Appellate Division Cases
(CIVIL)
PARTIES:
The University of Dhaka rep- resented by its Vice karimJ Chancellor …………………………………….Appellant
=vs=
Associated Engineering and Drillers represented by its Managing Director Mr. Md. Akhtar Hossain. 9 K Motijheel C/A. Dhaka ……………………………………Respondents
JUSTICE:
K.M. Hasan C.J
Mohammad Fazlul Karim J
Md. Hamidul Haque J
JUDGEMENT DATE: 20th August 2003.
Section 151 of the Code of Civil Procedure providing inherent power of the Court read with section 153 of the Code of Civil Procedure provides general power to amend given to the Court at any time to amend any defect or error in any proceeding of the suit and for determining the real question or issue raised or depending on such proceeding.section 33 of the Arbitration Act, 1940.
Civil Appeal No. 114 of 2002 (From the judgment and order dated 22nd April 2001 passed by the Hish Court Division in Civil Revision No. 1595 of 2000).
Dr. Md. Zahii; Senior Advocate, (Mr. Md. Ozair Farooq. Senior Advocate with him) instructed by Md. Nawab AH, Advocate-on-Record…For the Appellant .
Rafiqne-Ul-Hitq, Senior Advocate, instructed bx Mvi, Md. Wahiiillah, Advocate-on-• Record. For the Respondent
JUDGMENT
1. Mohammad Fazlul Karim, J. This appeal by leave is against the judgment and order dated 22.04.2001 passed by a Division Bench of the High Court Division discharging the rule in Civil Revision No. 1595 of 2000 filed by the appellant against order No. 12 dated 23.11.1999 passed by the Court of Subordinate Judge and Commercial Court No. 2. Dhaka in Title Execution Case No. 2 of 1998 allowing amendment of the execution application by way of inserting Tk. 38,25,141.53/towards interests and costs.
2. This appeal arose out of the suit for a decree of a bill of Tk. 1,37,68,309,47 filed on the averments, inter alia, that the appellant floated a tender in 1978 for construction of Swimming Pool and Gymnasium and the respondent participated in the said tender and its tender was accepted by the appellant as responsive. Accordingly, an agreement was entered into between the appellant and the respondent followed by issuance of an work order, The respondent accordingly started construction and also received payment. Ultimately the respondent submitted a bill of Tk. 1,37,66,309.47 which was disputed by the appellant. Thereafter the respondent as plaintiff filed Title Suit No. 136 of 1992 in the Court of Subordinate Judge and Commercial Court No. 2 Dhaka for appropriate relies. In that suit, learned Subordinate Judge and Commercial Court No. 2. Dhaka referred the dispute to two Arbitrators and the Arbitrators so appointed by the Court gave an Award on 12.8.1997 for a sum of Tk. 1, 37, 66,309.44 with 16% interest per annum till payment of the awarded amount. That the appellant by filing an application under section 33 of the Arbitration Act. 1940 challenged the award in the said Title Suit No. 136 of 1992 before the Subordinate Judae and Commercial Court No. 2 Dhaka by deposition a Bank guarantee amounting to Tk. 1.37,66.310.00. i. E. the awarded amount as provided under section 33 of the Arbitration Act. 1940. That the learned Subordinate Judge and Commercial Court No. 2, Dhaka upon deposit of the Bank guarantee heard the matter and made the award a rule of the Court upon passing a judgment and decree against the defendant appellant -Dhaka University on 8.3.1998. Being aggrieved by and dissatisfied with the judgment and decree dated 8.3.1998, the appellant preferred First Miscellaneous Appeal No. 61 of 1998 beford the High Court Division with a fresh Bank Guarantee for the awarded amount. That the High Court Division dismissed the said First Miscellaneous Appeal and consequently discharged Civil Rule No. 143 (Fm) of 1998 by its judgment and order dated 28.4.1999. That “thereafter the appellant filed Civil Petition for Leave to Appeal No.619 of 1999 against the judgment and order dated 28.4.1999 but the same was dismissed on 30.6.1999. The appellant -Dhaka University paid the entire awarded amount of Tk. 1.37.66,309.00 on 26.08.1998 by cheque. That the trial Court made the award a rule of the Court on 8.3.1998 which was contested by the appellant -Dhaka University by depositing the awarded amount in the form of Bank guarantee and the matter got its finality on 30.6.1999 when the leave petition was dismissed by the Appellate Division of the Supreme Court of Bangladesh and during those period the awarded money was secured and covered by deposit of the Bank guarantee and on 26.08.1999 the entire awarded money was paid to the decree-holderrespondent by cheque. That the dccree-holderrespondent filed Title Execution Case No. 2 of 1998 on 20.4.1998 in the Court of Subordinate Judge and Commercial Court No.2 Dhaka for execution of the decree dated 8.3.1998 passed in Title Suit No. 136 of 1992. The said decree having been affirmed upto the Appellate Division, was fully satisfied by the judgment -debtor-appellant-Dhaka University on 26.8.1999 upon payment of the entire decretal amount and as such the execution case reached its finality and hence became infructuous and the executing Court became functus officio as nothing was left to be done thereafter by the executing Court.
3. That thereafter decree-holder-respondent filed an application on 12.09.1999 under order 6 rule 17 of the Code of Civil Procedure in the said execution case praying for amendment of the petition of the said Title Execution Case No. 2 of 1998 by addition of an additional amount of Tk. 38,24,961.53 as interest for the period from 1.12.1997 to 26.8.1999 on the awarded amount of Tk. 137,66, 310.00 at 16% rate of interest. That the judgment-debtor-appellant filed written objection against the said amendment application dated 12.9.1999 stating inter alia, that the judgmentdebtor-appellant on 10.2.1998 furnished Bank guarantee No. 1 of 1998 for an amount Tk. 1,37,66,310.00 in the Court against the award at the time of filing application under section 33 of the Arbitration Act.. Thereafter at the time of filing of the First Miscellaneous Appeal No. 61 of 1998 the appellant ageing furnished Bank Guarantee No. 2 of 1998 dated 27.5.1998 for the said amount and as such during the period from 10.2.1998 to 26.8.1999 the awarded amount was with the Bank as Bank Guarantee and as such the judgment -debtor-appellant is not liable for the payment of additional amount as claimed by the decree-holder-respondent for the period of tendency of the suit, the Miscellaneous Appeal and the Leave Petition.
4. That the learned Subordinate Judge and Commercial Court No.2. Dhaka heard the said application for amendment and by order No. 12 dated 23. 11. 1999 allowed the said application for amendment of the petition of the Title Execution Case No 2 of 1998 inspire of objection by the judgment -debtor-appellant filing an application in the said Titl Execution Case No. 2 of 1998 praying for rejection of the claim of additional amount as interest as allowed by the said order dated 23. 11.1999.
5. Leave was granted to consider the submission of the learned Counsel for the appellant that: “Dr. M. Zahir. learned Counsel for the petitioner submits that even if the money was to be paid by 10.04.1998 i.e. within 30- days of decree dated 10.03.1998, the simple interest @ 16% on Tk. 1,37.66.309/- from 10.3.1998 to 26.8.1999 when the decreetal amount was paid will be Tk. 30,28.586/- and not tk. 38,24.961/. He also submits that the decree dated 10.3.1998 not having mentioned the additional sum of Tk. 38..24.961/- or even referred to the same by implication, the decree holder cannot amend the execution petition without amending the decree; for the reason that the executing court cannot go beyond the decree inasmuch as the simple interest on Tk. 1,37,66,309/- from 10.4.1998 to 26.8.1998 @ 16% is Tk. 30,28,586/- and not Tk. 38,24,961/as prayed for in the petition for amendment of the execution petition and allowed by the Court. He lastly submits that the trial Court had no jurisdiction to amend the petition for execution as law does not provide for such amendment.”
6. Dr. M. Zahir, the learned Counsel appearing for the appellant supporting the grounds submitted that the executing Court has no power or jurisdiction to permit the amendment of an application under Order 21 Rule 11 CPC after the same has been registered and the initial claim was satisfied, the learned Counsel Further Submitted that even if the money was not paid by 10.4.98 i. e. within 30 days of the decree dated 10.3.98, the simple interest @ 16% p.a. on Tk. 1.37,6,309 from 10.4.98 to 26.8.99 when the decreetal amount was paid, would be Tk. 30,35.312 and not Tk 38,24,961.
7. Mr. Rafuque-Ui Hue, the learned Counsel appearing for the respondent submitted that in view of the award dated 12.8.1997 for the decreetal amount of Tk 37,66.309/- to be paid within on month, in default of realization to be saddled with simple interest at the rate of 16% and the said amount having been made rule of the Court on 8.3.1998 and that decree having been drawn on 10.3.1998 and the proceeding therefrom having been everything set a rest by the appellant on 30.6.1999 , the appellant having paid the amount of Tk. 1.37,66,309/- on 26.8.1999 by cheque, the interest to be paid until that date at Tk. 38,24,961/from 1st of December 1998 till 26th of August 1999, the respondent are entitled to the said amount and as such could file an application for amendment for realisation of the said amount in the selfsame execution case arose for realisaiton of the decreetal amount together with interest at the rate of 16%; which amount was legally payable by the appellant to the respondent.
8. As regards the amendment the learned Counsel for the respondent lass submitted that an application was filed under order 6 rule 17 read with section 151 of the Code of Civil procedure for amendment of the amount accruing in account of interest on the decreetal amount, though order 6 rule 17 of the Code of Civil Procedure may not strictly applicable but Could be amended resorting to an application under section 151 of the Code of Civil Procedure.
9. Dr. M. Zahir has however submitted that an amendment in the execution case could be had resorting to order 21 rule 17 (2) of the Code of Civil Procedure for any remedy that was made under order 21 rule 11(2) and 14 of the Code of Civil Procedure but no amendment could be made as in the case resorting to order 2) rule 17(2) in the instant facts and circumstances of the case and referred to the decisions reported in 18 DLR 595 and 14 DLR 649.
10. Mr. Rafique-UI Huq has also referred to a decision in the case reported in AIR 1946 Calcutta 585 for the proposition that an amendment in the execution case could be made under section 151 of the Code of civil ProcedureAdmittedly the drcee dated 10.3.1998 has been passed making the award dated 12.8.1997 a rule of the Court by order dated 8.3.1998 for an amount of Tk. 1,37,66,309/- to be paid within on month of the decree and in default to pay simple interest at the rate of 16% till realization.
11. Admittedly the cheque was issued by the University for the entire awarded amount on 26.8.1999 without any interest thereon and Mr. Rafique-UI-Huq the learned Counsel for the respondent frankly concedes that as per decree the amount to be relished from the date of 10.4.1998 to 26.8.1998 and the amount on account of interest accrued could be claimed by the appellant at Tk. 30,26.586/- instead of Tk. 38.24.961/- calculating from 1st of December 1997 without even entering into a controveiM as to whether an amendment in this respect could be made under order 6 rule 17 or section 151 of the Code of Civil Procedure or under order 21 rule 17 (2) of the Code of Civil Procedure.
12. Admittedly the execution case was for realization of the amount of Tk, 1,37,66,309/- to be paid within 30 days, in default to realize at the rate of simple interest on the decreetal amount until realization and for satisfaction of the execution case upon realization of the amount upon calculation of the interest accrued on the decreetal amount is required and could be brought on record of the execration case for execration of the decree or satisfaction thereof.
13. Order 6 rule 17 of the Code of Civil Procedure though is designed for amendment of pleadings but the provision of order 21 rule 17 (2) providing that where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date u hen it was first presented.
14. Section 151 of the Code of Civil Procedure providing inherent power of the Court read with section 153 of the Code of Civil Procedure provides general power to amend given to the Court at any time to amend any defect or error in any proceeding of the suit and for determining the real question or issue raised or depending on such proceeding.
15. However, in the instant case, as the execution is for the realization of the decreetal amount together with the interest and in order to ascertain the amount of interest the calculation is involved in the execution case which calculation could be brought in record of the execution case by way of calculation sheet and accordingly without going into the complicated question of amendment of execution case and the relevant provision involved therein, we like dispose of the case by allowing the calculation sheet incorporated in the case. In view of the above, appeal is allowed in part without any order as to costs. The respondents are entitled to realise an amount of Tk 30,35,312/- for which the execution case can proceed if the appellant fails to deposit the amount within 15 days from the date.
Ed.
Source : I ADC (2004),20