The Dhaka Dyeing and Manufacturing Co. Ltd. (Appellant)
Agrani Bank (Respondent)
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
May 29, 1989.
he Contract Act 1872 (IX of 1872), section 171
The Code of Civil Procedure 1908 (V of 1908) Order XLI, rule 23
It is well-settled that the Court will not decide a point especially in the interlocutory matter which will not advance cause of justice. It will merely delay the process of coming to a conclusion as to claim and counter-claim which can only be thrashed out in the pending suits which are directed to be disposed of expeditiously…………………………(7)
Asrarul Hussain, Senior Advocate instructed by Md. Wahidullah, Advocate-on-Record.—For the Appellant.
M. Nurullah, Senior Advocate (Mozammal Hoq Bhuiyan, Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record.—For the Respondent.
Civil Appeal No. 60 of 1986.
(From the judgment and order dated 8th May, 1986 passed by the High Court Division, Dhaka in Appeal from Original Order No. 18 of 1986 with Civil Rule No. 55 (FM) of 1985).
Badrul Haider Chowdhury J.-Leave was granted to consider the question whether the High Court Division was correct in holding that a pass book issued by the C.C.I.E. for opening the letter of credit is a security and whether the Banker has got lien over such security.
2. There is a claim and counter-claim between the petitioner and the Agrani Bank. Petitioner filed a suit claiming a sum of Tk. 75,55,020.28 paisa after adjustment. The defendant Bank also filed a money suit for realization of Tk. 94,64,543.32 paisa. The suits are pending. The plaintiff-petitioner filed an application for mandatory injunction for return of the pass book deposited with the defendant bank. The trial Court allowed the application for mandatory injunction in modified form and directed the Bank to return the pass book either to the C.C.I.E. or to the nominated bank of the appellant.
3. On appeal, the High Court Division set aside the order of the Commercial Court and directed the petitioner to furnish security to the extent of the claim of the bank whereupon the defendant bank is to return the import pass book either to the C.C.I.E. or to the nominated bank of the petitioner.
4. Mr. Asrarul Hossain, the learned counsel appearing for the appellant, contended that the import pass book issued by the C.C.I.E. could not be a security for the purpose of banker’s general lien within the meaning of section 171 of the Contract Act because it is neither transferable nor saleable nor the same is a goods under the Sale of Goods Act.
5. Mr. M. Nurullah, the learned counsel appearing for the respondent, pointed out that the matter has arisen out of an interlocutory matter, namely, whether the mandatory injunction should be issued for return of the pass book. The learned counsel contended that the moot question is pending for consideration in the two suits that has been filed by the Appellant and the Respondent claiming and counter-claiming their dues after adjustment. The learned counsel contended that if the contention of the appellant that the pass book has no value or saleable interest nor it is a security then why he is so anxious for obtaining a mandatory injunction. It is a self-defeating argument that has been advanced by the appellant. Mr. M. Nurullah suggested that instead of deciding this interlocutory matter arising out of a pending suit the safe course would be if the suits themselves are expedited and disposed at an early date thereby putting an end to the controversy which arose in interlocutory matter.
6. Mr. Asrarul Hossain also accepted the proposition that the best course will be for quick disposal of the suits which are pending.
7. It is well-settled that the Court will not decide a point especially in the interlocutory matter which will not advance cause of justice. It will merely delay the process of coming to a conclusion as to claim and counter-claim which can only be thrashed out in the pending suits. Accordingly, we dispose of this appeal by a direction. Since the suits are pending since 1985 in the trial Court and those are listed for peremptory hearing, ends of justice would be met sufficiently if the suits are expedited and disposed of. Accordingly we direct, this being a financial matter involving adjustments, the two suits being Title Suit No. 240 of 1985 and Title Suit No.290 of 1985 pending in the 1st Commercial Court, Dhaka be tried and disposed of by 30th November, 1989.
8. With the above observations, this appeal is disposed of without any order as to costs.
Source: 42 DLR (AD) (1990) 60