Titas Gas Transmission and Distribution Company Limited Vs. Messrs Ashraf Ali Limes, Proprietor Md. Helaluddin and others, 2008, (AD)

Supreme Court

Appellate Division

(Civil)

Present:

Md. Ruhul Amin CJ

MM Ruhul Amin J

Md. Abdul Matin J


Titas Gas Transmission and Distribution Company Limited…………Petitioner

Vs.

Messrs Ashraf Ali Limes, Proprietor Md. Helaluddin and others………..Respondents

 

 Order

March 23, 2008.

Lawyers Involved:

Moinul Hosine, Senior Advocate instructed by Mr. Md. Taufique Hossain, Advocate-on-Record-For the Petitioner.

Abdus Salam, Senior Advocate instructed by Mr. Syed Mahbubar Rahman, Advocate-on-Record- For Respondent No.1.

Not represented- Respondent Nos. 2-5.

Civil Petition for Leave to Appeal No. 20 of 2008

(From the order dated 13.11.2007 passed by the High Court Division in F.A. No.04 of 2006 heard with Civil Rule No.583(R) of 2006)

Order

Md. Abdul Matin, J.- This petition for leave to appeal is directed against the order dated 13.11.2007 in F.A. No.04 of 2006 (heard with Civil Rule No.583(R) of 2006) in so far as it relates to the direction to the defendant No.2 petitioner above named to restore gas connection to plaintiff-respondent after receiving Tk. 24,65,256/- and to issue bills as per minimum charge and the rest Tk. 24,65,256/- is to be paid within next nine months in equal installments by the respondent-opposite party along with regular bills.

2. The facts, in short, are that the plaintiff-respondent filed Title Suit No.96 of 1998 against the defendant No. 2- petitioner and 4 other officers of the company in the Court of 1st, learned Subordinate Judge, Narayanganj seeking a declaration that the gas bills for the months of February, 1998 to August, 1998 amounting to Tk.11,15,044/60 are illegal and issued without jurisdiction and not binding upon the plaintiff-respondent. After filing of the suit the plaintiff-respondent filed an application for temporary injunction upon which the court below passed an order directing the parties to maintain status-quo till 05.01.1999 and also ordered the petitioner to pay the defendant No.2-petitioners company TK.2,00,000/- from the arrear bills on or before 26.11.1998.

3. On 20.04.2000 the lower court directed to maintain status-quo and further ordered in violation of the terms of contract that the plaintiff-respondent should pay bills as per meter reading from April, 2000 without taking into consideration the fact of huge arrear bills.

4. Challenging the said order dated 20.04.2000 passed by the learned Joint District Judge in Title Suit No.96 of 1998, the defendant-petitioner filed an appeal in the High Court Division being First Miscellaneous Appeal No.141 of 2004, which is still pending for disposal. But the said Title Suit No.03 of 2005 (previously transferred from Title Suit No.96 of 1998) has been decreed on 04.07.2005.

5. The decree dated 04.07.2005 was passed in Title Suit No.03 of 2005 declaring the gas bills for the months of February, 1998 to August, 1998 amounting to Tk.11,15,044/60 as illegal, issued without jurisdiction and not binding upon the plaintiff-respondent. But in the meantime the plaintiff-respondent stopped payment of regular gas bills on the plea of pendency of the suits as a result a huge outstanding bills are dues with the plaintiff’s factory up to May, 2005 amounting to Tk.1,74,78,621.02 (Taka one crore seventy four lacs seventy thousand six hundred twenty one and paisa two) only and for which as per terms of contract the defendant No.2 petitioner disconnected the gas line of the plaintiff-respondent on 07.07.2005.

6. The plaintiff respondent also preferred an appeal being No.04 of 2006 being aggrieved by and dissatisfied with the judgment and decree dated 04.07.2005 passed by the learned Joint District Judge, Additional Court, Narayanganj in Title Suit No.03 of 2005.

7. After the disconnection dated 07.07.2005, the plaintiff respondent filed an application in the instant suit on 12.07.2005 under Section 55 of the Specific Relief Act read with Section 155 of the Code of Civil Procedure.

8. After receipt of the mandatory direction, the defendant No.2 petitioner filed a revisional application being Civil Revision No.46 of 2001 in the Court of learned District Judge, Narayanganj.

9. The learned District Judge upon hearing both the sides discharged the Rule by the order No.8 dated 28.08.2005 in Civil Revision No.46 of 2005 affirming the order dated 12.07.2005 passed by the learned Joint District Judge, Additional Court, Narayanganj in Title Suit No.03 of 2005 allowing the petition under Section 55 of the Specific Relief Act filed by the plaintiff-opposite party and directing the petitioners to restore the gas connection of the plaintiff factory.

10. Being aggrieved by and dissatisfied with the impugned order dated 28.08.2005 passed by the learned District Judge in Civil Revision No.46 of 2005 the petitioner filed Civil Revision being No.3989 of 2005 before the High Court Division.

11. Upon hearing the revisional application being No.3989 of 2005 the High Court Division on 17.10.2005 issued Rule calling upon the opposite party to show cause as to why the impugned judgment and order No.8 dated 28.08.2005 passed by the learned District Judge, Narayanganj in Civil Revision No.46 of 2005 affirming the order dated 12.07.2005 passed by the learned Joint District Judge, Additional Court, Narayanganj in Title Suit No.76 of 2005 allowing the petition under Section 55 of the Specific Relief Act filed by the plaintiff-opposite party and directing the petitioner restore the gas connection of the plaintiff factory should not be set aside. The Court also stayed the operation of the impugned judgment and order No.8 dated 28.08.2005 passed by the learned District Judge, Narayanganj in Civil Revision No.46 of 2005 affirming the order dated 12.07.2005 passed by the learned Joint District, Additional Court, Narayanganj in Title Suit No.76 of 2005 allowing the petition under Section 55 of the Specific Relief Act filed by the plaintiff-opposite party and directing the petitioner to restore the gas connection of the plaintiff factory.

12. The opposite party filed an application for vacating the order of stay dated 17.10.2005 in Civil Revision No.3989 of 2005. Upon hearing the application the High Court Division on 27.11.2005 disposed of the petition and vacated the order of stay dated 17.10.2005 subject to the payment of 50% of the disputed amount within one month from date by the opposite party Ashraf Ali Limes and petitioner Titas was directed to restore the gas line upon receiving the same.

13. On 20.03.2006 upon hearing the both sides in Civil Revision No.3989 the High Court Division made the Rule absolute. The Court also directed to comply with the order dated 27.11.2007 i.e. to pay 50% of the arears to get the gas connection.

14. The opposite party filed an application before the High Court Division for review of the judgment and order dated 20.03.2006. Upon hearing the review petition the High Court Division issued Rule on 24.08.2006.

15. On 13.11.2007 the High Court Division passed the judgment in First Appeal No.04 of 2006 with Civil Rule No.583(R) of 2006 allowing the appeal being No.04 of 2006 and setting aside the judgment and decree dated 04.07.2005 passed by the learned Joint District Judge, Additional Court, Narayanganj in Title Suit No.03 of 2005. Title Suit No.03 of 2005 was sent back on remand for fresh trial by giving parties opportunity to adduce further evidences, if they so desire. Respondent No.5 Titas Gas was directed to prepare gas bills on the basis of minimum charge as mentioned in Clause 7 of the contract signed between plaintiff-company and the defendant-company on 22.04.1995 and the defendant company namely Titas Gas T & D Company Limited was directed to restore gas connection to the plaintiff company within 15 days from the date of receipt of Tk.24,65,256/- i.e. half of the balance amount payable as per the minimum charge less than amount paid as per meter reading and the remaining 50% i.e. Tk.24,65,256/- is to be paid within nine months in equal installments along with regular bills. Civil Rule No.583(R) was disposed of and review petition in such circumstances was rejected.

16. Being aggrieved by the judgment and order of the High Court Division the petitioner has preferred this petition for leave to appeal.

17. We have heard learned Counsel and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

18. Mr. Moinul Hosine, learned Counsel appearing for the petitioner submits that impugned direction dated 13.11.2007 passed by the High Court Division is erroneous inasmuch as the High Court Division directed the respondent No.5 Titas Gas T & D Company Limited to restore gas connection after receiving Tk.24,65,256/- as 50% of the total amount i.e. Tk.49,30,512/- (Taka forty nine lac thirty thousand five hundred twelve) payable as per the minimum charge less than amount paid as per meter reading on the basis of the calculation at the rate fixed on the agreement signed in 1995 whereas the tariff and load have been enhanced many times by this last 12 years. Moreover, it is stated in the judgment itself that the total outstanding bills for the period of June 1995 to June 2005 against the opposite party i.e. customer company is amounting to Tk.2,26,34,984.54/- (Taka two crore twenty six lac thirty four thousand nine hundred eighty four and paisa fifty four) only.

19. He further submits that the High Court Division erred in law occasioning failure of justice by directing the petitioner-respondent Titas Gas Company to restore the gas line of the opposite party while they owe a staggering amount of Tk.2,26,34,984.54/- (Taka two crore twenty six lac thirty four thousand nine hundred eighty four and paisa fifty four) only and in doing so the Court wrongly considered the calculation of the bills as minimum charge less than the amount as per meter reading as per agreement signed in 1995 without considering the balance of convenience and inconvenience as Titas Gas has to purchase gas from the government of Bangladesh for supplying the same to its customers.

20. He lastly submits that the petitioner Titas Gas Company purchases gas from the government and sells the same to its customers. The High Court Division ought to have directed the opposite party to pay at least 50% of the arrears before restoration of the gas connection as is normally done by this Court in so many other cases. Moreover, while passing the impugned judgment the High Court Division disposed of the review petition filed against the order dated 20.03.2006 in which it directed the opposite party to pay 50% of the total arrear bills.

The above submissions made on behalf of the petitioner merit consideration.

Leave is granted to consider the same.

Security of Tk.1,000/- is to be deposited within one month.

Preparation of paper book is dispensed with as prayed for.

Ed.

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