Multiplan Ltd. Vs. Barrister Md. Abdul Baten Sheikh, (Kashefa Hussain, J.)

Case No: Civil Revision No. 1407 of 2017

Judge: S. M Emdadul Hoque, J

Court: High Court Division,

Advocate: Mr. Kamal Ul Alam, Senior Advocate with Mr. Md. Quamruddin, Advocate, Mr. Md. Nazrul Islam, Senior Advocate with Mr. Md. Khalilur Rahman, Advocate,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: Multiplan Ltd.

Respondent: Barrister Md. Abdul Baten Sheikh.

Subject: Transfer of Proper Act (IV of 1882)

Delivery Date: 2019-11-24

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

S. M Emdadul Hoque, J

And

Kashefa Hussain, J

 

Judgment on

19.11.2017

}

}

}

}

Multiplan Ltd.

. . . Petitioner

-Versus-

Barrister Md. Abdul Baten Sheikh.

. . . Opposite Parties

Transfer of Proper Act (IV of 1882)

Section 53A

Upon perusal of Section 53A it is apparently manifest that this section mainly provides in favor of rights of a transferee who has taken possession of the property or any part thereof the provision of the rights of a transferee who is in possession or taken possession in part performance of a contract whatever comprising reliance of section 53A.                                                           . . .(14)

Arbitration Act (I of 2001)

Sections 7(ka) and 12

Civil Rules and Orders (C.R.O)

Rule 774, Serial No.38, Volume No.1

Upon perusal of the Rule 774 of listed No.38, upon and interpretation thereof it is our considered view that the filing of an application under section 7(ka) under the umbrella of Section 12 is not an inherent illegality, but it is rather an irregularity which can be rectified and corrected upon by filing a separate Mis. case under Section 7(ka) of the Arbitration Act, 2001. Hence in our considered view that order passed by the trial court is not illegal in itself in limine and whatever irregularity there might be in the procedure followed in that case in filing the application under Section 7 (ka) of the Arbitration Act, 2001, such irregularity or aberration is rectifiable. It is our considered finding that the irregularity may be rectified upon the concerned Trial Court renumbering the application under Section 7 ka of the Arbitration Act, 2001 as separate Mis. Case in accordance with the provisions of Serial No. 38 of Rule 774 of the C.R.O (Volume-1).       ...(16)

Code of Civil Procedure (V of 1908)

Section 115 (1)

The learned Counsels from both sides had also agitated over several factual issues and which are disputed matters of fact and which sitting in Revision here we are not in a position to adjudicate upon. These factual may be placed by the parties before the appropriate forum. . . .(17)

Rafiqul Islam Vs. Mir Abdul Ali 44 DLR (AD) (1992) 176; Dacca Match Factory Ltd Vs. Bangladesh Match Company Ltd 30 DLR (1978) 244; Molla Mahjenul Islam Vs. State and ors 53 DLR (2001) 552; Jamalpur Fishermen’s Co-operative Society Ltd 47 DLR (1995) 573; Nasir Miah, Malik Nasir Soap Factory Vs. Md. Anwar Hossain, Executive Officer, Commander Soap Factory Ltd 48 DLR (1996) 29 and Abdur Razzak Howladar Vs. Sh. Muhammad Shafi 14 DLR (SO) (1962) 119 ref.

Mr. Kamal Ul Alam, Senior Advocate with

Mr. Md. Quamruddin, Advocate

- - - For the Petitioner.

Mr. Md. Nazrul Islam, Senior Advocate with

Mr. Md. Khalilur Rahman, Advocate

- - - For the opposite party.

JUDGMENT

Kashefa Hussain, J; Rule was issued in the instant Civil Revisional Application calling upon the opposite-party No. 1 to show cause as to why the order No. 15 dated 07.02.2017 passed by the learned District Judge, Dhaka in Arbitration Miscellaneous Case No. 260 of 2016 passing an order of status-quo with regard to possession and transfer of the disputed property should not be set aside and/ or such other or further order or orders passed as to this court may seem fit and proper.

2.             Facts relevant for disposal of the Rule in short is that the opposite party No. 1 as petitioner instituted the Arbitration Miscellaneous Case No. 260 of 2016 under Section 12 of the Arbitration Act, 2001 in the Court of District Judge, Dhaka. The opposite parties (Petitioner in the Arbitration Misc. Case) inter alia alleged that the instant petitioner in the Civil Revisional application being opposite party No. 1 in Arbitration Misc. case and a Real Estate developer company initially on 02.03.2003 entered into a registered agreement along with power of attorney with the owner of the property being Bangladesh Red crescent Society for construction of 4(four) buildings. Subsequently on 18.06.2006 the instant petitioner entered into an unregistered agreement with the opposite party No. 1 for sale and of purchase 2 (two) flats in the ‘Ga’ schedule property. However eventually during several stages dispute arose between the present petitioner developer and the opposite party No. 1 purchaser regarding the price, square feet, size of the flat etc. Opposite party No. 1 also alleged that excess amount of money was received by the petitioner but which was not returned to him. Disputes also arose over non delivery of possession of flat, non compliance of agreement and disagreement also arose over other connected matters relating to utility service further alleging that the developer petitioner refused to complete the incomplete work and transfer the community hall, Mosque at level 4 as per clause No. 57 of A schedule and clause No. 47 of B schedule of the agreement. There is also allegation in the Arbitration Misc. Case violation of Article 24(4) of the Building Construction Rules, 1996 and Article 64(1) of the Dhaka Mahanagar Emarat Nirman Bidhimala, 2006 by the developer-petitioners and that without keeping 5% space for community purpose the petitioner illegally rented level 4 but which is a part of the RAJUK plan and brochure. It is also alleged in the Misc case that the present petitioner did not transfer 209 flats in the name of the flat purchasers did not make registration of car parking spaces etc. That according to approved plan by RAJUK the community hall, Mosque, society office was fixed at level 4. But the Petitioner rented those spaces illegally to a private university and to a private limited company. Subsequently the present opposite party No. 1 sent legal notice to the petitioner on 15.12.2015 to complete the incomplete work, which was followed by another notice dated 19.01.2016 for appointment of Arbitrator. But that the notice having no effect on the present petitioner the present opposite party No. 1 was compelled to file Arbitration Misc. Case No.115 of 2016 before the Court of District Judge, Dhaka on 23.02.2016 under the name of unregistered society namely “M.R.C Meghna Bhaban Flat Owners Society”. The opposite party No.1 (petitioner in the Arbitration Misc. Case) filed the Arbitration Misc. Case on the basis of clause No. 50 of the agreement dated 03.12.2006 executed between the petitioner and the opposite parties for appointment of arbitrator relating to any dispute arising from the terms of the agreement. The learned District Judge, Dhaka admitted the Arbitration Misc. Case vide his order dated 21.08.2016 primarily asking both parties to submit names of the arbitrators. Challenging the said order the instant petitioner being opposite party No. 1 in the Arbitration Misc. Case filed Civil Revision No. 3515 of 2016 and this Division issued Rule and stayed further proceedings of the Arbitration Misc. Case. Rule was ultimately discharged in Civil Revision No. 3515 of 2016 by this Division on 22.01.2017. Thereafter the learned District Judge, Dhaka took up the Arbitration Misc. Case again on 17.01.2017 and directed the petitioner to submit the names of Arbitrators by 07.02.2017. However on 30.01.2017 the present opposite Party No. 1 (petitioner in the Arbitration case) filed an application under Section 7(ka) of the Arbitration Act, 2001. Upon several allegation and with prayer for ad-interim temporary injunction against the eviction of the present opposite party No. 1 purchase and 209 other flats owner from the Gha schedule property in the 4th floor/ level 4 reserved for common space and Mosque and also praying for temporary injunction against renting level 4/ 4th floor to any other person till disposal of the Arbitration Misc. Case.  The learned District Judge, Dhaka upon application under Section 7(ka) of the Arbitration Act, 2001 filed by the petitioner-opposite party No. 1 in Arbitration case and arising out of Arbitration Misc. Case No. 260 of 2016 filed under Section 12 of the Arbitration Act 2001 on 30.01.2017 issued show cause and passed an ad-interim order of status-quo. The petitioner on the same date moved this Division against that order but this Division after hearing passed an order that the matter go out of list. Subsequently the instant developer petitioner being opposite party in the arbitration case filed written objection on 07.02.2017 before the learned District Judge. But the learned District Judge vide his order No. 15 dated 07.02.2017 passed an order of status-quo with regard to possession and transfer of the space in the level-4 of Meghna Bhabon till first sitting of the arbitrator along with further orders directing the parties for submitting the name of arbitrators etc.

3.             Being aggrieved by the said order No. 15 passed by the learned District Judge, Dhaka in Arbitration Misc. Case No. 260 of 2016 passing an order of status-quo with regard to possession and transfer of the level 4 of Meghna Bhabon as described in schedule Gha floor space of the Opposite party No. 1 till first sitting of the arbitrational tribunal, the present petitioner filed the instant Civil Revisional application which is before us for disposal.

4.             Learned Senior Advocate Mr. Kamal-Ul-Alam with Mr. Md. Quamruddin, learned Advocate appeared for the petitioner while learned Senior Advocate Mr. Md. Nazrul Islam with Mr. Md. Khalilur Rahman, Advocate represented the opposite party.

5.             Learned Senior Advocate Mr. Kamal-Ul-Alam submits that the impugned order of the trial court granting temporary injunction is not lawful given that a separate Misc. Case must be filed under Section 7(ka) for praying ad-interim relief under the Act. He elaborates his submissions upon contention that in this case the present opposite party No. 1 filed the application under Section 7(ka) of the Arbitration Misc. Case No. 260 of 2016 filed earlier under Section 12 of the Arbitration Act 2001 for appointment of Arbitrator. He submits that an application under Section 7(ka) of the Arbitration Act, 2001 is an independent proceeding which confers jurisdiction on the District Judge only when an independent Arbitration Miscellaneous Case is filed under Section 7(ka) of the Arbitration act, 2001. He contends that as per the listed serial No. 38 of Rule – 774 of Civil Rule and Orders (C.R.O) Volume I a separate and independent Arbitration Miscellaneous Case must be filed following the provisions of the C.R.O. He further agitates that the dispute is not a subject of Arbitration any more since the sale deed over the subject matter has been executed and the flat has been duly transferred to the purchase owner. He assails that since possession has also been taken over and the sale deed has been completed therefore the arbitration clause No. 50 mentioned in the agreement ceased to be enforceable and that there is no existence of any arbitration agreement any made within the definition of the Arbitration Act, 2001. He contends that once the sale deed is executed and completed and the other requirements have been complied with, the clauses in the agreement with Arbitration Act, 2001 does not exist. He further argues that the trial court below passed an erroneous order confusing the petitioner’s “common space” with the “undivided and undemarcated portion of land” as described in the schedule of the sale deed. He agitates that the registered sale deed are for apartments on level-5 but yet the trial court erroneously passed an order of status-quo upon possession and transfer of level-4 space at Meghna Bhabon and which is beyond the ambit of the Deed of Agreement of the sale deed since the schedule Gha is not included in it. He assails that the claim of Community Hall, Mosque and Gym as a common space being in schedule Gha is not supported in the sale deed. He also tries to impress upon us that the opposite party No. 1 (petitioner in the arbitration case) actually did not constitute any flat owner Samitee and hence he has no locus-standi to file the Arbitration Miscellaneous case since there is no existence of any such Samitee which he supposedly represented in the arbitration Misc. case. In support of his submissions regarding non existence of the arbitration agreement after the sale deed is executed, he cited a decision of our Apex court in the case of Rafiqul Islam Vs. Mir Abdul Ali reported in 44 DLR(AD)(1992) 176 along with an unreported judgment passed in Civil Revision No. 1000 of 2016 in the case of Multiplan Limited Represented by its Chairman and CEO Engineer Syed Munsif Ali and another Vs. Principal Muhammad Zainal Abedin and others.  He concludes his submissions upon assertion that the trial court without considering significant factors unjudiciously and unlawfully passed an order of status-quo granting temporary injunction in favour of the opposite party No. 1 and the Rule bears merit and therefore ought to be made Absolute.

6.             Learned Senior Advocate Mr. Md. Nazrul Islam for the opposite party No. 1 upon filing Counter Affidavit opposes the Rule. On the other hand he submits that the trial court correctly passed the order of ad-interim injunction in the Arbitration Misc. Case under Section 7(ka) of the Arbitration Act, 2001. He takes us to clause 50 of the agreement which is marked as Annexure 1 in the counter Affidavit filed on behalf of the opposite party No.1 wherefrom he draws our attention to the same clause and persuades that Clause 50 of the Agreement comprises of the Arbitration Clause and  contemplates that any dispute arising between the purchaser and the company either directly or indirectly under the agreement shall be referred to arbitration in the event of failure to settle the dispute through amicable settlement. He assails that nowhere in the agreement is it mentioned that once the sale deed is executed the arbitration clause shall also cease to exist. He further focuses our attention to Clause 50 of the agreement putting emphasis on the terms that any disagreement dispute or difference arising either “directly or indirectly” between the parties under the agreement. In this context he persuaded that therefore it is express enough in the agreement itself that any dispute arising subsequently to the agreement either “directly or indirectly” at whatever stage shall be settled through arbitration once other resorts to resolve the dispute have failed.

7.             Regarding the legality of filing an application praying for an ad-interim injunction under Section 7(ka) in the Arbitration Misc. Case filed under Section 12 of the Arbitration Act, 2001, the learned Senior Advocate submits that there is no bar against filing an application under Section 7(ka) under the umbrella of Section 12 of the Arbitration Act. He contends that nowhere in the Arbitration Act, 2001 has it been mentioned or otherwise implied that subsequent to filing a case under Section 12 of Arbitration Act, 2001, thereafter a separate case and/or proceeding must be initiated under Section 7 ka of Arbitration Act 2001 for obtaining relief under Section 7 ka. He also assails in his argument a number of factual issues regarding the non compliance with the terms of the Arbitration agreement by the developer petitioner particularly on the issue of reserve space for community hall, mosque etc. being given to outsiders or being otherwise isolated from the possession of the flat owners. On issues of maintainability of the Arbitration Case itself, he asserts that maintainability of a case or suit whatsoever cannot be heard neither can any findings on maintainability be decided upon in an application for injunction. He persuades us that issues of maintainability can only be decided during trial or hearing of the suit or case whatsoever. In support of his submissions the learned Senior Advocate cited some decisions in the case of Dacca Match Factory Ltd. Vs. Bangladesh Match Company Ltd. reported in 30 DLR (1978) 244, in the case of Molla Mahjenul Islam Vs. State and ors. reported in 53 DLR (2001) 552, in the case of Jamalpur Fishermen’s Co-operative Society Ltd. reported in 47 DLR (1995) 573, in the case of Nasir Miah, Malik Nasir Soap Factory Vs. Md. Anwar Hossain, Executive Officer, Commander Soap Factory Ltd. reported in 48 DLR (1996) 29 and in the case of Abdur Razzak Howladar Vs. Sh. Muhammad Shafi reported in 14 DLR (SO) (1962) 119. These decisions cited by the learned Advocate for the opposite party particularly set principles and gave findings on the point of maintainability of a suit at the time of hearing of temporary injunction. In the light of his submissions he concludes that the order No. 15 dated 07.02.2017 passed by the learned District Judge, Dhaka in Arbitration Miscellaneous Case No. 260 of 2016 was correctly passed and calls for no interference and the Rule bears no merit and therefore ought to be discharged for ends of justice.

8.             Learned Advocate Mr. Md. Khalilur Rahman adopted the submissions of the learned Senior Counsel Mr. Md. Nazrul Islam and corroborated those and concluded that the Rule be discharged for ends of justice.

9.             We have heard the learned Advocates, perused the materials on record including the application under Section 7(ka) and the impugned order granting temporary injunction dated 07.02.2017 and we have perused the cited decisions and relevant laws pressed before us.

10.         From the perusal of the record it transpires that earlier, after filing of the Arbitration Misc. Case 260 of 2016 by the present opposite party No. 1 purchaser flat owner, the present petitioner filed a Civil Revision being No. 3515 of 2016 against appointment of Arbitrator. In that Civil Revisional Application No.3515 of 2010 Rule was issued but in which Rule was ultimately discharged upon hearing and there is nothing on record to show that the instant petitioner took any steps against this judgment discharging the Rule in Civil Revision No. 3515 of 2016. It is therefore evident that the instant petitioner did not go to the Appellate Division challenging the judgment. However in the said judgment this division had given observation that “the present petitioners still have the scope to raise the objections before the Court below if they so desire. Hence, the instant revisional application is pre-mature. We do not find any illegality in the impugned order.”  However, it is our considered view that the issue of arbitrability of the dispute pursuant to the sale deed cannot be raised any more.

11.         But for our purpose we are here anxious over the other issues raised by the learned Advocate for the petitioner. The learned Advocate for the petitioner agitated that the Arbitration Misc. Case No. 260 of 2016 is in limine not maintainable given that in the instant case sale deed between the contending parties have already been executed. He persuaded that once sale deed has been executed the agreement has also been exhausted and does not exist anymore  and since the property is also registered agreement hence any issue including the arbitration clause on issue of arbitration cannot be a subject matter or be relied upon in any further dispute between the parties. The learned Advocate even took us to the agreement itself (marked as Annexure 1 in the counter Affidavit filed by the opposite party No. 1) particularly clause 50 of the agreement which comprises of the provision of referring disputed matters to arbitrator in the event of failure to resolve the dispute by amicable settlement.

12.         Upon perusal of Clause 50 of the agreement and relying upon general principles of law, we cannot however agree with the contentions made by the learned Advocate for the petitioner. Regarding the sale deed and the argument of the petitioner pertaining to the non existence of the arbitration agreement pursuant to sale deed, it is our considered view that a sale deed is a conclusive evidence of the sale itself but none the less it is not a conclusive evidence that all the terms relating to the agreement followed up by the sale deed have been complied with. There is nothing in the sale deed to show that all the terms of the agreement have been complied with. One of the issues agitated by the learned Advocate for the petitioner is that pursuant to the sale deed the arbitration agreement also ceases to exist. As mentioned above, we have read Clause 50 of the agreement. We cannot agree with the submissions of the learned Counsel for the petitioner. In this particular case from a reading of Clause 50 of the agreement which clause consists of the arbitration clause, we cannot interpret any terms from it which may indicate that the arbitration clause shall cease to exist pursuant to the sale deed. Clause 50 of the agreement consists the arbitration clause reads which as hereunder:

“In case any disagreement, dispute, or difference arises between the ALLOTTEE and the COMPANY hereto either directly or indirectly under this Agreement in such case the same shall be settled amicably through mutual discussion and on failure of which the same shall be referred to the arbitration of two Arbitrators one to be appointed by each party whose decision shall be final and binding on both the parties.“ Clause 50 of the agreement includes the term “directly or indirectly” under this agreement from which we may safely conclude that any dispute arising at any stage in the event of failure to settle the matter amicably shall be referred to arbitration by the parties. 

13.         In the context of the conclusive effect of a sale deed he places before us a decision of our Apex court reported in 44 DLR(AD)(1992) 176 in the case of Rafiqul Islam Vs. Mir Abdul Ali. The learned Advocate attempts to draw an analogy from a principle held in that case with reference to Section 53A of the Transfer of Property Act (IV of 1882). The portion of that decision the learned Advocate stressed upon is reproduced hereunder:

“Once the defendant obtained a sale-deed and continued in possession not on the strength of his bainapatra but on the strength of his sale-deed section 53A ran its full course and exhausted itself.”

14.         Upon perusal of Section 53A it is apparently manifest that this section mainly provides in favour of rights of a transferee who has taken possession of the property or any part thereof the provision of the rights of a transferee who is in possession or taken possession in part performance of a contract whatever comprising reliance of Section 53A. It is our considered view is that in the case before us the issue of possession even though agitated by the petitioner,  yet it is  not a vital issue to be adjudicated upon here, therefore the 44 DLR (AD) (1992)176 decision is not applicable and drawing upon it is a mistaken and misplaced analogy.

15.         Be that as it may in the instant case, the petitioner before us, (being the developer company and opposite parties in the Arbitration Misc. Case) challenged the propriety and legality of passing an order upon application under Section 7 ka of the Arbitration Act 2001 arising out of a Miscellaneous Case filed under Section 12 of the Arbitration Act 2001 and our main concern here is the legality and propriety of an order passed under Section 7 ka of the Arbitration Act 2001, arising not independently by  itself, but arising out of an Arbitration Miscellaneous Case filed under Section 12 of the Arbitration Act of 2001. 

16.         Therefore, it is our duty to confine ourselves mainly to the Rule issuing terms and the impugned order itself. Apparently Rule was sought, prayed for and issued challenging the legality of the Impugned Order under Section 7(ka) of the Arbitration Act, 2001 within the Arbitration Misc. Case filed under Section 12 of the Arbitration Act, 2001 for appointment of Arbitrator. The learned Advocate for the petitioner had incessantly agitated that Section 7(ka) contemplates an independent proceeding and cannot be brought as an application within Section 12 of the Arbitration Act. In this context we have perused Volume I of the listed serial No. 38 of Rule 774 of the Civil Rules and Order (C.R.O). Upon perusal of the Rule 774 of listed No. 38, upon and interpretation thereof it is our considered view that the filing of an application under Section 7(ka) under the umbrella of Section 12 is not an inherent illegality, but it is rather an irregularity which can be rectified and corrected upon by filing a separate Misc. case under Section 7(ka) of the Arbitration Act, 2001. Hence in our considered view that the order passed by the trial court is not illegal in itself in limine and whatever irregularity there might be in the procedure followed in that case in filing the application under Section 7 Ka of the Arbitration Act, 2001, such irregularity or aberration is rectifiable. It is 

our considered finding that the irregularity may be rectified upon the concerned Trial Court renumbering the application under Section 7 ka of the Arbitration Act, 2001 as a separate Misc. Case in accordance with the provisions of Serial No. 38 of Rule 774 of the C.R.O (Volume-1).

17.       The learned Advocate for the opposite party No. 1 cited several decisions before us which decisions mainly expound a common principle that maintainability of a suit cannot be properly decided at any stage of hearing of an application for temporary injunction. We are also in agreement with the principle of these judgments cited by the opposite party No.1. But as mentioned herein before in this judgment the main contention in this case being the legality of the impugned order No. 15 dated 07.02.2017, we do not find it necessary or relevant to dwell upon other issues. The learned Counsels from both sides had also agitated over several factual issues and which are disputed matters of fact and which sitting in Revision here we are not in a position to adjudicate upon. These factual issues may be placed by the parties before the appropriate forum.

18.         Therefore under the foregoing facts and circumstances and upon perusal of the application and materials on record and the decisions cited by the learned Advocates from both sides we are inclined to dispose of the rule with direction to the trial court to renumber the Misc. Case as a separate Misc. Case filed under Section 7(ka) of the Arbitration Act, 2001. But we however do not find any reason to interfere with the impugned order of granting temporary injunction in itself.

19.         In the result, the Rule is disposed of with the direction and the observations made above.

20.         The order of status-quo granted earlier by this court is hereby recalled and vacated. 

21.         Communicate this order at once.

Ed.