Coal Controller, Govern­ment of Bangladesh Vs. Ventura Industries Ltd., 45 DLR (AD) (1993) 183

Case No: Civil Petition for leave to Appeal No. 227 of 1993

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Rafique-ul-Huq,,

Citation: 45 DLR (AD) (1993) 183

Case Year: 1993

Appellant: Coal Controller, Govern­ment of Bangladesh

Respondent: Ventura Industries Ltd.

Subject: Arbitration/Mediation,

Delivery Date: 1993-8-19

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed, CJ.
MH Rahman, J.
ATM Afzal, J.
Mustafa Kamal, J.
Latifur Rahman, J.
 
Coal Controller, Govern­ment of Bangladesh
........................Petitioner
Vs.
Ventura Industries Ltd.
....................Respondent
 
Judgment
August 19, 1993.
 
Arbitration Act (X of 1940)
Section 8
Objection against appointment of Arbitrator who he has already entered on the reference following unacceptable conduct displayed by the objector appears to be a technical objection not entertainable at a belated stage. …. (2 & 5)
 
Lawyers Involved:
Khondker Mahbubuddin Ahmed, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record-For the Petitioner.
Rafiqul-ul-Huq, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Respondent.
 
Civil Petition for leave to Appeal No. 227 of 1993.
(From the Judgment and order dated 3.3.93 passed by the High Court Division in Civil Revision Case No. 370 of 1993).
 
JUDGMENT
 
Mustafa Kamal J.
 
This petition for leave is from the Judgment and order passed by the High Court Division dated 3.3.93 in Civil Revision case No. 370 of 1993, discharging the Rule.
 
2. Respondent Ventura Industries Ltd, filed an application under Section 8 of the Arbitration Act, 1940 before the 3rd Court of Subordinate Judge, Dhaka praying for appointment of an Arbitrator by the Court on the ground that in respect of supply of certain quantity of coal of specific size and quality by a contract dated 18.5.89 dispute arose between the respondent and the petitioner but in spite of repeated requests and a formal notice to appoint an Arbitrator in terms of clause 33 of the Contract the petitioner failed to do so and so the application to the court. Over a performance bond executed by the respondent a lengthy injunction proceeding since 24.10.90 is on this court has granted leave to appeal from the decision of the High Court Division in the matter. The hearing of the application under section 8 has not been stayed. The learned Subordinate Judge heard the application in part and application for adjournment was filed by the petitioner but not moved. The learned Subordinate Judge rejected the application for adjournment and by order dated 4.8.92 accepted the case of the respondent on merit and appointed a retired Chief Justice of the Supreme Court of Bangladesh as the Arbitrator.
 
3. The High Court Division refused to interfere with this order because the petitioner in taking too many adjournments in the hearing of the matter had displayed an unacceptable conduct.
 
4. Mr. Khondker Mahbuddin Ahmed, learned Advocate for die petitioner, submits that in the facts and circumstances of the case section 8 of the Arbitration Act, 1940 was not at all attracted and as such the appointment of Arbitrator was without jurisdiction.
 
5. This is a technical objection which the petitioner could have raised before the learned Subordinate Judge. This objection would have enabled the respondent to amend their petition and invoke some other section of the Arbitration Act. We find that the Arbitrator has already entered on the reference and has started issuing notices to the parties. In that view of the matter we are not incline to entertain this technical objection at this stage.
6 Mr. Ahmed next submits that the conditions of contract between the parties did not stipulate arbitration of the matters which the respondent wants to agitate. This again is a matter which the learned Subordinate Judge could have decided only upon on assistance given by the petitioner which was denied to him by the absence of the petitioner on the adjourned date of hearing.
 
We find no ground for interference.
 
The petition is dismissed.
 
Ed.