Case No: Civil Petition for Leave to Appeal No. 1378 of 2002
Judge: Mohammad Fazlul Karim ,
Court: Appellate Division ,,
Advocate: Mr. Rafique-ul-Huq,Mr. Rokanuddin Mahmud,Mr. M. I. Farooqui,,
Citation: 55 DLR (AD) (2003) 99
Case Year: 2003
Appellant: Humayun M Vohra
Respondent: ESPN Star Sports and others
Subject: Execution Decree, Procedural Law,
Delivery Date: 2002-11-23
Md. Fazlul Karim, J.
Syed JR Mudassir Husain, J.
AS Ahammed, J.
Humayun M Vohra
ESPN Star Sports and others
November 23, 2002.
Execution of decree outside Bangladesh
Any decree of any Court in Bangladesh is enforceable in foreign country either as a foreign decree or by instituting a suit on the basis of said decree in any foreign country…………….(13)
MI Farooqui, Senior Advocate, (Mohsen Rashid, Advocate with him) instructed by MG Bhuiyan, Advocate‑on‑Record‑For the Petitioner.
Rokanuddin Mahmud, Senior Advocate, instructed by Feroz Shah, Advocate‑on‑Record‑For Respondent Nos. 1 and 2.
Rafique‑ul‑Huq, Senior Advocate, instructed by Md Ataur Rahman, Advocate‑on‑Record‑For Respondent No. 3.
Not represented‑Respondent Nos. 4‑268.
Civil Petition for Leave to Appeal No. 1378 of 2002.
(From the judgment and order dated 25th August, 2002 passed by the High Court Division in First Miscellaneous Appeal Tender No. 538 of 2002).
Md. Fazlul Karim J.
The plaintiff seeks leave to appeal against the impugned judgment and order passed by the High Court Division in First Miscellaneous Appeal Tender No. 538 of 2002 dismissing the appeal arising out of order dated 108‑2002 passed by the Joint District Judge, Fifth Court, Dhaka in Title Suit No. 188 of 2002 which summarily rejected the application under Order XXXIX rules I and 2 of the Code of Civil Procedure.
2. The facts relevant for disposal of the case, in short, are that on 10‑8‑2002, the plaintiff, as an agent, instituted the suit against its principal the ESPN Star Sports and 268 others for decree of perpetual injunction restraining the defendant No.1 ESPN Star Sports of Singapore and defendant No. 2, ESPN Software India (Pvt.) Ltd. of India, from dealing with defendant No. 3, Ismail Dobash, proprietor of the Total $ports of Dhaka in the matter of agency, and defendant Nos. 4 to 165 from dealing with said defendant No. 4 in the matter of subscription of the ESPN Star Sports. Plaint case, in short, is that the plaintiff was appointed exclusive distributor of defendant No. 1 ESPN Star Sports for the entire Bangladesh by two contracts dated 7‑9‑1997 and 28‑8‑1999. Defendant No. 1 used to broadcast its channel programmes through the instruments, Decoder and Sim Card, from Singapore and collect subscriptions from the cable operators through the agency of the plaintiff; plaintiff invested huge fund in establishing its office, etc and also obtained necessary clearance from the Bangladesh Bank for remittance of the subscription. But on 31‑7‑2002 defendant No. 3 issued a circular asking the subscriber, defendant Nos. 4 to 265 to contact him claiming that he was appointed new distributor and on the following day, on 1‑8‑2002 defendant No. 2 also circulated letters informing the said cable operators as their new distributor in Bangladesh in violation of the obligations under the contract‑ of agency with the plaintiff.
3. Same date on the above averments, the plaintiff filed an application under Order XXXIX rules 1 and 2 of the Code of Civil Procedure for temporary injunction on the above terms till disposal of the suit. The application was heard and was summarily rejected on the ground that the balance of convenience and inconvenience was against the plaintiff.
4. The petitioner thereafter unsuccessfully moved the High Court Division.
5. Mr. MI Farooqui, the learned Counsel appearing for the petitioner, submits that the learned Judges of the High Court Division miserably failed to understand the legal position of an obligation under the contract of agency which is subsisting and there is also recurrence of violation from day to day, and in that view of the matter, the damages cannot be "equally efficacious" relief, as the decree for; damages cannot restore the petitioner to status quo ante and prevent recurrence of violation of the terms of agency. The learned Judges of the High Court Division have also failed to consider that the petitioner has good prima facie case with balance of convenience and inconvenience in his favour, as equity and law have always accustomed to compel the performance of contract and trust. The learned Counsel further submits, that respondents are very much under contractual obligation to act under the terms of the existing agency contract, which cannot be allowed to be violated by appointing respondent No. 3 as agent to the detriment of the legally appointed agent, the petitioner as an 'Exclusive Distributor' of respondent No. 1 in Bangladesh.
6. Mr. MI Farooqui with reference to a letter dated 28th August 1999 whereby distributorship of the petitioner was allowed for a further period of 2 years with effect from 1st day of September 1999 to 31st day of August 2002 with a rider clause that the appointment will be automatically renewed for such further period if not terminated by any of the parties, submits that since the petitioner has been continuing as the distributor and has the present right to protect his distributorship against invasion on the basis of letter dated August 1, 2002 announcing the name of the respondent No. 3 as the new distributor in Bangladesh without formal appointment to that effect, the petitioner has prima facie case for an order of temporary injunction for his continuance as a distributor till date.
7. Mr. Rafique‑ul‑Huq, the learned Counsel appearing for respondent No. 3, referring to the prayer in the plaint for a decree against defendant restraining defendant Nos. 1 and 2 from dealing with the defendant No. 3 in the matter of agency of ESPN and Star Sports in Bangladesh and for further restraining defendant Nos. 4‑265 permanently from dealing with defendant No. 3 in the matter of subscription of ESPN and Star Sports, submits that in the view of the provision of section 56 read with sections 21 and 12 of the Specific Relief Act, the contract is not specifically enforceable and that with reference to sections 205 and 208 of the Contract Act the agency, if there be any, and any violation thereof, could be compensated by money the petitioner is not entitled to an order of temporary injunction.
8. Mr. Rafique‑ul‑Huq further submits with reference to a letter dated 28th August 2001 that the distributorship of the petitioner was extended till 30th June 2002 and thereafter the respondent No. 3 was appointed as distributor who has been functioning as such since then and for alleged any violation of the contract remedy lies in monetary compensation which would be adequate as per provision of law.
9. It appears that the petitioner has been appointed as a distributor in Bangladesh on 7th of September 1997 for a period of 2 years and by letter dated 28 August 1999 the said period was extended for a further period of 2 years upto 31st August 2002 with a rider clause that the appointment will be automatically renewed for such further period if not terminated by either of the parties. It further appears from letter dated 28 August 2001 that the petitioners distributorship was extended for a further period upto 30 June 2002. Thereafter by letter dated 1st August 2002 the respondent appointed the respondent No. 3 as their new distributor in Bangladesh. The respondents as well produced a copy of an agreement dated 1st August 2002 between the principal and SAARC Enterprise Private Limited for distributorship for the whole of Bangladesh and another agreement between SAARC Enterprise Private Limited and the respondent No. 3 dated 1st day of August 2002 as a sub‑distributor of whole of Bangladesh and asserted that they had been carrying on business of distributorship.
10. In view of the above factual aspect, it appears that respondent No. 3 is presently working as a distributor on the basis of its appointment dated 1st of August 2002. The alleged violation of any contract between the plaintiff and the respondent No. 1 could be compensated by way of monetary compensation.
11. In that view of the matter the prima facie case and the balance of convenience and inconvenience being in favour of the respondent No. 3, plaintiff‑petitioner is not entitled to an order of temporary injunction.
12. Both the learned Counsels have submitted that the same are not legal proposition of the law. We also hold the same view. Any decree of any Court in Bangladesh is enforceable in foreign country either as a foreign decree or by instituting a suit on the basis of said decree in any foreign country. In that view of the matter we disapprove such sweeping remarks in the matter denying the local jurisdiction of the Court in any suit.
The petition is dismissed.