IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(Civil Appellate Jurisdiction)

First Miscellaneous Appeal No. 153 of 2017

In the matter of:

Government of Bangladesh, represented by the Deputy Commissioner, Dhaka and others

… Appellants-petitioners

             -Versus-

M/S Asad Enterprise

…Respondent-opposite party

Mr. Arabinda Kumar Roy, D.A.G with

Mr. Mohammad Abbas Uddin, A.A.G and

Ms. Shamsun Nahar (Laizu), A.A.G

…For the appellants-petitioners

Mr. Prabir Halder, Advocate

                 ... For the respondent-opposite party

Heard on 02.07.2024 Judgment on 03.07.2024

Present:

Mr. Justice Md. Mozibur Rahman Miah

And

Mr. Justice Md. Bashir Ullah

Md. Bashir Ullah, J.

At the instance of the petitioners in Arbitration Miscellaneous Case No. 780 of 2007, this appeal is directed against the judgment and order dated 25.03.2013 passed by the learned District Judge, Dhaka in the aforesaid case rejecting the application of the petitioner filed under Section 42(1) of the Arbitration Act, 2001.

Subsequently, on an application filed by the appellant this Court vide order dated 25.09.2019 stayed all further proceedings of Decree Execution  Case  No.  29 of  2013 pending  before  the  learned  District Judge, Dhaka for a period of 6(six) months which was lastly extended on 15.02.2024 till disposal of the appeal.

The short facts leading to preferring this appeal are:

The opposite party- respondent, M/S Asad Enterprise, entered into as many as 8(eight) separate contracts with the appellant for the construction of structures, supply of goods, installation of new fiber glass etcetera in National Botanical Garden, Mirpur and Balda Garden, Wari, Dhaka. Another contract was also furnished on 08.07.1999 between the respondents and the Chief Conservator of Forest for collecting entry fees for the Balda Garden for a period of one year. The respondent in those 8(eight) contracts asserted that, it would complete the work within time as per the contracts. There was no dispute about the completion of the work or their quality. It (respondent) duly submitted the bills and prayed for payment by crossed cheque as stipulated in the contracts. The appellants claimed that they paid the entire bills with eleven vouchers in cash. On the other hand, the respondent asserted that, the appellants had created fabricated vouchers and forged the signatures. The respondent did not approach the Chief Conservator of Forest, who was named as Arbitrator in the contracts. Rather, it made representation to the Secretary of the Ministry of Environment and Forest, but no response was received. As upon repeated request the appellants did not come forward to resolve the dispute the respondent as claimant then filed several Arbitration Miscellaneous Cases, being Miscellaneous Case Nos. 435 of 2002, 372 of 2003, 373 of 2003, 374 of 2003, 375 of 2003, 389 of 2003, 390 of 2003, 391 of 2003 and 392 of 2003 before the learned District Judge, Dhaka praying for appointment of Arbitrators as per section 12 of the Arbitration Act, 2001. It has been stated by the respondent in the application that, the appellants did not pay its claim by crossed cheque according to the terms and conditions of the contract. On the contrary, the appellants as opposite party contested the Arbitration Miscellaneous Case by filing written objection stating that the entire amount of bills in respect of the contracts of the respondent was paid in cash by eleven vouchers and the claimant-respondent received the total amount by putting its signatures on the revenue stamps affixed on the vouchers. However, the learned District Judge, Dhaka vide his order dated 03.09.2006 appointed Mr. Justice A. Hasib as Arbitrator for the appellants and Mr. Justice Naim Uddin Ahmed, Arbitrator for the respondent. The above arbitrators then nominated one, Mr. Justice M.A. Jalil as Chairman of the Arbitral Tribunal on 29.09.2006. As Mr. Justice M.A. Jalil passed away on 29.03.2007, the two Arbitrators then nominated Mr. Justice Md. Badruzzaman as the Chairman of the Arbitral Tribunal.

The tribunal upon hearing the parties and on perusal of the statements of claim and statement of defense; framed 2(two) issues and examined 2(two) witnesses, the three-member Arbitral Tribunal then passed the following award:

“ (1) The claim of the claimant is allowed in part. The claimant is awarded an amount of Tk. 23,37,100/- (twenty three lac thirty seven thousand one hundred) only after deduction from it by the respondents the income tax and VAT, if payable, according to law. The respondents shall pay the aforesaid amount of Tk. 23,37,100/- (twenty three lac thirty seven thousand one hundred) within two months from this date failing which interest @ 8% per annum on the amount of the award shall be charged from the date of the award till the date of full satisfaction. If the respondents fail to comply with the order for payment within two months from this date, the amount of the award shall be realized according to law.

2.    The claim of the claimant in Arbitration Misc. Case No. 435 of 2002 is dismissed.
3.    Considering the circumstances that success is divided and other circumstances, the parties are directed to bear the respective costs of this Arbitration Case.”

Challenging the said award, the appellants as petitioners filed Arbitration Miscellaneous Case No. 780 of 2007 before the learned District Judge, Dhaka under Section 42(1) of the Arbitration Act. The respondent-opposite party contested the case and upon hearing the parties, the learned District Judge, Dhaka rejected the Arbitration Miscellaneous Case on 25.03.2013 on contest, affirming the award dated 17.08.2007 passed by the Arbitral Tribunal.

Being aggrieved by and dissatisfied with the judgment and order dated 25.03.2013 passed by the learned District Judge, Dhaka in Arbitration Miscellaneous Case No. 780 of 2007 the petitioners of the said miscellaneous case as appellants preferred the instant appeal before this Court.

Mr. Mohammad Abbas Uddin, the learned Assistant Attorney General appearing for the appellants upon taking us to the impugned judgment and order and all other related documents annexed in the paper book at the very outset, submits that in Clause 12 of the agreement signed by the appellants and respondent, it has clearly been stipulated that, the Chief Conservator of Forest, Bangladesh will settle the dispute and his decision will be final, but the respondent filed Arbitration Case No. 02 of 2006 ignoring Clause 12 of the agreement and the Arbitral Tribunal has failed to appreciate that vital aspect and thus committed an error in entertaining the Arbitration Miscellaneous Case. The learned District Judge, Dhaka has also committed an error in rejecting Arbitration Miscellaneous Case No. 780 of 2007. He further submits that in the application filed by the appellants before the District Judge, Dhaka they clearly mentioned in Para no. 8 about Clause no. 12 of the agreement but the learned Court below failed to appreciate it in its proper perspective. The learned Assistant Attorney General finally submits that, the impugned award and the judgment and order can not be sustained in law and the appeal be allowed.  

Per contra, Mr. Prabir Halder, learned Advocate appearing on behalf  of  the  respondent submits that  in  Clause 3  of  the agreement signed by the appellants and respondent, it has clearly been provided that, the appellants would pay the bill by crossed cheque but they did not issue any crossed cheque rather, they created fabricated forged vouchers showing that they paid the bill to the respondent in cash where there has been no provision to pay the bill in cash instead of by cheque.

He further submits that DW 1 and DW 2 proved the case of the claimant-respondent and the three-member Arbitral Tribunal has very rightly made the award infavour of the claimant-respondent, M/S Asad Enterprise and the learned District Judge thus passed the impugned judgment and order dated 25.03.2013 rejecting the Arbitration Miscellaneous Case No. 780 of 2007 which is justified one. The learned counsel next submits that, there is no illegality and infirmity in the impugned judgment.

He further submits that, the Chief Conservator of Forest, Bangladesh issued a letter to the Secretary of the Ministry of Environment and Forest, Bangladesh Secretariat, Dhaka under Memo No. fÐhp(p¡)/2Hj-130(f¡VÑ-2)/2003/2022 on 22.11.2003, which proves that, the claimant approached the Chief Conservator of Forest, Bangladesh for arbitration. 

When the learned counsel was confronted with the submissions so placed by the learned counsel for the appellants that since there has been specific provision in Clause no. 12 of the agreement that if any dispute arises among the parties then the opposite party No. 2 that is, the Chief Conservator of Forest will make the decision and his decision will be final, where there was no scope to proceed with the arbitration under Section 12 of the Arbitration Act, the learned counsel then retorted that, the present respondent approached the said opposite party No. 2  to resolve the dispute and since the opposite party No. 2 did not resolve the said dispute so for that obvious reason, it had no other option but to take resort to Section 12 of the Arbitration Act where the present appellants had also participated by appointing their arbitrator and finally he prays for the dismissal of the appeal.

We have heard the learned counsels for both the parties, perused

the impugned judgment and order and award, Memorandum of appeal as well as other materials on record.

It appears from Clause 12 of the agreement signed by the Project Director, National Botanical Garden and Balda Garden, Mohakhali, Dhaka and the respondent, M/S Asad Enterprise, that the dispute will be settled by the Chief Conservator of Forest, Bangladesh if any dispute arises between the parties. Clause 12 of the agreement runs as follows:

“1j fr J 2u f−rl j−dÉ ®k ®L¡e ¢h−l¡d j£j¡wp¡ L¡−m fÐd¡e he pwlrL, h¡wm¡−cn Y¡L¡l ¢pÜ¡¿¹ Q§s¡¿¹ h¢mu¡ NZÉ qC−hz”

In the written objection filed by the opposite party-appellants in

the Arbitration Case No. 2 of 2006 the appellants clearly asserted that,

the application isnot maintainable as per Clause 12 of the agreement stating that: “AaHh clM¡Ù¹L¡l£l ¢jbÉ¡ clM¡Ù¹ M¡¢lS ®k¡NÉz E−õMÉ BC−el ¢hd¡e j−a (Q¤¢š²l 12 d¡l¡) fÐd¡e he pwlrL−L n¡¢mnc¡l ¢e−u¡−Nl ®L¡e fc−rf NËqZ Ll¡ qu ¢ez a¡q¡ R¡s¡ ®Sm¡ SS Bc¡m−al Bl¢h−VÊne ¢jp ®Lp ew 372/03, 373/03, 374/03, 375/03, 389/03, 390/03, 391/03, 392/03 j¡jm¡ pj§−ql ®L¡e L¡lZC Eáh qu¢ez”

However, the Arbitral Tribunal failed to appreciate such vital statement innot finding that no step was taken by the respondent to appoint the Chief Conservator of Forest as Arbitrator.

The question of non-appointing the Chief Conservator of the Forest as Arbitrator was raised and it has categorically been stated by the petitioner-appellants in para 8 to the Arbitration Miscellaneous Case No. 780 of 2007 which runs as follows:

“Q¤¢š² f−œl 12 ew naÑ ®j¡a¡−hL frà−ul j−dÉ ¢h−l¡d ¢jj¡wp¡L−Òf 2 ew clM¡Ù¹L¡l£ n¡¢mpc¡l q−mJ Aœ fТafr n¡¢mp BCe ab¡ Bl¢h−VÊne HÉ¡ƒ 2001 Hl 12(3) ‘A’ d¡l¡ ®j¡a¡−hL ®L¡e fc−rf NËqZ L−le e¡Cz ®k−qa¥ Aœ fТafr fÐbj d¡−fC

BCe ®j¡a¡−hL ®L¡e fc−rf NËqZ L−l e¡C, ®p−qa¥ HLC BC−el 15(1) Hl ‘O’ d¡l¡ ®j¡a¡−hL L¡kÑœ²−jl ®L¡e L¡lZ h¡ p¤−k¡NC b¡−L e¡z ...”

The petitioner-appellants also stated in detail in para 13(Ga) of the Arbitration Miscellaneous Case, which is as under:

“fТafr Q¤¢š²l 12 ew naÑ ®j¡a¡−hL 2 ew clM¡Ù¹L¡l£−L n¡¢mpc¡l ¢e−u¡−Nl SeÉ BC−el ¢hd¡e j−a 4 ew clM¡Ù¹L¡l£ pq pw¢nÔø − e clM¡Ù¹L¡l£−LC ®L¡e ®e¡¢Vn h¡ ®j−j¡ Ag Bl¢h−VÊne ®ce e¡Cz fÐcš n¡¢mp£ ®l¡−uc¡−c fÐcš ¢hou¢V n¡¢m−p ®fÐl−Zl E−ŸnÉ h¡ naÑ h¢qi¨Ña ¢Rmz L¡lZ Aœ fТafr clM¡Ù¹ L¡l£ LaѪL fÐcš ®Vä¡−l Awn NËqZ L¢lu¡ L¡S fСç qez ¢a¢e L¡kÑÉ pj¡d¡e L−le, L¡−Sl ¢hm c¡¢Mm L−le Hhw S¡j¡ea ®gl−al B−hce

L−lez S¡j¡ea ®gla ®ee H pLmC ü£L«a ¢houz öd¤ j¡œ fТafr c¡h£ L−le ¢a¢e ¢hm c¡¢Mm L¢lu¡ ¢hm f¡e¢ez clM¡Ù¹L¡l£ c¡h£ L−le LaѪfr−L a¡q¡l ¢hm f¢l−n¡d Ll¡ qCu¡−Rz

H ¢hou¢V n¡¢m−pl ¢hou e−q ¢hd¡u BCe J eÉ¡ua H ¢hou¢V n¡¢mp Bc¡m−a HM¢au¡l h¢qÑi¨Ña ¢Rmz Aœ fÊ¢afr a¡q¡l ¢h−ml V¡L¡ e¡ f¡Ju¡l L¡l−Z n¡¢mp Bc¡m−al ¢eLV fСbÑe¡ Ll¡ BCe p‰a e−qz L¡lZ ¢hou¢V n¡¢mp Ll¡l ja ®L¡e ¢h−l¡d e−qz fТafr a¡q¡l f¡Je¡

Bc¡−ul SeÉ ¢p¢im Bc¡m−a j¡¢e ®j¡LŸj¡ Ll¡C ¢Rm a¡q¡l fÐL«a ®g¡l¡jz n¡¢mp Bc¡ma a¡q¡l HM¢au¡l h¢qi¨Ña ¢hou ¢hQ¡l L¢lu¡ −k l¡u ¢cu¡−Re a¡q¡ ®h-BCe£ ¢hd¡u h¡¢am−k¡NÉz”

But the  learned  District Judge,  Dhaka  failed to appreciate the

above- mentioned statements made by the petitioners-appellants.

However, the learned counsel appearing for the respondent drew our attention to the under mentioned memo No. fÐhp(p¡)/2Hj-130(f¡VÑ- 2)/2003/2022 dated 22.11.2003:

NZfÐS¡a¿»£ h¡wm¡−cn plL¡l

fÐd¡e he pwlr−Ll cçl

he ihe, …mn¡e ®l¡X, jq¡M¡m£, Y¡L¡-1212z

fœ ew- fÐhp(p¡)/2Hj-130(f¡VÑ-2)/2003/2022           a¡¢lM : 22/11/2003 Cw

fСfLx- p¢Qh,

f¢l−hn J he j¿»Z¡mu, h¡wm¡−cn p¢Qh¡mu, Y¡L¡z

¢hou x- 1999-2000 B¢bÑL hR−l S¡a£u E¢ác EcÉ¡e, ¢jlf¤l, Y¡L¡ J hmd¡ h¡N¡−e ®jp¡pÑ Bp¡c H¾V¡lfСCS, 30/H, lÉ¡w¢Le øÌ£V, Ju¡l£, Y¡L¡-1200 LaѪL ¢ejÑ¡e/pwú¡l/plhl¡qL«a L¡−Sl ¢hm fÐp−‰z

p§œ x- f¢l−hn J he j¿»Z¡m−ul fœ ew fÐhj/n¡-2/he-86/2001/803 a¡¢lM  

11/10/2003 Cwz

Ef−l¡š² ¢ho−u p¤œÙÛ f−œl B−m¡−L j¿»Z¡m−ul AhN¢al SeÉ S¡e¡−e¡ k¡C−a−R ®k, S¡a£u E¢ác EcÉ¡e Hl L¡−Sl ¢hfl£−a ¢WL¡c¡l−L eNc ¢hm ®f−j−¾Vl i¡EQ¡l pj§−ql L¢afu Øfø g−V¡L¢f fkÑ¡−m¡Qe¡ Ll¡ qCmz Eš² i¡EQ¡l pj§−ql pLm ü¡rlC pcªnÉ euz øÉ¡−Çfl Efl ü¡rl L¢lu¡ ¢hm ®f−j¾V ®eJu¡/®cJu¡l ¢hd¡e b¡¢L−mJ pLm ¢hm ®f−j¾V Hl ®r−œ a¡q¡ j¡e¡ qu e¡Cz A¢i−k¡NL¡l£ LaѪL ü¡rl S¡−ml ¢ho−u A¢i−k¡N ü¡rl- pe¡š²LleL¡l£ HLSe ¢h−no‘ à¡l¡ fÐ−u¡S−e ü¡rl pe¡š² Ll¡−e¡ k¡C−a f¡−lz

plL¡−ll B¢bÑL ¢h¢d ¢hd¡−e ®L¡e ¢WL¡c¡l−L Q¤¢š²hÜ L¡S pj¡fe¡−¿¹ œ²p ®Q−Ll       j¡dÉ−j ¢hm ®f−j−¾Vl ¢hd¡e l¢qu¡−Rz ®Q−Ll f¡a¡l üÒfa¡l L¡l−Z h¡ f¢lQ¡m−Ll ®QL fÐc¡e   rja¡ ¢hcÉj¡e ¢Rm e¡ HCl¦f L¡l−el E−õMÉ ac¿¹ fТa−hc J AeÉ¡eÉ ®k¡N¡−k¡−N B¢pu¡−R k¡q¡ p¢WL h−m j−e Ll¡ k¡u e¡z Y¡L¡ he ¢hi¡N a«ÑL ®Q−Ll üÒfa¡l Lb¡ hm¡ qC−m Bue       hÉue rja¡ l¢qu¡−R Hje BlJ he LjÑLaÑ¡ Y¡L¡u ¢e−u¡¢Sa ¢R−me k¡q¡−cl L¡R qC−aJ

¢WL¡c¡−ll ®Q−Ll hÉhÙÛ¡ Ll¡ k¡C−a¡ ¢Lwh¡ Eq¡ fÐd¡e he pwlrL−L S¡e¡C−a f¡l¡ k¡C−a¡z ¢L¿º HCl¦f fc−rf NËqZ Ll¡ qu e¡Cz ¢WL¡c¡l LÉ¡n ®f−j−¾Vl B−hce k¢c L¢lu¡ b¡−Le B¢bÑL ¢hd¡−el L¡l−Z a¡q¡l B−hc−e p¡s¡ ®cJu¡l p¤−k¡N ¢Rm e¡z

¢h¢d Ae¤k¡u£ a¡q¡−L ®L¡e ¢hm f¢l−n¡d Ll¡ qu e¡C h¢mu¡ E−õM L¢lu¡ clM¡Ù¹L¡l£ Hj,H, S¢mm pšÆ¡¢dL¡l£, ®jp¡pÑ Bp¡c H¾V¡lfСCS, Y¡L¡ 8(BV)¢V L¡−Sl SeÉ pÇf¡¢ca L¡−Sl ¢hfl£−a ®f−j¾V e¡ f¡Ju¡u ®Sm¡ SS Bc¡m−a 8(BV)¢V j¡jm¡ c¡−ul Ll¡u ¢ejÀ ü¡rlL¡l£l f−r ¢h¢d ®j¡a¡−hL ¢hou¢V ¢eÖfæ Ll¡l L¡kÑœ²j NËqe Ll¡l p¤−k¡N e¡Cz ÚEš² ¢hou¢V ®Sm¡ SS Bc¡ma Y¡L¡ LaѪL BCe J ¢hd¡e ®j¡a¡−hL ¢eÖf¢š qJu¡ h¡’e£uz

Cq¡ j¿»Z¡m−ul AhN¢a J fÊ−u¡Se£u hÉhÙÛ¡ NËq−Zl SeÉ ®fÐlZ Ll¡ qCmz

ü¡/- 20.11.03

(B−e¡u¡l g¡l¦L)

fÐd¡e he pwlrL h¡wm¡−cnz”

From the above-mentioned letter it also appears that, the claimant

filed the Arbitration Miscellaneous Case before approaching the Chief Conservator of Forest, Bangladesh as per Clause 12 of the agreement.

It appears from the record that the Arbitral Tribunal traveled beyond its jurisdiction by entertaining the Arbitration Case and without considering the specific reasons so provided in Section 43 of the Arbitration Act, 2001.

It will be profitable if the reasons for which an award can be cancelled is reproduced here:

“43z p¡¢mp£ ®l¡−uc¡c h¡¢a−ml L¡lZpj§q- (1) ®L¡e p¡¢mp£ ®l¡−uc¡c h¡¢am Ll¡ k¡C−a f¡−l, k¢c-

...

(L) ®L¡e fr B−hce c¡¢Mm L¢lu¡ HC j−jÑ fÐj¡e EfÙÛ¡fe L−l ®k-

(A) p¡¢mp£ Q¤¢š²l ®L¡e HL f−rl ®L¡el¦f Arja¡ ¢Rm:

...

4.   p¡¢mp£ ®l¡−uc¡c Hje ®L¡e ¢h−l¡d£u ¢hou pÇf¢LÑa k¡q¡ p¡¢m−p ®fТla ¢ho−ul

E−ŸnÉ h¡ naÑ h¢qi¨Ña h¡ Eq¡−a Hje ¢pÜ¡¿¹ l¢qu¡−R k¡q¡ p¡¢m−p ®fТla ¢ho−ul f¢l¢d h¢qi¨Ñax

a−h naÑ b¡−L ®k, k¢c p¡¢m−p ®fТla qu e¡C HCl¦f ¢hou−L p¡¢m−p ®fТla qCu¡−R HCl¦f ¢hou qC−a fªbL Ll¡ pñh qu a¡q¡ qC−m p¡¢m−p ®fТla e¡ qJu¡ ¢ho−ul Efl ¢pÜ¡¿¹ pÇf¢LÑa Awn h¡¢am Ll¡ k¡C−a f¡−l;

...

5.   p¡¢mp£ VÊ¡Ch¤Ée¡−ml NWe h¡ p¡¢mp£ fÜ¢a frN−Zl Q¤¢š²l p¢qa pwN¢af§ZÑ ¢Rm

e¡ Abh¡ HCl¦f Q¤¢š²l AhaÑj¡−e HC BC−el ¢hd¡e¡hm£l p¢qa pwN¢af§ZÑ eu;”

Record shows, the Arbitral Tribunal did not discuss Clause 12 of

the agreement signed by the parties, though the appellants as the opposite parties had categorically asserted in their written objection filed

in Arbitration Case No. 2 of 2006 that no step was taken as per Clause

12 of the agreement. The claimant-respondent filed the Arbitration Case ignoring the specific terms of the contract/agreement and hence the

award passed by the Arbitral Tribunal is patently illegal.

Regard being had to the above facts and circumstances, we do not

find any iota of substance in the impugned judgment and order which is

liable to be set aside.

Accordingly, the appeal is allowed, however without any order as

to cost.

The judgment and order dated 25.03.2013 passed by the learned District Judge, Dhaka in Arbitration Miscellaneous Case No.780 of 2007 is thus set aside.

Consequently, the award dated 17.08.2007 and the Execution Case No. 29 of 2013 pending before the learned District Judge, Dhaka are struck down.

The order of stay granted at the time of issuance of the rule stands recalled and vacated.

However, the respondent, M/S Asad Enterprise is at liberty to file any suit in the proper forum, if so advised for its redressal.

Let a copy of the judgment and order along with the lower court records be transmitted to the Court concerned forthwith.

Md. Mozibur Rahman Miah, J.  

 I agree.

Md. Ariful Islam Khan Bench Officer