Md. Ruhul Amin J
KM Hasan J
Md. Fazlul Haque J
January 5, 2003.
Rafique-ul-Huq, Senior Advocate (Kamrul Huda, Advocate with him) Instructed by Mvi Md. Wahidullah, Advocate-on-Record-For the appellant.
Not represented– the Respondent.
Civil Appeal No. 01 of 1998
(From Judgment and order dated 4.9.1994 passed by the High Court division in First Appeal No. 68 of 1998).
Md. Fazlul Haque J.- This appeal by leave is against the judgment and order dated 4.9.1994 passed by the Division Bench of the High Court Division in First Appeal No. 68 of 1998 allowing the appeal in part.
2. The respondent as plaintiff filed Title Suit No. 365 of 1984 in the 2nd Commercial Court, Dhaka for decree for delivery of imported goods or price of the goods amounting to Tk. 4, 81,516.00. mesne profit of Tk. 1,00,000.00 and damages of Tk. 1,80,000.00 totaling Tk. 7,61,516.00 upon allegations, inter alia, that he carries on bossiness in the firm names, M/S A. Salam and brothers, and M/S Bengal Commercial Traders. He imported 17 cases of diesel engine, spare parts from California, 9 cases from New York and 3 cases from London by opening L/Cs through the defendant appellant bank namely, Janata Bank (hereinafter referred as to the said Bank). The bank had cleared the said consignments by opening loan against import, LIM account Nos. 624, 643 and 654 respectively and kept the goods in the godown at Shabistan Cinema Building at Armanitola. The plaintiff took part delivery of the said imported goods from time to time upon payment against total outstanding dues of the above LIM accounts that subsequently the bank had to remove the goods to its central godown at 53, Motifjheel Commercial Area, Dhaka; when the plaintiff went to bank’s central godown on 29.9.73 to take delivery of one case of goods, he found that three cases are broken. The plaintiff reported the matter to the bank and a joint survey was held on 12.12.73 and it was found that the cases are under tampered condition. The bank by its letter dated 14.2.74 denied pilferage from its godown, and refused to deliver the goods till clearance of entire dues of LIM accounts and by legal notice dated 22.5.76 demanded payment of the outstanding dues. Present market value of the undelivered goods would be Tk. 4,81,516.00 and the appellant bank is liable to deliver the said goods or its price thereof. The appellant bank is further liable to pay the plaintiff-respondent Tk. 1,80,000.00 as damages as he could not utilize his import license for 16 import periods because of refusal by the defendant-appellant bank to supply L/C authorization. The plaintiff respondent claimed that he is further entitled to get mesne profit which he assessed at Tk. 1,00,000.00 on account of illegal detention of the imported goods by the appellant bank and hence the suit.
3. The defendant appellant bank contested the said suit by filling written statement denying the plaint allegations and contended, inter-alia, that there is no cause of action for filling the suit, that the suit is barred by limitation as well as by the principles of waiver, estoppels and acquiescence and that the suit is not maintainable in its present form and manner. The plaintiff imported 57 and not 29 cases of engines and spares parts. The plaintiff imported failed to clear the goods on their arrival at the port. The appellant bank had to clear the same by opening LIM accounts. The validity of LIM account is only 45 days and the total liabilities against the defendants on different LIM accounts stood at Tk. 16,23,000.94 as on 30.9.82. The plaintiff had taken delivery of almost all cases of engines and spares parts and that only a few cases were lying in the bank’s godown with engines and spare parts. The bank requested the plaintiff respondent time and again to take delivery of the remaining goods upon settlement of the bank’s dues but the respondent did not comply with the request of the appellant bank. The bank had no liability whatsoever, regarding the alleged pilferage and denied missing of the goods from its godown. The defendant bank contended that the claim of the plaintiff respondent for the delivery of the goods after about 10 years is not maintainable and the appellant bank had no responsibility to deliver the same. Further the plaintiff-respondent cannot claim the delivery of the goods without first clearing the outstanding dues. The appellant bank also contended that the suit has been filed only to defer the payment of the legitimate dues of the bank and the suit is liable to be dismissed.
4. The plaintiff examined himself as P.W.1 and the defendant-appellant bank examined one of its officers as D.W.1. After considering the pleadings and evidence on record the learned Subordinate Judge and commercial Court No. 2, Dhaka was pleased to dismiss the suit without any order as to costs by its judgment and decree dated 27.8.1987.
5. The plaintiff being aggrieved by the judgment and decree dated 27.8.1987 preferred an appeal being First Appeal No. 68 of 1998 in the High Court Division. The High Court Division by its judgment and decree dated 4.9.94 allowed the appeal in part and decreed the suit for Tk.3, 60,538.92 only.
6. Against the said judgment and decree dated 4.9.94 leave was granted on 2711.96 in the following terms:
“Mr. Rafique-ul-Huq, The learned Advocate appearing for the defendant bank petitioner submits that the plaintiff is not entitled to any decree as claimed by him without first clearing the goods in question or at least without first offering the outstanding dues against the LIM accounts and the High Court Division has committed gross illegality in awarding compensation for the said goods and/or the price of the goods.”
“He next submits that in the facts and circumstances of the case, the High Court Division erred in law in giving decree for Tk. 3,60,538.00 as price for the goods not delivered by the bank, though the plaintiff did not make any payment for the goods in question.”
“He further contends that the learned judges of the High Court Division wrongly held that the suit is not barred by limitation as their leaderships held that Article 120 of the Limitation Act is applicable in the instant case and the period of limitation is six years from the date when the right to sue accrues.”
“Lastly he submits that the learned Judges of the High court Division wrongly held that the filing of the written statement by the defendant denying the plaintiff’s claim is to be accepted as the cause of action of the suit which is contrary to law.”
7. Mr. Rafique-ul-Huq, the learned Advocate submits that the plaintiff did not make any payment at all for the goods in question. The plaintiff in fact, did not file any papers to show that he had paid for the goods in question. The learned Advocate submits that the LIM accounts for the goods were opened without depositing any margin in the LIM accounts. Therefore, the plaintiff did not acquire any right and title over the goods. The plaintiff was a mere assignee of the goods and goods remained with the Bank. The High Court Division, therefore, committed error of law in giving decree for Tk. 3,60,538.92 as price for the goods in favour of the plaintiff respondent.
8. We have considered the pleading as well as the evidence on record and we do not find any evidence on record to show that the plaintiff had ever paid any money either at the time of opening of LIM accounts and/or at the time of demanding for delivery of the goods. Therefore, we find merits in the submissions of the learned advocate appearing for the defendant bank. The plaintiff did not acquire any ownership, title and/or right over the goods in question.
9. The learned advocate further submits that the suit as framed is of conversation of the goods of the plaintiff. The plaintiff’s prayers in paragraph “B” are that “pass a decree in favour of the plaintiff and against the defendant for manse profits with interest therein @ 15% per annum for the goods detained mentioned in schedule “D” below after calculation of the same by the Court itself or in the alternative pass a preliminary decree for mesne profits with interest there on @ 15% per annum for the detention of the goods as mentioned in schedule “D” below in favour of the plaintiff and against the defendant and in case of preliminary decree an Advocate Commissioner may be appointed to assess the mesne profits for the goods as mentioned in schedule “D” in accordance with law and after submitting the report by the Advocate Commissioner final decree to that effect may be passed in favour of the plaintiff and against the defendant or in the alternative pass a decree for damages for the amount assessed in favour of the plaintiff and against the defendant”.
10. After referring the prayer in paragraph ‘B’ of the plant Mr. R. Huq submits that the plaintiff has made out a case of detention and conversion of the goods, accordingly Article 48 would govern the instant suit; Article 120 of the Limitation Act has no manner of application in the present case. Article 48 of the limitation Act may be quoted as under:
|Description of suit||Period of limitation||Time from which period begins to run|
|For specific move-able property lost or acquired by theft, or dishonest misappropriation or conversion or for compensation for wrongfully taking or detaining the same.||Three years||When the person having the right to the possession of the property first learns in whose possession it is.|
11. Mr. R. Huq further submits that as back as on 14.2.1974 the defendant bank clearly stated in reply to the plaintiff’s letter dated 29-12.73 that the defendant bank would not allow any part delivery until settlement of LIM accounts are made (vide Exhibit-10).
12. Relevant portion of Exhibit-10 is quoted as under for the purpose of limitation “please note that we have been instructed by our Head Office not to allow you any part delivery until final settlement of the Lira dues. Kindly acknowledge receipts.”
13. Mr. Rafique-ul-Huq, Submits that the bank refused to allow any part delivery until final settlement of LIM accounts were made by the plaintiff. Therefore, if there is any detention of goods it arose in 14.2.74 when the defendant bank refused to allow part delivery until final settlement of LIM Accounts dues. From reading of prayer as contains in paragraph B of the plaint, as well as Exhibit-10 a letter dated 14.2.74 written by the bank we are of the view that this case is governed by Article 48 of the Limitation Act inasmuch as the plaintiff was entitled to get three years time from 14.2.74 to file this suit for necessary relief in the matter. The High Court Division after considering Article 48 of the Limitation Act and Exhibit-10 (letter dated 14.2.74) has held that Article 120 of the Limitation Act would be the article for the purpose of limitation of this suit and the cause of action has been shown to have arisen from the date of filing of the written statement. In fact, the High Court Division has wrongly held that the cause of action for the suit arose on that date when the written statement of the defendant bank was accepted. Mr. Rafique-ul-Huq further submits that this is contrary to law; Exhibit-10 clearly demonstrates that the defendant bank refused to give delivery of the goods in part as back as on 14. 2.74. Therefore, cause of action, in fact, arose on 14.2.1974. The plaintiff has not denied Exhibit-10, a letter written by the defendant bank, who refuse to give delivery of the goods by Exhibit-10 (letter dated 14. 2.74).
14. In view of aforesaid facts and circumstances of the case and the evidence on record we are inclined to hold that the High Court Division wrongly held that the cause of action for the suit arose only on filing of the written statement by the defendant bank denying the plaintiffs claim. The cause of action, if any for the suit, arose on refusal by the defendant bank on 14. 2.1974 to give delivery of the goods in part unless the outstanding dues in the aforesaid (LTM) accounts were settled. Therefore, we are of the view that the High Court Division has committed an error of law in not holding that the suit is clearly barred by limitation and the High Court Division ought not to have decreed the suit in part. We find merits in the appeal.
Accordingly, the appeal is allowed without any order as to costs and the impugned judgment and decree dated 4.9.94 passed by the High Court Division in F. A. No. 68 of 1988 is hereby set aside and the suit is dismissed.
Source : 1 ADC (2004) 406