DISTRICT: _________________
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(1) of the Code of Civil Procedure.
AND
IN THE MATTER OF:
The X Ltd.
Represented by its Managing Director
Z
3/A Kazi Nazrul Islam Avenue
5th and 6th Floor, West Tejtory Bazar
P.S. Tejgaon
Dhaka
PLAINTIFF
/PETITIONER
Versus
1. A Foreign Trade Corporation
4/F, Unit A
8 East Zhujiang Road
A
Jiangshu
China
2. B International Limited
57, Dilkusha Commercial Area (4th Floor)
P.S. Motijheel
Dhaka-1000
DEFENDANTS/OPPOSITE-PARTIES
3. National Bank Limited
48, Dilkusha C/A
P.S. Motijheel
Dhaka
PROFORMA DEFENDANT
/OPPOSITE-PARTY
PETITION VALUED AT US$ 100,000.00 ( US DOLLAR ONE HUNDRED THOUSAND) ONLY EQUIVALENT TO TK. 56,00,000.00
SUIT VALUED AT US$ 100,000.00 (US DOLLAR ONE HUNDRED THOUSAND) ONLY EQUIVALENT TO TK. 56,00,000.00
AND
IN THE MATTER OF:
Order No. 5 dated 04.10.2000 passed by Mr. Md. Mosharraf Hossain, Subordinate Judge, 5th Court, Dhaka in Money Suit No. 86 of 2000 rejecting the application filed by the plaintiff/petitioner under Section 151 of the Code of Civil Procedure for an ad interim order of attachment restraining the proforma defendant from making payment of the amount under the L/C being No. 01-00756-2000 dated 18.05.2000 to the defendants/opposite parties Nos. 1 and 2.
To:
Mr. Justice Latifur Rahman, the Chief Justice of the Supreme Court of Bangladesh and his companion justices of the said Hon’ble Court.
The humble petition of the petitioner above named most respectfully
SHEWETH:
01. That this Revisional Petition is filed against Order No. 5 dated 04.10.2000 passed by Mr. Md. Mosharraf Hossain, Subordinate Judge, 5th Court, Dhaka in Money Suit No. 86 of 2000 rejecting the application filed by the plaintiff/petitioner under Section 151 of the Code of Civil Procedure for an ad interim order of attachment restraining the proforma defendant from making payment of the amount under the L/C being No. 01-00756-2000 dated 18.05.2000 to the defendants/opposite parties Nos. 1 and 2 on the ground that since the plaintiff/petitioner did not claim any relief against the proforma defendant in the Money Suit and since the proforma defendant does not bear any liability of the defendants/opposite parties Nos. 1 and 2 and since the proforma defendant only deals with documents, the plaintiff/petitioner are not entitled to any ad interim order of attachment. Money Suit No. 86 of 2000 has been filed on 12.09.2000 by the plaintiff/petitioner against the defendants/opposite parties praying forthe following reliefs:
(a) A decree for US$ 100,000.00 equivalent to Tk. 56,00,000.00 only in favour of the plaintiff/petitioner against the defendants/opposite parties jointly and/or severally;
(b) Compensation @ 16% per annum from the date of decree till realisation of the decretal amount;
(c) Entire cost of the suit;
(d) Any other relief(s) to which the plaintiff/petitioner is entitled to as per law and equity.
Subsequently, on 18.09.2000, the plaintiff/petitioner filed an application under Order XXXVIII, Rule 5 read with section 151 of the Code of Civil Procedure praying for the following:
(i) To issue notices calling upon the defendants/opposite parties Nos. 1 and 2 to show cause as to why an order of attachment in connection with payment of the amount under the L/C. being No. 01-00756-2000 dated 18.05.2000 shall not be passed before judgement and after hearing the parties, perusal of the records and causes shown, if any, make the order absolute;
(ii) Pending hearing of the petition, pass an ad interim order of attachment restraining the proforma defendant from making payment of the amount under the L/C being No. 01-00756-2000 dated 18.05.2000.
The learned Court, after hearing, was pleased to pass an order upon the defendants/opposite parties No. 1 to 2 to show cause within 7 days as to why an order of attachment before judgement in connection with payment of the amount under L/C. in question shall not be passed.
On the same day i.e. on 18.09.2000, the plaintiff/petitioner filed another application under section 151 of the Code of Civil Procedure praying that the show cause notice is also required to be served on the proforma defendant as well so that the payment can not be made by the proforma defendant to the defendant No.1 and 2. The learned Court allowed the petition and was pleased to pass necessary order directing the proforma defendant to show cause within 7 days as to why an order of attachment before judgement in connection with payment of the amount under L/C. in question shall not be passed.
2. That the summons and show cause notices were duly served upon the defendants/opposite-parties and they received the copies of the summons and show cause notice on 20.09.2000. Upon receipt of the summons and show cause notices the defendants did not appear in the suit nor replied to the show cause notices. Thereafter, on 04.10.2000 the plaintiff/petitioner filed an application under section 151 of the Code of Civil Procedure for an ad interim order of attachment before judgement with regard to the amount under the L/C in question so that the proforma defendant can not make payment of the same to the negotiating bank of the defendants/opposite parties Nos. 1 and 2.
3. That after hearing the plaintiff/petitioner the learned Court below was pleased to reject the said application on the ground that the plaintiff/petitioner did not claim any relief against the proforma defendant in the Money Suit, since the proforma defendant does not bear any liability of the defendants/opposite parties Nos. 1 and 2 and since the proforma defendant only deals with documents as such the plaintiff/petitioner is not entitled to any ad interim order of attachment before judgement. The order rejecting the application was passed on wrong conception and on erroneous view and in violation of Order 38 Rule 5 of the Code of Civil Procedure. The provision of law does not stipulate that relief must be prayed or sought against the proforma defendant.
4. That the plaintiff/petitioner is a company incorporated under the relevant Companies Act and is a 100% export-oriented garments industry. The plaintiff/petitioner carries on business of manufacturing various types of ready-made garments upon order from various foreign buyers. The plaintiff/petitioner also obtains orders from various foreign buyers by way of Irrevocable Letter of Credit through the buyer’s local agents. After getting the export Letter of Credit from the foreign buyers (termed as the “Master L/C”), the plaintiff/petitioner in accordance with normal procedure sends the same to their Bank. Thereafter, the plaintiff/petitioner, like all other garments industry, contacts the local agents of foreign suppliers for the purpose of obtaining fabrics and accessories for importing those items through Irrevocable Letter of Credit (called as “Import L/Cs”) in order to manufacture the ordered garments under the Master L/C. After settling the terms of the contract, the import L/Cs are opened by the plaintiff/petitioner’s bank i.e. the proforma defendant.
5. That for the purpose of manufacturing and exporting readymade garments, X Buying Service Ltd., one of the sister concerns of the plaintiff/petitioner, negotiates orders with customers under Master L/C as well as with the suppliers of raw materials, fabrics etc. After getting orders under Master L/Cs, the negotiating company transfers the orders to the various companies under X Group according to space and facilities available. Ms. Rubana Huq, Director of X Buying Service Ltd. and the plaintiff/petitioner, negotiates the orders on behalf of the plaintiff/petitioner.
6. That the plaintiff/petitioner’s case in short is that:
(a) The plaintiff/petitioner through X Buying Service Ltd. received orders to export readymade garments under Export L/C No. N 00238 dated 19.05.2000 for US$ 3,38,827.50. Thereafter, the plaintiff/petitioner approached the defendant/opposite party No. 2, the local agent of the defendant/opposite party No. 1, for supplying fabrics. The defendant/opposite party No. 1 sent a Proforma Invoice (Contract No. RT/ML/2000-063) dated 21.03.2000 to the plaintiff/petitioner for supply of 100% Cotton Y/D Herrinbone Flannel Fabrics (hereafter “fabrics”), both side slightly brushed, Const: 21X16/68X56, Width: 57/58”, Colour: Blackish Grey as per original cuttings. The quantity of the fabrics was 1,81,195 yards and the total value was US$ 1,73,947.20 (United States Dollar One Hundred and Seventy Three Thousand Nine Hundred and Forty Seven and Twenty Cents) only.
(b) Thereafter the plaintiff/petitioner opened an Irrevocable Back to Back Letter of Credit No. 01-00756-2000 dated 18.05.2000 for US$ 173,947.20 through the proforma defendant, National Bank Ltd., 48, Dilkusha C/A, Dhaka. The Letter of Credit was payable at 120 days sight. The expiry date of the Letter of Credit was 30.06.2000. The defendants/opposite parties’ Negotiating Bank under the Letter of Credit was Commerzbank AG, Shanghai Branch, China.
(c) Under the Letter of Credit the plaintiff/petitioner on 21.05.2000, 24.05.2000 and 28.05.2000 received Commercial Invoice for goods valuing US$ 38,400.00, US$ 47,227.20 and US$ 88,320.00 (totalling US$ 1,73,947.20) along with Packing List from the proforma defendant. However, when the goods under the Commercial Invoice valuing US$ 38,400.00 and US$ 88320.00 arrived, the plaintiff/petitioner to its utter shock found that the goods were not of the same quality as mentioned in the Proforma Invoice i.e. the colour shading of the fabrics did not match with that of the Proforma Invoice. The plaintiff/petitioner immediately informed the defendants/opposite parties about the defective fabrics and the plaintiff/petitioner was astonished to learn that the defendants/opposite parties, prior to shipment, knew that the fabrics were defective in that there were colour-shading problems. By e-mail dated 12.06.2000 the defendant/opposite party No. 2 admitted that the fabrics were defective and requested the plaintiff/petitioner to arrange for re-shipment of the fabrics. Thus, the defendants/opposite parties fraudulently, with a view to make illegal gain, shipped the defective fabrics to the plaintiff/petitioner.
(d) The plaintiff/petitioner also informed the Issuing Bank i.e. the proforma defendant about the defective goods and the proforma defendant in turn informed the Negotiating Bank i.e. Commerzbank AG, Shanghai Branch, China by telex dated 13.06.2000 as follows:
“WE HV RECEIVED YOUR CAPTIONED DOCUMENTS DRAWN UNDER OUR ABOVE L/C.
IT HAS BEEN LEARNT FROM THE BENEFICIARY THAT UPON ARRIVAL OF CARGO IT HAS BEEN FOUND THAT THE QUALITY OF SAME IS EXTREMELY BAD. THERE HAS BEEN A JOINT INVENTORY AND SURVEY IN PRESENCE OF THE BENEFICIARYS LOCAL AGENT AS TO THE QUALITY OF THE FABRICS AND THE SAME FOUND NOT USABLE. AT THIS STAGE THE BENEFICIARY’S LOCAL REPRESENTATIVE B IN’L LTD. AGREED TO A SETTLEMENT WITH OPENER THAT “PAYMENT UNDER OUR ABOVE L/C WILL BE MADE PROPORTIONATELY AGAINST REALISATION OF EXPORT PROCEEDS UNDER MASTER EXPORT L/C. NO. 00238.”
On the same day, the plaintiff/petitioner informed the defendant/opposite party No. 2 vide e-mail that the plaintiff/petitioner would not release the defective fabrics from the port since it would not serve their purpose and offered the defendants/opposite parties the following options:
(i) Total replacement of the short shipment quantity due to fabric fault.
(ii) Cancellation of the entire order, meaning that the plaintiff will not release any goods from the port. In such a situation, the plaintiff would negotiate with the ultimate buyer to accept whatever the plaintiff has produced so far and sell it from his end. The ultimate buyer would then issue a cancellation order for the remaining goods with a non-delivery claim, which the plaintiff in turn would claim from the defendants.
(iii) 100% fulfilment of the ordered quantity which means that the defendants have to replace all the damaged fabrics.
In the said e-mail, the plaintiff/petitioner made it clear to the defendants/opposite parties that if the defendants/opposite parties do not avail any of the above-mentioned options, they are welcome to take their defective fabrics back by returning the L/C and arranging their re-export.
(e) Thereafter by letter dated 16.06.2000 the defendant/opposite party No. 2, the agent of the defendant/opposite party No. 1 forwarded a Letter of Guarantee issued by the defendant/opposite party No. 1 in favour of the plaintiff/petitioner. In the said Letter of Guarantee the defendant/opposite party confirmed and guaranteed that they would replace the whole of the defective and damaged fabrics at the earliest. The defendant/opposite party No. 1 further ensured that they would accept the short amount of the damaged and defective fabrics as discount on the invoice value.
(f) In the said Letter of Guarantee the defendant/opposite party requested the plaintiff/petitioner to release the goods lying at Chittagong Port. The defendant/opposite party No. 1 stated that they had already started production of 50,000 yards of fabrics as initial replacement against shipped whole of 408,350 yards quantity and if the quantity is not enough, they would produce more goods as per the requirement of the plaintiff/petitioner to fulfil the short shipment of fabrics. The defendant/opposite party No. 1 made a commitment that they can arrange delivery of the goods within 20 days, i.e., by 06.07.2000.
(g) The Negotiating Bank also confirmed the proforma defendant vide telex dated 19.06.2000 that the defendant/opposite party No. 1 has agreed to settle the matter of quality problem of the fabrics outside the L/C. The Negotiating Bank forwarded a copy of the Guarantee to the proforma defendant.
(h) The defendant/opposite party No. 2 by e-mail dated 15.06.2000 informed the plaintiff/petitioner that it has convinced the supplier i.e. the defendant/opposite party No. 1 to grant the plaintiff/petitioner discount of US$ 50,000.00 in addition to replacement of the defective fabrics. The defendant/opposite party No. 2 further stated that the defendant/opposite party No. 1 has already agreed to replace the whole short quantity of goods and has started bulk production of 50,000 yards to make shipment by the end of June, 2000.
In reply, the plaintiff/petitioner categorically informed the defendant/opposite party No. 2 that the goods that need to be replaced are not 50,000 yards but far more. The plaintiff/petitioner all along asked for replacement of the defective fabrics shipped by the defendants/opposite parties. The quantum of 50,000 yards is an invention of the defendants/opposite parties. The plaintiff/petitioner seeing that they would suffer enormous financial loss if the replacement fabrics do not arrive on time, informed the defendant/opposite party No. 2 through the said e-mail that the goods “MUST REACH US WITHIN END JUNE: 2 JULY”.
(i) The defendants/opposite parties miserably failed to keep their commitment in connection with replacement of the defective fabrics. All the commitments made by the defendants/opposite parties turned out to false, frivolous and misleading. The defendants/opposite parties failed to keep their commitment in the following respects:
(i) the fabrics arrived after the deadline for shipment of the readymade products expired;
(ii) the fabrics were of inferior quality; and
(iii) the defendants did not give any discount on the invoice value because of the defective fabrics.
(j) Under the Master L/C the plaintiff/petitioner was required to make shipment of the goods latest by 15.07.2000. So, the plaintiff/petitioner through e-mail categorically informed the defendant/opposite party No. 2 that the replacement of goods of 50,000 yards have to arrive in Bangladesh by the end of June, latest by 5/6th of July, 2000. The plaintiff/petitioner also informed that if the fabrics do not arrive in Dhaka Airport latest by 07 July, the situation would be out of control. The defendant/opposite party No. 2 vide e-mail dated 29.06.2000 confirmed that the “total fabrics will reach Dhaka before 15th July, 2000.” But despite the defendants/opposite parties’ confirmation that they would send the goods by the end of June, 2000 (latest 15th July, 2000) the fabrics, in fact, arrived very late, resulting in the plaintiffs/petitioner’s incurring huge financial loss and sufferings. The schedule of arrival of replacement fabrics is as follows:
| Consignment |
Date of Arrival |
Quantum of Goods |
| 1. | 16.07.2000 | 20,000 yards |
| 2. | 17.07.2000 | 10,000 yards |
| 3. | 20.07.2000 | 20,000 yards |
(k) Despite the repeated reminders and requests of the plaintiff/petitioner, the defendant/opposite party No. 1 failed to ship the fabrics in time as a result of which the plaintiff/petitioner suffered huge financial loss. This was not all. To the utter dismay of the plaintiff/petitioner, it was found that the fabrics that were supposed to replace the defective ones were also defective. The defendant/opposite party No. 2 was informed about the low quality of the goods and they came to inspect the goods and after inspection, the defendant/opposite party No. 2 admitted that the goods were of inferior quality. The plaintiff/petitioner suffered huge financial loss because of the following reasons for which the defendants/opposite parties are alone liable:
(i) late receipt of fabrics;
(ii) slow productivity because of inferior quality of fabrics;
(iii) the ultimate buyer i.e. the Master L/C Opener refused to accept partial shipment of the goods.
Besides, the plaintiff/petitioner had to incur additional expenses to ship the goods by air to the ultimate buyer for which the defendants/opposite parties are bound to reimburse the plaintiff/petitioner.
(l) By e-mail dated 10.08.2000 the plaintiff/petitioner claimed damages from the defendants/opposite parties arising out of the bad and defective quality of fabrics. The plaintiff/petitioner also claimed from the defendants/opposite parties the amount of money incurred by the plaintiff/petitioner for shipping the goods by air. Had the defendants/opposite parties shipped the goods in time and according to their commitment, there would not have been any delay and the plaintiff/petitioner would not have been compelled to ship the goods by air. Thus, the defendants/opposite parties alone are responsible for the financial loss suffered by the plaintiff/petitioner’s for shipping the goods by air. But till date, the defendants/opposite parties have not paid a single amount of damages to the plaintiff/petitioner, nor have they granted any discount to the plaintiff/petitioner on the invoice value under the L/C.
(m) Because of late delivery of the replacement fabrics and also because of their poor quality, the plaintiff/petitioner have to pay compensation to the ultimate buyer i.e. the applicant of the Master L/C. The plaintiff/petitioner vide e-mail dated 17.08.2000 categorically informed the defendant/opposite party No. 2 as follows:
“50,000 YDS, IF SHIPPED ON TIME IN CORRECT QUALITY AND IF REACHED ON TIME, SITU WUD HV IMPROVED TO AN EXTENT.
BUT YOUR FAB NOT ONLY REACHED LATE BUT ALSO HAD THE SAME SHADING PROBLEM.
THEREFORE WE ARE BOUND TO CLAIM YOU ON ALL OUR LOSSES.
BESIDES THE CUSTOMER IS YET TO CLAIM ON THE FAB QUALITY THAT WE HV SHIPPED TO THEM…………………….
YOU HV VRY CLEARLY ACCEPTED TO ACCEPT RELATED LOSSES.
ALSO YOU HAD OFFERED US ADDITIONAL USD 50,000.00 AS FURTHER COMPENSATION BESIDES THE 50,000 YDS.”
But even then the defendants/opposite parties did not bother to pay any damages to the plaintiff/petitioner because of late delivery of the defective fabrics though the defendants/opposite parties agreed to compensate the plaintiff/petitioner. From the acts of the defendants/opposite parties it is clear that they are in the habit of deceiving and defrauding innocent buyers and want to gain money illegally from Bangladesh. The plaintiff/petitioner from the moment they saw the goods were defective wanted to cancel the import of the entire order. But the defendants/opposite parties convinced the plaintiff/petitioner giving assurance to compensate them. The plaintiff/petitioner has been deceived by the misleading and fraudulent commitments of the defendants/opposite parties.
(n) Receiving no damages from the defendants/opposite parties, the plaintiff/petitioner through the proforma defendant has informed the Negotiating Bank that there claimed discount amount under the L/C is US$ 100,000.00 which they have incurred due to productivity loss and air freight cost owing to defective fabrics supplied by the defendants/opposite parties. Till date the defendants/opposite parties have not given any damages or discount to the plaintiff/petitioner under the L/C in question. It is evident from the negative attitude of the defendants/opposite parties with regard to the payment of the damages to the plaintiff/petitioner that the defendants/opposite parties will not compensate the plaintiff/petitioner by making payment of money against the damages unless the Court compels them. In such a situation, the plaintiff filed the money suit for recovery of damages.
07. That since the defendant/opposite parties No.1 and 2 did not appear in the suit even after receiving summon as well as notices of show cause only to defeat the decree which may be passed as such having no alternative the plaintiff/petitioner 04.10.2000 filed an application under section 151 of the Code of Civil Procedure in the learned Court praying for an ad interim order of attachment before judgement so that the proforma defendant can not make payment of the amount under the L/C being No. 01-00756-2000 dated 18.05.2000 to the negotiating bank of the defendants/opposite parties. The petition was heard on the same day and the plaintiff made its submission to the effect that if an ad-interim order of attachment is not passed by the learned Court the amount of the L/C would be remitted resulting in the plaintiff/petitioner to suffer irreparable loss and injury. The plaintiff/petitioner further submitted that it has prima facie arguable case, the balance of convenience and inconvenience are in favour of the plaintiff/petitioner and if the order is passed, the defendants/opposite parties would not suffer any loss as the defendant/opposite party No.1 gave a letter of guarantee to compensate the plaintiff/petitioner.
08. That it is submitted that the plaintiff/petitioner has specific information that the proforma defendant, having pressure from the negotiating bank, may at any moment remit the amount of the L/C in question to the Negotiating Bank of the defendant/opposite party No.1. If the proforma defendant remits the amount of the L/C to the negotiating bank of the defendant/opposite party No. 1, the claim of the plaintiff/petitioner will be infructuous as the plaintiff/petitioner would not be able to execute the decree which may be passed in favour of the plaintiff/petitioner and also would not be able to recover its legitimate dues from the defendant/opposite party No. 1. Hence, an ad interim order of attachment is essential so that no amount under the L/C in question may be remitted by the proforma defendant to the Negotiating Bank of the defendant/opposite party No. 1. The defendant/opposite party has no other property in Bangladesh from which the decree that may be passed can be satisfied. Until and unless the proforma defendant is restrained by an order of attachment, the said proforma defendant might remit the amount against the L/C. Once the amount against the L/C is remitted, the plaintiff/petitioner will not be able to recover the damages which the plaintiff/petitioner suffered from the defendants/opposite parties for which the defendant/opposite party No.1 gave a letter of guarantee. If the amount is remitted by the proforma defendant, it will take the amount of the L/C outside the local limits of the jurisdiction of the Court resulting the plaintiff/petitioner to suffer irreparable loss and injury. Since the amount under the L/C in question is lying with the proforma defendant and it is a necessary party and as such it has been made party in the suit as proforma defendant. It is not compulsory to seek relief(s) against the proforma defendant in the suit for praying order of attachment before judgment under Order 38 Rule 5 of the Code of Civil Procedure. The Order 38 Rule 5 of the Code of Civil Procedure clearly stipulates, if it appears that the subject property will be removed or there is an apprehension to remove the subject property from the local limits of the jurisdiction of the Court the order of attachment before judgement may be passed. In this particular case the amount under L/C. in question which is lying with the proforma defendasnt is the subject matter and the same is required to be attached before judgement. The learned Court below erred in law in holding that the seeking of relief against the proforma defendant is compulsory to pray for order of attachment before judgement as such the impugned order dated 04.10.2000 is liable to be set aside.
09. That the learned Court below after hearing, rejected the application for ad interim order of attachment before judgement giving an erroneous reasoning that since the plaintiff/petitioner did not claim any relief against the proforma defendant in the Money Suit, since they do not bear any liability of the defendants/opposite parties Nos. 1 and 2 and since the proforma defendant only deals with documents, the plaintiff/petitioner is not entitled to any ad interim order of attachment. Because of the erroneous finding and reasoning of the learned Court below, the impugned order is illegal and is liable to be set aside.
10. That it is submitted that the learned Court below failed to consider the fact that the proforma defendant is not the principal defendant and the plaintiff/petitioner does not seek any relief from the proforma defendant. The plaintiff/petitioner seeks remedy against the defendants/opposite parties Nos. 1 and 2 whose alleged monies are lying with the proforma defendant and it is essential to pass an adinterim order of attachment before the judgement with regard to the amount under the L/C in question since the defendant No.1 executed a letter of guarantee to compensate the plaintiff for defective goods. So in such situation, if the adinterm order of attachment before judgement is not granted or passed with regard to the amount under the L/C in question the suit would be infructuous and the plaintiff will suffer injury and hence the order of the learned Court below dated 04.10.2000 is liable to be set aside for the interests of justice.
11. That being aggrieved by and dissatisfied with the Order No. 5 dated 04.10.2000 passed by Mr. Md. Mosharraf Hossain, Subordinate Judge, 5th Court, Dhaka in the application under section 151 of the Code of Civil Procedure, the plaintiff/petitioner above named begs to file this application for revision on the following amongst other-
GROUNDS
I) For that the learned Court below erred in law in rejecting the application filed by the plaintiff/petitioner under section 151 of the Code of Civil Procedure for an ad interim order of attachment before judgement against the proforma defendant with regard to the amount under L/C in question to the Negotiating Bank of the defendant/opposite party No. 1 in as much as there is no necessity for seeking any relief against the proforma defendant and making it the principal defendant in the money suit;
II) For that the learned Court below erred in law in holding that since the plaintiff/petitioner did not claim any relief against the proforma defendant in the Money Suit and since the proforma defendant does not bear any liability of the defendants/opposite parties Nos. 1 and 2 and since the proforma defendant only deals with documents, the plaintiff/petitioner is not entitled to any ad interim order of attachment, resulting in an error in the decision occasioning failure of justice. The impugned order is liable to be set aside in as much as the same is in violation of the Order 38 Rule 5 of the Code of Civil Procedure.
III) For that the learned Court below erred in law occasioning failure of justice in not considering the fact that the plaintiff/petitioner sought an ad-interim order of attachment before judgement with regard to the amount of the L/C so that the said amount is not removed from the local limits of the jurisdiction of the learned Court as such the said order is liable to be set aside.
IV) For that the learned Court below failed to consider the fact that an ad interim order of attachment is essential for execution of the decree, if any, passed by the Court in favour of the plaintiff/petitioner since the defendant/opposite party No. 1 has no property in Bangladesh by which the decretal amount may be satisfied and the learned Court below erred in law in rejecting the application under Section 151 of the Code of Civil Procedure resulting in an error in the decision occasioning failure of justice.
V) For that the learned Court below erred in law in not considering the submissions made by the plaintiff/petitioner to the effect that the plaintiff/petitioner has prima facie arguable case, the balance of convenience and inconvenience are in favour of the plaintiff/petitioner and if the order of attachment is not passed the plaintiff/petitioner would suffer irreparable loss and injury and decree will be infructous which may be passed, resulting in an error in the decision occasioning failure of justice. As such the impugned order is liable to be set aside;
VI) For that the learned Court below failed to consider that the application for an order of attachment was filed only when the plaintiff had no other alternative and after the plaintiff/petitioner obtained specific information that the proforma defendant may at any time remit the amount of the L/C in question to the Negotiating Bank of the defendant/opposite party No. 1 and the malafide intention of the defendant No.1 and 2 who are not appearing in the suit even after receiving the summons as well as notices of show cause to defeat the decree which may be passed in favour of the plaintiff and thereby the learned Court below committed error of law in rejecting the application under Section 151 of the Code of Civil Procedure for ad-interim order of attachment before judgement resulting in an error in the decision occasioning failure of justice. As such the impugned order is liable to be set aside;
VII) For that the learned Court below did not apply its judicial mind while disposing of the petition;
VIII) For that the impugned order is otherwise illegal and liable to be set aside;
Wherefore, it is humbly prayed that this Hon’ble Court may be pleased to:
a) Issue Rule calling upon the defendants /opposite parties to show cause as to why the Order No. 5 dated 04.10.2000 passed by Mr. Md. Mosharraf Hossain, Subordinate Judge, 5th Court, Dhaka rejecting the application filed by the plaintiff/petitioner under Section 151 of the Code of Civil Procedure for an ad-interim order of attachment before judgement shall not be set aside;
b) After hearing the parties and cause(s) shown, if any, make the Rule absolute;
c) Pending hearing of the Rule, pass an ad interim order of attachment before judgement with regard to the amount under the L/C being No. 01-00756-2000 dated 18.05.2000 till disposal of the Rule;
d) Cost of the proceeding be awarded in favour of the plaintiff/petitioner; and
e) Pass such other or further order or orders as may be deemed fit and proper.
And for this act of kindness the plaintiff/petitioner, as in duty bound, shall ever pray.
AFFIDAVIT
I, _____________________________, son of ______________________, of ________________________________________________, aged about ______ years, by faith Muslim, by profession service holder, nationality Bangladeshi, do hereby solemnly affirm and say as follows:
01. That I am the tadbirker in this case and acquainted with the facts and circumstances of the present case and competent and authorised to swear this Affidavit.
02. That the statement of facts made in this petition are true to my knowledge and matters of records, which I verily believe to be true and the rests are submission 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 |