DISTRICT: DHAKA
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
CIVIL REVISION NO. OF_____________
IN THE MATTER OF:
An application under Section 115 of the Code of Civil Procedure.
AND
IN THE MATTER OF:
1. M/s. Z Tyres
Proprietor: X Industries Ltd.
Shivam Chamber (5th Floor)
53, Syed Amir Ali Avenue
Kolkata – 700 019, India
2. X Industries Ltd.
9/1, R.N. Mukherjee Road
Kolkata – 700 001, India
Defendants/Appellants
/Petitioners
-Versus-
1. M Trading (Pvt.) Ltd.
Lal Bhaban
18, RAJUK Avenue
Dhaka-1000
through its Managing Director,
Mr. A
House No. CES(C) – 4
Road No. 118
Gulshan-1, Dhaka
2. M/s. K International
Proprietor: Mr. A
Lal Bhaban
18, RAJUK Avenue
Dhaka-1000
Plaintiffs/Respondents
/Opposite Parties
3. M/s. P Sales Corporation
15, Circus Avenue
Kokata – 700 017, India
4. The Chairman
National Board of Revenue
Segunbagicha, Dhaka
5. The Commissioner of Customs
Chittagong Commissionerate
Chittagong
6. The Commissioner of Customs
Benapole Commissionerate
Benapole, Jessore
Proforma-Defendants
/Proforma-Respondents /Proforma-Opposite Parties
AND
IN THE MATTER OF:
Judgement and Order dated 04.07.004 passed by Mr. Md. Abdus Subhan, learned Additional District Judge, 2nd Court, Dhaka in Miscellaneous Appeal Nos. 335 and 229 of 2003 dismissing the appeals and thereby affirming (a) Order No. 15 dated 09.11.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 allowing the petition filed by the plaintiffs/respondents/opposite-parties Nos. 1 and 2 under Order XXXIX, Rule 1, 2 and 3 of the Code of Civil Procedure and thereby granting temporary injunction and (b) order No. 5 dated 14.08.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 granting order of ad-interim mandatory injunction under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure.
APPLICATION VALUED AT TK. 4,00,000.00 ONLY
BEING APPEAL VALUED AT TK. 4,00,000.00 ONLY
To
Mr. Justice Syed J. R. Mudassir Hossain, the Chief Justice of Bangladesh and his companion Justices of the Hon’ble Supreme Court.
The humble petition of the defendants/appellants/petitioners above named most respectfully –
SHEWETH:
01. That this revisional petition is filed under section 115 of the Code of Civil Procedure [As amended by the Code of Civil Procedure (Third Amendment) Act, 2003. In this case, the defendants/appellants/petitioners craves leave of the High Court Division for revision of an error of law resulting in an error in the decision occasioning failure of justice by affirming the orders of injunction in a case of termination of Distributorship. In the facts and circumstances of this case the learned Additional District Judge has committed an error of law in allowing the appeals and thereby affirming the orders of injunction.
02. That the point involved in this revisional application is whether an injunction can be granted in a case where distributorship of goods has been cancelled with prior notice. Even if such cancellation is illegal, the alleged damage can be compensated in terms of money and as such no order of injunction can be granted on the application of the person aggrieved. This principle of law has been repeatedly laid down by our Supreme Court (both the Divisions) in several cases. In fact, the plaintiffs have subsequently filed Money Suit No. 53 of 2003 in the Court of 1st Joint District Judge, Dhaka for realisation of Tk. 56,47,45,127.00 for compensation for alleged illegal termination. So, the question of injunction does not arise. Even then the learned Assistant Judge passed orders of injunction, which have been affirmed by the learned Additional District Judge by the impugned judgement and order dated 04.07.2004.
03. That this revisional petition is filed against the Judgement and Order dated 04.07.004 passed by Mr. Md. Abdus Subhan, learned Additional District Judge, 2nd Court, Dhaka in Miscellaneous Appeal Nos. 335 and 229 of 2003 dismissing the appeals and thereby affirming (a) Order No. 15 dated 09.11.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 allowing the petition filed by the plaintiffs/respondents/opposite-parties Nos. 1 and 2 under Order XXXIX, Rule 1, 2 and 3 of the Code of Civil Procedure and thereby granting temporary injunction and (b) order No. 5 dated 14.08.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 granting order of ad-interim mandatory injunction under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure. By the impugned judgement and order the learned Court of Additional District Judge has affirmed the order of temporary injunction passed by the learned Court of Assistant Judge restraining the defendant/appellant/petitioner –
a) from making any dealing or transactions in an open underhand or clandestine manner with any person or persons whatsoever in respect of Z brand tyres and materials related thereto for Bangladesh during the subsistence of the appointments, contracts/agreements and the contractual rights of the plaintiffs/opposite-parties who are the sole distributors, sole indenters and exclusive importers of Z brand tyres and other materials for Bangladesh till disposal of the suit and; and
b) from doing any act and making any breach whether actual or threatened of the rights vested in the plaintiffs/opposite-parties on the basis of the contracts/agreements/their appointments as the distributors, indenters and exclusive importers of Z truck, Non-truck, LCV, Car Tyres and other related materials for Bangladesh and/or doing any other acts and/or entering into any contract or agreement with any other person or persons in Bangladesh and/or the appointments of the plaintiffs/opposite-parties as distributors, indenters and exclusive importers are terminated or any other changes are made in the Agreements/Appointments for valid reasons or grounds till disposal of the suit.
04. That by the impugned judgement and order the learned Court of Additional District Judge has also affirmed the following order of mandatory injunction passed by the learned Court of Assistant Judge –
directing the opposite-parties Nos. 5, 6 and 7, i.e. National Board of Revenue and the Commissioners of Chittagong and Jessore Customs to immediately stop entry of all consignment of Z Brand Truck Tyres, Non-truck, LCV and Car Tyres and other materials relating thereto, shipped or transhipped as export goods of Z Tyres and other materials for sale and supply by and/or through any other person or persons, importer or importers distributor or distributors, sale representative or representatives in Bangladesh market excepting the plaintiffs in the interest of justice, by an order of ad-interim mandatory injunction
05. That by the orders of injunction the entire business of the defendants/appellants/petitioners in Bangladesh has been closed without considering that even if the allegations of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 are found to be correct, monitory compensation will be adequate remedy and without considering that the plaintiffs/respondents/opposite-parties Nos. 1 and 2 have already filed Money Suit No. 53 of 2003 in the Court of 1st Joint District Judge, Dhaka against the defendants/appellants/petitioners for realisation of Tk. 56,47,45,127.00 only. The suit in which the order of injunction has been obtained was filed on 09.08.2003 and subsequently the Money Suit No. 53 of 2003 was filed on 25.08.2003 after realising that monitory compensation is adequate remedy in the present case.
06. That the defendant/appellant/petitioner No. 1 is one of the largest and most renowned tyre manufacturers in India. The defendant/appellant/petitioner No. 2 – XIndustries Ltd is the proprietor of the said defendant/appellant/petitioner No. 1, namely M/s. Z Tyres.
07. That the defendant/appellant/petitioner No. 1 entered into an Agency Arrangement with M/s.PSales Corporation on 02.06.1992. Under the said Agency Arrangement, the defendant/opposite party No. 3 i.e. M/s.PSales Corporation, was appointed as one of the agents of the defendant/appellant/petitioner No. 1 in Bangladesh under certain terms and conditions. The Agency Arrangement clearly stipulated as follows:
“The company [i.e. the defendant/appellant/petitioner] reserves the right to terminate the agency without assigning any reason whatsoever.
The company also reserves the right to appoint any other agent as it may deem fit.”
08. That on the basis of the Agency Arrangement with the defendant/appellant/petitioner, the defendant/opposite party No. 3 i.e. M/s.PSales Corporation entered into two Distributorship Arrangements with Sonali Aansh Trading (Pvt.) Ltd. and M/s.KInternational i.e. the plaintiffs/opposite parties No. 1 and 2 respectively. The plaintiff/opposite party No. 1 is a limited company of which Mr. A is the Managing Director and the plaintiff/opposite party No. 2 is also owned by Mr. A. So, both the plaintiffs/opposite parties Nos. 1 and 2 are the same person. The letters through which the plaintiffs/opposite parties No. 1 and 2 were appointed distributors of the defendant/appellant/petitioner’s products in Bangladesh categorically state as follows:
“1. The above distributorship is subject to M/s. Z Tyres agreement with M/s.PSales Corporation.
Our principal M/s. Z Tyres reserves the right to make any changes in the aforesaid agreement. The principal also reserves the right to terminate the agency/distributorship and also to appoint other agents and other distributors if they so deem fit.”
The above-mentioned terms and conditions were unconditionally and unequivocally accepted by the plaintiffs/opposite parties No. 1 and 2 and thereby they became the authorised distributor of the defendant/appellant/petitioner No. 1’s products in Bangladesh.
09. That the Distributorship Arrangement entered into between M/s.PSales Corporation and Sonali Aansh Trading (Pvt.) Ltd. was subsequently re-affirmed by the defendant/appellant/petitioner No. 1 vide letter dated 01.09.1992 wherein the defendant/appellant/petitioner No. 1 wrote as follows:
“As desired, we take pleasure to confirm you as one of our distributors for the sale of our tyres of different specifications in Bangladesh.”
Hence, in all the agreements/correspondences regarding the appointment of the plaintiffs/opposite parties Nos. 1 and 2 as distributors of the defendant/appellant/petitioner No. 1’s products, it was clearly stipulated that the plaintiffs/opposite parties No. 1 and 2 were one of the distributors and the defendant/appellant/petitioner No. 1 reserves the right to appoint any other distributor in Bangladesh.
10. That subsequently, by letter dated 16.11.1992, M/s.PSales Corporation, on its own and on behalf of M/s.KInternational, requested the defendant/appellant/petitioner No. 1 to appoint them as sole export agent and sole indentor respectively. The relevant portion of the letter reads as follows:
“Therefore, we would request you to appoint us the sole export agent and our associate M/s.KInternational the sole distributor for Z Tyres in Bangladesh.”
However, the defendant/appellant/petitioner No. 1 did not agree to appoint the plaintiffs/opposite parties No. 1 and 2 as sole distributor in Bangladesh. In fact, at no point of time did the defendant/appellant/petitioner No. 1 agree that the plaintiffs/opposite parties No. 1 and 2 would be sole distributor of their products in Bangladesh. So, it is crystal clear from the letters mentioned above that the plaintiffs/opposite parties No. 1 and 2 were in no way sole, exclusive and permanent distributors of the Z Brand Tyre Products in Bangladesh. As such, the defendant/appellant/petitioner No. 1 has every right to cancel the distributorship agreements with the plaintiffs/opposite parties No. 1 and 2.
11. That as authorised distributor of Z Brand Tyre Products i.e. the defendant/appellant/petitioner No. 1’s tyre products in Bangladesh, the plaintiffs/opposite parties Nos. 1 and 2 acted for a couple of years. In the latter part of their said distributorship, the defendant/appellant/petitioner No. 1 received a number of complaints regarding furious products in the name of Z products in Bangladesh. Upon a visit by the defendant/appellant/petitioner No. 1’s officials in the plaintiffs/opposite parties No. 1 and 2’s premises in Bangladesh to evaluate the performance of Z Tyres in Bangladesh in 1999, a number of complaints were received regarding the performance of Z products in the local market. The defendant/appellant/petitioner No. 1’s officials also noted that the plaintiffs/opposite parties No. 1 and 2 failed to distribute tyres in Bangladesh as per the defendant/appellant/petitioner No. 1’s requirement.
12. That subsequently in a meeting dated 10.10.2001 between the defendant/appellant/petitioner No. 1 and the plaintiffs/opposite parties No. 1 and 2, it was agreed as follows:
“The market for Z Tyres in Bangladesh is approx. 5,000 truck tyres and 5,000 non-truck tyres.Kshall ensure that by December, 01 this level is reached. It is agreed between the parties that in caseKInternational is not able to take up the quantities as per schedules given in Annexure – I, then Z Tyres will introduce another channel of distribution in Bangladesh but shall ensure that sizes are so divided that market is not affected.”
But the plaintiffs/opposite parties No. 1 and 2 miserably failed to keep their commitment. As a consequence, by letter dated 24.01.2002, the defendant/appellant/petitioner No. 1 wrote to the plaintiff/opposite party No. 2 as follows:
“Kindly refer to point No. 3 of our Minutes dated 10.10.2001 wherein it is abundantly clear that if agreed quantities at agreed prices are not lifted by you, we will have to introduce another channel for distribution in B’desh. But inspite of our follow up regularly, you could not open L/Cs for the quantities agreed by you in the months of October-December ’01 and we have no other option except to send the tyres through another channel as we cannot keep the market dry for months together.”
Even then, the plaintiffs/opposite parties No. 1 and 2 could not market the required quantity of tyres in the local market. In a meeting dated 11.04.2002, it was agreed between the defendant/appellant/petitioner No. 1 and plaintiffs/opposite parties No. 1 and 2 as follows:
“3. Since the market as per Z Tyres for tyres in Bangladesh is for higher quantity as compared to whatKis taking, BT has the option to continue second party shipments.”
13. That because of the continuous default and failure of the plaintiffs/opposite parties No. 1 and 2 to comply with their Distributorship Arrangements and the agreements in the subsequent meetings, the defendant/appellant/petitioner’s business was incurring huge financial loss. It was clear that the defendant/appellant/petitioner was incurring loss because of the plaintiffs/opposite parties No. 1 and 2’s failure to perform their obligations under the Distributorship Arrangements.
14. That in such a situation, to save their business in Bangladesh, the defendant/appellant/petitioner No. 1 having no other alternative vide letter No. BT/RKS/2002-03/19095 dated 28.01.2003 cancelled/terminated the agency arrangement with M/s.PSales Corporation and the agreements with Sonali Aansh Trading Pvt. Ltd. and M/s.KInternational. The relevant portion of the letter of cancellation reads as follows:
“By virtue of this letter, all arrangements between you and your importers/distributors in Bangladesh viz. M/s. Sonali Aansh Trading Pvt. Ltd. and M/s. K International stands cancelled and necessary information may please be given by you to all the concerned.”
In reply, M/s.PSales Corporation by letter dated 30.01.2003 informed the defendant/appellant/petitioner No. 1 as follows:
“We are very sorry to receive your letter No. BT/RKS/2002-03/19095 dt. 28.01.2003 cancelling our agreement regarding export of tyres to Bangladesh.
As desired by you, we have already intimated M/s. Sonali Aansh Trading Ltd. and M/s.KInternational regarding the above cancellation.”
15. That upon termination of the distributorship of the plaintiffs/opposite parties No. 1 and 2, no Z Brand tyre product has been imported by them in Bangladesh. In the meantime in order to run its business in Bangladesh, the defendant/appellant/petitioner No. 1 appointed M/s. Dye Tex International on 07.02.2002 and M/s. Solar Trading Company on 26.11.2002 as their distributors in Bangladesh.
16. That when the defendant/appellant/petitioner No. 1 was regaining its tyre business in Bangladesh, they all on a sudden saw the following notices published in various newspapers on 11.08.2003:
“On the prayer of the plaintiffs, Sonali Aaansh Trading (Pvt.) Limited andKInternational in Title Suit No. 276 of 2003, the learned Court of 2nd Assistant Judge, Dhaka has passed an injunction on 9.8.2003 to the effect that that no one except the plaintiffs can import, sell and market Indian Z Brand Tyre Products in Bangladesh.
In such a situation, no one except my clients Sonali Aaansh Trading (Pvt.) Limited andKInternational has legal right to import, sell, market Z Brand Tyre Products. If such products are found in possession of any other person, my clients shall be compelled to take all required legal steps including confiscation of the products.” (The original Legal Notice is in Bengali)
By publishing the above-mentioned misleading and misrepresented Legal Notice in various newspapers, the plaintiffs/opposite parties No. 1 and 2 have virtually stopped the sale and marketing of Z Brand Tyre Products in Bangladesh thereby causing serious loss and injury to the defendant/appellant/petitioner. All the importers, dealers, retailers and wholesalers of Z Brand Tire Products have stopped selling and marketing the Products in the market after seeing the misleading Legal Notice in the newspapers.
17. That the plaintiffs/opposite parties Nos. 1 and 2 as plaintiffs filed Title Suit No. 276 of 2003 on 09.08.2003 in the Court of Assistant Judge, 2nd Court, Dhaka praying for declaration, permanent and mandatory injunction. In the plaint of the said suit, the plaintiffs/opposite parties No. 1 and 2 prayed decree, inter alia, declaring that the plaintiffs/opposite parties No. 1 and 2 are the sole distributors, sole indenters and exclusive importers of M/s. Z Tyres for Bangladesh on the basis of their appointment letters and contracts/agreements made with them. On the same day, i.e. on 09.08.2003 they obtained an ex-parte order of ad-interim injunction. The defendant/appellant/petitioner appeared in the suit on 12.08.2003.
18. That subsequently after 5 (five) days the plaintiffs/opposite parties Nos. 1 and 2 on 14.08.2003 filed another application surreptitiously under Order XXXIX, Rules 1, 2 and 3 along with Section 151 of the Code of Civil Procedure, 1908 and obtained an order of ex-parte ad-interim mandatory injunction.
19. That against the order of ex-parte ad-interim injunction dated 09.08.2003, Miscellaneous Appeal No. 253 of 2003 was filed before the Court of learned District Judge, Dhaka and obtained orders of stay from the Court of District Judge, Dhaka, one is dated 17.08.2003 against the ad-interim temporary injunction and another is dated 21.08.2003 against the ad-interim mandatory injunction. Against these two orders, the plaintiffs/respondents/opposite-parties Nos. 1 and 2 filed two revisional applications before this Hon’ble Court being Civil Order Nos. 3625 of 2003 and 3626 of 2003 and both the revisional applications were rejected on 27.08.2003 as being not pressed.
20. That Miscellaneous Appeal No. 253 of 2003 was transferred on 02.10.2003 by the learned District Judge to the 5th Court of Additional District Judge, Dhaka. In the said Court, the plaintiffs/respondents/opposite-parties Nos. 1 and 2 filed an application under Section 151 of the Code of Civil Procedure, 1908 for vacating the order of stay dated 21.08.2003. In the said application, the plaintiffs/respondents/opposite-parties Nos. 1 and 2 raised a technical objection that the defendant/appellant/petitioner should have filed two separate Miscellaneous Appeals against the two orders passed in Title Suit No. 276 of 2003.
21. That to avoid the technical objection raised by the plaintiffs/respondents/opposite-parties Nos. 1 and 2 and for ends of justice, the defendant/appellant/petitioner on 11.10.2003 filed a separate Miscellaneous Appeal being No. 299 of 2003 along with an application for condonation of delay in the Court of learned District Judge at Dhaka against the order dated 14.08.2003 passed in Title Suit No. 276 of 2003 by the 2nd Court of Senior Assistant Judge at Dhaka. The Appeal was admitted by the learned District Judge on 13.10.2003.
22. That Miscellaneous Appeal being No. 253 of 2003 was ultimately dismissed by the learned Court of Additional District Judge, 5th Court on technical ground vide order dated 19.10.2003. Being aggrieved by and dissatisfied with the order dated 19.10.2003 passed by the Additional District Judge, 5th Court, Dhaka the defendant/petitioner filed Civil Revision in the High Court Division. The learned lawyer for the plaintiffs/opposite-parties Nos. 1 and 2 also appeared in the Court at the time of hearing of the revisional petition. After hearing both the parties, the Hon’ble High Court Division vide Civil Order No. 4329 of 2003 disposed off the revisional petition with the following direction:
“In the circumstances, it would not be proper for us to express ourselves on the learned submissions made by learned Senior Counsels. At the hearing of the applications for temporary injunction both parties would be liberty to produce all their papers and to get judgement thereupon. The matter no doubt needs urgent attention.
We accordingly dispose of the revision application, and hereby direct the learned Assistant Judge to dispose of the application for temporary injunction within two weeks from the date of receipt of this order, positively.
23. That the Civil Order No. 4329 of 2003 dated 25.10.2003 was received by the learned Assistant Judge, 2nd Court on 29.10.2003 and accordingly, the said learned Court fixed 05.11.2003 for filing Written Objection and injunction hearing. On 05.11.2003 the defendant/petitioner filed two Written Objections against the injunction petitions dated 09.08.2003 and 14.08.2003. The hearing of the injunction was held on the same date.
24. That after hearing the parties, the learned Assistant Judge passed the impugned order No. 15 dated 09.11.2003 allowing the temporary injunction petition dated 09.08.2003. However, the learned Court fixed 23.11.2003 for hearing of the mandatory injunction petition dated 14.08.2003.
25. That against the impugned order dated 09.11.2003 the defendant/petitioner filed Miscellaneous Appeal No. 335 of 2003 in the Court of District Judge, Dhaka on 19.11.2003. In the said appeal the defendant/petitioner on 20.11.2003 day also filed an application for stay operation of the impugned order dated 09.11.2003. The plaintiffs/opposite-parties Nos. 1 and 2 appeared in the appeal and prayed for time to file Written Objection against the stay application. Accordingly, the learned District Judge fixed 24.11.2003 for filing Written Objection and for hearing of the stay application. On 24.11.2003 the plaintiffs/opposite-parties Nos. 1 and 2 filed Written Objection against the stay application whereupon hearing of the stay application was held on the same day. The learned counsels for both the parties made their extensive submissions on the stay application. But because of interference by interested party the learned District Judge could not pass any order on the stay application and transferred the appeal to the learned Court of Additional District Judge, 2nd Court fixing 30.11.2003 for hearing of the stay application. The learned District Judge passed the following order:
“Perused the petition for stay and the written objection thereof filed by the parties and heard the learned lawyers of both sides.
One of the parties to the appeal made direct tadbir to me for and against the stay and as such it is not wise and possible for me to pass any order regarding the stay matter.
Let the Misc. Appeal be transferred to the 2nd Court of Additional District Judge, Dhaka for disposal. To 30.11.2003 for hearing the stay matter.”
26. That on 30.11.2003 the stay application was taken up by the learned Additional District Judge for hearing and Mr. Rafique-ul Huq, Senior Advocate appearing for the defendant/appellant/petitioner made detail submissions and referred to all relevant decisions (with photocopies), however the plaintiffs/respondents/opposite-parties Nos. 1 and 2 prayed for adjournment of the hearing on the ground that the senior counsel was out of Dhaka. Considering the seriousness and urgency of the matter and because of the ensuing annual vacation of the Civil Courts from 02.12.2003 the learned lawyer for the defendant/appellant/petitioner prayed for early disposal of the stay application and the next day, i.e. 01.12.2003 was fixed for the submissions of the learned lawyer for the plaintiffs/respondents/opposite-parties Nos. 1 and 2. Accordingly, the learned lawyer for the defendant/appellant/petitioner concluded their submissions on 30.11.2003 and the next day was fixed for the submissions of the learned lawyer for the plaintiffs/respondents/opposite-parties Nos. 1 and 2.
27. That on the next day, i.e. on 01.12.2003 the plaintiffs/respondents /opposite-parties Nos. 1 and 2 filed an application that they do not have any confidence on the Court and as such prayed for adjournment of the hearing. The plaintiffs/respondents/opposite-parties Nos. 1 and 2 stated in their application that they have filed Transfer Miscellaneous Case No. 872 of 2003 in the Court of District Judge. Consequently, the learned Court of Additional District Judge without passing any order either allowing or rejecting the application for stay, suspended the hearing of the stay application vide order dated 01.12.2003 till receipt of any order from the learned District Judge.
28. That it may be mentioned here that upon enquiry, the defendant/appellant/petitioner No. 1 came to know that the plaintiffs/respondents/opposite-parties Nos. 1 and 2 filed the said Transfer Miscellaneous Case on 01.12.2003, i.e. on the last working day of the Civil Court after 3-00 p.m. and the said Transfer Miscellaneous Case was not even admitted by the learned Court of District Judge till commencing the annual vacation of the Civil Court. From the conduct of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 it is apparent that they have played a necked game of abuse of the process of the Court.
29. That in such situation the defendant/appellant/petitioner No. 1 was compelled to file Civil Revision Nos. 4920 and 4921 of 2003 in the High Court Division and obtained Rule and orders of stay dated 06.12.2003. Against the said orders of stay dated 06.12.2003 the plaintiffs/respondents/opposite-parties Nos. 1 and 2 filed Civil Petition Nos. 1657 and 1658 of 2003 wherein the Hon’ble Appellate Division vide order dated 04.01.2004 passed the following order:
“The order of stay passed by this Division dated 23.12.2003 staying the order of the High Court Division dated 06.12.2003 so far it relates to the portion “the learned Additional District Judge is directed to hear and dispose of the Appeal by 18th January, 2004 positively” will continue till disposal of the rule in Civil Revision No. 4920 and 4921 of 2003. The parties are directed to take steps for expeditious hearing of the said rule in the High Court Division.
The leave petitions are accordingly, disposed of.”
30. That the Civil Revision Nos. 4920 and 4921 of 2003 were heard by the High Court Division on 13.06.2004 whereupon the following order was passed:
“In the circumstances, both the rules are disposed of without however any order as to cost. Learned Additional District Judge is directed to hear and dispose of the appeals by 4.7.2004 positively. Tenure of stay granted on 6.12.2003 shall terminate with disposal of the appeals. In deciding the appeals, learned Additional District Judge, must feel fully free on any impact of our orders.”
31. That accordingly on 24.06.2004 the learned Additional District Judge, 2nd Court in presence of the learned lawyers for both the parties fixed the appeals on 26.06.2004 for hearing. But on 26.06.2004 the learned lawyer for the plaintiffs/respondents/opposite-parties Nos. 1 and 2 prayed for time, whereupon the appeals were fixed on 27.06.2004 for hearing. On 27.06.2004 the learned lawyer for the plaintiffs/respondents/opposite-parties Nos. 1 and 2 raised a preliminary issue on the maintainability of the appeals on the ground that the Attorney of the defendant/appellant/petitioner No. 1 was not duly authorised. After hearing, the said issue was determined by the Court vide order dated 27.06.2004 and the appeals were fixed on 28.06.2004 for hearing on merit.
32. That the appeals were heard on 28.06.2004 and 03.07.2004. After hearing, the learned Additional District Judge dismissed both the appeals vide single judgement and order dated 04.07.2004. It is submitted that in dismissing the appeals the Additional District Judge has completely misconstrued the case either of these defendants/appellants/petitioners or of the plaintiffs/respondents/opposite-parties Nos. 1 and 2. Yet the learned Additional District Judge dismissed the appeals thereby affirmed the orders of injunctions in violation of the principle of law that no injunction can be granted where monitory compensation is adequate remedy, since the instant case being a case of breach of contract the settled principle of law is that monitory compensation is adequate remedy.
33. That it is submitted that it is well-settled principle of law that an order of injunction cannot be granted in case of violation of contract for which adequate remedy can be had through monitory compensation. In the instant case the plaintiffs/respondents/opposite-parties Nos. 1 and 2 have already filed Money Suit No. 53 of 2003 in the Court of 1st Joint District Judge, Dhaka against the defendant/appellant/petitioner No. 1 for realisation of Tk. 56,47,45,127.00 only after the instant suit. As such the Court of Additional District Judge, in dismissing the appeals has committed an error of law resulting in an error occasioning failure of justice, hence the impugned order is liable to be set aside.
34. That it is submitted that the learned Assistant Judge has committed error of law in finding on the one hand that the termination or cancellation of the distributorship is not valid one and on the other hand in coming to the conclusion that if the temporary injunction petition is rejected the plaintiff will be suffered with irreparable loss which cannot be quantified by the money, while it is settled law that in a case of wrongful termination of contract monitory compensation is adequate remedy. As such the Court of Additional District Judge, in affirming the said injunction has committed an error of law resulting in an error in the impugned order occasioning failure of justice, hence the impugned order is liable to be set aside.
35. That it is submitted that the learned Assistant Judge has on the one hand found that the distributorship of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 has been terminated or cancelled and on the other hand found that the plaintiffs/respondents/opposite-parties Nos. 1 and 2 have good prima facie case as because it may be presumed that the distributorship of the plaintiff petitioner is not terminated. Thus the learned Court of Assistant Judge committed error of law in finding prima facie case of the plaintiffs/respondents/opposite-parties Nos. 1 and 2. As such the Court of Additional District Judge, in affirming the said injunction has committed an error of law resulting in an error in the impugned decision occasioning failure of justice, hence the impugned order is liable to be set aside.
36. That it is submitted that the learned Court of Assistant Judge has committed error of law in not considering that an order of injunction will close down the entire business of the defendant/appellant/petitioner No. 1 in Bangladesh, as such the balance of convenience and inconvenience cannot be in favour of the plaintiffs/respondents/opposite-parties Nos. 1 and 2. As such the Court of Additional District Judge, in affirming the said injunction, has committed an error of law resulting in an error in the decision occasioning failure of justice, hence the impugned order is liable to be set aside.
37. That it is submitted that the learned Court of Assistant Judge has committed error of law in making findings on merit while disposing of the injunction petition and thus the learned Court of Assistant Judge has committed error of law in granting the injunction on merit of the case which has resulted in an error in the decision occasioning failure of justice. As such the Court of Additional District Judge, in affirming the said injunction, has committed an error of law resulting in an error in the decision occasioning failure of justice, hence the impugned order is liable to be set aside.
38. That being aggrieved by and dissatisfied with the Judgement and Order dated 04.07.004 passed by Mr. Md. Abdus Subhan, learned Additional District Judge, 2nd Court, Dhaka in Miscellaneous Appeal Nos. 335 and 229 of 2003 dismissing the appeals and thereby affirming (a) Order No. 15 dated 09.11.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 allowing the petition filed by the plaintiffs/respondents/opposite-parties Nos. 1 and 2 under Order XXXIX, Rule 1, 2 and 3 of the Code of Civil Procedure and thereby granting temporary injunction and (b) order No. 5 dated 14.08.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 granting order of ad-interim mandatory injunction under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure, the defendants/appellants/petitioners above named beg to file this revisional petition on the following amongst other –
GROUNDS
I. For that the learned Additional District Judge, in dismissing the appeals and affirming the orders of injunctions, has completely misconstrued the case and thereby has committed a serious error of law resulting in an error in the decision occasioning failure of justice, as such the impugned judgement and order dated 04.07.2004 is liable to be set side.
II. For that in the facts and circumstances of the case the learned Additional District Judge has committed serious error of law in affirming the order of injunction which has resulted in an error in the decision occasioning failure of justice, as such the impugned judgement and order dated 04.07.2004 is liable to be set side.
III. For that the learned Court of Additional District Judge, in affirming the injunction, has committed serious error of law in not considering the well-settled principle of law that injunction cannot be granted in case of violation of contract for which adequate remedy can be had through compensation and thus committed error of law resulting in an error in the decision occasioning failure of justice, as such the impugned judgement and order dated 04.07.2004 is liable to be set side.
IV. For that the learned Court of Additional District Judge, in dismissing the appeals and affirming the injunction, has committed error of law in failing to consider that the plaintiffs/respondents/opposite-parties Nos. 1 and 2 having already filed Money Suit No. 53 of 2003 in the Court of 1st Joint District Judge, Dhaka against the defendant/appellant/petitioner No. 1 for realisation of Tk. 56,47,45,127.00 only, they cannot be entitled to any injunction against the defendant/appellant/petitioner, as such the impugned judgement and order dated 04.07.2004 is liable to be set side.
V. For that the learned Court of Additional District Judge has committed error of law in upholding the finding of the learned Assistant Judge on the one hand that the termination or cancellation of the distributorship is not valid one and on the other hand in coming to the conclusion that if the injunction petition is rejected the plaintiff will be suffered with irreparable loss which cannot be quantified by the money, while it is settled law that in a case of wrongful termination of contract monitory compensation is adequate remedy, as such the impugned judgement and order dated 04.07.2004 is liable to be set side.
VI. For that in view of Explanation V of section 11 of the Code of Civil Procedure read with section 141 the learned Additional District Judge has rejected the application for stay and as such leave for revision may be granted against that order to rectify an error of an important question of law resulting in erroneous decision occasioning failure of justice, as such the impugned judgement and order dated 04.07.2004 is liable to be set side.
VII. For that the learned Court of Additional District Judge has committed error of law in upholding the finding of the Assistance Judge on the one hand that the distributorship of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 has been terminated or cancelled and finding on the other hand that the plaintiffs/respondents/opposite-parties Nos. 1 and 2 have good prima facie case as because it may be presumed that the distributorship of the plaintiff petitioner is not terminated and thus the learned Additional District Judge has committed error of law in upholding the finding of prima facie case of the plaintiffs/respondents/opposite-parties Nos. 1 and 2, as such the impugned judgement and order dated 04.07.2004 is liable to be set side.
VIII. For that the learned Court of Additional District Judge, in dismissing the appeals and affirming the injunction, has committed error of law in not considering that an order of injunction will close down the entire business of the defendant/appellant/petitioner in Bangladesh, as such the balance of convenience and inconvenience cannot be in favour of the plaintiffs/respondents/opposite-parties Nos. 1 and 2, as such the impugned judgement and order dated 04.07.2004 is liable to be set side.
IX. For that the impugned judgement and order is otherwise illegal and liable to be set aside.
Wherefore, it is most humbly prayed that the Hon’ble Court may graciously be pleased to–
a) Call for the records of Title Suit No. 276 of 2003 pending in the Court of Assistant Judge, 2nd Court, Dhaka and issue Rule calling upon the plaintiffs/respondents/opposite parties Nos. 1 and 2 to show cause as to why the Judgement and Order dated 04.07.004 passed by Mr. Md. Abdus Subhan, learned Additional District Judge, 2nd Court, Dhaka in Miscellaneous Appeal Nos. 335 and 229 of 2003 dismissing the appeals and thereby affirming (a) Order No. 15 dated 09.11.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 allowing the petition filed by the plaintiffs/respondents/opposite-parties Nos. 1 and 2 under Order XXXIX, Rule 1, 2 and 3 of the Code of Civil Procedure and thereby granting temporary injunction and (b) order No. 5 dated 14.08.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 granting order of ad-interim mandatory injunction under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure shall not be set aside, and after perusal of the records, hearing of the parties and cause shown, if any, make the Rule absolute;
b) Pending hearing of the Rule, stay operation of the Judgement and Order dated 04.07.004 passed by Mr. Md. Abdus Subhan, learned Additional District Judge, 2nd Court, Dhaka in Miscellaneous Appeal Nos. 335 and 229 of 2003 dismissing the appeals and thereby affirming (a) Order No. 15 dated 09.11.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 allowing the petition filed by the plaintiffs/respondents/opposite-parties Nos. 1 and 2 under Order XXXIX, Rule 1, 2 and 3 of the Code of Civil Procedure and thereby granting temporary injunction and (b) order No. 5 dated 14.08.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 granting order of ad-interim mandatory injunction under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure;
c) Cost of the proceeding be awarded in favour of the defendant/appellant/petitioner; and
d) Pass such other or further order or orders as may be deemed fit and proper.
And for this act of kindness the defendants/appellants/petitioners as in duty bound will ever pray.
AFFIDAVIT
I, _____________, son of _____________________ of ____________________________________________________, holding Passport No. __________ issued by the __________________ at ___________ on __________, aged about ______ years, by occupation service, by faith ______________, nationally Indian, do hereby solemnly affirm and say as follows:
01. That I am an Executive of X Industries Ltd which is the proprietor of M/s Z Tyres holding Power of Attorney and acquainted with the facts and circumstances of the present case and competent and authorised to swear this Affidavit on behalf of both the defendants/appellants/petitioners.
02. That the statements of facts made in this petition are true to the best of my knowledge based on record which I verily believe to be true and the rests are submissions before this Hon’ble Court.
| Prepared in my office: | ||
| DEPONENT | ||
| Advocate | The deponent is known to me and identified by me. | |
| Solemnly affirmed before me by the said deponent on this the _______ day of ___________ at _______ a.m. | Advocate | |
| Commissioner of Affidavits | ||
Supreme Court of Bangladesh
High Court Division