Case No: Civil Appeal No. 59 of 2003
Judge: Md. Tafazzul Islam ,
Court: Appellate Division ,,
Advocate: Mr. Mahmudul Islam,,
Citation: IV ADC (2007) 764
Case Year: 2007
Appellant: Janata Bank
Respondent: National Electric Company
Subject: Civil Law,
Delivery Date: 2007-3-21
Supreme Court of Bangladesh
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Amirul Kabir Chowdhury J
Janata Bank and others
National Electric Company Ltd.
March 21, 2007.
Code of Civil Procedure, 1908
Order XXVI, Rule 10
The prayer of the plaintiff seeking local investigation after lapse of six years has no basis. Further if the plaintiff at the time of trial by adducing evidence can prove that the defendants illegally kept the keys with them and in spite requests did not return those to the plaintiff and as a result the plaintiff could not take steps for the maintenance of the machinery raw materials, spare parts, stores and stocks; the consequence will follow. So the decision of the High Court Division can not be sustained. ……..(5)
Mahmudul Islam, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For the Appellants.
Civil Appeal No. 59 of 2003.
(From the judgment and order dated 5.3.2002 passed by the High Court Division in Civil Revision No.2051 of 1996).
Md. Tafazzul Islam J.
1. This appeal by leave arises out of judgment and order dated 5.3.2002 passed by the High Court Division in Civil Revision No. 2051 of 1996 discharging the Rule.
2. The respondent, as plaintiff, filed Money Suit No. 135 of 1990 in the Court of Subordinate Judge (now Joint District Judge), and Commercial Court No.1, Dhaka praying for decree for a sum of Tk. 25,80,14,191.00 against the defendant appellants towards compensation on the averments that they obtained loan from Bangladesh Shilpa Bank to set up an industry for manufacturing electric bulbs and they also obtained loan of Tk. 1,50,00,000/- from the defendant No.1 against pledge and also another loan of Tk. 65,00,000/-against hypothecation and needing further money they approached Sonali Bank who agreed to extend further loan but the defendants, promising to extend further loan facilities, advised the plaintiff not to take loan from Sonali Bank and in view of the above the plaintiff did not take the loan from Sonali Bank but the defendant, though promised, ultimately did not give further loan to them and as a result the business of the plaintiff seriously hampered leading to the lay off of its factory; the defendants also took the keys of the office and the factory of the plaintiff on the plea of inspection but ultimately they did not return the same and as a result the plaintiff could not take proper care for maintenance to the raw materials, finished goods and the machineries which led to the damage of those; the plaintiff also deposited fixed deposit receipts amounting to Tk. 50 lacs belonging to others and the defendants, without any intimation to the plaintiff, encashed those making the plaintiff responsible to compensate the owners of the said fixed deposit receipts; during the pendency of the suit the respondent brought a surveyor from England who along with a few local engineers got the machineries and stock surveyed and assessed the loss of the plaintiff at Tk.45,56,70,942/- and then the plaintiff by amendment of the plaint increased its claim to Tk.45,56,70,942/-The defendants contested the suit by filing written statements denying the material allegations made in the plaint and contending that the plaintiff did not repay the loans within the period stipulated; there was no promise on the part of the defendants to give further loan to the plaintiff; the defendants by their letter dated 6.11.1986 requested the plaintiff to take delivery of the finished goods but they failed; the keys of the main gate of the factory were required for entering the godown for inspection but the plaintiff gave the key of the main gate along with 35 other keys which were not required and the defendants, after completion of inspection, though requested the Managing Director of the plaintiff to send a person, with his signature duly attested, to take back the keys but he did not take any steps in this regard; earlier a foreign expert made local investigation to ascertain the loss but at belated stage, when the suit has been fixed for hearing, the plaintiff filed an application praying for investigation by local engineers to assess the loss. Furthermore, commissioners cannot be appointed to assess the loss after six years of the filing of the suit. The learned Subordinate Judge (now Joint District Judge) by order dated 10.6.1996 allowed the said prayer. The defendants then moved the High Court Division and obtained Rule and after hearing the High Court Division discharged the Rule.
3. The learned counsel for the defendant-appellant submitted that from the records maintained it would not be difficult for the plaintiff to prove as to what was the price of various machinery as well as the stock at the time of institution of the suit which the plaintiff is to prove and as such there is no necessity of any local investigation and further the plaintiff, having previously elected to have the machinery and the stock surveyed privately, can prove the result of that survey and accordingly after lapse of six years they cannot seek local investigation when the value of machinery and stock has admittedly deteriorated and the High Court Division fell in error in holding that the trial court properly exercised its discretion.
4. As it appears the High Court Division discharged the Rule holding that from the records maintained by the plaintiff it would not be difficult to ascertain the value of the machineries, raw materials, stores spare parts stocks etc. prevailing at the time of institution but it would not be possible to determine the market value of those after six years of the institution of the suit except by an expert as the quality of those certainly detoriated and without ascertaining such market price of those after detonation it will also not be possible for the plaintiff to ascertain the quantum of loss and damages they suffered and so in such circumstances statutory assistance of an expert is needed specially when the earlier local investigation at the initiative of the plaintiff being held without the leave of the Court and also in the absence of the defendants will have no evidentiary value like that of a statutory report filed by an advocate commissioner under Order 26 Rule 10 CPC.
5. As it appears if the application for local investigation would have been filed just after filing of the suit, the market price of the machinery and the stock etc as prevailing at that time could be properly ascertained and in fact the plaintiff after making a local inspection made by a foreign expert along with local engineers could amend the valuation of the suit on the basis of report of the above local inspection but after six years of the institution of the suit when the value of the machineries, raw materials spare parts, stores and stocks etc have definitely depreciated, what purpose will be served by assessing price of those when there is established mechanism to ascertain the depreciated value of those. Moreover, the plaintiff after filing of the suit having elected to have the machinery and the stock surveyed privately by a foreign expert along with other local engineers, they can prove the result of that survey, whatever it is worth, by leading evidence. So the prayer of the plaintiff seeking local investigation after lapse of six years has no basis. Further if the plaintiff at the time of trial by adducing evidence can prove that the defendants illegally kept the keys with them and in spite requests did not return those to the plaintiff and as a result the plaintiff could not take steps for the maintenance of the machinery raw materials, spare parts, stores and stocks; the consequence will follow. So the decision of the High Court Division can not be sustained.
6. Accordingly the appeal is allowed without any order as to costs.