Dhaka Electric Supply Company Ltd. Vs. M/s. Union Trade International and another 2018 (1) LNJ 74

Case No: First Appeal No. 35 of 2015

Judge: Syed Md. Ziaul Karim. J.

Court: High Court Division,

Advocate: Mr. Mohammad Mehedi Hasan Chowdhury, Mr. Md. Abdur Rahman,

Citation: 2018 (1) LNJ 74

Case Year: 2017

Appellant: Dhaka Electric Supply Company Ltd.

Respondent: M/s. Union Trade International and another

Subject: Civil Law

Delivery Date: 2018-02-15

 HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

 

Syed Md. Ziaul Karim, J.

And

Sheikh Md. Zakir Hossain, J

Judgment on

12.10.2017

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Dhaka Electric Supply Company Ltd. (DESCO),

. . . Plaintiff appellant.

-Versus-

M/S. Union Trade International, represented by its Proprietor Kazi Siddiqur Rahman and another,

. . . Defendant-respondents.

Code of Civil Procedure (V of 1908)

Order VII, Rule 11

The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint.                                         . . . (15)

Code of Civil Procedure (V of 1908)

Order VII, Rule 11 (d)

When from the statements made in the plaint it appears that the cause of action arose beyond the period of limitation fixed under the statute and no indication is given that limitation has been saved, the plaint may be rejected. In a proper case, when it appears to be barred by limitation, the plaint may be allowed to be amended without rejection. It is not mandatory for the Court to reject the pliant. It may ask the plaintiff to amend it so as to make suit maintainable. Where the plaintiff does not comply with such an order the Court may reject the plaint.                                                           . . .(17)

Afzal Hossain Diptee Vs. Radha Kanta Korati and others, 15 BLC 196; Abdul Malek Sawdager Vs. Md. Mahbubey Alam and others, 57 DLR(AD)-18; Bangladesh Water Development Board Vs. Contractor, Manu Barrage, 9 BLT 21; Shafi A. Chowdhury Vs. Pubali Bank Ltd. and others, 54 DLR 310; Abul Khair (Md.) Vs. Pubali Bank Ltd. and another,  53 DLR 62; Badsha Miah and others Vs. Abdul Kader and others, 5 MLR (AD) 66; Abdul Quayum Vs. International Finance Investment and Commerce Bank Ltd. and others, 63 DLR 359; Ratan Chand Dharam Chand Vs. The Secretary of State for India in Council and another, 18 CWN 1340; Sreedam Chandra Bhur Vs. Tencori Mukherjee and others, A.I.R. 1953; Sundar Ali being dead his heirs: Mannan and others Vs. Md. Serajul Islam Sarker and others 56 DLR (AD) 210; Abdul Malek Sawdagar Vs. Md. Mahbubey Alam and others, 57 DLR (AD) 18 and Md. Abul Khair Vs. Pubali Bank Ltd. and another, 21 BLD (AD)32=53 DLR (AD) 62 ref.

Mr. Mohammad Mehedi Hasan Chowdhury, Advocate With

Mrs. Jostna Perveen, Advocate,

. . . For the plaintiff appellant.

Mr. Md. Abdur Rahman, Advocate, with

Mr. Md. Abu Bakor Siddique, Advocate and

Mr. Foyej Ahmed, Advocate,

...... For the defendant respondents.

JUDGMENT

Syed Md. Ziaul Karim, J: By this appeal, the plaintiff appellant has challenged the legality and propriety of the judgment and decree dated 21-10-2014 passed by learned Joint District Judge, Fifth Court, Dhaka, rejecting the plaint of Money Suit no. 35 of 2012 under Order VII Rule 11 of the Code of Civil Procedure (briefly as the Code).

2.            Material facts leading to this appeal are that on 28-08-2012 the appellant as plaintiff instituted Money Suit no. 35 of 2012 in the Fifth Court of Joint District Judge, Dhaka impleading the respondents as defendants for realization of money for Tk. 1,72,22,376/- from the defendants. The relieves claimed in the suit reads as hereunder:

(a)   To pass a money decree against defendant and in favour of the plaintiff for Tk.1,72,22,376/-( one crore seventy two lacs twenty two thousand three hundred seventy six) only;

(b)   Interest at the rate up to the date of realization to be paid within the time to be specified by the learned Court;

(c)    To pass a decree for the entire cost of the suit, and/or

(d)   For such further and other  relief as this learned Court may deems fit and proper in the circumstances of the  case and to which  the plaintiffs is entitled in law, equity and justice.

3.            In suit, on 06-11-2012 defendants filed an application under Order VII Rule 11 of the Code stating that the suit is barred under law.

4.            The plaintiff also filed written objection against such application.

5.            After hearing the learned Judge by the impugned judgment and decree dated 21-10-2014 rejected the plaint of the suit under Order VII Rule 11 of the Code, on the ground that the suit is barred under Section 7 of the Arbitration Act.

6.            Feeling aggrieved the plaintiff as appellant preferred the instant appeal.

7.            The learned Advocate appearing for the appellant seeks to impeach the impugned judgment and decree on there fold arguments:

Firstly: The defendants were entrusted to carry certain quantum of cable wire from Chittagong to Dhaka but in course of transportation it was found that there was a shortage of wire thereby the plaintiff instituted the instant suit.

Secondly: The plaint clearly disclosed the cause of action and from plain reading of the plaint it appears that there is no such statement that the suit is barred under law so the plaint cannot be rejected under Order VII Rule 11 of the Code.

Third and lastly: The learned Judge of the Court below without considering the settle principle of law rejected the plaint and dismissed of the suit which is absolutely without jurisdiction, so the same cannot be sustained in the eye of law.

8.            In support of his contentions he refers the following cases:

1.      In the case of Afzal Hossain Diptee Vs. Radha Kanta Korati and others 15 BLC 196 held:

“Code of Civil Procedure

Order VII rule 11

         On going to materials on record it transpires that the grounds urged for rejection of the plaint are absolutely the subject matter of evidence, which cannot be decided before taking evidence. On plain reading of the statements of the plaint it is evident that the same clearly discloses the cause of action, the relief claimed is not under valued, the plaint was not written upon paper insufficiently stamped and not barred by any other law. The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint.”

2.      In the case of Abdul Malek Sawdager Vs. Md. Mahbubey Alam and others 57 DLR(AD)-18 held:

“ Code of Civil Procedure

Order VII rule 11

The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint.”

3.      In the case of Bangladesh Water Development Board Vs. Contractor, Manu Barrage 9 BLT 21 held:

“ Arbitration Act, 1940

Section -32

Whether the suit instituted in presence of the arbitration agreement is maintainable.

Held: We find no such provisions in the Act barring a suit on the ground of existence of an arbitration agreement.”

4.            In the case of Shafi A. Chowdhury Vs. Pubali Bank Ltd. and others 54 DLR 310 held:

Section 11 & Order VII rule 11  of the Code.

Ordinarily, a plaint should not be rejected under Order VII rule 11 of the Code on the ground of res judicata unless it is so palpably clear and obvious from a meaningful reading of the plaint that no further evidence is required.”

5.            In  the case of Abul Khair (Md.) Vs. Pubali Bank Ltd. and another  53 DLR 62 held:

Code of Civil Procedure

Order VII rule 11

The Court while deciding application about rejection of plaint is not permitted in law to travel beyond the averments made in the plaint.”

9.            The learned Advocate appearing for the defendant respondents opposes the appeal and submits that virtually the shortage was done by the exporting country, so the defendants are not at all liable for such shortage. He adds that there was an agreement between the plaintiff and defendants to the effect that if any dispute arise in course of their business transaction the matter should be settled by Arbitration. The plaintiff without seeking his redress to Arbitration instituted the suit, so the same is barred under law. He lastly submits that the learned Judge after considering the materials on record rightly rejected the plaint.

10.        In support of his contentions he refers the following decisions:

1.      In the case of Badsha Miah and others Vs. Abdul Kader and others 5 MLR (AD) 66 held:

“ Arbitration Act, 1940-

Sections 32 and 33- No Suit challenging the arbitration agreement or an award without having recourse to section 33 is maintainable-

Section 32 of the Arbitration Act, 1940 puts a clear bar on bringing suit challenging arbitration agreement or an award without having recourse to the remedy by way of an application under section 33 of the Act. Therefore the instant suit since instituted in contravention of the provision of section 33 is not maintainable.

Section 32 of the Act provides that no suit shall lie on any ground for a declaration upon the validity of an arbitration award nor such award can be set aside “otherwise than as provided in the Act”. The remedy by a suit is taken away by section 32 of the Act. The Expression “otherwise than as provided in this Act” used in section 32 brings provision of section 33 within its ambit.  Under section 33 of the Act any party to an arbitration agreement can challenge the existence or validity of such agreement or an award or to have the effect of either determined upon an application to the Court. A suit to challenge the existence of an arbitration agreement or an award is not maintainable by reason of section 33 which provides that such a challenge must be made by means of an application and not by means of a suit. Thus from a reading of section 32 and 33 of the Act it seems to me that without having recourse to section 33 no declaration that an arbitration agreement or an award or the effect of either for an existence or validity can be obtained in a suit like the present one and such remedy can be had by filing an application under section 33 of the Act. The learned Single Judge rightly held that no suit for declaration that the arbitral award was void can be filed without recourse to section 33 of the Act and section 32 bars a suit of the present nature.”

2.            In the case of Abdul Quayum Vs. International Finance Investment and Commerce Bank Ltd. and others 63 DLR-359 held:

Code of Civil Procedure

Order VII, rule 11.

Where the proceeding of the suit against the defendant is barred under the law the filing of the application for rejecting of the plaint before filing of the written statement or not is immaterial.”

11.        In order to appreciate their submissions we have gone through the records and given our anxious consideration to their submissions.

12.        The point for consideration whether the impugned judgment and decree calls for interference by this Court.

13.        For the convenience of understanding the provisions of Order VII rule 11 of the Code of Civil Procedure reads as hereunder:

″ 11- The plaint shall be rejected on the following issues:

(a)               Where it does not disclose a cause of action.

(b)               Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so;

(c)                Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails do so.

(d)               Where the suit appears from the statement in the plaint to be barred by any law.

14.        Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not exceed twenty one days.

15.        On going to the materials on record it transpires that the plaintiff instituted Money Suit no. 35 of 2012 for realisation of money for Tk.1,72,22,376/- from the defendants. The only point urged by the learned Counsel for the defendant respondents are that the suit is barred under law i.e. under Arbitration Act, so the plaint should be rejected. The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint.

16.        From the plain reading of the statements of plaint of the instant suit it is evident that the same clearly discloses the cause of action; the relief claimed is not undervalued; the plaint was not written upon paper insufficiently stamped; from the statement of the plaint it does not appear that the suit is barred by any law.

17.        Now coming to clause (d) of rule 11, it appears that clause (d) of the rule authorise the rejection of a plaint when the suit appears from the statements in the plaint to be barred by any law. This clause applies when it appear from the statements in the plaint that the suit is barred but it has no application where there is no clear or specific admission in the plaint suggesting that the suit is barred. This clause is attracted only when on the admitted facts as appearing from the plaint itself the suit is prima facie barred. As for instance when from the statements made in the plaint it appears that the cause of action arose beyond the period of limitation fixed under the statute and no indication is given that limitation has been saved, the plaint may be rejected. In a proper case, when it appears to be barred by limitation, the plaint may be allowed to be amended without rejection. It is not mandatory for the Court to reject the pliant. It may ask the plaintiff to amend it so as to make suit maintainable. Where the plaintiff does not comply with such an order the Court may reject the plaint. Reference may be made to the cases reported in 18 CWN 1340.  AIR 1928 Oudh 495 and AIR 1953 Cal.222.

18.        In the case of Ratan Chand Dharam Chand Vs. The Secretary of State for India in Council and another, reported in 18 CWN 1340, a Division Bench of Calcutta High Court while considering the scope of Order VII, rule 11(d) observed as follows:-

′′ That rule obviously has no application, for there was no statement in the plaint which suggested that the suit was barred. On the contrary it was specifically stated that notice under sec. 80 had been served on the ′′Collector′′ without specifying the district. The defect was not discovered till after the defendants had entered appearance and it was then too late to reject the plaint ′′.

Similarly in the case of Maqsood Ali Vs. Deputy Commissioner, Bara Banki and another, reported in A.I.R. 1928, Oudh, 495, a Division Bench of Oudh held that if the suit was not on the face of it barred by any law, Order VII, rule 11(d) had no application. The relevant portion of the judgment ran as follows:

′′ We do not consider that the suit appeared from the statement in the plaint to be barred by law and we do not think that rule had any application. He has pointed out to us that in a suit which was filed in a similar manner a Bench of the Allahabad High Court stated in Nachhu Vs. Secy. of State that the plaint ought to have been rejected under the proviso of s. 54(c) of the old Code of Civil Procedure, that clause was exactly the same as Order VII rule 11(d). The learned Judge composing the Bench gave no reasons for this conclusion and did not give any effect to it for we find that the suit with which they were concerned had been dismissed but the Subordinate Judge and as their order was an order dismissing the appeal, the plaint was apparently not rejected. Their Lordships said : ′′ It ought to have been rejected′′ but gave no effect to that view. We have only to note in respect of this point that exactly the same question could have been raised in Bhagchand Dagadusa Vs. Secy. of State. There the suit had been dismissed by the District Judge. The appeal had been dismissed by the High Court and the appeal was again dismissed by their Lordships of the Judicial Committee. It was not there suggested that the proper procedure was to reject the plaint. In a case such as this we are of opinion that the suit is not on the face of it barred by law. The very arguments which have been advanced in appeal show that the suit on the face of it is not barred by law, as the suit has been found to be a suit that has to be dismissed after consideration of the legal arguments. Therefore we are unable to accept this view of the learned Counsel.

19.        The Calcutta High Court in the case of Sreedam Chandra Bhur Vs. Tencori Mukherjee and others reported in A.I.R. 1953 Cal. 222 also held that Order VII rule 11(d) was attracted only when on the admitted facts as appearing from the plaint itself the suit was prima facie barred. The Division Bench in this connection observed as follows:-

′′ This clause is attracted only when on the admitted facts as appearing from the plaint itself the suit is prima facie barred. As for instance when from the statements made in the plaint it appears that the cause of action arose beyond period of limitation fixed under the statute and no indication is given that limitation has been saved, the plaint may be rejected. Even in such a case, an opportunity is to be given to the plaintiff to amend the plaint by setting out an acknowledgement in writing signed by the defendant within the period of limitation if it is so prayed, and that without passing an order for rejection of the plaint. ‘Gunnaji Bhavaji Vs. Makanji  Khoosal Chand’, 34 Bom. 250. As was observed in ‘Ratan Chand V. Secy. of State 18 Cal. WN 1340, action is to be taken under Or. VII, r. 11 of the Code of civil Procedure only if there is a clear and specific admission in the plaint from which it follows that the suit is barred. Reference may also be made to the observations of this Court.’ Prankrishna Vs, Kripannath’. 21 Cal. WN 209 held:

″ Let us now consider whether on the plaint as filed the Court will be justified in rejecting in limine the plaint under  cl.(d), r.11, Or. VII, Civil P.C.  In the body of the pliant there is no admission for the Council of the Assembly is the Government under s. 80, Civil P.C. On the other hand, it is seriously contested on behalf of the plaintiff that neither of the two bodies can even be deemed to be the government. The learned Subordinate Judge refers to his order vaguely to the Trend of French Statutes conferring greater and greater powers on the French Settlement in India and creating a ′Council du Government′ there and later a cutting out Chandernagore from the Federation and conferring on Chandernagore all those powers with a separate .delegate of the ‘Commissionaire de la re-oblique, it is evident that the Chandernagore administration is a government in the grammatical and ordinary sense of the word though its functions may fall short of the those of the Governments existing in India.

We do not think it necessary to refer to other points urged before us by the contending parties. Suffice it to say that the question whether even if the Code of Civil Procedure applies, whether s. 80 would be attracted or not cannot be decided merely on the plaint as it stands. The Court should have registered the plaint, issued notices on the defendants and allowed them to file their written statements. After issues were raised it would have been open to the Court to take up one or more of the issues as preliminary ones and decide the same. Objection that had been raised by the Court ‘suo -motu’ and such other objection as may be raised by the defendants would have to be tried on the merits, and only after all the necessary facts and materials are brought before the Court. ′′

20.        There is no reason to differ from the above principles of law. In the instant case, there is nothing on record to show that on the admitted facts as appearing from the plaint itself the suit is prima facie barred. So the rule 11(d) is not at all attracted here and the plaint cannot be rejected on that score.

21.        In the case of Sundar Ali being dead his heirs: Mannan and others Vs. Md. Serajul Islam Sarker and others 56 DLR(AD) 210 held:

         ″ For the ascertainment of the cause of action the Court is required to read the plaint in its entirety.

22.        In the case of Abdul Malek Sawdagar Vs. Md. Mahbubey Alam and others 57 DLR(AD) 18 held:

   ″ The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint.

23.        In the case of Md. Abul Khair Vs. Pubali Bank Ltd. and another 21 BLD (AD)32=53 DLR (AD) 62 held:

   Where in a suit an application under Order VII Rule 11 of the Code is filed for rejecting the plaint on the ground that the averments made in the plaint do no disclose a cause of action for the suit, the Court is not  called upon to decide the suit on merit on taking evidence. It is only the averment made in the plaint which are to be considered to come to a finding as to whether those disclose a cause of action. The Court while deciding such application is not permitted in law to travel beyond the averments made in the plaint.

24.        In view of the above, the Court below without considering the materials on record and aforesaid principles of law, by rejecting the plaint of the suit committed an error of law. Therefore, the impugned judgment and decree of the Court below is liable to be interfered by the High Court Division in exercise of power under section 115(1) of the Code of Civil Procedure.

25.        Moreover the impugned order in its entirety is not well founded in the facts and circumstances of the case. So, the submissions advanced by the learned Counsel for the appellant prevails and appears to have a good deal of force. We have gone through the decisions as referred by the learned Counsel of the respondents. We are in respectful agreement with the principles enunciated therein but the facts leading to those cases are quite distinguishable to that of the instant case. Therefore we are unable to accept his submissions.

26.        In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the impugned judgment and decree suffers from legal infirmities which calls for interference by this Court. Thus the appeal having merit succeeds. 

27.        In the result, the appeal is allowed. The impugned judgment and decree dated 21-10-2014 passed by the learned Joint District Judge, fifth Court, Dhaka in Money Suit no. 35 of 2012 is hereby set-aside. The suit shall proceed in accordance with law.

28.                   The office is directed to send down the record of the Court below and communicate the order at once.

Ed.