, Rule 5 read with Section 151 of the Code of Civil Procedure for attachment of the schedule property before judgment stating, inter alia, that the plaintiff Bank filed the Artha Rin Suit for recovery of an amount of Tk.42,64,85,629.13. At the time of creating equitable mortgage of the schedule properties the defendants on several occasions promised to execute registered mortgage deed. The plaintiff for the assistance of the business of the Company disbursed the Credit facilities relying on the promise of the defendants but they failed to fulfill their commitment. The plaintiff has reliably learnt that having knowledge of the filing of the suit, defendants are trying to transfer the property.

4. Thereafter, on 05.01.2010 the defendant Nos.2 and 3 filed a written objection against the aforesaid application stating, inter alia, that the said properties have more value than the amount claimed by the plaintiff Bank. Besides that the plaintiff carried out valuation survey on the said properties by its own effort. But the plaintiff did not mention how the Bank calculated the said loan accounts, stating clearly the amount of the interest of each force loan created or letter of credit facility. Moreover, the total value of the said properties are about 100.00 crore as per the present market value.

5. Thereafter, on 02.02.2010 the petitioners as defendant Nos. 2 and 3 filed a written statement stating, inter alia, that the claim of the Bank is wrongly calculated; that plaintiff Bank sanctioned only Tk. 9(nine) crore; that on several occasions the defendant No. 2 personally requested the plaintiff Bank through several letters to waive 100% interest from insertion of loan created and allowed time period of l(one) year to adjust the liabilities and the defendant No.l Company requested the Bank to adjust the loan by selling the defendants mortgaged property including the stock inside the building on 17.03.2008 and the defendant Nos.1-3 requested the Bank to arrange a meeting with a view to discuss and resolve the matter amicably but the petitioner did not response.

6. On 16.02.2010, the learned Judge of the Artha Rin Adalat after hearing, allowed the application under Order XXXVIII, Rule 5 read with Section 151 of the Code of Civil Procedure and attached the scheduled properties.

7. Thereafter, petitioner preferred this Writ Petition before this Court and obtained the present Rule Nisi.

8. & . Respondent No. 2 (Bank) contested the rule by filing an affidavit-in-opposition contending, inter alia, that the learned Judge of the Adalat after proper consideration of the application filed by the Bank allowed the application and passed an order of attachment of the schedule property. It is further contended that the petitioners have been given ample time to adjust the outstanding dues but the petitioners have not taken any positive steps even after repeated requests and appeals vide a series of letter from the respondent Bank and miserably failed to adjust the rest of the outstanding dues with the respondent Bank; thereafter, the Bank on 11.01.2009 published auction notice in "The Financial Express" and on 09.02.2009 published auction notice in the "Daily Prothom Alo", under section 12 of the Artha Rin Adalat Ain, 2003. Since, there was no suitable participants, the mortgaged properties could not be sold; that the Bank has positive information that the Petitioner Barrower was trying to dispose of the schedule properties in order to defeat the decree which might be passed in the Artha Rin Suit and the learned Judge of the Adalat by his order dated 19.10.2009 issued show cause notice upon the defendant petitioners and, as such, the allegations made in the Writ Petition is not true that no show cause notice was served upon the petitioners; that the petitioners have preferred this Writ Petition only with a view to transfer of the schedule properties. As such, the Rule is liable to be discharged.

9. Mr. Moudud Ahmed with Mr. A.M. Mahbub

I LNJ (2012) Khaled Jamel Ahmed Adel and another Vs. Artha Rin Adalat No. 3, Dhaka and others (F.R.M. Nazmul Ahasan, J.) 395

Uddin, the learned Advocate appearing on behalf of the petitioners submits, that the learned Judge of the Artha Rin Adalat without complying with the provision of order XXXVIII, rule 5 of the Code of Civil Procedure passed the impugned order for attachment of the schedule properties. He further submits that the Bank sanctioned the loan of Tk.9.00 (nine) crore only but the Bank filed the Artha Rin Suit claiming Tk.42,64,85,629.13 which is much more than three times of the principal amount and so, is a violation of Section 47 of the Artha Rin Adalat Ain, 2003. He next submits that the learned Judge of the Adalat passed the impugned order without issuing any show cause notice upon the defendant petitioner as to why he should not furnish security which is required under order XXXVIII, rule 5 of the Code of Civil Procedure and as such, the impugned order should be declared to have been passed without lawful authority and is of no legal effect. He next submits that the plaintiff Bank neither mentioned the particulars of the properties mentioned in the schedule including the value of the properties nor the learned Artha Rin Adalat directs the parties otherwise as per clause 2 of rule 5 under order XXXVIII of the Code of Civil Procedure and as such the impugned order should be declared to have been passed without lawful authority and is of no legal effect. Finally, he submits that some valuable landed properties with building thereon and equipments inside the building are on mortgaged in favour of the bank and a power of attorney was also executed and registered empowering the bank to sell the properties but the Bank without complying with Section 12 of the Ain filed the Artha Rin Suit. Thus, the impugned order dated 16.02.2010 passed by the learned Judge of the Artha Rin Adalat is liable to be declared to have been passed without lawful authority and is of no legal effect.

10. In reply, Mr. Rokon Uddin Mahmud, the learned Advocate for the respondent No.2 appearing with Mr. Md. Ashraf Uddin Bhuiyan,

has taken us through the affidavit in opposition and submits, that the petitioner borrower availed the loan facilities but despite repeated requests, remainders failed to repay the loan; that the Bank thereafter, requested the defendants to execute a mortgaged deed but the defendant petitioner without doing so tried to transfer the schedule properties and finding no other alternative Bank filed the Artha Rin Suit for recovery of the outstanding dues of Tk.42,64,85,629.13 and thereafter, filed an application for attachment of the schedule properties before judgment under order XXXVIII, rule 5 of the Code of Civil Procedure. He next submits that the petitioner obtained the Rule by suppressing material facts and making incorrect statement that Section 12 of the Artha Rin Adalat Ain was not complied with. He further submits that in fact auction notice published on 11.01.2009 in the Financial Express and on 09.02.2009 in the daily Prothom Alo. He further submits that the learned Judge of the Artha Rin Adalat issued show cause notice upon the defendants and thereafter, on hearing the application filed by the bank passed the impugned order. He lastly submits that it is evident that the petitioner by suppressing the aforesaid facts and making false statement in the Writ Petition obtained the present Rule, which is liable to be discharged.

11. We have heard the learned Advocates for both the sides, perused the Writ Petition, the affidavit-in-opposition and the impugned order and other materials on record.

12. Admittedly, upon request of the petitioner, the Bank opened an Account with its principal Branch being Bank Account No. 10123004826 dated 06.10.1997 in the name of the petitioner company i.e. K & K Tops Textile Mills Limited. Thereafter, at the request of the Bank, the petitioner disbursed and aggregate the loan facilities of Tk.34,08,19,287.95 only and enhanced and renewed the loan from time to time and the petitioner Company repaid Tk. 11,75,96,631.74

Khaled Jamel Ahmed Adel and another Vs. Artha Rin Adalat No. 3, Dhaka and others (F.R.M. Nazmul Ahasan, J.) I LNJ (2012) 396

out of their total outstanding liabilities of Tk.42,64,85,629.13; that the said credit facilities sanctioned in favour of the defendants No. l Company were secured by several charge documents.

13. In addition to the above mentioned charge documents, the defendant No. l mortgaged its landed property measuring 2.35 acres situated within District-Mymensingh, P.S and Sub-Registry Office-Valuka, Mouza-Kathali and 0.50 acres situated within District-Mymensingh, P.S and Sub-Registry Office- Valuka, Mouza-Kathali along with building thereon and all machinery and equipments installed thereon by way of executing a mortgaged deed being No.8385 dated 15.10.1997 along with a registered power of attorney being No.8386 dated 15.10.1997 empowering the plaintiff Bank to sell the mortgaged properties in favour of the plaintiff Bank. The defendant Nos.2 & 3 described in the plaint in the schedule-B(2) & B(3) of the schedule of the property as collateral security against the aforesaid credit facilities by way of executing a memorandum of deposit of title of deeds dated 02.02.2000 and 17.02.2004 and deposited the title deeds to the plaintiff Bank, when the defendants failed to repay the aforesaid outstanding loan facility; that the Bank on several occasions requested the defendants to execute a registered mortgaged deed of the schedule property mentioned in the schedule-B(2) & B(3) but the defendants failed to do so. Eventually, the suit was filed for recovery of loan.

14. In the Suit, Bank filed an application under order XXXVIII, rule 5 read with Section 151 of the Code of Civil Procedure for attachment of the schedule property before judgment. It appears from the order sheet annexed with the affidavit-in-opposition that on 19.10.2009 the learned Judge of the Adalat issued show cause upon the defendant Nos.2 and 3 and thereafter, defendant Nos.2 and 3 filed written objection against the application filed by the Bank (annexure-C to the Writ Petition) stating that due to non-cooperation and negligence of the plaintiff Bank the defendant Nos.2 and 3 failed to get loan facilities from other Banks as all deeds of personal properties of the defendants in custody of the plaintiff Bank and as such the

defendant Nos. 2 and 3 failed to carry out the project and pay back the loan to the Bank on time.

15. Thus the submission of the learned Advocate for the petitioner that no show cause notice was served upon the petitioner is not true.

16. It further appears from the annexures-2(A) and 2(B) to the affidavit-in-opposition that auction notice was published under Section 12(3) of the Artha Rin Adalat Ain, 2003 in the Financial Express on 11.01.2009 and in the daily Prothom Alo on 09.02.2009. Thus, the argument advanced by the learned Advocate for the petitioner that no auction notices was published and no step was taken under Section 12(3) of the Ain before filing of the Suit, is also not true.

17. For proper appreciation, let us consider the impugned order which is quoted blow:

18. We have considered the findings of the learned Judge, it transpires that the Bank requested the petitioner to execute a mortgage deed but he did not do so; that the Bank had a positive apprehension that the petitioner-borrower was trying to transfer of the schedule properties in order to defeat the decree which might be passed in the Artha Rin Suit.

19. From the discussions made above and on consideration of the documents on record and the impugned order, we are of the opinion that the learned Judge of the Artha Rin Adalat after proper consideration of the cases of the respective parties and following the provisions of order XXXVIII, rule 5 of the Code of Civil Procedure, properly and lawfully passed the impugned order. Thus, we find no illegality in the impugned order passed by the learned Judge of the Adalat.

20. Thus, the Rule has no merit.

21. In the result, the Rule is discharged without any order as to costs.

22. The order of stay granted earlier by this Court stands vacated. Communicate the order to the respondent No. 1 at once.

Ed.

Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Farid Ahmed, J.) I LNJ (2012) 386

HIGH COURT DIVISION (Civil Revisional Jurisdiction)

Mr. Farid Ahmed, J.. and

Mr. Obaidul Hassan, J.

Judgment 17.08.2009

} }

Rupsha Fish and Allied Industries Ltd.

...Petitioner Vs.

The Premier Bank Limited and others

...Opposite Party. Code of Civil Procedure (V of 1908) Order VIII, rule 10 Order IX, rule 13 Order XLIII, Rule 1(b)

After rejecting the defendants application for adjournment the learned judge passed the ex-parte judgment. Neither the newly appointed lawyer then filed application for further adjou-rnnment nor did he take part in the hearing nor did he retire from the suit. It was fixed on 06.02.2006 for filing written statement. In default the court will take ex-parte decision. No written statement was filed on the fixed date. The Court passed the judgment for failure of the defendants to file the written statement which comes within the purview of Order VIII, rule 10 of the Code. An order passed under Order VIII, rule 10 of the Code is an appealable order under order XLIII, rule 1(b) of the Code. But in India the provision of appeal has been deleted.

The exparte judgment shows that the learned Judge rejected the defendants application for adjournment and thereafter took up the case for exparte hearing. It does not appear from the order that the newly appointed lawyer thereafter filed any application for further adjournment or that the learned Advocate intended to appear for taking part in the hearing of the suit. Even he did not retire from the suit. (16)

On 6.2.2006 was fixed for filing written stateme-nts, in default, for taking exparte decision on the suit. The defendants on that date also failed to file written statements. The learned court thereafter passed the judgment for failure of the defendants

*Civil Revision No. 2448 of 2006.

to file written statements. This judgment comes within the purview of Order 8 Rule 10 of the C.P.C. Order 8 Rule 10 of the Code of Civil Procedure reads as under :

Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. (17)

The learned Advocate for the petitioner on the contrary has submitted that against an order passed under Order 8 Rule 10 of the C.P.C. is appealable under Order 43 Rule 1 (b) of the C.P.C but in India the provision of Rule 1(b) of Order 43 of the C.P.C has been deleted in 1976 by an amendment and there is no provision in the Indian C.P.C for filing an appeal against the order passed under Order 8 rule 10 of the C.P.C . So, in all the aforesaid cases referred on behalf of opposite party it was held that Order 9 Rule 13 of the Code of Civil Procedure is entertainable against an order passed under Order 8 Rule 10 of the C.P.C . But in our C.P.C the provision of Rule 1(b) of Order 43 of the C.P.C has not been amended. According to our C.P.C Rule 1 (b) of Order 43 is the specific provision for filing an appeal against an order passed under Order 8 Rule 10 of the C.P.C if the defendant fails to present the written statements on the date fixed by the Court. The learned Advocate for the petitioner has referred the case of Gopi Charan Bajpai and others Vs. Ramprashad Awasthi and others reported in AIR 1957 (Allahbad) 283. The case was decided before amendment of the C.P.C. in India and it has been held that an order passed under Order 8 Rule 10 of the C.P.C is an appealable order and appeal lies under the provision of Order 43 Rule 1(b) of the C.P.C. Before amendment of C.P.C in India the provision of Order 43 Rule 1(b) was the procedure for filing an appeal against an order passed under order 8 Rule 10 of the C.P.C. But after amendment the provision of appeal has been deleted in India. In the case of M/S. M. Manick Peter and others Vs. K. Surendranathan reported in AIR 1988 Kerala 161 it has been held:

I LNJ (2012) Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Farid Ahmed, J.) 387

.......... A right of appeal provided Under Order 43 Rule 1 (b) was taken away by deletion of sub clause (b). The decree passed in the present case is in conformity with the requirements of Order 8 Rule 10 as amended in 1976. For the absence of the defendnats and their Counsel, it is also a decree exparte. Order 9 Rule 13 C.P.C. enable the defendants to apply to the court to set aside an exparte decree against him..... .....(20)

Code of Civil Procedure (V of 1908) Order VIII, rule 10 Order IX, rule 13 Order XLIII, Rule 1(b)

From the impugned order it appears that the learned Joint District Judge refused to reject the miscellaneous case on referring the amended provision of Rule 13 A of Order 9 of the C.P.C. The new provision of Rule 13A of order 9 has been brought in the C.P.C. to avoid delay and expedite disposal in setting aside the exparte decree with cost without requiring the defendant to adduce evidence if an application for setting aside decree is filed within thirty days from the date of decree. But in the present case, the defendant was very much before the Court. He took four adjournments for filing written statements but ultimately they failed to file the same and the Court passed the ex-parte judgment which comes within the meaning of Order 8 Rule 10 of the Code of Civil Procedure and the same was appealable under the provision of Order 43 rule 1(b) of the Code of Civil Procedure. So, the learned Joint District Judge was not justified in rejecting the petitioners prayer for rejecting the miscellany-eous case as being not entertainable. ...(26)

Damodar Das Vs. Raj Kumar Das , AIR 1922 (Patna) 485; Bothra and others Vs. Kedar Nath Bothra and others, A.I.R. 1938 (Calcutta) 74; Md. Nurul Haque Vs. Sonali Bank of Bangladesh and another, 39 DLR 223; Narendra Patra Vs. Shiba Narayan Taldi and another, A.I.R. 1995 Orissa 45; Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates, Secundrabad, AIR 1991 Andhra Pradesh 69; N. Jayaraman Vs. M/S. Glaxo Laboratories India

Ltd., AIR 1981 Madras 258; M/S. Kuvarp industries Bangalore Vs. State Bank of Mysore, AIR 1985 (Kant) 77; M.S. Manick Peter and others Vs. K. Surendra Nathan, AIR 1988 Kerala 161; Most. Hakumat Bibi Vs. Imam Din and others, PLD 1987 (S.C.)-22 ref.

Mr. Abdul Quayum with Mr. Probir Halder and Mr. Swarup Kanti Deb

....For the Petitioner .

Mr. Ajmalul Hossain QC with Mr. A.B.M. Siddiqur Rahman Khan and Mr. Affan Ahmed Siddiq

....For the Opposite Parties.

Judgment

Farid Ahmed, J: This rule was issued calling upon the opposite

parties to show cause as to why the impugned order No. 20 dated 3.7.2006 passed by the learned Joint District Judge, 1st Court, Khulna in entertain-ning the Miscellaneous Case No. 24 of 2006 under Order 9 Rule 13 should not be set aside and or such other or further order or orders passed as to this Court may seem fit and proper.

2. The petitioner on 1.8.2005 instituted Money Suit No. 6 of 2005 before the 1st Court of Joint District Judge, Khulna agaisnt the opposite parties for a decree for Tk. 53,97,3,000/- as compensation for damage and for mandatory injunction directing the defendant-opposite parties to handover key of chamber of the factory and to restrain them from interfering to the running of the business of the plaintiff-petitioner namely Rupsha Fish and Allied Industries.

3. The learned court by order dated 11.9.2005 fixed up 18.10.2005 for filing written statements and thereafter consecutively on 4 dates the defendant-opposite parties failed to file written statements. The learned Joint District Judge by order No. 12 dated 22.1.2006 as last chance allowed time and fixed up 6.2.2006 for filing written statements with a cost of Tk. 700/-, in default, for exparte hearing and decision. On 6.2.2006 the defendants appointed a new lawyer and again filed an application for 15 days


adjournment to file written statements. The Court rejected the prayer for adjournment and took up the case for exparte hearing and decreed the suit exparte.

4. Against the said exparte decree the defendant opposite parties have filed a case being Miscellaneous Case No. 24 of 2006 under Order 9 Rule 13 of the Code of Civil Procedure stating that defendant-opposite parties could not prepare the written statements as the Head Office of the Bank did not supply the necessary facts and documents in support of their case and that they engaged a new Advocate but he could not prepare the written statements and as such prayed for time, the learned Court rejected the prayer for time and passed the exparte decree. In the miscellaneous case the petitioner filed an application stating that the impugned exparte order was passed under Order 8 Rule 10 of the code of Civil Procedure which is appealable, so, the miscellaneous petition under Order 9 Rule 13 of the Code of Civil Procedure is not maintainable.

5. The learned Joint District Judge by order No. 20 dated 3.7.2006 rejected the application for rejection of the miscellaneous case on the finding that in order to avoid delay and for expeditious disposal of the case the provision of Rule 13 (A) of Order 9 has been inserted in the Code of Civil Procedure.

6. Being aggrieved thereby, the petitioner moved this court and obtained the present Rule.

7. The defendant-opposite parties have filed a counter affidavit controverting the statements made in the revisional application and stated that in their miscellaneous case they stated that for bonafide reason they failed to file written statem-ents within the time granted by the Court and that as per provision of Rule 13A of Order 9 of the Civil Procedure Code, to ensure the expeditious hearing of the case the learned court rejected the petitioners application for rejection of the miscellaneous case and that the said miscellaneous case is maintainable.

8. Mr. Abdul Quayum with Mr. Probir Halder, learned Advocates appearing on behalf of

petitioner-company have submitted that the exparte order was passed as per provision of Order 8 Rule 10 which is appealable under Order 43 Rule 1(b) of the Code of Civil Procedure and as such the miscellaneous case is not maintainable. Mr. Probir Halder thereafter has submitted that petitioner took specific ground that an appeal lies against the order passed under Order 8 Rule 10 of the Code of Civil Procedure and the learned Judge quoted the submission of the petitioner in his judgment but without considering the said provision of law illegally rejected the petitioners application for rejection of the miscellaneous case.

9. Mr. Ajmalul Hossain, learned Senior Counsel appearing with Mr. A.B.M. Siddiqur Rahman Khan and Mr. Mamun Chowdhury learned Advocates have submitted that the order passed by the Joint District Judge in the money suit is an exparte decree within the meaning of Order 9 Rule 6 of the C.P.C and as such an application under Order 9 Rule 13 of the C.P.C is attracted. Mr. Ajmalul Hossain thereafter has submitted that the judgment passed in the money suit deemed to be a decree under Order 17 Rule 2 of the C.P.C and the remedy lies under Order 9 Rule 13 of the C.P.C. He further has submitted that 1st part of the Order 9 Rule 13 of the C.P.C defines that in case of every exparte decree an application under Order 9 Rule 13 is maintainable and the present miscellaneous case being an application against the exparte decree under the 2nd limb of the Order 8 Rule 10 the proper forum is an application under Order 9 Rule 13 of the C.P.C. He lastly has submitted that the exparte judgment passed in the Money suit being not a judgment within the meaning of Section 2 (9) and Order 20 Rule 4 of the C.P.C the application under Order 9 Rule 13 is entertainable.

10. Certified copy of the entire order sheet of the Money Suit No. 6 of 2005 have been annexed with the revisional application as Annexure-B. From order No. 12 dated 22.1.2006 it appears that previously on 4 occasions adjournment were allowed for filing written statements but the defendant did not file any written statements. The Court by that order again granted adjournment for


the last time and fixed up 6.2.2006 for filing written statements with a cost of Tk. 700/-, in default, fixed for exparte disposal and decision of the case. The defendants without filing any written statements and without depositing the cost money filed an application for time to file written statements. This application was filed by a new lawyer who stated that the previous lawyer of the defendants retired from the case. The defendants then and there deposited the cost amount and made a prayer for adjournment. The learned Court rejected the said prayer and took up the case for exparte hearing and disposed of the case by an exparte judgment.

11. The learned Advocate for the opposite party has submitted that the exparte decree was passed in absence of the learned Advocate and that the learned court debarred him from appearing in the case. So, the miscellaneous case under order 9 Rule 13 of the C.P.C is maintainable . In support of his submission he referred three decisions.

12. In the case of Damodar Das Vs. Raj Kumar Das reported in AIR 1922 (Patna) 485 the suit was decreed exparte on 20.9.1919. The defendant applied Under Order 9 Rule 13 of the C.P.C to have the decree set aside. The High Court found that the trial took place on the 11th, 12th and 13th August, 1919 and on the 11th the defendants pleader appeared and asked for an adjournment which was refused. He renewed the application on the following day stating that he had no instruction from his client to cross-examine the plaintiff whose evidence had been taken on the 11th . His application was again refused.

13. In the case of Bothra and others Vs. Kedar Nath Bothra and others reported in A.I.R. 1938 (Calcutta) 74 the plaintiffs in the suit at a late stage applied for the issue of a commission. The learned Counsel for the plaintiffs, when the suit was called on, applied for an adjournment, in order that he might be in a position to tender the commission evidence after the commission had been executed. The court rejected the application. Thereupon Counsel stated that he was not in a position to proceed. The suit was accordingly dismissed. It has been held that if the plaintiffs counsel

confines himself to asking for an adjournment and when it is refused, retires from the case and states that he has no further instruction in that case it cannot be said that in presence of the plaintiff decree was passed.

14. In the case of Md. Nurul Haque Vs. Sonali Bank of Bangladesh and another reported in 39 DLR 223 their Lordships held :

........... It is apparent that after rejection of the prayer for adjournment when the suit was called on for hearing the plaintiff did not appear within the meaning of Order 9 Rule 8 read with Order 17 Rule 2 of the C.P.C and the learned Subordinate Judge dismissed the suit for default........

15. In all the aforesaid cases there was an application for adjournment which was rejected by the court. The learned Advocate thereafter withdrew him from the suit and intimated the court that he has no further instruction from his client . So, it was held that the suit was disposed of in absence of the Advocate and miscellaneous case under order 9 Rule 13 were entertained.

16. The exparte judgment shows that the learned Judge rejected the defendants application for adjournment and thereafter took up the case for exparte hearing. It does not appear from the order that the newly appointed lawyer thereafter filed any application for further adjournment or that the learned Advocate intended to appear for taking part in the hearing of the suit. Even he did not retire from the suit.

17. On 6.2.2006 was fixed for filing written statements, in default, for taking exparte decision on the suit. The defendants on that date also failed to file written statements. The learned court thereafter passed the judgment for failure of the defendants to file written statements. This judgment comes within the purview of Order 8 Rule 10 of the C.P.C. Order 8 Rule 10 of the Code of Civil Procedure reads as under:

Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce


judgment against him, or make such order in relation to the suit as it thinks fit.

18. So, the order passed by the Court clearly comes within the perview of Order 8 Rule 10 of the C.P.C. An order passed under Order 8 Rule 10 of the C.P.C. is an appealable order under the provision of Order 43 Rule 1(b) of the C.P.C. The provision of Order 43 Rule 1(b) of the C.P.C reads as under :

1. An appeal shall lie from the following orders under the provisions of section 104, namely:-

(a) ..............................

(b). an order under Rule 10 of Order 8 pronouncing judgment against a party.

19. According to learned Advocate for the opposite party the impugned judgment having been passed under the provision of Order 17 Rule 2 of the Code of Civil Procedure the application under Order 9 Rule 13 is maintainable and that the exparte judgment passed in money suit can be considered as an order under the second limb of Rule 10 of Order 8 of the Code of Civil Procedure. In case of failure to file written statement the court can take two courses: (1) pass an exparte judgment and (2) can make such order in relation to the suit as it thinks fit. In support of his submission he relied on the cases of Narendra Patra Vs. Shiba Narayan Taldi and another reported in A.I.R. 1995 Orissa 45, Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates, Secundrabad reported in AIR 1991 Andhra Pradesh 69, N. Jayaraman Vs. M/S. Glaxo Laboratories India Ltd. reported in AIR 1981 Madras 258, M/S. Kuvarp industries Bangalore Vs. State Bank of Mysore reported in AIR 1985 (Kant) 77 and the case of M.S. Manick Peter and others Vs. K. Surendra nathan reported in AIR 1988 Kerala 161. In all these cases it has been decided that an order passed under Order 8 Rule 10 of the Code of Civil Procedure can be challenged by an application under Order 9 Rule 13 of the Code of Civil Procedure.

20. The learned Advocate for the petitioner on the contrary has submitted that against an order

passed under Order 8 Rule 10 of the C.P.C. is appealable under Order 43 Rule 1 (b) of the C.P.C but in India the provision of Rule 1(b) of Order 43 of the C.P.C has been deleted in 1976 by an amendment and there is no provision in the Indian C.P.C for filing an appeal against the order passed under Order 8 rule 10 of the C.P.C . So, in all the aforesaid cases referred on behalf of opposite party it was held that Order 9 Rule 13 of the Code of Civil Procedure is entertainable against an order passed under Order 8 Rule 10 of the C.P.C . But in our C.P.C the provision of Rule 1(b) of Order 43 of the C.P.C has not been amended. According to our C.P.C Rule 1 (b) of Order 43 is the specific provision for filing an appeal against an order passed under Order 8 Rule 10 of the C.P.C if the defendant fails to present the written statements on the date fixed by the Court. The learned Advocate for the petitioner has referred the case of Gopi Charan Bajpai and others Vs. Ramprashad Awasthi and others reported in AIR 1957 (Allahbad) 283. The case was decided before amendment of the C.P.C. in India and it has been held that an order passed under Order 8 Rule 10 of the C.P.C is an appealable order and appeal lies under the provision of Order 43 Rule 1(b) of the C.P.C. Before amendment of C.P.C in India the provision of Order 43 Rule 1(b) was the procedure for filing an appeal against an order passed under order 8 Rule 10 of the C.P.C. But after amendment the provision of appeal has been deleted in India. In the case of M/S. M. Manick Peter and others Vs. K. Surendranathan reported in AIR 1988 Kerala 161 it has been held :

.......... A right of appeal provided Under Order 43 Rule 1 (b) was taken away by deletion of sub clause (b). The decree passed in the present case is in conformity with the requirements of Order 8 Rule 10 as amended in 1976. For the absence of the defendnats and their Counsel, it is also a decree exparte. Order 9 Rule 13 C.P.C. enable the defendants to apply to the court to set aside an exparte decree against him...............

21. Mr. Probir Halder also referred the case of Most. Hakumat Bibi Vs. Imam Din and others reported in PLD 1987 (S.C.)-22. In that case


exparte decree was passed for not filing the written statements on the date fixed by the Court. An appeal was filed against that order under the provision of Order 43 Rule 1(b) of the Code of Civil Procedure. In Pakistan the provision of Order 43 Rule 1(b) neither has been amended nor deleted. The provision of appeal Under Order 43 Rule 1(b) against an order passed Under Order 8 Rule 10 still is present in Pakistan like Bangladesh.

22. It has been argued on behalf of opposite parties that the exparte judgment passed by the lower Court is not a judgment as defined in Section 2(9) read with Order 20 Rule 4(2) of the Code of Civil Procedure as the learned Court did not consider the case of the parties, the documents and the evidence cited by the plaintiff-petitioner in support of his case. In the case in hand the Court passed a short judgment disposing the suit in favour of plaintiff and did not at all consider the facts of the case and a decree was drawn. As per provision of Rule 10 of Order 8 the Court had two options open to it to deal with the situation arising out of the failure of the opposite party to file written statements despite they having been allowed several opportunity to do so. One of the options was to decide the suit forthwith, (ii) to make such order in relation to the suit as it thought fit. As per the provision of Order 8 Rule 10 the court can pass a judgment if the defendant fails to file written statements on the date fixed by the Court. In the present case the judgment passed by the Court is an order and the Court was not required to draw a decree in support of the said judgment. In this point we get support from the case referred by the learned Advocate for the petitioner in the case of Sarder Sakhwat Ud-Din and others Vs. Muhammad Iqbal and others reported in PLD 1983 (Lahore)-448. In that case it was held that after making the impugned order the learned Senior Civil Judge had drawn up a decree sheet as well. It was perhaps through inadvertence that the decree sheet was prepared because, as held above the order passed by him was an order and not a decree. The mere fact that he had erroneously drawn up the decree sheet would not change the true character of the order under review. In that case the case of the provice

of Punjab and others ruled by the Pakistan S.C. was considered and wherein it was held :

...... an order pronouncing the judgment against the defendants for failure to file written statements is an appealable order but not a decree. The use of the ward Judgment in Rule 10 of Order 8 of the Code of Civil Procedure is of little avail to the respondents because according to the definition of the judgment as given in clause 9 of section 2 of the above code a decree as well as an order is a judgment. It is therefore, not correct to say that only that adjudication of the court which is followed by a decree is a judgment and that any other adjudication, though appealable, is not a judgment .............

23. The Court has drawn up a decree in terms of the judgment but the same was not necessary and for drawing up such decree it cannot be said that it is a decree within the meaning of section 2 (9) of the C.P.C and the judgment comes within the perview of Order 9 Rule 6 of the Code of Civil Procedure and against the said judgment the miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure is maintainable.

24. Referring the 1st part of the Order 9 Rule 13 of the Code of Civil Procedure the learned Advocate for the opposite party has submitted that in any case in which an exparte decree is passed against a defendant, he may apply to the court for setting aside the exparte decree by an application Under Order 9 Rule 19 of the C.P.C. In support of his submission he referred the case of Innovation Apartments Flat Owners Associat-ion, Secund-rabad Vs. M/S. Innovation Associates Secundrabad reported in AIR 1991 (Andhra Pradesh) 69. From plain reading of the entire provision of rule 13 of order 9 it appears to us that if the Court is satisfied that the summons was not duly served upon the defendant or that he was prevented by sufficient cause from appearing at the hearing, the court can set aside an exparte decree. Specific provision has been made for preferring an appeal under Order 43 Rule 1(b) of


the CPC when an order is passed under Order 8 Rule 10 of the CPC and an application Under Order 9 Rule 13 will not be entertainable in the garb of in any case mentioned in the provision of Order 9 Rule 13 of the C.P.C. Moreover, the decision referred in AIR 1991 (Andhra Pradesh) 69 was passed on 30.8.1990 when the Indian C.P.C. was amended in 1976 and Rule 1 (b) of Order 43 was deleted. In any case mentioned in rule 13 of order 9 of the Code of Civil Procedure can only be entertained when it is found is that the summons of the suit was not properly served or that the defendant was prevented by sufficient cause in appearing on the date of hearing of the suit.

25. By amending Rule 1 of Order 8 of the C.P.C. provision has been made to file written statement within the time not exceeding two months from the 1st date of hearing. But before amendment there was no specific time limit in the CPC for filing written statement. Before amendment it was in the discretion of the Court to allow time to the defendant to file written statement but after amendment the written statement is required to be filed before the first hearing or within 2 months. The defendants on 11.9.2005, 18.10.2005,24.11.2005 and 22.1.2006 took four adjournments for filing written statements and the court by order No. 12 dated 22.1.2006 allowed time with a cost of Tk. 700.00 and directed the defendant to file written statement on 6.2.2006 with a direction that the suit would be taken up for exparte decision in case of failure of the defendant to file written statement on that date. On the fixed date on 6.2.2006 the defendant appointed a new lawyer who again prayed for time to file written statement. On the previous date they were allowed time to file written statements with cost even then on the next date without filing any written statement they again prayed for adjournment.The defendants had the opportunity to avoid exparte judgment by filing a written statement with some facts and thereafter they could file additional written statement but the defendant without filing written statements prayed for adjournment, so, the Court did not allow time and proceeded with the exparte hearing. It does not appear from the order

sheet that the learned Advocate thereafter prayed for any adjournment or that he retired from the case. When the Court proceeded for hearing of the case exparte the learned Advocate for the defendant-opposite party was present in Court but did not take any step. It has been urged that the learned Advocate for the defendant was debarred from appearing in the suit when the same was taken up for hearing but there is no evidence before us to show that learned Advocate of the defendant was not allowed to appear in the suit.

26. From the impugned order it appears that the learned Joint District Judge refused to reject the miscellaneous case on referring the amended provision of Rule 13 A of Order 9 of the C.P.C. The new provision of Rule 13A of order 9 has been brought in the C.P.C. to avoid delay and expedite disposal in setting aside the exparte decree with cost without requiring the defendant to adduce evidence if an application for setting aside decree is filed within thirty days from the date of decree. But in the present case, the defendant was very much before the Court. He took four adjournments for filing written statements but ultimately they failed to file the same and the Court passed the exparte judgment which comes within the meaning of Order 8 Rule 10 of the Code of Civil Procedure and the same was appealable under the provision of Order 43 Rule 1(b) of the Code of Civil Procedure. So, the learned Joint District Judge was not justified in rejecting the petitioners prayer for rejecting the miscellaneous case as being not entertainable. We find substance in the Rule.

In the result, the Rule is made absolute without any order as to cost. The impugned order No. 20 dated 3.7.2006 is set aside. The miscellaneous case No. 24 of 2006 of the 1st Court of joint District Judge, Khulna is rejected as being not maintainable. The defendant opposite parties have the opportunity to prefer an appeal as per provision of law.

Ed.

I LNJ (2012) Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.) 325

HIGH COURT DIVISION (ORIGINAL STATUTORY JURISDICTION)

Mr. Zubayer Rahman Chowdhury, J.

Judgment 01.06.2010.

} } } } } } } }

Startus Construction Company

.. PetitionerVS

Roads and Highways Department, Ministry of Communication, Government of Bangladesh

Respondent&

Roads and Highways Department, Ministry of Communication, Government of Bangladesh.

- - -Petitioner VS

Startus Construction Company

. . . Respondent Dr. Kamal Hossain, Senior Advocate with Mr. Ashraful Hadi, Advocate with Mr. Tanim Hussain Shawon, Advocate

For the petitioner

Mr. A.F. Hassan Arriff, Senior Advocate with Ms. Khaleda Zaman, Advocate with Mr. Md. Ashik Al Jalil, Advocate with Ms. Ruhi Naz, Advocate

.. For the respondent

Mr. A.F. Hassan Arriff, Senior Advocate with Ms. Khaleda Zaman, Advocate with Mr. Md. Ashik Al Jalil, Advocate with Ms. Ruhi Naz, Advocate

. . . For the petitioner

Dr. Kamal Hossain, Senior Advocate with Mr. Ashraful Hadi, Advocate with Mr. Tanim Hussain Shawon, Advocate

For the respondent

Arbitration Act (I of 2001) Section 42 (2) and 43 (1) (a) (IV)

It appears that no counter claim was filed by the Department concerned. The Arbitral Tribunal travelled beyond its jurisdiction in entertaining and deciding issues which had not been referred to by the contending sides. It would become difficult, if not impossible to sever the determinable issues from the non determinable issues referred to the Tribunal from the final Award which is not before

* Arbitration Application No. 02 of 2004 with Arbitration

Application No. 03 of 2004.

the Court. The impugned order including the modified order are set aside.

From the observation quoted above, it appears that no counter claim was filed by the Roads and Highways Department, but the Tribunal nevertheless proceeded to make an Award in their favour which was beyond their terms of reference. It is also admitted by Mr. Hassan Ariff, learned Advocate appearing on behalf of the Roads and Highways Department that only three disputes were referred to the Tribunal and upon commencement of the procee-ding, the Tribunal framed as many as seven issues, as has been quoted earlier in this judgment. However, from a reading of the same, it does not appear that it relates to any counter claim filed by the Department.

...(25)

It also appears that certain issues, which were not referred to the Tribunal, were taken up and decided by the Tribunal on its own accord. In my view, it would be reasonable to infer that in such circumstances, the Tribunal had indeed acted beyond its jurisdiction. The Tribunal exceeded its jurisdiction by abrogating to itself issues which were not referred to it by the contending sides. The issues relating to, advance, cost of bitumen, retention of advance money, advance income tax are some of the issues which, admittedly, were not referred to the Tribunal, but upon which the Tribunal made a pronouncement and gave an Award in favour of the Department. ...(26)

Having regard to the statements made in the application before this Court, the relevant provision of law, the submissions advanced by the learned Advocate for the contending sides and last, but not least, having considered the decisions referred to above, with which I find myself in total and respectful agreement, I am inclined to hold that the Arbitral Tribunal travelled beyond its jurisdiction by entertaining and deciding issues which had not been referred to by the contending sides and the impugned order is liable to be set aside. . . .(34)

Varat Cooking Coal Limited, 200 C 8 SCC 154; West Bengal Industrial Infra-Strictire Development Corporation v. M/s. Star Engineering Co., AIR 1987 Calcutta 126; Chetandas and others v. Radhakrisson Ramchandra and others, AIR 1927 Bombay 553; Bengal Jute Mills vs. Jewraj Heeralal, reported in AIR 1943 Calcutta 13 ref.

Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.) I LNJ (2012) 326

Judgment

Mr. Justice Zubayer Rahman Chowdhury Arbitration Application No. 02 of 2004 relates to

an application for setting aside an arbitration Award under section 42(2) and section 43 of the Arbitration Act, 2001 at the instance of Startus Construction company, a company incorporated in Iran and having its local office Apartment- 5A, House No. 15, Road no. 17, Sector No. 7, Uttara Model Town, Dhaka 1230, Bangladesh. The application is being opposed by the sole respondent, namely Roads and Highways Department, Ministry of Communications, Government of Peoples Republic of Bangladesh, Sarak Bhavan, Dhaka, Bangladesh.

2. Arbitration Application No. 03 of 2004 filed under section 42(2) read with section 43(1)(a)(iv) of the Arbitration Act, 2001, is at the instance of Roads and Highways Department, Ministry of Communi-cation, Government of the Peoples Republic of Bangladesh, Sarak Bhaban, Ramna, Dhaka for setting aside portion of the Award dated 13.05.2004 (as modified by Award dated 23.06.2004) passed by the Arbitration Tribunal in an arbitration proceeding between the petitioner and the respondent/opposite-party. The aforesaid application is being opposed by Startus Construction Company, the petitioner of Arbitration Application 2 of 2004.

3. Since both the applications arise out of the Award dated 13.05.2004 (as modified by order dated 23.06.2004) passed by the Tribunal, Dhaka in an arbitration proceeding between Startus Construction (claimant) and Roads and Highways, Government of Peoples Republic of Bangladesh and furthermore, since both the petitioner and the respondent in the aforesaid two Arbitration Applications are the same, both the applications were taken up and heard simultaneously and they will be disposed of by this single judgment.

4. A brief summary of the relevant facts is required to be stated for the purpose of disposal of the two applications before this Court.

5. Startus Construction Company (hereinafter referred to as the company) entered into a contract with the Roads and Highways, Government of Peoples Republic of Bangladesh (hereinafter referred to as the Department) for construction/rehabilitation of roads and highways between Joydebpur and Kaliakair measuring approximately 26.60 km. After completion of necessary formalities, the company

commenced work under the contract and duly compl-eted part of the work upto 5 km. However, while undertaking the work in the first 5 km of the project, the company faced certain obstacles with regard to underground gas pipe lines and requested the Depart-ment to take necessary steps for removal of the gas pipe lines in order to enable the company to undertake and complete the project work without any hindrance. Despite assurance from the respondents, the matter was not resolved and at one stage, the project work was suspended. The parties engaged in discussion and exchange of correspondences, which also invoved various other Ministry/Departments of the Government.

6. Ultimately, since there was no further progress in the matter which had comes to a standstill, the company issued a notice dated 14.08.2001 determi-ning the contract and claiming compensation as well as requesting for return of the Bank Guarantee which was furnished earlier. Subsequently, the company also served a notice of Arbitration on 20.08.2001. On the other hand, the Department by its letter dated 16.08.2001, approved various orders and voluntarily extended the contract period upto 06.05.2002, but three days later, it terminated the contract by letter dated 19.08.2001.

7. The dispute between the parties was referred to a three members Arbitration Tribunal comprising of Mr. Justice Sultan Hossain Khan as Chairman and Mr. Justice M.A. Karim and Mr. Justice M.M. Hoque as members of the Tribunal. The Department duly entered appearance and participated in the arbitration proceeding.

8. Upon commencement of the arbitration procee-ding, the Tribunal framed the following issues

(1) Has the Employer committed breach of contract in not removing the gas pipeline and thus prevented SCC from performing the latters promise?

(2) Has the Claimant sustained any loss in consequence of its non-performance of the contract ? If so, what compensation it is entitled to?

(3) Is the certification of default of the Contractor issued by the Engineer basel-ess and illegal?

(4) Is the contract liable to be terminated at the instance of SCC in view of Section 53 of the Contract Act ?

I LNJ (2012) Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.) 327

(5) Has the termination of the contract by the Employer been legal and valid ?

(6) Has the valuation of the variations by the engineer been legal and valid?

(7) Is the Claimant entitled to get the Award as prayed for including the additional claim against bitumen and cost of the proceeding ?

9. Both sides filed written statements, replies, additional and further statements and replies thereto, documents and other related papers. The Tribunal also examined witnesses.

10. Upon conclusion of the arbitration proceeding, the Tribunal, by order dated 13.05.2004, dismissed the claim of the company and made a Award of Tk. 6,25,46,127.66 (Taka Six Crore Twenty Five Lac Forty Six Thousand One Hundred and Twenty Severn and Paisa Sixty Six) only in favour of the Roads and Highways Department. The Tribunal also ordered the release of the Bank Guarantee in favour of the company.

11. Subsequent thereto, upon an application filed by the company for correction of the Award dated 13.05.2004. Consequently, the Tribunal, by order dated 23.06.2004, allowed the application and corrected the Award by reducing the Award amount to Tk. 3,29,82,629.56 (Taka three corer twenty nine lac eighty two thousand six hundred twenty nine and pais fifty six) in favour of the Department. Being aggrieved by the aforesaid Award dated 13.05.2004 (as amended by order dated 23.06.2004), the company filed Arbitration Application No. 2 of 2004 praying for setting aside the award.

12. At the same time, the Roads and Highways Department, as petitioner, also preferred Arbitration Application No. 03 of 2004 praying for correction of the Award by setting aside a part of the Award darted 13.05.2004 (as amended by order dated 23.06.2004), in particular, paragraph 18.6, 18.7, 18.8, 18.9, 22, 24, 25.4 26 and 27 of the Award under section 42 (2) read with section 43 (i)(a)(iv) of the Act and also for passing a corrected Award in terms of prayers A to E of paragraph 7 of the application.

13. At the very outset, this Court takes note of the fact that the pleading and documents annexed in the two arbitration applications runs into hundred, if not thousands of pages. In fact, the related documents had to be brought into the Court in a trunk, which at first sight, made the Court slightly apprehensive. However,

having gone through most of the documents and papers, this Court was remind of an age old Bangla saying hZ MR ZZ el bv|

14. Dr. Kamal Hossain, learned Senior Advocate appears for the Startus Construction Company in Arbitration Application No. 2 of 2004, while Mr. A.F. Hassan Ariff, Senior Advocate appears with Mr. Md. Ashik Al Jalil in support of the Arbitration Applic-ation No. 3 of 2004.

15. During the course of his submission, Dr. Kamal Hossain has challenged the Award primarily on the issue of jurisdiction. Dr. Hossain submitted emphati-cally that although the respondents in the Arbitration proceeding i.e. the Roads and Highways Department did not make any counter claim before the Tribunal, the Tribunal, on its own volition, made an Award in favour of the Department upon rejecting the claim of the claimant. Dr. Hossain refers to the issues framed at the commencement the arbitration proceeding and submits categorically that no such issue relating to any counter claim was filed by the Department and therefore, in the absence of any claim in that respect, the Award made by the Tribunal allowing counter claim under several heads in favour of the Department is quiet clearly an Award which is beyond the jurisdiction of the Tribunal.

16. Dr. Hossain has also argued with some considerable force on the merit of the Award itself. However, I do not wish to enter into the merit of the Award for reasons that I shall state at a subsequent stage of this judgment.

17. Dr. Hossain has also referred to two experts opinions, which were framed before the Tribunal by the claimant company given by one Engineer A.B.M. Fazley Elahi, former Managing Director, Rupantorito Pakritik Gas Limited RPGL, Petro Bangla and former General Manager, Tital Gas Transmission and Distribution Company Limited as well as the evidence of one Mr. Md. Mobarak Ali, former Chief Instructor of Explosives, Government of Bangladesh. Dr. Hossain has argued that the Tribunal erred and misconducted itself in not considering these two vital pieces of evidence upon which the claimant company had placed considerable reliance. Therefore, according to Dr. Hossain, the impugned Award in question is liable to be set aside, having been passed without jurisdiction and also because of the failure of the Tribunal to consider material evidence which was placed before the Tribunal.

Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.) I LNJ (2012) 328

18. Mr. A.F. Hassan Ariff, learned Senior Advocate appearing for the respondent in Arbitration Applica-tion No. 02 of 2004 and for the petitioner in Arbitration Application No. 3 of 2004 submits that the impugned Award does not call for any interference from this Court save and except to the extent to which it relates to issues not submitted before the Tribunal. Referring to the provision of section 42 and section 43(i)(a)(iv) of the Act, Mr. Ariff submits categorically that the Act itself makes provision for such cases and allows the Award to be separated from the issues which were not submitted before the Tribunal and empowers the Court to set aside the Award so far it relates to matter not referred to the Tribunal. Mr. Ariff argues with some force that having regard to the provision of section 43(i)(a)(iv), the Court has ample power and jurisdiction to severe the Award and set aside such portion of the Award which has been passed by the Tribunal beyond its jurisdiction.

19. During the course of his argument, Mr. Hassan Ariff acknowledged that the Tribunal h

monthly journals july 2012

Documents

vs government of bangladesh

employees of pwd

abdullah vs

leftover work

total work

state vs ashraf ali

regular establishment

akm fayekuzzaman vs