Government of Bangladesh Vs. Kothari Fermentation and Biochem Ldt. (Krishna Debnath, J.)

HIGH COURT DIVISION

(Civil Appellate Jurisdiction)

Arbitration Act (I of 2001)

Section 33

The defendant petitioner at the time of filing of the written objection under section 33 of the Arbitration Act, did not make any deposit which made the application a nullity in the eye of law. The application filed today seeking permission to furnish the security during the pendency of appeals is barred by section 33 of the Arbitration Act. The language used in section 33 of the Act is mandatory in nature.                                           ..(4-5)

Limitation Act (IX of 1908)

Article 158

The written  objection was filed by the appellant on 25.08.2005 after receiving the notice on 17.02.2005 which is barred by limitation accord-ing to Article 158 of the Limitation Act. The Arbitration Act is a special law, it is to be treated as mandatory as a result of which the time limit of 30 days cannot be extended.                                      …(6)

Bangladesh Water Development Board and others vs. Progati Prakaushali and another, 49 DLR-335, Bangladesh Water Development Board vs. Nasim and brothers and another, 1988 BLD-369, Rajdh-ani Unnayan Kartripakkha (RAJUK) vs. MN Alam and Associates Ltd. and another, 54- DLR-161 and Dhaka Leather Complex Ltd. BCIC vs. Sikder Construction Ltd. and another, 55 DLR-578;55 DLR-578 ref.

Judgment

Krishna Debnath, J.

        Appeals from Original Decree No. 131 of 2011, Appeal From Original Order No. 133 of 2011, Appeal From Original Order No. 134 of 2011 and Appeal From Original Decree No. 127 of 2011, directed against judgment and decree dated 28.3.2007 passed by the learned Joint District Judge, First Court, Dhaka in Arbitration Miscellaneous Case No. 16 of 2005 heard analogously with Arbitration Miscellaneous Case No. 77 of 2005. It appears from the office note dated 11.5.2011 that in tendering the appeals there was delay of 129 days and it appears that the delay of 129 days was condoned subject to payment of Tk. 50% of the decreetal amount, but we do not find from the order books of the appeals such payment was made as such appeals are incompetent.

1. 2.           The facts relating for disposal of these appeals are that, Ministry of Food as buyer and Kothari Fermentation and Biochem ltd. as seller entered into contract No.BG-13/95 dated 6.4.1995 for buying/selling 20,000 metric tons of parboiled rice at the rate of US $ 259.98 per metric ton. The contract was fully performed by the seller and claimed U.S $ 4,74,814.09 but there was dispute for short supply of the consignment and dispute referred to the 2(two) Arbitrators on 17.7.2003 and arbitration proceeding was started from 23.7.2003. Before the arbitrators the seller claimed U.S. $ 4,74,814.09 from the buyer. The buyer also raised a counter claim of U.S. $ 78,486.59. Learned Arbitrators passed unanimous award on 12.09.2004 allowing seller’s claim amounting to U.S. $ 1,52,566.60 at the rate of Tk. 36/- per dollar. The award was submitted to the Joint District Judge, 1st Court, Dhaka on 15.1.2005. It was registered as Title Suit No. 18 of 2005. The Ministry received the court’s notice on 17.2.2005 but filed written statement and written objection on 25.8.2005 under section 30 and 33 of the Arbitration Act, 1940. Ministry also filed Arbitration Miscellaneous Case No. 79 of 2005 on 28.8.2005. The cases were heard analogously and judgment was passed on 28.7.2007 against which the appeals are filed.
2. 3.           When it was noticed to the learned Deputy Attorney General whether appellant filed any security as per proviso of section 33 of the Arbitration Act, Mr. S.S. Sarker, learned Deputy Attorney General, to-day filed application for allowing the appellant to file security as per satisfaction of the Court. On a perusal of the application we do not find any security attached with the application, thus this application merely an application for seeking permission of the Court for furnishing security as per satisfaction of the Court, which in any way, does not satisfy the proviso of Section 33 of the Arbitration Act. Section 33 of the Arbitration Act is as follows:

33. Arbitration agreement or award to be contested by application-Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits;

Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit;

Provided that no application challenging the existence or validity of an award or for having its effect determined shall be entertained by the Court unless the applicant has deposited in the Court the amount which he is required to pay under the award or has furnished security to the satisfaction of the Court for the payment of such sum or for the fulfillment of any other obligation by him under the award.”

1. 4.           From the decisions, i.e. the case of Banglad-esh Water Development Board and others vs. Progati Prakaushali and another, 49 DLR-335, Bangladesh Water Development Board vs. Nasim and brothers and another, 1988 BLD-369, Rajdh-ani Unnayan Kartripakkha (RAJUK) vs. MN Alam and Associates Ltd. and another, 54- DLR-161 and case of Dhaka Leather Complex Ltd. BCIC vs. Sikder Construction Ltd. and another, 55 DLR-578. it has been held that ‘deposit contem-plated under the law is a condition precedent for entertainment of the application challenging the award and without deposit it is to be construed that there was no application in the eye of law and also deposit made during the pendency of the case cannot be treated a valid deposit as the language of the law is mandatory and not directory and, as such, the application filed by the defendant-petitioner before the trial Court is non-existent in the eye of law and,  as such, we find that the learned Subordinate Judge rightly rejected the written objection.’ In the instant case the defendant -petitioner at the time of filing of the written objection, which was filed under section 33 of the Arbitration Act, did not make any deposit as was required under section 33 of the Arbitration Act and that rendered the application under section 33 of the Arbitration Act a nullity in the eye of law for non-compliance of the proviso to section 33 of the said Act and the learned Subordinate Judge rightly took the view that non-compliance of the proviso to section 33 of the said Act rendered the said written objection under section 33 of the Arbitration Act as non existent in the eye of law.’
2. 5.           It also an admitted position that at any point of time during entire proceeding appellant did not furnish any security but when it was confronted by this Court, to day appellant filed application seeking permission to furnish the security but even if deposit made during the pendency of the appeals cannot be treated as valid deposit as the language of the law is mandatory and not directory. The application filed to-day is clearly barred as per provision of section 33 of the Arbitration Act. Wherein the law is that the security is to be deposited or any body challenged the award then also it accompanied by security. In the decision reported in 55 DLR-578 a Division Bench of this Court held that unless the security be paid Court has no jurisdiction to entertain any claim of the objector or the person who challenge the award.
3. 6.         
   

   Nazir Ahmed and others Vs. Md. Fajal Ahmed and others. (Nozrul Islam Chowdhury, J.)

   It also appears from the facts that written objection was filed by the appellant on 25.8.2005, after receiving of notice on 17.2.2005, which is barred as per provision of Article 158 of the Limitation Act as when provision of Limitation Act apply in Special Law it is to be treated as mandatory and in no imagination the time limit prescribed i.e. 30 days can not be extended following the exempted provisions of law of limitation. In this Subcontinent all the Courts speaks Arbitration Act is special law, it cannot condone even one day if written objection filed out of time. Written statement having filed beyond time, as such, as per provision of article 158 of the Limitation Act trial Court ought to reject the objection in limine.

1. 7.          Since there is no security filed by the appellant we find appeals are incompetent. Moreover, we have seen that Appeal from Original Decree No. 127 and 131 of 2011 were filed which itself are not maintainable as Arbitration proceedings ends in by delivering after without any decree. It is to be noted here that learned Arbitrators as well as the court which make award rule of the court directed for payment of the awarded sum in U.S.$ as such appellants are directed to pay the awarded sum in U.S. $.
2. 8.          In the result, all the appeals i.e. First Appeal No. 131 of 2011 with F.M.A. No. 133 of 2011 with F.M.A. No. 134 of 2011 with F.A. No. 127 of 2011 are dismissed. No costs.

        Send down the lower Court records at once.

Ed.

HIGH COURT DIVISION

(Civil Appellate Jurisdiction)

Public Demands Recovery Act (III of 1913)

Sections 3(3), 22 and 23

Evidence Act (I of 1872)

Section 80

An application filed by Sachindra Chandra Mohantha and two others for setting aside of certificate sale took place in a certificate case under section 23(2) of the Public Demands Recovery Act. The certified copies were issued as back as on 9.4.1974 long before the institution of the instant suit in the year 1997 which clearly shows that it was owing to non service of notice upon Sachin Chandra Mohantha the auction sale was set aside by the Certificate Officer. Such copies are genuine documents evidencing the official act cancelling the auction sale held in Certificate Case No. 188/64-65. Since a presump-tion of genuineness of such cancellation is available under section 80 of the Evidence Act and such presumtion having not been rebutted by the plaintiffs, it can safely be arrived at a finding that the auction sale in favour of Taheruddin was set aside in a regular proceeding and after setting aside the auction sale, the subsequent transfer from Taheruddin onwards upto the plaintiff have been rendered invalid and hence the plaintiffs are not entitled to get a declaration of their title.

We feel inclined to take notice of two Exts. marked as Exts. Ka and Kha certified copies of the order sheet of Miscellaneous Case dated 13.02.74 passed in Miscellaneous Case No. 2/73-74 and the application for setting aside sale wherefrom it is evident that Sachin Chandra Mohantha and others were the applicants while Taheruddin was the opposite party. These certified copies were issued as back as on 09.04.74 long before the institution of the instant suit in the year 1997 which clearly shows