Bld’s Ten Years
Civil Digest (1993—2002) Index
BANKRUPTCY
Bankruptcy
In
an application under section 28(b) of the Act the defendant in a bankruptcy
suit must undisputedly satisfy the Court that he has sufficient ability to
repay the debts for which he stands guarantee on behalf of the loanee and that
he is not a wilful defaulter. Merely because he stands as a guarantee he is not
entitled to have an order for dismissal of the suit—Bankruptcy Act, 1997 (X of
1997), Section—28(b).
Emdadul
Haque Bhuiyan Vs The Court of District Judge & Bankruptcy Court,
subsequently on transfer the Court of Bankruptcy and Additional District Judge,
Narayangonj and another, 21 BLD (AD) 119.
BAR COUNCIL
Bar Council
Rules
A
person who is not a member of a Bar Association according to Rule 66(1) does
not acquire any right to practice as an Advocate and as such his right to vote
in the Bar Council Election does not arise. For want of such right he is not
entitled any compensation for his alleged deprivation of right to vote—Bar
Council Rules, 1974, Rule—66(1).
Md. Muslim
Ali Vs. Dhaka Bar Association and ors, 19 BLD(HCD) 281
Bar Council
Tribunal
The
Bar Counc4l Tribunal is an internal tribunal constituted under Article 33(1) of
the Bar Council Order and it is vested with certain powers as are vested in a
Court under the Code of Civil Procedure in respect of certain specified matters
only. From this it cannot be held that the Tribunal is a Court like other
Courts.
The
Tribunal or the Chairman of the Bar Council not being subordinate to the High
Court Division, this Court cannot entertain any petition under section 115
C.P.C. for transferring a case from one Tribunal to another—Sections-24 and 115
of C.P.C and Bangladesh Legal Practitioners and Bar Council Order and Rules,
1972.
Md Alim
Hossain, Advocate Vs. The Chairman, Bangladesh Bar Council and another, 14 BLD (HCD)
329.
BENAMI
TRANSACTION
Benami
Transaction
Intention
is the essence of a benami transaction and the plaintiff is required to prove
it.
A
benami purchase made by a father in the name of his minor son is to be presumed
to be one for the benefit of the son, if not proved otherwise.
Sontosh
Kumary Dey Vs. Hiron Chandra Dey and others, 15 BLD(HCD) 221
Benami
Transaction—Burden of proof
The
burden of proving a benami transaction always rests on the person who asserts
it to be so. This burden has to be strictly discharged by him by adducing
convincing legal evidence.
The
source of the purchase money, the nature and possession of the property, the
motive for making the benami transaction, position of the parties and their
relationships, the custody of the title deed and the subsequent conduct of the
parties in dealing with the property are pertinent questions in determining the
nature of the transaction.
Rupe Jahan
Begum & ors. Vs. Lutfe Au Chowdhury & ors, 17 BLD (AD) 66.
Benami
Transaction
Considerations,
in determining benami transactions (i) the source from which the purchase money
came, (2) the nature and possession of the disputed property, after the
purchase (3) the motive for giving the transaction a benami colour, (4) the
position of the parties and the relationships between the claimant and the
alleged benamder, (5) the custody of the title deeds and (6) the conduct of the
parties concerned in dealing with the property after the purchase.
Bina Rani
& anr. Vs. Shantosh Chandra Dey, 21 BLD (AD) 99
BREACH OF
CONTRACT
Breach of
Contract
It
is well-settled that damages suffered by the consignee on account of delay in
delivery arising out of breach of contract comes within the purview of section
6 of the Admiralty Court Act, 1861. The quantum of damage arising out of any
breach of contract can only be decided at the trial on taking evidence—
Admiralty Court Act, 1861, Section—6.
Bangladesh
Petroleum Corporation Vs. M. T. Saraband Ex-Sunrise -1, Kutubdia, Chittagong
and others, 17 BLD(HCD) 169
Breach of
contract
For
any alleged breach of contract the remedy lies in the Civil Court because it
involves determination of questions of fact and as such the view taken by the
High Court Division is perfectly in accordance with the principles governing
the writ jurisdiction— Constitution of Bangladesh, 1972,Article— 102.
Md. Nuruddin
Vs. Manager, Sales (C & B), Zone-4 of Titas Gas Transmission and
Distribution Company Ltd. and ors, 18 BLD(AD) 273
Breach of
Contract
It
is well-settled that damages suffered by the consignee on account of delay in
delivery arising out of breach of contract comes within the purview of section
6 of the Admiralty Court Act, 1861. The quantum of damage arising out of any
breach of contract can only be decided at the trial on taking evidence—
Admiralty Court Act, 1861, Section—6.
Bangladesh
Petroleum Corporation Vs. M.T. Saraband Ex-Sunrise -1, Kutubdia, Chittagong and
others, 17 BLD(HCD) 169.
Breach of
contract
For
any alleged breach of contract the remedy lies in the Civil Court because it
involves determination of questions of fact and as such the view taken by the
High Court Division is perfectly in accordance with the principles governing
the writ jurisdiction— Constitution of Bangladesh, 1972,Article— 102.
Md. Nuruddin
Vs. Manager, Sales (C & B), Zone-4 of Titas Gas Transmission and
Distribution Company Ltd. and ors, 18 BLD (AD) 273.
BURDEN OF
PROOF
In
assailing a kabala, the burden is squarely upon the plaintiff to take oath and
say that it was not executed by him. Where primary burden is not discharged by
the plaintiff there is no burden upon the defendant to prove that the document
is genuine.
Mohammad
Shamsul Alam and others Vs. Md. Abdul Malek Tapadar and others, 13 BLD (HCD)
475
Burden of
proof
Under
Rule 39 the respondents are under an obligation to show cause and if no cause
shown, the rule is that the Court shall pass an order that the person or
persons improperly detained shall be set at liberty forthwith. To justify an
order of detention the detaining authority is obliged to file an affidavit-in-
opposition to discharge its burden of proof that the detenu is not being held
in custody improperly or unlawfully. The burden of proof that the order of
detention is lawful always lies on the respondents—Constitution of Bangladesh,
1972, Article-102
Nasima Begum
Vs. The Government of Bangladesh and others, 15 BLD(AD) 248
Burden of
proof
Even
in a quasi-criminal proceeding if a plea of alibi is taken the burden lies on
the person who takes such a plea to prove it as the alleged fact is within his
special knowledge—Transfer of Property Act, 1882 (IV of 1882), Section-106.
Md. Abdul
Tahid alias Tahid Ulla Vs. Md. Kadaris Ali and ors, 16 BLD (AD) 248.
Burden of
proof
The
statement in the plaint or in the written statement is no evidence in the eye
of law unless it is proved by a witness. In the instant case the defence case
is that the original owners left this country before 1965. The onus was upon
the defendant to prove this fact either by examining any witness or by
producing any reliable documentary evidence. In the absence of such evidence
the property cannot be treated as enemy property—Evidence Act, 1872(1 of 1872),
Section—103.
Sreejukta
Haladhar Karmakar and ors Vs. Bangladesh and ors., 16 BLD (HCD) 519.
CARETAKER
GOVERNMENT
The
concept of Caretaker Government is nowhere to be found within the four comers
of the Constitution. In the fundamental principle of state policy as enumerated
in Part 11 of the Constitution, it does not even contemplate such an idea.
Shorn of legal cover or sanction as to the demand of a Caretaker Government
respondent Nos. 3-5 along with others are. abstaining from Parliament sessions
without Ieave and are carrying on activities for their own selfish ends which
are clearly against their oath of office and consequently these are wholly
illegal and unconstitutional.
Md. Anwar
Hossain Khan Vs. The Speaker of Bangladesh, Sangsad Bhabvan, Sher-E-Bangla
Nagar, Dhaka and others, 15 BLD (HCD) 344.
CAUSE OF
ACTION
Cause of
action in a suit for specific performance of contract
Cause
of action in a suit for specific performance of contract arises only after the
person who executes the deed of agreement refuses or fails to act in accordance
with the terms of the agreement and not before it.
Mojibur
Rahman Vs. Bangladesh and others, 15 BLD(HCD)619
Cause of
action
Misjoinder
of-In the absence of any material to prove that the merit of the case has been
affected because of the alleged misjoinder of causes of action, grievance on
that score cannot be entertained—Code of Civil Procedure, 1908 (Act V of 1908),
Section—99.
Sharafat
Hossain being dead his heirs Md. Shah .Jamal and others Vs. Dr. Islamuddin, 14
( BLD (AD) 137.
Cause of
action
Mere
issuance of a notice by Bangladesh Bank, who is not a creditor, enclosing a
letter of a bank for the purpose of removing the plaintiff director of the
bank, will not entitle him to file a suit for a declaration with regard to his
liabilities, which is an entirely different matter—Specific Relief Act 1877 (I
of 1877), Section—42.
Shafi A.
Choudhury v. Pubali Bank Ltd. and others, 22 BLD (HCD) 423
CERTIFICATE
CASE
Certificate
case
Generally
when a Certificate is signed under Section 6 of the P.D.R. Act, a notice is
served under Section 7 of the P.D.R. Act and the Certificate Debtor is entitled
to make a petition denying the liability in whole or in part under section 9
—Public Demands Recovery Act, 1913, (Act III of 1913), Section— 10(A).
Magnum
Enterprise Vs. General Certificate Officer, Comilla and another, 13 BLD (HCD)
498
Certificate
case
Section
1OA of PDR Act is against the principle of natural justice and also offends
Article 27 and 31 of the constitution.
Magnum
Enterprise Vs. General Certificate Officer, Comilla and another, 13 BLD (HCD)
498.
Certificate
case
Section
34 of the PDR Act provides for Civil Suit within 6 months from the service of
notice upon the Certificate Debtor under section 7 and the debtor files
petition in accordance with section 9 denying the liability— Public Demands
Recovery Act, 1913, (Act III of 1913), Section—34.
Magnum
Enterprise Vs. General Certificate Officer, Comilla and another, 13 BLD (HCD)
498.
CINEMA HALL
Without
the prior permission of the customs authority the cinema hall owner has no right
to increase or decrease the number of seats of a cinema hall—Excise and Salt
Act, 1944 (I of 1944), Section —4(3), Capacity Tax (Customs House) Rules, 1983,
Rule— 9(2).
Md. An war
Hossain Vs. The Secretary, Ministry of Finance (Internal Resources Division)
and others, 1 7BLD (HCD) 230
CITIZENSHIP
Citizenship—The
acquisition of citizenship of the plaintiff has no bearing on the vesting of
the property as an abandoned property when admittedly he was away from the
country and failed to manage and supervise his property in any manner
whatsoever.
Syed Afzal
Nowab Vs G. M. Yousuf and ors., 18 BLD (AD) 240.
Citizenship
The
acquisition of citizenship of the plaintiff has no bearing on the vesting of
the property when admittedly he was away from the country and failed to manage
and supervise his property in any manner whatsoever during the relevant time.
Syed Afzal
Nowab Vs. G.M. Yousuf and ors., 18 BLD (AD) 240.
Citizenship
Citizenship
by birth cannot be taken away or denied or lost to a particular person for his
temporary absence from Bangladesh or for his residence in any other country
unless the particular citizen abandons or renounces his citizenship of
Bangladesh and acquires the citizenship of another country— Bangladesh
Citizenship Temporary Provisions Order 1972(P.O. 149 of 1972), Articles—2, 2A
and 2B.
Annanda
Prosad Das v. The People’s Republic of Bangladesh and others, 22 BLD (HCD) 81.
Citizenship
Citizenship
does not evaporate with the passing of time but it clings to a person wherever
he may roam. It cannot be taken away from a citizen unless he voluntarily
renounces it or loses it in due course of law. The onus of proving the loss of
citizenship is on the Government—Citizenship Act, 1951.
Ganga
Narayan Roy Vs. Secretary, Ministry of Home Affairs and others, 14 BLD (HCD) 215.
Citizenship
It
provides that who or whose father or grand-father was born in the territories
now comprised in Bangladesh and who was a permanent resident of such
territories on the 25th of March, 1971 shall be deemed to be a citizen of
Bangladesh—President’s Order No. 149 of 1972, Section-2.
Ganga
Narayan Roy Vs. Secretary, Ministry of Home Affairs and others, 14 BLD (HCD) 215.
Citizenship
This
law initially did not provide for acquisition of dual citizenship by a citizen
of Bangladesh until Article 2B was incorporated by way of amendment to the P0
149 of 1972 on 11.2.1978. But the Constitution was adopted by the Constituent
Assembly on November, 1972 and came into force on the 16th December 1972 with
the disqualification clause under reference as it is. No necessity of
constitutional amendment in respect of Article 66(2) (c) of the Constitution
was ever felt in keeping with the spirit of Article 2B of the P0 149 of
1972—Bangladesh Citizenship (Temporary Provisions) Order, 1972, (P 0 149 of
1972), Article—2B.
Md Abdul
Halim Vs Mr. Md Abul Hasan Chowdhury Kaiser & Others, 21 BLD (HCD) 391
Citizenship
Clause
(c) requires to give an ordinary meaning and to do otherwise would amount to
violating the language and expression used therein. Article 66(2)(c) should
therefore be construed to mean that a citizen of Bangladesh is permitted to
acquire a citizenship of a foreign State as provided under Article 2B(2) of the
P0 149 of 1972. But if a person is found to be a citizen of Bangladesh as well
as a citizen of any foreign State either on the date when he files nomination
paper for the Parliamentary election or if such person acquires citizenship of
a foreign state after he was elected as a member of parliament, he becomes
disqualified to contest the election or to continue as a member of the
Parliament—Constitution of Bangladesh, 1972, Article—66(2)(c)
Md Abdul
Halim Vs Mr. Md Abul Hasan Chowdhury Kaiser & Others, 21 BLD (HCD) 391.
CLAIM BY
THIRD PARTY
Claim by
third party—Where a third party has claimed property under attachment in
execution of a decree and filed an application under the provision of law, it
becomes the duty of the court to investigate the claim. The executing Court
should not reject the application without assigning any reason—Code of Civil
Procedure 1908 (V of 1908), Order IX, Rule 9 read with Order XXI, Rule 58.
Foyez Ahmed
and others v. Uttara Bank Ltd. and others, 22 BLD (HCD) 564.
COMPANY
MATTER
Company
matter—Liquidation of a company
The
liquidation of a company registered under the Companies Act, cannot be
challenged in the Writ Jurisdiction of the High Court Division when in the
company court the liquidation proceeding itself is pending for
disposal—Companies Act, 1913 (Act VII of 1913).
Md. Abu
Yousuf Vs. Bangladesh and others I3BLD (AD) 154
Company
matter—Condonation of delay
The
Court, is empowered to condone the delay in holding the Annual General Meeting
of a company where it could not be held within statutory period—Companies Act,
1913 (Act VII of 1913), Section 76 (3).
Social
Marketing Company Vs. Mr. Mahbubuzzaman, 13 BLD (HCD) 569
Company
matter
Direction
to produce certain papers and documents before the Company Judge is purely an
interlocutory order which does not at all decide any issue in the case. No
appeal against such an order is maintainable— Companies Act, 1913 (VII of
1913), Section- 202.
Aramit
Limited Vs. A.N.Z. Grindlays Bank Plc and another, 14 BLD (HCD) 502.
Company
Matter
The
petitioner company was formed in 1995 under the Act with all the restriction
contained therein. It was also not formed with petitioner Nos. 2-5 as
nominee-directors. The petitioner-company was still seeking the permission of
Bangladesh Bank to include them in its Board of Directors. When the petitioner
company was not formed at all with petitioner Nos.2-5 as its directors, there
is no question of acquiring any fundamental right to continue with petitioner
Nos. 2-5 as its directors. Besides the petitioner company was formed in 1995
after the “ARTHIK PROTISTHAN AIN 1993, was enacted on 30.9.93. It was
already governed by the restrictions imposed by section 25(3) of the said Act.
The petitioner company was funned knowingly and voluntarily under the
restrictive provisions of the said Act. It cannot now complain that its freedom
of association has been restricted by section 25(3).— Constitution of
Bangladesh, 1972, Article — 38, Financial Institutions Act, 1993 (XXVII of
1993), Section—25(3).
Phoenix
Leasing Ltd. and others Vs. Bangladesh Bank and ors, 19 BLD (AD) 222.
Company
Matter Paid up Capital
From
the Memorandum and Articles of Association of BRAC Bank it appears that the
paid up capital is only Tk. 20 crores far less than one-half of the subscribed
capital. It may be argued that BRAC Bank has not yet commenced its business,
but the fact remains that after obtaining the no objection certificate and
completion of registration, the BRAC Bank has proceeded with the opening of its
office at Gulshan and fixed the date for it’s opening in a few days time. There
by process of commencement of business has already started without satisfying
the requirement—-Bank Companies Act, 1991 (XIV of 1991), Section—14.
Professor
Muzaffer Ahmed Vs. Bangladesh bank and others, 20 BLD (HCD) 235.
Company
Matter—Protection of minority interest
Section
233 of the Act is meant for protecting the interest of the minority members of
the Company. Since in the instant case, the petitioners are 2 of the 4
Directors of the Company holding 50% shares they cannot be regarded as minority
share holders. They are thus not entitled to the protection of section 233 of
the Companies Act—Companies Act,1994 (XVIII of 1994), Section—233.
Moksudur
Rahman Vs. Bashati Property Development limited and others, 17 BLD (HCD) 509.
Company
matter—Application
When
an application is admitted the same is not liable to dismissed/rejected
summarily without hearing on merit, unless such application is absolutely
incompetent being without jurisdiction and precisely for this reason Order 7,
Rule 11 of the Code has been made inapplicable in ordinary civil proceedings by
Order 49, Rule 3 of the Code— Companies Act, 1994 (XVIII of 1994), Section—233,
Code of Civil Procedure, 1908 (V of 1908), Order VII Rule 11 and Order XLIX
Rule 3
Nahar
Shipping Lines Limited and another Vs Mrs. Homera Ahmed and others, 21 BLD(HCD)
177
Company
matter—Balance sheet
Balance
sheet is a good evidence of acknowledgement of any liability of the company.
But the balance sheet should not be accepted as an acknowledgment if it is
found that the directors or those who are in control of the company took
decision favouring or in furtherance of their interest although that was to the
detriment of the company and minority shareholders.
Dr.A.M.B
Safdar Vs Bangladesh and others, 20 BLD(HCD21O –
Ref:
In Transplanters (holding company) Ltd. (1958)1WLR822; Daniely and ors Vs.
Daniels and ors. (1978)1 Ch. 406—Cited.
Company
matter
Accounts
of a company audited and approved ipso facto do not absolve criminal liability.
Even
if the accounts of a company are audited and approved by the share-holders the
same cannot exonerate persons in charge of management of the Company from
facing a criminal trial on allegations of misappropriation of the fund of the
company by falsification of accounts and concealment of documents in the absence
of any specific bar to such prosecution under any provision of law, including
the Companies Act.
Khorshed
Alam Vs. Azizur Rahman and another, 15 BLD (HCD) 639.
Company
Matter
When
a Single Company Judge of the High Court Division exercises power under Section
38 of the Companies Act, an appeal from its decision has to be taken by way of
leave to the Appellate Division under Article 103 (1) of the Constitution. No
appeal lies to the Division Bench of the High Court Division—Companies Act,
1913 (VII of 1913), Section -38
Moqbul Ahmed
and another Vs. Ahmed Impex (Pvt.) Ltd. and another, 16 BLD (AD) 133.
Company
matter
Section
38(3) of the Companies Act confers power on the Court for deciding any question
relating to the title of any who is a party to the application.
Industrial
Development Company ltd. Vs. Mr. Sukhendu Shekhar Mukherjee and another, 17 BLD
(AD) 171.
Company
Matter
Where
it appears to the Court that the affairs of the Company are not clean and above
board and it is unable to pay its debt and respect its commitments to the
creditors it s just and equitable that the Company is wound up with immediate
effect—Companies Act, 1994 (XVIII of 1994), Section—241 and 242.
Eastern Bank
Limited Vs. Bengal Carpet Limited, 17 BLD (HCD) 22
Company matter
The
High Court Division after having found that there was an apparent breach of
section 95 of the Companies Act in holding meeting granted temporary injunction
although on an earlier occasion an order of injunction was found in
inappropriate, the same cannot be a bar against granting injunction
subsequently under all circumstances. The Appellate Division maintained the
order of the High Court Division—Companies Act, 1994 (XVIII of 1994),
Section—95
Mohammad
Mohibul Ahsan (Shawan) Vs. Ittefaq Group of Publications Ltd., 18 BLD (AD) 207.
Company
matter
The
provisions of appointing auditors in the Annual General Meeting is for
prospective auditing of a Company. When the minority shareholders apply under
section 233 of the Companies Act, the Court has inherent power to make
alternative arrangement for appointments of auditors for past years as
well—Companies Act, 1994 (XVIII of 1994), Sections 210(7) and 233.
Md. Faruk
Vs. Abdul Hamid and ors, 18 BLD (AD) 236.
Company
matter
Under
the garb of recommendation Board of Directors cannot reject the candidature of
any person for the election to the office of the director of the Bank.
The
word “recommended” means power of the Board to point out defects, if any, in
the candidature of a person for the office of director for consideration in the
Annual General Meeting to avoid complications in such meeting and not the power
to reject any candidature on the ground of defect real or fanciful. [Per Kazi
Ebadul Hoque, 3.1—Companies Act, 1994 (XVIII of 1994), Section— 91(1)(b).
ASF Rahman
and another Vs A M Agha Yousuf and others, 20 BLD (AD) 205.
Company
matter
Appellants
representing majority shares having contested the written objection filed by
the respondent No. 1 challenging election of Mr. A Matin Khan before the Company
Judge have locus standi to file appeal. [Per Kazi Ebadul Hoque, J]—Companies
Act, 1994 (XVIII of 1994), Section—91.
ASF Rahman
and another Vs A M Agha Yousuf and others, 20 BLD (AD) 205
Company
matter
A
shareholder does not become automatically entitled to any part of the profit
until a resolution is taken and a divident is declared by the company out of
such profit— Companies Act, 1994 (XVIII of 1994), Section 233.
Dr. A.M.B
Safdar Vs. Bangladesh and others, 20 BLD (HCD) 210.
Company
matter
There
cannot be any profit out of revaluation of any fixed assets of the company
without disposal of the same by sale or otherwise and that too without writing
off the trading losses in earlier financial periods— Companies Act, 1994 (XVIII
of 1994), Section 233.
Dr.A.M.B
Safdar Vs. Bangladesh and others, 20 BLD (HCD)210
Company
matter
The
import of Article 141 appears to me to be these. No person other than a
retiring director or a nominee director shall be eligible for election to the
office of the director at any General Meeting unless he is recommended by the
directors. This will not apply if a member has left at the office a notice in
writing under his hand or under the hand of such agent signifying his assent to
his candidature at least 7 clears days before the meeting. I am unable to agree
that the word ‘recommendation’ occurring in Article connotes mere scrutiny
without any authority to choose. I take the simple dictionary meaning of the
word ‘recommendation’. I mean speaking favourably of a person for the purpose
of election. Yet I hold that the appeal must fail because the appellants have
no locus standi to maintain the appeal not being themselves aggrieved by the
election. [Per Bimalendu Bikash Roy Chowdhuryl—Articles of Association of IFIC
Bank, Article—114.
ASF Rahman
and another Vs A M Agha Yousuf and others, 20 BLD (AD)205
Company
matter
Sub-section
(3) of section 38 of the Act contemplates that in order to be a valid and
complete transfer of share for the company to register in its register of members
the instrument of transfer must be executed both by the transferor and the
transferee the instrument of transfer must be duly stamped and such instrument
is delivered to the company along with the scrips. Where requisite adhesive
stamps on the instrument of transfer have not been affixed and cancelled as
required by section 2(11) and 12 of the Stamp Act, the instrument cannot be
accepted as duly stamped within the meaning of section 38(3) of the Companies
Act. In that case it would not be permissible in law for the company to
register such transfer and the transfer, if made, would be illegal—Companies
Act, 1994 (XVIII of 1994),Section—38(3),Stamp Act, 1899(11 of 1899),Sections—2(II)
and 12.
Mr. Ahsan
Karim Jinnah Vs Meghna Insurance Company Limited and others, 20 BLD (HCD) 114.
Company
matter
In
the absence of any definite statement from the respondent about the delivery of
the share certificate, and in view of the documents on record admitting that
the share certificate was not delivered to the company or to respondent No. 2,
it cannot be accepted that the share certificate was in fact handed over to the
company or to respondent No. 2.—Companies Act, 1913 (VII of 1994), Section—38.
Abu Taher Vs
Nur Muhammad and others, 21 BLD (AD) 60.
Company
matter
For the
adoption of a special resolutions
In
any extraordinary general meeting amending an article or articles, there should
be a prior Board decision expressing the need for such amendment.
Where
the articles of association specifically lay down that an extraordinary general
meeting may be called either by the Board or the Managing Director, such
meetings convened by the company secretary “by order of the Board” in the
absence of any evidence that the secretary was empowered to do so, are not
properly called meetings and are no meetings in the eye of law.
The
re-appointment of the managing director of the company should not be done under
the agenda item of miscellaneous matters of the notice of the Board meeting.
The
arrogation of absolute authorisation to give loan from the company’s funds by
the managing director to all directors, including himself as managing director,
is prejudicial to the interest of the company and its members.
A
sole authority given by an amendment of an article of association to the managing
director of a company to open and operate bank account/accounts both in
Bangladesh and abroad is prejudicial to the interest of the company and its
members. It centralises the power in the managing director requiring no
resolution of the Board, so that the Board will not know where in the world an
account is opened in the name of the company, giving plenty of opportunity to
the managing director to divert and misappropriate the company’s fund—Companies
Act, 1994 (XVIII of 1904), Section—233.
Md Shahadat
Hossain v. Base Textile Limited, 21 BLD (HCD) 585.
Company
matter
The
Registrar has, under the provision of the Act, no power either to accept or
reject a return or document required to be filed under the Act. If, however, he
finds that the documents in question disclose an unsatisfactory state of
affairs, he may direct the company to correct it in the manner directed by him.
It
is a right of the members of public to inspect the documents and obtain
certified copies from the office of the Registrar. The issuance of the
certified copies cannot be held back on the ground that the Registrar has not
accepted/approved the returns filed with the Registrar—Constitution of
Bangladesh, 1972, Article—102, Companies Act, 1913 (VII of 1913), Section—193.
The City Bank
Limited Vs The Registrar, Joint Stock Companies and others, 21 BLD (HCD) 495.
Company
matter
Section
95 makes it obligatory to issue a notice in writing to every Director, such
requirement does not appear to extend the obligation to give notice for an adjourned
meeting for transaction of the unfinished business of the last
meeting—Companies Act 1994 (XVIII of 1994), Section—95.
S. I. Khan
and others v. Integrated Services Ltd. and ors, 22 BLD (HCD) 440.
Company
matter
Past
acts which have no effect on the petitioner at the date of the petition will
not normally give rise to relief under s. 233. It must be continuous act on the
part of the majority shareholder continuing up to the date of the petition. The
facts of the case provided reasons to pass an order directing majority
shareholders to purchase all the shares owned by the minority shareholders—
Companies Act 1994 (XVIII of 1994), Section—233
Mrs. Homera
Ahmed and others v. Nahar Shipping Lines Ltd. and others, 22 BLD (HCD) 67.
Company
matter
If
a company has admitted that certain loans are those of the company and has
sought repeated extensions of time for repayment but each time failed to pay,
and from time to time cheques issued by the company for full or part payment of
the loans bounced for non-availability of funds, it establishes that the
company is unable to pay its debts—Companies Act 1994 (XVIII of 1994),
Section—241
Asad Ahad
and another v. Mousumi Industries Ltd. and ors, 22 BLD (HCD) 1.
COMPARISON
OF SIGNATURE
Comparison
of signatures of parties
For
coming to a correct legal decision in a dispute, the signatures of a person
available in the records, can be compared and examined by a hand-writing expert
and that can be done effectively by sending a suit on remand.
Md. Amir Au
Khan and others Vs. Md. Mafizul Islam and others, 13 BLD (HCD) 489.
Comparison
of signature
Comparison
of disputed signature/LTI cannot be done by the expert with a registered
document which is not admitted or proved to the satisfaction of the
Court—Evidence Act, 1872 (1 of 1872), Sections—45 and 73.
Dinesh
Chandra Deb Vs Dulal Chandra Karmaker & others, 21 BLD(HCD) 461
Comparison
of signature
Section
73 of the Evidence Act clearly empowers the Court to itself examine the
disputed signatures to form its own opinion thereon, independent of the opinion
of the hand-writing expert. The Court is never bound to obtain the opinion of a
hand writing expert nor is such opinion binding upon it.
Moreover,
the art of calligraphy is yet to attain any decree of accuracy and precision so
that the Court can place explicit reliance on it.
Sree Naru
Gopal Roy Vs. Parimal Rani Roy and others, 21 BLD (HCD) 282
COMPENSATION
FOR DAMAGE
Compensation
for damage
Negligence
and carelessness of duty of the Master and Crews of a Vessel having not been
clearly made out in a case, compensation for damage cannot be decreed.
Bangladesh
Inland Water Transport Corporation Vs. MIs. M. V. Newaz Navigation Company
Limited, 13 BLD (HCD) 192
COMPLETE
JUSTICE
Complete
Justice
In
the face of laches on the part of a financial institution like the Petitioner
Bank to seek timely redress before the superior Court, the provision of Article
104 of the Constitution for doing complete justice should not be resorted
to—Constitution of Bangladesh, 1972, Article —104.
Rupali Bank
Ltd. Vs. Tobacco Industries ltd, and others, 14 BLD (AD) 76.
Complete
Justice
The
Appellate Division’s inherent power under Article 104 of the Constitution “to
do complete justice” is exercised on appeal from a decision of the High Court
Division only—Constitution of Bangladesh, 1972, Article—104.
Md. Sher Ali
and Others Vs. The State and Another 14 BLD (AD) 84.
Complete
Justice
Under
Article 104 of the Constitution it is only the Appellate Division of the
Supreme Court which has got the power to issue such directions, orders, decrees
or writs as may be necessary for doing complete justice in any given case. This
is the special preserve of the Appellate Division which is not available to
other Courts.
Mrs. Shahana
Hossain Vs. Asaduzzaman, 15 BLD (AD) 167.
Complete
Justice
When
a gross injustice is found to have been done to a person for no fault or laches
of his own and his valuable accrued right is being lost and he is left with no
remedy, the Appellate Division found it to be a fit case to exercise its
jurisdiction under Article 104 of the Constitution for undoing substantial
injustice—Constitution of Bangladesh, 1972, Article —104.
Raziul Hasan
Vs. Badiuzzaman Khan and others, 16 BLD (AD) 253.
Complete
Justice
A
vast tract of land within the reserved forest has been claimed by Abbas Au
Munshi as the plaintiff in Title Suit No. 160 of 1966 on the basis of taking
pattan from the ex landlord in the year 1946. But in that suit he could not
produce any supporting evidence of title as claimed. Moreover, in view of the
statement made in the plaint that the suit land has been recorded as forest
land, the trial court committed an error of law in decreeing the suit,
mechanically, exparte without considering the effect of the provisions of the
S.A.T. Act as well as the Specific Relief Act.
In
the facts and circumstances of the case the Appellate Division held that for
doing complete justice the appeal should be allowed for having a proper
adjudication in the matter of the real dispute, i.e. the title of respondent
No. 1 in the suit plot.
Bangladesh
Vs. Abbas Au Munshi being dead his hires Karimun Nessa and ors., 19 BLD (AD)
153.
Complete
Justice
This
court doing complete justice in any cause can treat the application under
section 25(1)(b) of the Employment of Labour (Standing Order) Act, 1965 as an
application under the Payment of Wages Act, 1936 for realisation of the
benefits consequent upon retirement of the deceased worker.— Constitution of
Bangladesh, 1972, Article— 104.
Bangladesh
Water Development Board and others Vs. The Chairman, Divisional Labour Court,
Khulna & others., 21 BLD (AD) 117
Complete
Justice
The
entire body of procedural law is meant for advancement of the cause of justice
and not to pose any technical difficulty in the way of the court to do complete
justice between the litigant parties for the administration of which alone it
had been created. All technicalities are required to be avoided to secure
justice as because end of law is justice.
Arabinda Das
Vs Sreemati Sura Bala Das and others 20 BLD (HCD) 320.
COMPROMISE
DECREE
Normal
course of compromise
The
normal course of compromise, is that whenever any compromise is made, the
plaintiff or any other party does not proceed with the suit, that they file a
compromise petition with a joint prayer for recording solenama and them the
proceeding of the suit stop.
A.F.M.
Safiyullah Vs. A.K.M. Bashirullah alias Mortuza Bashir, 13 BLD (HCD) 165.
Course of
action after compromise decree
After
the passing of final decree on compromise, the only thing that remains to be
done is to engross it on stamped paper.
Tajjater
Nessa Vs. Suruj Mia and others, 13 BLD (HCD) 220.
Compromise
decree
When
contending parties to a suit compromise their dispute in respect of the subject
matter of the suit, not consideration of something in covered by subject matter
of the suit forming a such consideration petition of compromise, cannot be
effective part of the compromise decree, but such stipulation being part of a
valid contract can be entered by a separate suit though not by putting the
decree into execution.
Fazlu Mollah
and others Vs. Shamsul Hoque Molla, 13 BLD (HCD) 341.
Compromise
decree: not covered by frame of suit
The
part of a compromise decree not covered by the frame of the suit, that is
extraneous to the main suit is not an operative part of such a decree and
cannot be enforced by putting the decree its execution.
Fazlu Molla
and others Vs. Shamsul Hoque Molla, 13 BLD (HCD) 341
CONCEPT OF
JOINT FAMILY
Concept of
Joint Family
In
the Mohammedan law, there is no presumption that acquisitions of several
members of a family living and messing together are for the benefit of the
entire family. But if, during the continuance of the family, properties are
acquired in the name of the managing member of the family and the properties
are possessed by all the members of the family jointly, the presumption will be
that these are the properties of the family—Mohammedan law, Section-57.
Sarafat
Hossain Vs. Dr. Islam Uddin, 14 BLD (HCD) 253.
CONCURRENT
FINDINGS OF FACT
Concurrent
findings of fact
In
disturbing the concurrent Judgments of the two Courts below, it is imperative
on the part of a learned Judge of the High Court Division to reverse the
concurrent finding and to hold that the respondent had made out a prima facie
case for temporary injunction.
Haji Nurul
Alam @ Haji Nurul Alam Sawdagar Vs. Al-Haj Abdus Sobhan Sawdagar Wakf Estate,
13 BLD (AD) 155.
Concurrent
findings of fact
When
the High Court Division affirms the findings of facts arrived at by the trial
court on due and proper consideration of the evidence on record, the Appellate
Division refuses to interfere with the concurrent findings of fact.
Pagla Truck
Drivers Cooperative Society and others Vs. Kazi Moslehuddin and others, 14 BLD (AD)
193.
Concurrent
findings of fact
When
the trial court decreed the suit on detailed consideration of the evidence of
all the witnesses of the plaintiffs and defendants as well as the court
witness, who held local investigation and the High Court Division affirmed the
findings of the trial court on due consideration of the evidence on record, the
Appellate Division found no justification to interfere with the concurrent
findings of fact.
Pagla Truck
Drivers Co-Operative Society and others Vs. Kazi Moslehuddin and others, 14 BLD
(AD) 193.
Concurrent
findings of fact
When
both the trial court and the appellate court upon consideration of the evidence
on record concurrently found that the petitioner is a defaulter and the suit
premises is bonafide required by the plaintiff for his use and occupation, such
concurrent findings of facts based on evidence on record cannot be disturbed by
the High Court Division—Code of Civil Procedure, 1908 (V of 1908),
Sections-115.
Mazharul
Borhan Vs. A.H. Bhuiyan, 15 BLD (AD) 237.
Concurrent
findings of fact-when can be interfered?
Concurrent
findings of fact arrived at by the trial Court and the appellate Court can be
interfered with in revision when such findings are vitiated by misreading and
non- reading of material evidence or misconstruction of a material
document—Code of Civil Procedure, 1908 (V of 1908), Section—i 15.
Abdur Rahman
Sawdagar being dead his heirs and heiresses Mariam Khatoon and others Vs. Elam
Khatun and ors, 16 BLD (HCD) 460.
Concurrent
findings of fact
In
the face of the concurrent findings by the trial Court and the appellate Court
that the plaintiff had no possession in the suit land and that without a prayer
for khas possession the suit was not maintainable, the High Court
Division
acted beyond its jurisdiction exercising power under section 115(1) of the Code
in setting aside the judgments of the Courts below without reversing the
material findings— Code of Civil Procedure, 1908 (V of 1908), Section—115(1).
Rupe Jahan
Begum and ors. Vs. Lutfe Ali Chowdhury and others, 17 BLD (AD) 66.
Concurrent
findings of fact
In
the absence of misreading and non- reading of the material evidence the High
Court Division exercising revisional power has no jurisdiction to disturb
concurrent findings of facts made by the Courts below— Code of Civil Procedure,
1908 (V of 1908), Section—115 read with Order XLI Rule 31.
Md. Shah
Alam Vs. Musammat Farida Begum, 17 BLD (AD) 145.
CONDONATION
OF DELAY
Condonation
of delay
For
admitting a time barred appeal, the Court must first be satisfied that there
was sufficient cause for not filing the appeal in time—The Appellant has to
make out a case of sufficient cause by filing an application for condonation of
delay. The practice of admitting a time barred appeal “ Subject to objection at
the hearing” is discouraged except in marginal case. When the delay is long the
court must make the exercise under section 5 of the limitation Act before
admitting the appeal with notice to the respondent— Limitation Act, 1908(Act IX
of 1908), Section—5.
Momtaj Uddin
and another Vs. Yakub Ali, 13 BLD (AD)219
Condonation
of Delay
When
reasons for delay are satisfactorily explained the court is competent to
condone the delay—Limitation Act (IX of 1908), Section-5.
Iman Uddin
Shaikh and others Vs. Deputy Commissioner (Rev.), Bagerhat, 14 BLD (HCD) 198.
Condonation
of Delay
Law
does not make any discrimination between the Government and private litigants
in the matter of condoning the delay. Negligence of an agent or servant of the
Government is not a sufficient cause to condone the delay—Limitation Act, 1908
(IX of 1908), Section—5
Government
of the People’s Republic of Bangladesh and others Vs. Md Jahangir Au and
others, 21 BLD (HCD) 315
Condonation
of delay
Even
in the absence of a separate petition for condonation of delay the Court can
condone delay in the interest of justice under given circumstances—Limitation
Act, 1908 (IX of 1908), Section -5
Hakim Ullah
Vs. Motaleb and others, 16 BLD (HCD) 189.
Condonation
of delay
For
condonation of delay, a defaulting party is required to satisfactorily explain
the delay of each day. Where the application under Section 5 of the Limitation
Act does not do that and statements made therein in support of condonation of
delay are too vague and general in nature, having no reference to day to day to
basis, such an application must be held to be insufficient for condoning delay.
Bangladesh
Vs. Mosammat Soleman Bewa, 16 BLD (HCD) 267.
Condonation
of delay
Section
5 of the Limitation Act requires liberal interpretation in condoning any delay
acceptable to the Court—Limitation Act, 1908 (IX of 1908), Section—5.
Ansarul
Hoque Vs. Bangladesh and another, 17 BLD (HCD) 463.
Condonation
of delay in Government litigations
Steps
which are required to be taken at different stages of the different departments
of the Government for filing suits/cases are no ground by themselves for
condonation of inordinate delay.
Bangladesh
Vs. Chairman, Court of Settlement and another, 17 BLD (HCD) 235.
Condonation
of delay
Government
stands on equal footing with ordinary litigants—Inordinate delay caused by
gross negligence on the part of Government Law Officers—Not condoned—Limitation
Act, 1908 (IX of 1908),Section-5.
Government
of Bangladesh Vs. Mr. Alauddin, 21 BLD (AD) 35.
Condonation
of delay Sufficient cause
The
expression ‘sufficient cause’ should receive a liberal construction so as to
advance substantial justice. Generally delay in preferring appeal or any
proceeding before superior court demands condonation in the interest of justice
where no gross negligence, inordinate delay without any valid ground and lack
of bonafide are manifested seeking condonation—Limitation Act, 1908 (V of
1908), Section—5
D.C., Dist.
Fisheries Tender Committees, Moulvibazar Vs. Md. Aswab Ali & ors., 21 BLD
(HCD) 85
Condonation
of delay—Sufficient cause
The
delay of about 1½ year at first instance and subsequently delay of about 11
months, only an account of misfiling, is not sufficient cause for delay and as
such the prayer for condonation of delay has no merit in the facts and
circumstances of the instant case—Limitation Act, 1908 (V of 1908), Section—5.
Government
of Bangladesh Vs. Md Mafizuddin & anr., 21 BLD (HCD) 107.
CONJUGAL
RIGHTS
Conjugal
Rights
In
a suit for restitution of conjugal right and declaration that the divorce
pronounced by the wife is illegal such direction for restitution of conjugal
right is wrong and unenforceable in law. Such direction in matters of
relationship between man and wife no longer holds good and opposed to the
principles laid down in Articles 27 and 31 of the Constitution.
Mrs. Sherin
Akhter and another Vs. Alhaj Md. Ismail, 20 BLD (HCD) 159.
Ref:
Nelly Zaman Vs. Giasuddin, 34DLR 221 —Cited.
CONSTRUCTION
OF DOCUMENT
Construction
of document—Construction of Deed
When
a disputed deed is evidently an out and out sale deed, Sections 91 and 92 stand
as bar against interpreting the same as a deed of gift—Oral evidence cannot be
allowed to alter or change the contents, of document— Contract Act 1872(Act IX
of 1872), Section—91 and 92.
Mosammat
Saleha Bibi Vs. Taib Au Mollah and others, 13 BLD (HCD) 677.
Construction
of document
When
a fictitious purchase is made with the object of providing a legal basis for
the registration of a document such a document is void under Section 28 of the
Registration Act—Registration Act. 1908 (XVI of 1908), Section – 28(1),
Registration (Amendment) Ordinance, 1985 (L of 1985), Section -28(1)
Hachina
Begum and others Vs. Mostt. Mahfuza Akhter and ors, 16 BLD(HCD) 374
Construction
of document
Section
95 of the Act provides that when language used in a document is plain in
itself,
but
is unmeaning in reference to existing facts, evidence may be given to show that
it was used in a peculiar sense—Evidence Act, 1872 (I of 1872), Section—95.
Md. Abdur
Rahman Mia Vs. Md. Saber All Mia, 19 BLD (HCD) 342.
Construction
of Document—Deed of sale or deed of gift
Even
if a document is described as a sale deed the Court is competent to decide on
evidence as to whether it was, in fact, a deed of gift.
Shamsul
Islam and others Vs. Badiar Zaman alias Bablu and another, 15 BLD (AD) 243.
Ref:
20 DLR 376; I8DLR 572-Cited.
Construction
of Document
Where
a transfer is challenged after the lapse of considerable long time and after
the death of the parties to the document. a court may take into account the
recitals in the document along with the circumstances in making a decision as
to the validity of the deed.
Jitendra
Nath Mistry v. Abdul Malek Howlader & ors., 22 BLD (AD) 117.
Ref:
AIR 1916 PC 110. Cases distinguished: 21 DLR 673; 29 DLR 7.
CONTEMPT OF
COURT
Contempt of
court
Under
the provisions of Article 109 of the Constitution the High Court Division has
control and superintendence over all subordinate courts and under the
provisions of section 115 of the Code the High Court Division can call for the
records of any case from any subordinate civil court and can pass an
appropriate order, if any presiding officer of any such court fails to comply
with any order or direction of the High Court Division made in any case then
such officer is not only guilty, of contempt of court but also of
insubordination—Constitution of Bangladesh. 1972, Article—109, Code of Civil
Procedure, 1908(V of 1908), Section—115.
The State
Vs. Mr. Farooq Ahmed, Subordinate Judge, 3rd Court, Dhaka, 19 BLD (HCD) 394
Contempt
Petition-Observation
Showing
total disrespect to the observations made by the Appellate Division reported in
19 BLD(AD)(1999)93: 51 DLR(AD)68, the Prime Minister made the statement with
the BBC which prima facie lowers down the honour, dignity and prestige of the
Courts of Bangladesh not only within the country, but also in other countries
of the world as the BBC spread the contemptuous news throughout the world.
Mr.
Mainul Hosein & ors. Vs. Ms Sheik
Hasina Wazed, 21 BLD (HCD) 109.
Ref:
PLD 1961(SC) 237; 181)LR. (SC) 124; 19 BLD (AD) (1999) 93; 51DLR (AD) 68; AIR
1978 (SC)727; AIR 1978 (SC) 429; AIR 1936 PC 141; 1968(2) RB 150; AIR 1988
5C1208; 1990 Cr1. L. I. Vol. (2) (Born) 2/79; AIR 1984 (SC) 615; AIR 1970 (SC) 20
15—Cited
Contempt of
Court
In absence
of mens rea—No contempt
The
statements based on inaccurate assessments of situation, however grossly
misleading those may be, do not tantamount to contempt of the Court. In the
absence of mens rea, no contempt is established.
Mr. mainul
Hosein & ors. Vs. Ms Sheik Hasina Wazed, 21 BLD (HCD) 109
CONTRACT
Contract-when
void?
The
plaintiff filed a suit for a decree of mandatory injunction for enforcement of
his right under the disputed agreement to see his minor son on the days mentioned
in the agreement. He did not claim guardianship or custody of the child. Such
an agreement being not unlawful, immoral or opposed to public policy is not hit
by Section 23 of the Contract Act. The High Court Division was wrong in
rejecting the plaint on erroneous view of law and on irrelevant and extraneous
considerations—Code of Civil Procedure, 1908 (V of 1908), Order VII Rule 11,
Contract Act, 1872 (IX of 1872), Section -23
Mohammad Irfan
Sayed Vs. Mrs. Rukshana Matin and ors, 16 BLD (AD) 223.
Frustration
of Contract
The Doctrine
of Frustration of Contract
To
attract the provision of this doctrine the contract must become impossible of
performance due to the happening of certain unforeseen or uncontemplated
events. Where in spite of the intervention of events subsequent to the making
of the agreement the contract could still be performed in substance, then it
cannot be said that the contract has become impossible of performance—Contract
Act, 1872 (IX of 1872), Section -56.
Md. Mokbul
Hossain Khondker Vs. Mosammat Jaheda Khatoon, 14 BLD (HCD)549
Contract
These
are to be read together and as a whole in order to get their real meanings.
Wrongs contemplated in these Article have the same meaning as they have in the
law of torts. The relationship between the plaintiffs and the defendants in
suits falling under these Articles must be that of strangers, devoid of any
contractual obligations. Article 120 of the Limitation Act is applicable in
such cases—Limitation Act, 1908 (IX of 1908), Articles 48 and 49—Columns 1 and
3.
Abdus Salam
Vs. Janata Bank, 17 BLD (HCD) 184.
Contract
An
acceptance must be expressed in some usual and reasonable manner, unless the
proposal prescribes particular manner in which it is to be accepted. Acceptance
means, in general, communicated acceptance—Contract Act, 1872 (IX of 1872),
Section—7.
Bangladesh
Muktijoddah Kallyan Trust Vs. Kamal Trading Agency and others, 18 BLD (AD) 99.
Contract
In
view of the provisions of section 176 and 177 of the Act it appears that where
the pawnee is not in possession of the property pledged to him as security for
the payment of the loan nor did he prove that it had been damaged or destroyed
at the risk of the defendant (pawnee), the pawnee is not entitled to recover
the debt because the pawnor had the right conferred by section 177 to redeem
his property at any time before the actual sale prior to filing of the
suit—Contract Act, 1872 (IX of 1872), Sections—176 and 177.
Pubali Bank
Ltd. Vs. MIs. Sultana Oil Mills and Soap Factory, 19 BLD (HCD) 249.
Contract
Simply
because the petitioner was the highest bidder and when no allotment letter or
any notice was served on him to deposit money, he cannot claim any legal right
and canvas for any legitimate impression created in his mind for acquiring something
which is also a disputed question of fact and as such the writ petition is
incompetent—Constitution of Bangladesh, 1972,Article—102
Dr. Md.
Habibullah Vs. Rajdhani Unnayan Kartipakha & ors., 19 BLD (HCD) 231.
Contract
Contractual
right does not extend beyond the contract period
If
for any wrongful act of a contracting party the other party has suffered an
injury, the aggrieved party is entitled to damages but he cannot claim
extension of his right to operate after the expiry of contract period.
Hutchison
Bangladesh Telecom Ltd. Vs. Bangladesh Telegraph and Telephone Board
represented by its Chairman and others, 15 BLD(HCD) 546
COPY RIGHT
Copy Right
Author
of a work shall be the first owner of the copy right. But if the work is made
in the course of the author’s employment under a contract of service or
apprenticeship, the employer of the employed person, in the absence of any
agreement to the contrary, shall be first owner of the copyright
therein—Copyright Ordinance, 1962 (XXXV of 1962), Sections—I 3.
Mrs. Suraiya
Rahman Vs. Skill Development for Underprivileged Women, represented by its
Project Directors and others, 17 BLD (HCD) 284.
Copy Right
If
an association or body is unincorporated then also it is an association or body
of individuals entitled to own copyright and in such a case individuals
constituting the body will own the copyright as tenants-in- common—General
Clauses Act, 1897 (X of 1897), Section—3.
Mrs. Suraiya
Rahman Vs. Skill Development for Underprivileged Women, represented by its Project
Director and others, 17 BLD (HCD) 284
CORAM
NON-JUDICE
Coram
Non-Judice
When
coram non-judice clearly strikes the award, non-filing of appeal or withdrawal
of appeal after filing does not stand in the way of getting relief in writ
jurisdiction.
Syed
Rahmatur Rub Irtiza Ahsan Vs. The Government of People’s Republic of Bangladesh
and others 14 BLD (HCD) 389.
Ref:
A.I.R. 1954 (Madras) 103; A.I.R. 1925 (All) 356-Cited.
Coram non-Judice
It
does not attract election disputes and as such the Arbitrator acted illegally
and without jurisdiction in making the impugned order.
When
there is coram non-judice, non filing of appeal does not stand in the way of
getting relief in writ jurisdiction—Constitution of Bangladesh, 1972, Article
-102 and Cooperative Societies Ordinance, 1984, Section—86.
Syed
Rahmatur Rub Irtiza Ahsain Vs. The Government of the People’s Republic of
Bangladesh and ors, 14 BLD (HCD) 389.
Coram non-Judice
Court
of Settlement shall consists of a Chairman and two other members who shall be appointed
by the government.
The
disposal of the case by the Chairman along with one Member only certainly makes
the Settlement Court corum-non-judice. Case remanded to the Court of Settlement
for hearing afresh on merit in accordance with law—Constitution of Bangladesh,
1972, Article—102, Abandoned Building (supplementary provisions) Ordinance,
1985 (LIV of 1985), Section—9(2).
Secretary,
Ministry of Public Works Vs. Court of Settlement (1st Court) Bangladesh, Abandoned
Buildings and another, 19 BLD (HCD) 583.
COURT OF
SETTLEMENT
Court of
Settlement
Court of
Settlement: Scope of
The
Court of Settlement, has no power to set aside or nullify any judgment and
decree of Civil Court having competent jurisdiction.
Mrs. Akhtar
Jahan Begum Vs. The Court of Settlement Bangladesh abandoned Buildings and
others, 13 BLD (HCD) 517.
Court of
Settlement
The
Court of Settlement, is not empowered under the law to dismiss a case pending
before it for default simpliciter—The Abandoned Building (Supplementary
Provisions) Ordinance, 1985 (Ordinance No. 54 of 1985), Section 10(5).
Chand Miah
Talukder Vs. Chairman Court of Settlement, Bangladesh Abandoned Building and
others, 13 BLD (HCD) 399.
Court of
Settlement
It
provides that the decision of the Court of Settlement is final and it is
binding on all parties concerned and it cannot be called in question in any
other court—Abandoned Buildings (Supplementary) Provision Ordinance, 1985 (LIV
of 1985), Section-10(6).
Mrs.
Nurjahan Begum Vs. Bangladesh and others, 14 BLD (HCD) 558.
Court of
Settlement
The
Court of Settlement has no jurisdiction to decide matters which are not,
connected with the inclusion of abandoned properties in the relevant
list—Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 (LIV of
1985), Section—2(b)
Syed
Mohammad Salem Azam and others Vs. The Secretary, Ministry of Works and others,
14 BLD (AD) 259.
Court of
Settlement
Law
enjoins upon the Court of Settlement duty to make a decision on the matters in
issue. Dismissing a case for default without arriving at a decision with regard
to the claims of the parties is illegal—Abandoned Buildings (Supplementary
Provisions) Ordinance 1985 (LIV of 1985), Subsection—5 of Section—10.
Maqbul
Hossain Vs. Bangladesh and others, 13 BLD (HCD) 655.
Court of
Settlement
The
Court of Settlement is not a Court for determining title of the contending
parties. Its only function is to determine whether the disputed property is an
abandoned property— Abandoned Buildings (Supplementary Provisions) Ordinance,
1985 (LIV of 1985), Section—2(b).
The People’s
Republic of Bangladesh, represented by the Secretary, Ministry of Public Works
Vs. The Chairman, Court of Settlement and others, 17 BLD (AD) 301.
Court of
Settlement
When
the competent authority has certified that the deed has been duly registered
the Court of Settlement cannot question the registration. Whether the executant
has signed the volume or not is the concern of the registering authority and
not of the Court of Settlement. It further appears that none has challenged
this registration of the deed of gift. The only duty of the Court of Settlement
is to look into the claim of the respondent on the basis of deed of gift. In
such a situation the Court of Settlement very well may look into whether the
deed of gift has been acted upon or not—Abandoned Buildings (supplementary
provisions) Ordinance, 1985 (LIV of 1985), Section—2(b).
Bangladesh
and another Vs. Mrs. Shi rely Anny Ansari, 20 BLD (AD) 284.
COURT OF
WARDS
Court of
Wards
The
Court of Wards was governed by its own rules and procedure and it is not
disputed that the Rule was that without the sanction of the Board of Revenue no
long term settlement could be given.
Abdul
Khaleque and ors. Vs. Abdul Khalek and ors., 20 BLD (HCD) 41.
Ref:
26 DLR 215—Not Applicable
CUSTODY OF
MINOR CHILDREN
Custody of
minor children
In
deciding the question of custody of the minor children in any judicial
proceeding the welfare of the minor is of paramount importance before the
Court. The legal rights of the contending parties under their personal law or
any other statutory provision cannot override this paramount consideration
concerning the genuine welfare of the minors— Guardians and Wards Act, 1890
(VIII of 1890), Section—25, Custody of Minor Children, Constitution of
Bangladesh. 1972, Article—102.
Abdul Jalil
and others Vs. Mrs. Sharon Laily Begum Jalil, 18 BLD (AD) 21.
Custody of
minor children
The
paramount consideration in deciding the custody of the minor children is the
question of ‘welfare and benefit’ of the minors. Keeping in view the overall
welfare of the minors, the Court has the authority to decide the question of
the custody of the minors, irrespective of any agreement or any assurance
reached between the contending parties.
Nargis
Sultana Vs. Md. Aminul Bor Chowdhury, 18 BLD (HCD) 343.
CUSTOMS
MATTER
Customs
matter
Customs
duty is payable by the importer on the basis of tariff value in force on the
date of presentation of the bill of entry and not on the basis of invoice or
tariff value in force at the time of opening of letter of credit— Customs Act,
1969 (IV of 1969), Section— 25(7).
Bangladesh
and others Vs Mizanur Rahman, 20 BLD (AD) 212.
Customs
matter—Frustrated Cargo
Where
any goods are imported by reason of inadvertence, misdirection or
intraceability of consignee, the Commissioner of Customs may allow export of
said goods without any payment of any duties to the exporter— Customs Act, 1969
(IV of 1969), Section— 138.
Zahur Ahmed
Vs. The Commissioner of Customs, Chittagong and others, 19 BLD (HCD) 163
Customs
matter
It
authorises the Government to exempt any goods imported into or exported from
Bangladesh from the whole or any part of the customs duty chargeable thereon.
The Legislator by passing the Finance Act every year fixes the rates of taxes,
duties etc. on various subjects. The rate of exemption granted by the
Government may vary from time to time depending upon various considerations.
S.R.Os issued under section 19 of the Act do not require approval by the
Parliament— Customs Act, 1969 (IV of 1969), Section-19.
M/S. Urmee
Enterprise (Pvt.) lid. Vs. Collector of Customs, Chittagong and others, 15 BLD (AD)
42.
Customs
matter
Section
18 of the Act deals with customs duties chargeable on imported or exported
goods at the rate prevailing for the time being in force while section 19 of
the Act deals with the general power of the Government to exempt or reduce
customs duties leviable on imported or exported goods. The Government is not
authorised by law to issue notification under section 19 of the Customs Act
with retrospective effect.
Section
30 of the Customs Act provides that the rate of customs duty on any imported
goods shall be the rate which was in force on the date on which the manifest of
the convey ance was delivered.
An
importer is to pay customs duty at th rate prevalent on the date of opening of
th letters of credit. This vested right cannot b taken away by issuing
subsequent S.R. Os.—. Customs Act, 1969 (IV of 1969), Sections— 18, 19 and 30
Ahmed
Hussain and 39 others Vs. Th Collector of Customs, Customs House, Chittagong
and others, 15 BLD (HCD) 256.
Customs
matter—Certification of invoice
In
view of the direction of Bangladesh Bank it appears that the certified invoice
i necessary but the circular does not suggest that the certification of the
invoice has to b obtained by the exporter. The importer ha ing not submitted
the original invoice along with the Bill of Entry, the question of certifying
the original invoice by Respondent No. does not arise. The Court, in the
circumstances, cannot direct Respondent No. 3 certify the original invoice as
prayed for I the petitioner—Constitution of Bangladesh 1972, Article—102.
PKS Limited,
represented by M Ramesh Chandra Saha Vs. Chairman, National Board of Revenue
and others, 17 BL (HCD) 321.
Customs matter
Section
32(2) of the Customs Act require that before any demand is made from any pc son
on account of any short-levy of custom the person liable to pay any amount on
th account shall be served with a notice before making any such demand. Making
a demine straight way without serving the statutory notice is not contemplated
by law—Custom Act, 1969 (IV of 1969), Section—32(2).
Rahima Food
Corporation Ltd. V Deputy Collector of Customs and others, 17 BLD (HCD) 503.
Customs
matter
The
customs authority acts illegally in making the payment of the alleged short-
levied customs duty a condition precedent for renewal of the licence of a
bonded warehouse, one not being connected with the other— Customs Act, 1969 (IV
of 1969), Section— 86.
Rahima Food
Corporation Ltd. Vs. Deputy Collector of Customs and others, 17 BLD (HCD) 503
Customs
matter
Since
the notification was issued as per the decision of high powered committee which
considered the matter according to the provisions of sections 25, 30 and 30A of
the Act, the Court held that the impugned notification or the law itself, that
is, section 25(7) of the Act cannot be declared ultra vires or to have been
made and passed without any lawful authority. So, the tariff value fixed by the
impugned notification has been done in accordance with law and as such the High
Court Division does not find any reason to interfere with the impugned
notification issued by the respondents—Customs Act, 1969 (IV of 1969),
Section—25, 30 and 30A.
Mostafa
Kamal Vs. Commissioner of Customs and others, 18 BLD (HCD) 301.
Customs
matter
After
scrutiny of section 82 of the Act it appears that the customs authority has
rightly and lawfully sold the goods in auction as the goods did not lawfully
enter into Bangladesh and remained unclaimed and uncleared in customs station
beyond the specified period. From the statement of respondent Nos. 1 to 3 and 4
it is clearly found that the said goods entered into Bangladesh without any
valid documents. The petitioner also could not show before the Court as to
under what authority of law the goods have been brought into Bangladesh. The
petitioner having admitted that the goods in question were brought into
Bangladesh without any lawful and valid documents, the High Court Division held
that there is nothing to interfere in the matter—Customs Act, 1969 (IV of
1969), Section—82..
Mian Ahmed
Kibria Vs. Govt. of Bangladesh and ors., 18 BLD (HCD) 459.
Customs
matter—Bank Guarantee
Ends
of justice will be sufficiently met if the impugned order is modified by substituting
the personal guarantee with bank guarantee. The writ-petitioner will have to
furnish bank guarantee for the whole amount of the difference if it wants to
clear the goods in- terms of the interim order on payment of duty at the rate
of 7.5%.
Commissioner
of Customs, Mongla Custom House, Khulna and ors. Vs. SARC Enterprise, 19 BLD (AD)
221.
Customs
matter
Government
having the power to determine the normal price of a car of Japanese origin
could for the purpose rely on the “Yellow Book” and “Silver Book” which are
authentic books published by an organisation in Japan recognized by the
government of Japan—Constitution of Bangladesh, 1972, Article—102, Customs Act,
1969 (IV of 1969), Section—25.
Moqbul
Hossain Vs. Chittagong Port Authorities & ors., 19 BLD (HCD) 512.
Customs
matter
From
a reading of section 194 of the Customs Act it appears that the appellate
authority in an appropriate case is quite competent to dispense with the
deposit of the amount as against the demand thereof the aggrieved person went
to appeal Customs Act, 1969 (IV of 1969), Section—194.
M/S. Delicia
Dairy Food Ltd. Vs. The Collector of Customs and others, 19 BLD (HCD) 396.
Customs
matter
In
terms of section 196B of the Customs Act, 1969, the Government could, on its
own, call for and examine the records of the proceedings relating to such
orders as passed by the member NBR but such calling and examining of record.
must confine to the records which were before the member NBR, the appellate
authority—Customs Act, 1969 (IV of 1969), Section—196B.
M/S Amora
Holding mc, Panama, Singapore Vs. Bangladesh represented by the Secretary IRD
and others, 19 BLD (HCD) 14.
Customs
matter
No
step had been taken by the petitioner either before the review committee or
before the appellate tribunal to bring the papers for their consideration and
the tribunal had exercised its discretionary power as contemplated under
sub-section (3) of section 193C of the Act as fairly and reasonably and not
arbitrarily the justiciability of the decision cannot he questioned under the
process of judicial review as the tribunal has not acted outside its
jurisdiction and there is no any justification to remand the case to the
appellate tribunal again for reconsideration as to the valuation of the goods
in question—Customs Act, 1969 (IV of 1969), Section—193C(3).
M/S. Sharif &
Brothers V The Commissioner of Customs & ors,20 BLD (HCD) 495.
Customs
matter
Sub-section
(1) and (2) of section 25 of the Act authorize the department to assess normal
price of the goods! import in question in the Rule considering the contemporary
commercial price of the goods at the place of origin with notice to the
importer or agent to produce any document or paper in support of their invoice
value, which shall be the basis for ascertainment of the normal price in the
event of cancellation of the CRF certificate—Customs Act, 1969 (IV of 1969),
Section— 25(1)(2)
Alhaj Nazir
Ahmed Vs. the National Board of Revenue and others, 21 BLD (HCD) 59.
Customs
matter
Section
25(1) of Customs Act recognises and accepts the view that the price of imported
goods should be fixed at the normal value vis-à-vis the market value. Nowhere
does it provide for indicative value, as the basis for imposition of customs
duty— Customs Act, 1969 (IV of 1969), Section— 25(1) and 30.
Sew Bihar
Prasad v. The Collector of Customs, Chittagong and others, 21 BLD (HCD) 556.
Customs
matter
There
is no provision of inflicting personal fine under the Customs Act by the
Commissioner of Customs relating to transaction. No offence was committed by
the appellant under section 32 of the Customs Act and the punishment imposed
pursuant to section 156 (1) (14) was liable to be set- aside. The Commissioner
of Customs was directed to deliver the goods to the appellant for
re-exportation of the same to the supplier company—Customs Act, 1969 (IV of
1969), Sections—32, 156 (1) (14), 138.
Govt. of
Bangladesh v. Mr. Hossain, Proprietor of National Bag Traders, 22 BLD (AD) 233.
Customs
matter
The
Commissioner of Customs alone can suspend the license, and there is no
requirement for serving a prior notice thereto— Customs Act 1969 (IV of 1969),
Section— 13(2)(b) and 13(3)
Sarwar
Garments Ltd. v. Chairman, National Board of Revenue and others, 22 BLD (HCD)
96.
Customs
matter
The
power to change or vary an exemption of customs duties includes withdrawal of
an exemption, within the ceiling specified in the First Schedule—Customs Act
1969 (IV of 1969), Section—18, 19, 30 and 30A.
Haji Md.
Selim v. Collector of Customs and others, 22 BLD (HCD) 279.
Customs
matter
The
imposition of a fine by the Commissioner of Customs without a conviction by a
Magistrate for the alleged offence committed under section 32 is without
jurisdiction. An option to pay fine in lieu of confiscation of goods is to be
given before such confiscation—Customs Act 1969 (IV of 1969), Section—32,
156(1)(14) and 181(1)
Mr. Hossain,
proprietor, the National Bag Traders v. The Customs, Excise and VAT Appellate
Tribunal and others, 22 BLD (HCD) 413
Customs
matter
For
illegal removal of goods from a bonded warehouse, Customs officials can realise
customs duty and other charges along with penalties under section 111, and do
not authorise any Customs official to cancel a bonded warehouse—Customs Act
1969 (IV of 1969), Section—111.
Sarwar Garments
Ltd. v. Chairman, National Board of Revenue and others, 22 BLD (HCD) 96.