Md. Tafazzul Islam CJ
Md. Abdul Matin J
ABM Khairul Haque J
Surendra Kumar Sinha J
Biman Bangladesh Airlines and others………….Petitioners
Al Rojoni Enterprise, represented by its Proprietor Wahid Ullah Chowdhury……..Respondent
January 6, 2010.
Akther Imam, Senior Advocate, instructed by Zahirul Islam, Advocate-on-Record-For the Petitioners.
A. B. M. Baizid, Advocate, instructed by Syed Mahbubur Rahamn, Advocate-on-Record-For the Respondent.
Civil Petition for Leave to Appeal No. 444 of 2009.
(From the judgment and order dated 26.11.2008 passed by the High Court Division in First Appeal No.28 of 2004)
ABM Khairul Haque J. – This is a petition for leave to appeal in respect of the judgment and decree dated 26.11.2008, passed by the High Court Division, in allowing the First Appeal No.28 of 2004 and in decreeing the suit for Tk. 21,19,971.60 with interest of the rate of 8% per annum.
2.The facts of the case, in brief, are that the respondent filed a money suit being the Money Suit No. 21 of 2001 in the Court of Subordinate Judge, Third Court, Dhaka, praying for a decree for Tk. 41,50,500/- against the petitioner towards demurrage, compensation etc., contending, inter alia that the respondent imported watch-parts from Hong Kong worth U.S.$ 18,911/- to be delivered in Dhaka Airport on 22.01.1999 by Biman but it was never delivered in spite of enquires, notices and reminders. The petitioner contested the suit by filing a written statement denying all material averments made in the plaint.
3. After hearing, the Trial Court, dismissed the suit.
4. Thereafter, the respondent filed the First Appeal No. 28 of 2004 before the High Court Division. After hearing, the High Court Division found that the petitioners admitted its failure to deliver the goods and offered payment of compensation of Tk. 3,15,560/- in lieu of goods and that since the plaintiff did not declare the value of the goods at the time of booking, it is entitled to get compensation for non delivery of such goods at the rate mentioned in the contract in terms of the Airway bill. The High Court Division calculated the compensation at U.S. $ 43,89.75 which comes to Tk. 21,19,971.60 at the relevant time and decreed the suit accordingly.
5. Mr. Akther Imam, Senior Advocate, appears on behalf of the petitioners while Mr. A. B. M. Biazid appears on behalf of the respondent.
6. Mr. Akther Imam, the learned Advocate for the petitioners, submits that admittedly the goods were scheduled to arrive at Dhaka Airport on 22.01.1999 but it did not, which was within the knowledge of the respondent. The proprietor of the respondent by his letter dated 04.04.1999 to the Managing Director of the petitioner No.1 and another letter dated 22.04.1999, to the Additional Inspector General of Police, complained about the loss of his goods. But the respondent filed its suit on 24.05.2001, much beyond the period of limitation of two years. He further submits that the High Court Division erred in law in concluding that the rate of U.S. $ 20/- per Kg. as stipulated in the Airway bill would vary with the market price of gold prevailing at the relevant time but in view of the contract of carriage contained in the Airway bill if the goods were lost, the carriers liability would not exceed U.S. $20/- per Kg. and that the said rate of U.S.$ 20/- per Kg. was based on U.S.$ 42.22 per ounce of gold and no market rate of gold otherwise than the rate stipulated in the Airway bill could be applied in calculating the compensation payable to the respondent. He further submits that the liability of the Biman is limited by the provisions of Rule 22 of the First Schedule of the 1966 Act and in terms of the Airway bill but the High Court Division committed an error of law by awarding interest at the rate of 8% per annum on the decretal amount in violation of the aforesaid Rule 22 and the Airway bill.
7. The above submissions of the learned Advocate for the petitioners have got substance, as such, leave is granted on the following points:
I. Whether in view of the knowledge of the respondent on 04.04.1999 and 22.04.1999 that the goods had been lost, the suit filed on 24.05.2001 is barred by limitation.
II. Whether the carrier’s liability is to be calculated at the rate of U.S $ 20/- per Kg., based on U.S. $ 42.22 per ounce of gold at the rate as stipulated in the Airway bill or would vary with the market price of gold.
III. Whether the High Court Division committed an error of law by awarding interest on the decretal amount in violation of rule 22 of the First Schedule of the 1966 Act and the contract contained in the Airway Bill.
8. Security of Tk.1000/- is to be deposited within 1 (one) month.
9. The preparation of the paper-book is dispensed with as prayed for.
Let the operation of the impugned judgment and order dated 26.11.2008 passed by the High Court Division in First Appeal No. 28 of 2004, be stayed till disposal of the appeal.
Source : VII ADC (2010) 415