IN THE COURT OF DISTRICT JUDGE, DHAKA
TRANSFER MISCELLANEOUS CASE NO. /______
IN THE MATTER:
An application under Section 24 read with section 151 of the Code of Civil Procedure for transfer of Title Suit No. 6 of 2001 now pending before the Court of 1st Subordinate Judge, Dhaka to any other Court of Subordinate Judge.
AND
IN THE MATTER OF:
Westmont Power (Bangladesh) Ltd.
House NO.7/A, Road No.124
Gulshan # 1
P. S. Gulshan
Dhaka.
PLAINTIFFS
/ PETITIONERS
-Versus-
1. X
Km 9, Jalan Ranca ranca
P. O. Box 203
87000, Federal territory of Labuan
East Malaysia
2. Z
(Advocates & Solicitors)
Suite # 812 & 813, Block # E,
Phileo Damansara # 1
No.9, Jalan 16/11
46350 Petaling Jaya,
Malaysia.
DEFENDANTS
/OPPOSITE-PARTIES
3. A
_________________
__________________
__________________
_________________
4. B
_________________
__________________
_________________
PORFORMA DEFENDANTS
The petitioner/plaintiff most respectfully
SHEWETH :
01. That the plaintiffs/petitioners filed Title Suit No.06 of 2001 on 07.01.2001 in the Court of 1st Subordinate Judge, Dhaka against the defendants for seeking declaration, direction and permanent injunction as follows :
(a) Without fulfilling the preconditions set out in clause 4.2.3 of the addendum to agreement for Sale and purchase of Bijoyer Aalo I, the defendant No.1 is not legally entitled to claim any payment of the contract price of the said barge Bijoyer Aalo I.
(b) A director upon the defendants to obtain release of the barge Victoria III now Bijoyer Aalo I from any or all order of injunction and/or attachment and to further obtain necessary permission from the competent Court in Malaysia in the proceeding pending under section 176 of the Malaysian Companies Act so that the barge becomes free from all encumbrances/attachment and judicial proceedings within a stipulated date failing which a further direction upon the defendants to compensate the plaintiff of all costs and expenses amounting to US$22,300,000.00 incurred for commissioning the barge for production of electricity and to pay further compensation at the rate of 15% on the said amount from the date of filing this suit till the date of decree and from the date of decree till realization
(c) Permanent injunction upon the defendant No.1 restraining it from repossessing the barge Bijoyer Aalo 1
(d) Permanent injunction upon the defendant No.2 from handing over the documents of title to Bijoyer Aalo I to the defendant No.1
The facts of case in short is as under :
(a) The plaintiff is a company incorporated in Bangladesh with 100% foreign investment. The plaintiff-company was incorporated with 100% foreign investment with sole purpose to set up a barge mounted power plant under private section at Bhaghabari, Sirajganj
(b) The defendant No. 1 is the foreign company engaged in the shipbuilding business and carries its business from the address given in the cause title. The defendants No. 2 and 3 are also foreign companies who along with the defendant No. 1 entered into an agreement to sell a barge with a power plant installed thereon to the plaintiff/petitioner.
(c) That the plaintiff signed the power purchase agreement with the Power Development Board, the plaintiff was a wholly owned subsidiary of A In 1998 various subsidiaries/affiliates of Westmont group including A and the defendant No. 1 agreed to a amicable settlement of their claim and counter claim under a Settlement Agreement dated 07.07.1998. Under the said Agreement it was agreed that the proceeds of certain barges including Victoria III (now Bijoyer Alo) will be shared by the three parties namely the three defendants.
(d) That the Settlement Agreement noted certain charge on the barge Victoria III of Westinghouse Electric Corporation who had obtained an order of injunction from Malaysia Court to restrain dealings on the barge.
(e) That keeping in mind of Victoria III, A the majority shareholder of the plaintiff, one of the signatory of the Settlement Agreement and one of the beneficial owners of the barge decided to set up the barge mounted power plant in Bangladesh. After setting up of the plaintiff-company, the parties concerned entered into negotiation wherein it was agreed that Victoria III would be delivered to the plaintiff with a power plant mounted thereon free from all charges and encumbrances.
(f) That on 04.05.1999 the plaintiff as Purchaser entered into agreement i.e. an Addendum to a Agreement for Sale and Purchase of the barge Victoria III with the defendants namely, Westmont Offshore SDN BHD., Wing Teik Holdings Berhad, and X as Sellers (“the Agreement”). Under the Agreement the defendants were to deliver the Barge, Victoria III with the power plant with capacity to produce 130 megawatt within 15.05.1999 for a total consideration of USD50.00 million. The plaintiff was to bring the barge to Bangladesh at its own cost and was to develop the infrastructure for commercial production of electricity.
(g) That the sale of the barge was therefore subject to fulfillment of the certain pre-conditions. However since the defendants were unable to fulfil the pre-conditions and since the defendant No. 1 undertook to share 50% of the liquidated damages to the tune of US$10,000.00 per day, all the parties agreed that the plaintiff shall arrange to take delivery of the barge and pay the total consideration price in 60 monthly installments upon down payment of 1st installment.
(h) That on such understanding the plaintiff paid USD 4,50,00,000.00 as first installment and then spend USD892,000.00 to tow the barge from Malayasi to Mongla and then to the destination at Baghbari at Sirajgang. The plaintiff also spent huge amount of monies to commission the power plant .
(i) That even though the plaintiff received the barge but the defendants could not fulfil the preconditions within reasonable time. So the plaintiff with knowledge and consent of the defendants discontinued payments of the installments as agreed with the Sellers.
(j) That in addition to non-fulfillment of the preconditions, the barge is also the subject matter of an injunction order passed by a competent Court in Malaysia at the instance of Westinghouse Electric Corporation. While the injunction order is in effect, the defendants as Sellers can not confirm to the effect that “no other party has any right, lien or encumbrance or claim whatsoever over or against the Barge or Equipment or part thereof”.
(k) That plaintiff further understands that the defendant No. 1 is yet to obtain from the relevant Court sanction and approval of the scheme of compromise and arrangement which incorporates the sale of the Barge to any third party.
(l) That since the other two sellers i.e the defendants No. 2 and 3 are aware of the non-fulfillment of the covenants, they are in agreement with the plaintiff to allow it time to commence payment of the remaining installments until the pre-conditions are fulfilled. In fact such was the assurance received by the plaintiff from the defendant no. 1 as well.
(m) That the plaintiff has been client has been incurring huge financial losses every day for non-fulfillment of its obligations under the Implementation Agreement and Power Purchase Agreement during the commissioning period with the relevant authorities in Bangladesh. Such losses were directly attributed to the failure by the defendant No. 1 to abide by the terms of the Agreement.
(n) That while the defendants No. 2 and 3 are willing to give time to the plaintiff for payment of the contract price until completion of all pre-conditions under the Agreement, the defendant No. 1 has served through its lawyers legal notice dated 01.12.2000 demanding of our client payment of USD4,702,400.0 equivalent to ten (10) months installment failing which the defendant shall commence legal proceedings.
(o) That it is stated that the demand of the defendant No. 1 being one of the co-owners of the barge for payments of the installments of the contract price is unjustified, untenable and not legally binding on the plaintiff. In fact the defendant No. 1 can not rely on any terms of the Agreement until the pre-condition relating to good title of the barge is fulfilled. The barge in question is subject matter of injunction arising out of an arbitration proceeding commenced by Westinghouse Electric Corporation. Under the Agreements the defendants are obliged to remove all encumbrances so far the barge is concerned so that good title passes to the plaintiff. The defendants could not have fulfilled the pre-conditions and yet the defendant No. 1 is claiming payments.
(p) That the plaintiff has given reply to the legal notice raising the issues of non-fulfillment of the pre-conditions of the Agreement. The plaintiff suggested that as soon as the pre-conditions under the Agreement are met, it shall pay all outstanding dues in lump sum by a single cheque, less any sum legally deductible by it. The defendant No. 1 was requested to inform the plaintiff in writing within 15 (fifteen) days of receipt of the reply whether the arrangement was acceptable to the defendant No. 1. The said defendant has received the reply but has not answered in affirmative as yet. The plaintiff suspects that the defendant No. 1 is going to resort to illegal actions to take over possession of the barge so that the production of plant is disrupted thereby coercing the plaintiff to succumb to its unlawful demands.
(q) That the plaintiff submits that until the fulfillment of the preconditions while the other defendants have agreed to postpone payment of the installments of the contract price, the unilateral claim of the defendant No. 1 is illegal, unlawful and arbitrary and not binding on the plaintiff. The plaintiff is liable to pay the contract price only after the preconditions are met.
(r) That since the defendant No. 1 has lodged illegal and unlawful claim the plaintiff has no option but to seek relief from the Court. The uninterrupted supply of electricity from the power plant is vital not only for the plaintiff but for the national economy as well. The plaintiff’s plant presently producing 90 megawatt electricity every day, which is consumed by Bangladesh Power Development Board and distributed amongst the local consumer. Any attempt by the defendant No. 1 to take over possession of the barge will cause serious disruption in the supply of electricity resulting into loss in national economy as well. In such situation the plaintiff seeks permanent injunction restraining the defendant No. 1 from making any attempt to take over possession of the barge until disposal of this suit and filed this suit.
3. That thereafter on 09.01.2001 the plaintiff/petitioner also filed an application under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure for temporary injunction on 09.01.2001 and prayed relief as under:
(a) To direct the defendant/opposite parties No. 1 and 2 to show cause why the defendant/opposite party No.1 shall not be restrained by an order of temporary injunction from taking possession of the barge Bijoyer Aalo I now berthed at Bhaghabari, Sireajganj till disposal of the suit and why the defendant/opposite parity No.2. shall not be restrained by an order of temporary injunction from handing over the documents of title to the barge Bijoyer Aalo I now berthed at Bhaghabari, Sirajgonj to the opposite party No.1 till disposal of the suit.
AND
pending hearing of the application pass an adinterim order of injunction restraining the defendant/opposite party No.1 from taking possession of the barge Bijoyer Aalo I now berthed at Bhaghabari, Sirajganj and further restrain the defendantn/opposite party No.2 from handing over the documents of title to the barge Bijoyer Aalo I now berthed at Bhaghabari, Sirajganj to the defendant /opposite party No.1.
On that date i.e. 09.01.2001 after hearing the plaintiff-petitioner the learned Court was pleased to issue show cause notice upon the defendants and also passed an ad-interim order directing the defendant No. 1 that
“the defendant No.1 is hereby restrained by an order of ad-interim injunction taking possession of the Barage Bijoyer Aalo.1 now berthed at Bhaghabari, Sirajgonj till further order”.
Summons and show cause notices were duly served upon the defendants/opposite parties. But the defendants/opposite parties kept them abstain from appearing in the suit for many days. As a result, the date of 23.07.2001 was fixed for filing written statement in default for hearing exparte. However, on 23.07.2001 the defendants/opposite appeared in the suit through their learned lawyer and contesting the suit by filing written objection and written statement.
04. That on 11.09.2001 was fixed for framing issues and hearing of the petition for temporary injunction. Both the parties filed hazira. As per provision of law the plaintiff is supposed to place its case before the learned Court and make argument first and accordingly the learned lawyer for the plaintiff appeared before the learned Court for making his arguments. But the learned presiding Court instructed the learned lawyer for the defendant No.1 to make his arguments and also instructed the learned lawyer for the plaintiff to take sit. The learned lawyer on behalf of defendant No.1 completed his arguments within couple of minutes. Thereafter, the conducting learned lawyer on behalf of plaintiff/petitioner started his arguments supporting the plaintiff’s case. But unfortunately before completion of his arguments the learned Court mentioned that
“ the plaintiff has no case and it will not get any relief in the suit ”
The learned lawyer for the plaintiff was astonished hearing the opinion of the learned Court with regard to the merit of the case before taking evidences. The General Manager of the plaintiff company was also astonished upon hearing such opinion from the learned Court. The General Manager of the plaintiff company is a Malaysian and he was present in the Court when the case was taken for hearing of the petition for temporary injunction. The learned presiding Judge of the 1st
Subordinate Court of Dhaka should not and can not pass such opinion without taking evidences on record. Only a biased Judge can pass such opinion before taking evidences of the case. Since the learned presiding Judge has passed opinion that the plaintiff has no case and it will not get any relief in the above noted case, the plaintiff has every reason to belief that the learned Court is biased to the defendants and the plaintiff will not get any relief from the presiding Judge Mr. Altaf Hossain of the 1st Subordinate Judge, Dhaka. As such the plaintiff has been compelled to filed this petition for transfer the above noted case to any other Subordinate Judge of Dhaka. If the case is heard by the present presiding Judge Mr. Altaf Hossain the plaintiff will be prejudiced and suffer irreparable loss and injury. So for ends of justice the above noted case is required to be transferred to any other learned Subordinate Judge, Dhaka.
05. That the plaintiff company has been generating 90 MW electricity and supplying the same to the government of Bangladesh by which the entire north zone is being benefited with the said electricity. In the above noted case national interest is involved. The learned presiding Court has totally failed to realise the importance of the case even. If the present presiding Judge Mr. Altaf Hossain is not biased to the defendant No.1 he can not pass such unexpected and unwarranted opinion with regard to the merit of the case without taking evidences of the case in presence of plaintiff also.
06. That the plaintiff has a good prima facie and arguable case and the plaintiff is quite sure that it will get relief if the case is heard by any other learned Subordinate Judge of Dhaka Courts. The learned predecessor of the present presiding Judge of the 1st Subordinate Court, Dhaka after being satisfied passed adinterim order of injunction with regard to the possession of the subject matter of the case Bijoyer Alo.
07. That the fact remains that the presiding Judge of the 1st Subordinate Judge Court has been biased to the defendant No.1. It is also evident that the presiding Judge of the 1st Subordinate Court, Dhaka is very much interested to dispose of the petition for temporary injunction.
08. That the plaintiff-petitioner now apprehends that it will not get a fair trial from the Court of 1st Subordinate Judge, Dhaka. So for ends of justice as well as for the interest of the justice, the above noted case is required to be transferred to the any other learned Subordinate Judge, Dhaka for fair trial and fair disposal of the same. If the case is not transferred from the present Court to the any other Court having similar jurisdiction this plaintiff/petitioner would be highly prejudiced and deprived. The balance of convenience and inconvenience are in favour of the plaintiff.
09. That this petition has been filed bonafide.
Wherefore it is prayed that Your Honour may kindly be pleased:
a) Call for the records;
b) Issue notice to the defendants-opposite parties as to why the Title Suit No. 6 of 2001 now pending before the Court of 1st Subordinate Judge, Dhaka shall not be transferred to any other Subordinate Judge Court, Dhaka, and cause shown, if any, after hearing the parties the above mentioned suit be transferred to any other Subordinate Judge Court, Dhaka for the ends of justice.
And for this act of kindness the petitioners as in duty bound shall ever pray.
AFFIDAVIT
I, _______________________ son of ___________________ of _______________________________________, aged about ___________ years, by occupation ___________, by faith ________________, Nationality Malaysian by birth, do hereby solemnly affirm and say as follows:
01. That I am the General Manager of the petitioner Company, fully acquainted with the fact and circumstances of the case and competent to swear this Affidavit.
02. That the statements made above are true to my knowledge and belief and the rests are submission before the Hon’ble Court. In witness whereof I swear this affidavit and signed below before the affidavit commissioner on this the _______________day of _______________ at ________ a.m.
________________________
DEPONENT
The Deponent is known to me and identified by me.______________________
ADVOCATE.