দায়বর্জন বিবৃতি (DISCLAIMER)

এই ওয়েবসাইটে প্রকাশিত রায় বা আদেশ আপনি google translation এর মাধ্যমে বাংলায় দেখতে পাচ্ছেন তা সুপ্রীম কোর্ট কর্তৃক বাংলায় অনূদিত নয়। জনসাধারণের বিচার-প্রক্রিয়ায় সহজ অভিগম্যতা নিশ্চিতকরণের অভিপ্রায়ে বাংলায় অনূদিত রায়-আদেশ দেখার ব্যবস্থা রাখা হয়েছে। অনূদিত রায় বা আদেশের অনুলিপি সইমোহরী/জাবেদা নকলের (certified copy) বিকল্প হিসেবে অথবা অন্য কোন উদ্দেশ্যে ব্যবহার করা যাবে না। রায় ও আদেশ বাস্তবায়নের ক্ষেত্রে মামলার নথিতে বিধৃত মূল রায় বা আদেশ প্রণিধানযোগ্য।
Microsoft Word - C.R. No.1954 of 2018 Single Bench 24.07.2024

Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No.1954 of 2018

Environ Structure Limited      ......petitioner                               -Versus-

Dr.  Chowdhury  Mohammad  Hassan  and      others                            ......opposite parties 

Mr. Md. Rafiqul Imam, Advocate

                                    ...... for the petitioner Mr. Md. Akram Uddin, Advocate

                               ...... for opposite party 1

Judgment on 24.07.2024

In  this  Rule,  issued  at  the  instance  of  the  petitioner  a Developer  Company,  the  opposite  party  landlords  were  called upon to show cause as to why the judgment and order of the District  Judge,  Dhaka  passed  on  28.03.2018  in  Arbitration Miscellaneous Case No.683 of 2017 allowing the case filed under section  12  of  the  Arbitration  Act,  2001  (the  Act,  2001)  for appointment of arbitrators should not be set aside and/or such other or further order or orders passed to this Court seem fit and proper. 

Facts relevant for disposal of the Rule, in brief, are that the heirs  of  late  Justice  Md.  Abdul  Quddus  Chowdhury  filed  the aforesaid miscellaneous case in the Court of District Judge and Arbitration Court, Dhaka under section 12 of the Act, 2001. They alleges that during possession and enjoyment of the schedule land their  predecessor  Mr.  Justice  Chowdhury  entered  into  an


1

agreement with the petitioner company on 23.09.2009 to construct a house on the land as described in the schedule to the application for appointment of arbitrator. Amongst with other conditions in the agreement there was an arbitration clause that in case of any dispute  between  the  parties  they  would  resolve  it  through arbitration  as  per  clause  No.29  of  the  agreement.  Despite  the agreement was signed on 23.08.2009 the developer company did not  take  any  initiative  in  constructing  the  house  on  the  land. Therefore, they filed the case for appointing arbitrators to settle the dispute between them.

The opposite party, petitioner herein, contested the case by filing written objection. In the objection this petitioner claimed that the landed property under agreement is abandoned property and possession of the same has not yet been handed over to it, and as such  they  could not proceed with construction  work.  Since possession of the property has not been handed over, and it is abandoned property, therefore, dispute for construction work over it does not arise at all. The case for appointment of arbitrators, therefore, would be rejected.

However, the District Judge upon hearing both the parties allowed the case for appointment of arbitrators and appointed two persons  for  it  as  mentioned  in  the  impugned  order.  Being aggrieved  by  the  aforesaid  judgment  and  order  the  developer company approached this Court with this application and obtained this Rule with an order of stay of the impugned judgment and order.

Mr. Md. Rafiqul Imam, learned Advocate for the petitioner taking me through the materials on record submits in the similar line  of  their  objection  filed  in  the  case  for  appointment  of arbitrators.  He  takes  me  through  Annexures-D  and  D-1  and submits  that  the  aforesaid  documents  prove  that  the  land  in question has not yet been released from the list of abandoned and as such the present petitioner failed to start construction work although he paid signing money amounting to Taka 45.00 to the opposite parties. The dispute will arise after handing over the land to them by the landlords. The opposite party failed to release the land from the list of abandoned property and for that reason the petitioner  failed  to  comply  with  the terms  of  contract.  In  this position there is no necessity of appointing arbitrators as ordered by the learned District Judge. The judgment and order passed, therefore, is to be interfered with by this Court and be set aside.

Mr.  Md.  Akram  Uddin,  learned  Advocate  for  opposite parties 1-3 opposes the Rule and submits that the allegation made by the petitioner that the property is abandoned property or it was not  released  from  the  gazette  is  not  correct.  He  refers  to  the provisions of clauses 9 and 29 of the agreement and submits that even  for  the  sake  of  argument  the  petitioner’s  allegation  is considered as true this is also a dispute between the parties which may be resolved by appointing arbitrators. Learned District Judge correctly allowed the application under section 12 of the Act, 2001 and appointed arbitrators which may not be interfered with.

I have considered the submissions of both the sides and gone through the materials on record particularly the agreement signed by the parties Annexure-C to this petition. Clause 9 of the agreement reads as follows:

The first party/landowner individually have assured the second party/development company that the former has full exclusive and uncontested right and title to the scheduled land, and that the same is free from any encumbrances and from  any  litigation  and  if  any  such  questions,  situations, circumstances etc. arises, the landowner will make it free at his own initiative. During this period, if second party suffers any loss due to suspension of construction work, the first party will be liable for the compensation.

Clause 29 of the agreement reads as follows:

That  all  disputes  and  differences  concerning  the validity, scope, meaning, construction of this agreement or any

dispute or disagreement between the parties as to any matter relating to this agreement or the meaning of any stipulation therein or nay other matter which cannot be settled by mutual discussion between the parties hereto shall be referred to and finally  settled  by  arbitration  of  two  arbitrators,  one  to  be appointed by each of the party, and in the case of difference of opinion  between  the  two  Arbitrators  the  disputes  shall  be referred  to  an  Umpire,  who  shall  be  appointed  by  the Arbitrators before they enter upon the reference and the award of the Arbitrators or the Umpire, as the case may be, shall be final  and  binding  on  the  parties  hereto  and  this  shall  be deemed to be a submission to arbitration within the Arbitration Act, 2001 or any reenactment or statutory modification thereof for the time being in force which shall be the governing and

applicable law.(emphasis supplied)

It  appears  that  although  the  parties  entered  in  to  an agreement in 2009 but admittedly the construction work over the suit land is yet to be started. A time limit has been prescribed in the agreement to perform the work by the petitioner but it has expired long years ago. The allegation of the petitioner is that the land has been enlisted as abandoned property and it has not yet released and handed over to them and as such they failed to make any construction work over the land and no dispute regarding consideration work exists, as such no arbitrator is required to be appointed. On perusal of the terms of agreement and documents, I find that the dispute is regarding the construction work on the suit land as claimed by parties. The fact as claimed by the petitioner of enlisting the property as abandoned property and of not releasing and handing over the same to the petitioner company is also a dispute between the parties as per clause 29 of the agreement. The dispute  also  requires  to  be  resolved  by  appointing  arbitrators according to the provisions of clause 9 and 29 of the agreement. The parties may sit in arbitration and resolve their dispute by

raising  their  claim  and  counter  claim  before  the  arbitrators. Considering the aforesaid facts and terms of clause 9 and 29 of the agreement, I find that the learned District Judge did not commit any error of law in allowing the miscellaneous case filed under section 12 of the Act, 2001 by appointing arbitrators.

Therefore, I find no merit in this Rule. Accordingly, the Rule is discharged. No order as to costs. The judgment and order passed by the District Judge, Dhaka is hereby upheld.

However, the parties will take steps for holding arbitration expeditiously  to  settle  their  disputes  through  the  arbitrators appointed by the learned District Judge.  

The order of stay stands vacated

Communicate  this  judgment  and  order  to  the  Court

concerned.

Sumon-B.O.