Bangladesh Railway and others Vs. Md. Ferozur Rahman and another, VI ADC (2009) 528

Case No: Civil Petition for Leave to Appeal No. 381 of 2007

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. Shaheed Alam,Mr. Chowdhury Md. Zahangir,,

Citation: VI ADC (2009) 528

Case Year: 2009

Appellant: Bangladesh Railway and others

Respondent: Md. Ferozur Rahman and another

Subject: Civil Law,

Delivery Date: 2009-2-4

Supreme Court
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin, CJ.
Mohammad Fazlul Karim, J.
Md. Tafazzul Islam, J.
Md. Joynul Abedin, J.
 
General Manager (East) Bangladesh Railway (C.R.B.), Chittagong and others
……………… Petitioners.
Vs.
Md. Ferozur Rahman and another
….........Respondents.
 
Judgment
February 4, 2009
 
After making the adjustment of dues of both the parties the defendants were entitled to recover excess amount from the plaintiff and he was asked to pay off the same by a notice indicating failure to pay the dues would have resulted cancellation of agreement. But the plaintiff did not pay off the same within the specified period of time. As a result the defendant No. 3 cancelled the said agreement. Hence the suit is liable to be dismissed. …….. (3)
 
Lawyers involved:
Shaheed Alam, Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioners.
Chowdhury Md. Zahangir, Advocate-on-Record-For Respondent No.1.
Not Represented-For Respondent No. 2.
 
Civil Petition for Leave to Appeal No. 381 of 2007.
(From the judgment and order dated 18.10.2006 passed by the High Court Division in First Appeal No.108 of 1998.)
 
JUDGMENT
 
Md. Joynul Abedin J.
 
1. This petition for leave to appeal at the instance of the defendants is directed against the judgment and decree dated 18.10.2006 passed by a Division Bench of the High Court Division in First Appeal No.108 of 1998 allowing the appeal by setting aside the judgment and decree dated 15.1.1998 passed by the learned Subordinate Judge, 1st Court, Dhaka in Title Suit No.14 of 1991 dismissing the suit.
 
2. The short fact is that the respondent as plaintiff filed Title Suit No.14 of 1991 in the Court of Subordinate Judge, 1st Court, Dhaka for a declaration and for compensa­tion alleging, inter alia, that the defendant No.3 Chief Commercial Manager (East), Bangladesh Railway, Chittagong invited tenders for supplying foods to the passen­gers of Dhaka Chittagong Inter City Trains for the period from July, 1988 to June, 1991. The plaintiff as caterer partic­ipated in the bid and his tender was accepted as the highest bidder and he was appointed as caterer for 3(three) years. A contract between the parties was signed on 21.6.1988 agreeing upon the rate of each break-fast at Tk.30/- for the passengers traveling in the air-conditioned bogie. But some officers of Railway Department most illegally paid money to the plaintiff at the rate of Tk.25/- and Tk.30/- per coupon instead of Tk.30/- and Tk.38/- respectively. The defendants totally stopped payment of bills for the break-fast from November, 1990. The plaintiff made several prayers for making payment of bills but the defendants did not pay heed to it. The plaintiff paid Tk.6, 60,006/- as licence fee to the authority and requested the defendants to adjust his bills with the arrear licence fees. But the defendants without doing so illegally pressed the plaintiff to pay off Tk. 21, 16,048/-as licence fees. The plaintiff claimed for the payment of bills for breakfast as per the schedule rate of agreement but the defen­dants refused to pay the same. All on a sudden the defendant No.3 cancelled the agreement of caterer service by a letter dated 2.1.1991 without serving notice upon the plaintiff and on the same date he was driven out from the Restaurant and Buffet Car of the station and the inter city train respectively. The plaintiff incurred huge monetary loss by the illegal action canceling agreement in violation of its terms and conditions by the defendants. During pendency of this suit, the defen­dants instituted Certificate Case No.82/G-92-93 in the Court of Magistrate, 1st Class for recovery of Tk. 10,07,002/- from the plaintiff. Hence the suit is for declaration of the said Certificate Case as illegal and for recovery of Tk.50, 66,085/- as price of break fast and compensation.
 
3. The defendants contested the suit by fil­ing written statement contending, inter alia, that the suit is not maintainable defending all the material allegations made in the plaint. The case of the defendants is that the Railway Authority entered into an agreement with the plaintiff for supplying food to the passengers travelling in Ka' group bogies on 26.6.1988. As per terms of the agreement the yearly licence fee was fixed at Tk. 12,12,112/- and the security money amounting Tk. 6, 60,000/- was received by the defendants. The defen­dants received half of the licence fee amounting Tk. 6,06,056/- from the plain­tiff on 25.6.1988 before executing the said agreement. The plaintiff applied for enhancing the rate of breakfast at the increased rate of 20% and the same was allowed by the Railway Authority with affect from 1st July, 1988 to 31st December, 1990. It was further resolved that if the entire dues would have been paid within 31st December, 1990, then the plaintiff would be entitled to get price of each break-fast at Tk. 30/- for the passen­gers travelling in the 1st Class and Tk. 38/- for each break-fast for the passengers trav­elling in air-conditioned bogies. After making adjustment of dues of both the parties the defendants were entitled to recover excess amount of Tk.21,16,048/-from the plaintiff and he was asked to pay off the same within 22.12.1990 by a notice indicating failure to pay the dues would have resulted cancellation of the agree­ment. But the plaintiff did not pay off the same within the specified period of time. As a result the defendant No.3 cancelled in the said agreement, on 2.1.1991. Hence the suit is liable to be dismissed.              
 
4. The learned Subordinate Judge after hearing dismissed the suit. Being aggrieved and dissatisfied with the aforesaid judgment and decree the plaintiff moved the High Court Division in First Appeal No.108 of 1998. The High Court Division after hearing allowed the appeal, Hence the present petition for leave to appeal.
 
5. Mr. Shaheed  Alam, the learned Advocate for the petitioners submits that the High Court Division wrongly allowed  the appeal inasmuch as petitioner never accepted the rate of coupons but stated that if the respondent could clear up the licence fee by then only it could consider the increase rate from January, 1991 and not  1988. He further submits that the respondent having failed to pay the licence fee on repeated request and reminder the licence was cancelled as the respondents were not liable to increase the rate of coupons, but the High Court Division on misconception of facts allowed the appeal in-part. He lastly sub­mits that the petitioners started certificate case against the respondent for its dues and that respondent has not yet paid the dues so the order of the High Court Division to withdraw the case is illegal.
 
6.  We have heard the learned Advocate and perused the connected papers includ­ing the impugned judgment. We do not find any substance in the points raised. The High Court Division upon correct assessment of the materials on record arrived at a correct decision and dismissed the appeal. We therefore find no reason to interfere with the same.
Accordingly, the petition is dismissed.
 
Ed.