X Insurance Company Limited -Versus- A Composite Mills Limited

IN THE COURT OF DISTRICT JUDGE, DHAKA

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. OF _________

IN THE MATTER OF:

An application under section 115(2) of the Code of Civil Procedure, 1908

AND

IN THE MATTER OF:

X Insurance Company Limited.

Head Office, Hadi Mansion (4th Floor) 2, Dilkusha C/A

Dhaka 1000

Defendant No. 1/

Petitioner

-Versus-

1. A Composite Mills Limited

Represented by its Chairman Mr. Z

Sena Kalyan Bhaban (12th Floor)

195, Motijheel Commercial Area

Dhaka

Plaintiff/Opposite Party

2. Sadharan Bima Corporation

33, Dilkusha Commercial Area

Motijheel C/A

Dhaka-1000

Defendants/Opposite Party

AND

IN THE MATTER OF:

Order No. 34 dated 25.08.2005 passed by Mr. Md. Mahtab Hossain, Joint District Judge, 5th Court, Dhaka in Money Suit No. 64 of 2001 disallowing the application under Order XIV Rule 2 of the Code of Civil Procedure, 1908 filed by the defendant No. 1/petitioner (Annexure “A”)

PETITION VALUED AT TK. 7,83,00,000.00 ONLY BEING SUIT VALUED AT TK. 6,54,64,483.63 ONLY

The humble petition of the petitioner above named most respectfully

SHEWETH:

01. That this revisional petition is filed against Order No. 34 dated 25.08.2005 passed by Mr. Md. Mahtab Hossain, Joint District Judge, 5th Court, Dhaka in Money Suit No. 6 of 2003 disallowing the application under Order XIV Rule 2 of the Code of Civil Procedure, 1908 filed by the defendant No.1/ petitioner for trying and disposal of the legal issue framed as additional issue by the learned Court vide Order dated 16.05.2005 and adjournment of further hearing of the suit until the trial and disposal of the said legal issue. The impugned order is adversely affecting the interests of the defendant No.1/petitioner.

02. That the defendant No. 1/ petitioner is an insurance company incorporated under relevant Companies Act having its address as mentioned in the cause title. plaintiffs/opposite parties No. 1 & 2 are the legal heirs of Late Professor Azmal Hayat Ahmad, who along with the plaintiff/opposite party No. 3 have now become the owners of land measuring 1 bigha situated within District – Dhaka, P.S. previously Tejgaon, at present Gulshan, Mouza – Bhola Shamair, Plot No. 2, Block No. NW(E), Road No. 59 of the layout plan of Gulshan Model Town prepared by the then Dhaka Improvement Trust, now Rajdhani Unnayan Katripakkha (RAJUK).

03. That in the course of business National Vegetable Oil Limited opened a current account being No. 210994-000 with the defendant No. 9/petitioner on 14.05.85. Thereafter, at the request of the National Vegetable Oil Limited, the defendant No.9/petitioner sanctioned the following credit facilities vide its Sanction Letter No. CR/SAH/3228/94 dated 04.08.94:

Facility Limit Expiry
Overdraft Tk.5,00,00,000.00 31.12.95
Term Loan Tk.2,65,00,000.00 30.06.98
Trust Receipt Tk.1,86,00,000.00 08.03.96
L/C Tk.5,00,00,000.00 31.12.95
Bank Guarantee Tk. 68,00,000.00 SDB

04. That National Vegetable Oil Limited availed the above facilities in full and at one stage its outstanding liabilities inclusive of interest and charges reached and stood at Tk. 14,28,91,361.90 (Taka fourteen crore twenty eight lac ninety one thousand three hundred sixty one and paisa ninety) only as on 30.06.99.

05. That subsequently at the request of National Vegetable Oil Limited, the defendant No. 9/petitioner vide Sanction Letter No. CR/RK/3089/99 dated 02.12.99 rescheduled the entire liability at Tk. 8,83,00,000.00 (Taka eight crore eighty three lac) only in full and final satisfaction of its entire liabilities with the defendant No. 9/petitioner. As security inter alia of the aforesaid re-scheduling, Mr. Azmal Hayat Ahmad and the plaintiff/opposite party No. 3 created third party registered mortgage of the land described in paragraph 2 above in favour of the defendant No. 9/petitioner vide Deed of Mortgage No. 11867 dated 12.09.2000.

06. That consequent upon persistent default made by National Vegetable Oil Limited, the defendant No.9/petitioner filed Title Suit No. 2 of 2003, subsequently re-numbered as Artha Rin Suit No. 279 of 2003 on 15.01.2003 against National Vegetable Oil Limited and others for recovery of loan of Tk. 18,47,10,212.49 (Taka eighteen crore forty seven lac ten thousand two hundred twelve and paisa forty nine) only as on 30.10.2002 by sale of the above-mentioned mortgaged property along with other mortgaged properties, in the Artha Rin Adalat, 3rd Court, Dhaka. The said Artha Rin Suit has been subsequently transferred to Artha Rin Adalat, 2nd Court, Dhaka by an administrative order and is still pending for disposal.

07. That in such a situation, the defendant No.9/petitioner all on a sudden to its utterly shock and surprise came to learn that the plaintiffs/opposite parties has filed Title Suit No. 106 of 2003 on 18.05.2003 in the Court of Joint District Judge, 1st Court, Dhaka against this petitioner and others praying for the following reliefs:

a) It be declared that the mortgage deed described in the B schedule of the plaint is forged, fabricated, illegal and void

b) Cost of the suit be decreed against the defendants

c) Any other relief that may be available to the plaintiff

08. That the defendant No. 9/petitioner appeared in Title Suit No. 106 of 2003 through its lawyer and subsequently when the suit came at the hearing stage, the defendant No.9/petitioner on 27.07.2004 filed an application under Order XIV, Rule 2 of the Code of Civil Procedure, 1908 for framing of the following legal issue:

“Whether the suit is barred by section 42 of the Specific Relief Act, 1877”

09. That the learned Court upon hearing of the application vide Order No. 30 dated 27.07.2004 re-framed all the issues and fixed the next date for further hearing on 17.08.2004.

10. That thereafter the defendant No.9/petitioner on 17.08.2004 submitted an application for adjournment praying that the suggested legal issue of the defendant No.9/petitioner should be tried and disposed of first postponing the factual issues and for adjournment/postponement of further hearing of the suit until disposal of the suggested legal issue.

11. That the learned Court heard the application for adjournment on 12.09.2004, but did not pass any order on that date. Subsequently, on 30.09.2004 the learned Court vide Order No. 35 disallowed the application of the defendant No.9/petitioner. Being aggrieved by the said Order, the petitioner has filed the instant revisional application before this Hon’ble Court.

12. That it is submitted that the proviso of section 42 of the Specific Relief Act, 1877 reads as follows:

“Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”

In view of the above provision of law, no declaratory decree can be passed in a suit where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so and the same causes the suit liable to be dismissed. The connotation “further relief” referred to in section 42 of the Specific Relief Act, 1877 is a relief which is consequent on the right asserted. The further relief thus must flow from the relief of declaration and the relief must be one which would complete the claim and thus not lead to multiplicity of suits. In the instant case, the plaintiffs/opposite parties has prayed for declaration that the mortgage deed described in the B schedule of the plaint is forged, fabricated, illegal and void, but has not prayed for any consequential relief.

13. That it is submitted that in order to comply with the proviso to section 42 of the Specific Relief Act, 1877 the plaintiffs/opposite parties ought to have prayed for a consequential relief, in that, the plaintiff ought to have prayed for further relief by seeking return of the title deeds, documents in connection with the mortgaged land in question from the defendant No. 9/petitioner. Since no further relief has been sought for by the plaintiffs/opposite parties, the declaration as prayed for by the plaintiffs/opposite parties shall not complete the claim.

14. That it is further submitted that the plaintiffs/opposite parties in the prayer has sought for declaration that the mortgage deed described in the ‘B schedule’ of the plaint is forged, fabricated, illegal and void. However, no prayer for cancellation of the aforesaid mortgage deed have been sought. Declaration that a document is null and void is the main and substantive relief, whereas cancellation of the instrument is a consequential relief which ought to have been sought by plaintiffs/opposite parties to complete their claim. Cancellation of the instrument in question is a relief which is absolutely necessary for serving the object of the suit and the purpose of the declaration. It is therefore submitted that omission to pray for consequential relief for enforcing declaratory decree renders it unenforceable in law.

15. That the defendant No.9/petitioner has filed Artha Rin Suit No. 279 of 2003 for recovery of loan by sale of the aforesaid mortgaged property, which is now pending before the Artha Rin Adalat, 2nd Court, Dhaka. It is submitted that pursuant to section 5(2) of the Artha Rin Adalat Ain 2003, the Artha Rin Adalat, 2nd Court, Dhaka is legally capable to decide the legality of the mortgage.

G R O U N D S

I. For that in the facts and circumstances of the suit the learned Court below has committed a serious error of law in passing the impugned order which has resulted in an error in the decision occasioning failure of justice and as such the impugned order is liable to be set aside.

II. For that Order XIV Rule 2 of the Code of Civil Procedure, 1908 put mandate upon the Court to decide the legal issues first postponing other factual issues and as such the learned Court below has committed an error of law in re-framing the issues without disposing the suggested legal issue first thereby resulting in an error in the decision occasioning failure of justice and as such the impugned order is liable to be set aside.

III. For that the learned Court below has committed error of law in not considering the proviso to section 42 of the Specific Relief Act, 1877 and the fact that the plaintiff/opposite parties being able to seek further relief(s), without which their claim shall not be complete, has omitted to do so and has thereby committed error of law resulting in an error in the decision occasioning failure of justice and as such the impugned order is liable to be set aside.

IV. For that while passing the impugned order, the learned Court below has not considered that without seeking cancellation of the instrument in question, the declaration as prayed for shall not be of any use and will cause multiplicity of proceedings, and as such the learned Court has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned order is liable to be set aside.

V. For that while passing the impugned order the learned Court has not considered that without seeking any declaration as to the return of title deeds of the property in question by the plaintiffs/opposite parties, the declaration as prayed for shall not be complete and would lead to multiplicity of proceedings, and as such the learned Court has committed error of law resulting in an error in the decision occasioning failure of justice and hence the impugned order is liable to be set aside.

VI. For that the impugned order is otherwise illegal and liable to be set aside.

Wherefore, it is humbly prayed that the Hon’ble Court may graciously be pleased to:

a) Issue Notice calling upon the plaintiffs/opposite parties to show cause as to why Order No. 35 dated 30.09.2004 passed by Mr. Md. Golam Kibria, Joint District Judge, 1st Court, Dhaka in Title Suit No. 106 of 2003 disallowing the application under Order XIV Rule 2 of the Code of Civil Procedure 1908 shall not be set aside and after hearing the parties and cause shown, if any, to pass an order setting aside the impugned order;

b) Pending hearing of the application, stay all further proceedings of Title Suit No. 106 of 2003 pending in the Joint District Judge, 1st Court, Dhaka;

c) Cost of the proceeding be awarded in favour of the 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 petitioner as in duty bound will ever pray.

AFFIDAVIT

I, __________________________, son of ___________________________, of Arab Bangladesh Bank Limited, Principal Branch, BCIC Bhaban, 30-31 Dilkusha Commercial Area, Dhaka 1000, aged about _____ years, by faith _________, profession service, nationality Bangladeshi, do hereby solemnly affirm and say as follows:

01. That I am the officer of the petitioner and tadbirkar of the petitioner 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 statements 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

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