Md. Shah Alam VS. Bangladesh Water Development Board and others, 1 LNJ (2012) 165

Case No: Civil Revision No. 4052 of 2009

Judge: Sharif Uddin Chaklader,

Court: High Court Division,,

Advocate: Mr. A. K. M. Nazrul Islam,Mr. Kamal-Ul-Alam,,

Citation: 1 LNJ (2012) 165

Case Year: 2012

Appellant: Md. Shah Alam

Respondent: Bangladesh Water Development Board and others

Subject: Limitation,

Delivery Date: 2012-02-06

HIGH COURT DIVISION
(CIVIL RIVISIONAL JURISDICTION)
 
A. K. M Zahirul Hoque, J.
Sharif Uddin Chaklader, J.

Judgment
06.02.2012
 
Md. Shah Alam
……Plaintiff-petitioner
VS
Bangladesh Water Development Board and others
……Defendants-Opposite parties
 
Arbitration Act (X of 1940)
Section 30 and 33
Limitation Act (IX of 1908)
Article 159
Admittedly, the defendant appeared before the court on 03.02.1999 and after taking several adjustment filed written objection on 28.03.200 is beyond the period of 30 days which is barred by limitation as prescribed under Article 158 of the Limitation Act. The deposit under section 33 of the Arbitration Act is a condition precendent for entertainment of the application and without the deposit it is to be construed as if there  was  no application in the eye of law. The guarantee that was filed long after is no deposit under the law and the application has been rightly rejected.

Admittedly, the defendant-petitioner of this revisional application appeared before the Court on 03.02.1999 and after taking several adjournment filed written objection on 28.03.2000 which, according to Mr. M A Samad is beyond the period of 30 days and governed by Article 158 of the Limitation Act and the learned Subordinate Judge, according to him, rightly rejected the written objection of the defendant-petitioner being barred. ….(25)

After appearance in Court the question of serving of notice does not arise as from that date, opposite party got definite knowledge of filing of the award in Court and time was running out from that date for filing written objection and if the time runs out then filing of written objection does not arise. ….(26)

As such we have no other option but to reject the written objection as it was filed long after the period of Limitation prescribed under Article 158. ….(27)

Thus no application can be entertained if the deposit is not made in accordance with the law. We hold that the deposit under section 33 of the Act is a condition precedent for entertainment of the application and without the deposit it is to be construed as if there was no application in the eye of law. Thus it is correct to say that the guarantee that was filed look after is no deposit under the law and the application has been rightly rejected. ….(35).
 
Abul Bashar Vs. Investment Corporation of Bangladesh, reported in 52 DLR (AD) 178, Nilkantha Sidramappa Ningasher pellant Vs. Kashinath Somanna Ningabo and others, reported in AIR 1962 (SC) 666, Sh. Mahboob Alam Vs. Sh. Murntaz Ahmad, reported in 1960 PLD (W.P) Lahore 601. Adamjee Sons Limited Vs. Jiban Bima Corporation reported in 45 DLR 89. Masud Ahmed Vs. Khushnehara Begum and another, reported in 46 DLR 665, Sonali Bank Vs. Md. Al-Akram (Badal) and others, reported in 46 DLR 122, Bangladesh Water Development Board and others Vs. Progati Prakaushali and another, reported in 49 DLR 335, Haji Amir Bux Vs. Sono Khan, reported in PLD 1979 Karachi 45, Bangladesh Water Development Board Vs. Nasim and brother and another, reported in 1988 BLD 369, Mol. Enterprises Inc. Vs. Government of the People's Republic of Bangladesh reported in 7 BLT 265. Mol. Enterprises Inc. Vs. Government of the People's Republic of Bangladesh reported in 4 BLC 407, 18 BLT (AD) 380, 1 BLC 81, Gangaram Vs. Chief Engineer (Projects), Orissa and other, reported in AIR 1983 (Ori) 262, case of Chokolinga Chttiar Vs. Dandayuthapani Chettiar, reported in AIR 1928 (Mad) 1262, the case of M R Sikder Vs. Bangladesh Water Development Board reported in 49 DLR 113, the case of Dhaka Leather Complex Ltd. Vs. Sikder Construction Ltd and another, reported in 8 LG (AD) 75, the case of Rajdhani Unnayan Kartipakkha (RAJUK) Vs. M N Mam and Associates Ltd. and another, reported in 54 DLR 161, Rajdhani Unnayanun Kartipakhya Vs. N. M. Alam and Associates Ltd and another, 54 DLR 161, Dhaka Leather Complex Ltd BCIC Vs.  Sikder Construction Ltd. and another, 55 DLR 578, Hazi Amir Aux -Vs- Sonokhau, PLD 1979 Kar 45, Thai Development Authority -vs- Nisar Ahmed Qureshi( PLD 1962 Lah 830), Mol. Enterprises Inc -Vs- Bangladesh, 1999 (VII) BLT 265, Mohamed Esoof -vs- VR Subramanyam and another Ganesh Chandra Misra -vs- Artatrana Misra, and others, AIR 1965 Orissa 17, Hastimal Dalichand Bora and others, AIR 1965 Orissa 17 Hastimal Balichand Bora and others -vs- Hiralal Motichand Mutha, AIR 1954 Bomiay 243, Divi Dilla -vs- Babu Ram, AIR 1927 Lahore 273, Khurshid Anwar and another, appellants -vs- Jamil Akthar, respondent, arising out of Civil Revision No. 149(c) of 1982, 52 DLR (AD) 178, 8 LG (AD) 75, Abdus Salam and another Vs. Osman Gani and another reported in BCR 1984 (AD) 346, Sonali Bank -Vs- Hare Krishna Das, 49 DLR 282.
 
For the petitioner : Mr. A. K. M. Nazrul Islam, Advocate with Mr. Md. Kamruzzaman, Advocate with Mr, Md. Anwar Hussain, Advocate.
For the opposite party: Mr. Kamal-Ul-Alam, Advocate with  Mr. Mir Md. joynal Abedin, Advocate.
 
Civil Revision No. 4052 of 2009
 
Judgment
Sharif Uddin Chaklader, J.

1.         This rule by the plaintiff, directed against judgment and order No. 209 dated 17.06.2009 passed by the learned Joint District Judge, Comilla in Arbitration Suit No. 01 of 1995 of that Court rejecting the application of the plaintiff dated 23.01.2006 under Section 30 and 33 of the Arbitration Act, 1940 as amended/added by Ordinance No. 49 of 1978 published in the Extra Ordinary Dhaka Gazette dated 05.12.1978 read with section 151 of the Code of Civil Procedure for rejecting the objection petition dated 09.10.2005 and 14.11.2005 filed by the defendant No. 5 against award and to pass a decree in terms of award dated 20.08.2005 filed by the learned Arbitrator.

2.         The short facts relating for disposal of the rule, is that, the opposite party, Bangladesh Water Development Board, floated Tender Notice No. T-3 of 1987-88 issued from the Office of the Executive Engineer, Gomati Water Development Division, Bangladesh Water Development Board, Comilla; (here we tempted to note that whenever our national poet, Kazi Nazrul Islam went to Comilla, his father-in-law's house, he spent time on the bank of river Gomati and in some of his eternal songs river Gomati occupy considerable place) petitioner submitted tender on 10.04.1988 for construction for Flood Control Embankment in Reach No. K-1(A) at length of 32.00 chainage both sides of Gomati River from Eliotgonj to Kushiara under sub-project of Gomati first phase during the year 1987-88; original tender amount was Tk. 21,04,600/-; total work at length 0.00-32.00 chainage; during progress of the work, opposite party No. 4 change alignment of the respective design and for that, quantum of work was enhanced; from 30.04.1988 plaintiff started his work according to the aforesaid work Order being No. 834 dated 24.03.1988 and completed 9% of work which is evident by the progress report dated 26.03.1989 prepared by Sub-Divisional Engineer, Gomati Water Development   Board, Comilla. After   one   year,   vide   certificate   dated 02.10.1989 issued by the Executive Engineer, plaintiff came to know that the alignment and design of the aforesaid work has been again changed and re-fixed from country side to deep river side and duration of the said work extended up to 1989-90; subsequently, duration of the aforesaid work was extended up to June 1991, which is evident from Certificate dated 29.05.1990 issued by Executive Engineer, Gomati Water Development Board, Comilla. Thereafter, plaintiff completed the work i. e. the north side of Kaladumuria River from Eliotgonj to Kushiara and able to complete the entire work within 30.06.1991. Plaintiff was entitled to get Tk. 98,84,098.00 but he was paid Tk. 16,29,436.00   only.   Plaintiff on  02.09.1992  submitted  bill  and  requested defendant  opposite  party No.   1   to  pay the  bill.   Subsequently,  plaintiff petitioner on 02.09.1992 submitted representation and asked for settlement of the bill through Arbitration. Since the defendant opposite parties failed to start Arbitration proceedings, plaintiff-petitioner by issuing legal notice dated 01.04.1995  upon  the  opposite parties,  appoint an Arbitrator under the Arbitration Act of 1940 to settle the dispute.

3.         After several bouts of legal proceedings for appointment of arbitrator, lastly, Mr, Justice M. A. Wahab (Retired) was appointed as arbitrator who gave the disputed award.

4.         Opposite party No. 4 contested the case by filing written objection denying the material allegations made in the plaint.

5.         It is admitted fact the arbitrator did not submit the award of his own but as per direction of the Court, submitted award to Court on 20.08.2005. Defendant-opposite party filed objection on 09.10.2005. Here start the litigation between the parties afresh and ultimately this revision was filed. Plaintiff filed application for rejecting the written objection on the ground that it was filed beyond time and also no security accompanied with written objection. Learned Judge accepted the written objection on the ground that since the award was filed not by the arbitrator on his own motion, but as per direction of the Court, as such, it was an illegality and objection having been filed in Court, although after period of limitation, but when the arbitration itself suffers from many illegalities, the delay can be condoned. On the question of furnishing security submitted as claimed by the opposite party, the learned Judge observed that he find security with the record, as such, since security has been filed, all the requirements of law having been complied with, the objection as filed can be accepted.

6.            Mr. A. K. M. Nazrul Islam, learned Advocate, appearing for the plaintiff-petitioner referred to the Limitation Act particularly Article 158 arid 175 and submits that Arbitration Act being special law, the time limit provided in the sections shall be construed as mandatory and Section 5 of Limitation Act has no manner of application in this matter. Learned Advocate further submits that the security as filed by the opposite party is nothing but personal bond and if the plaintiff be given decree then it will take 100s of litigations to get the decreetal money from the opposite party. Learned Advocate    further   submits   that opposite   party   being   a   government functionaries, the security ought to be submitted in bank guarantee or pay order so that decree if passed, the decreetal amount can be realized without further litigation. Learned Advocate mainly submits that written objection having filed out of time without security is liable to be rejected outright.

7.            In support of his submission, learned Advocate relied on the case of Abul Bashar Vs. Investment Corporation of Bangladesh, reported in 52 DLR (AD) 178, Nilkantha Sidramappa Ningasher pellant Vs. Kashinath Somanna Ningabo and others, reported in AIR 1962 (SC) 666, Sh. Mahboob Alam Vs. Sh. Murntaz Ahmad, reported in 1960 PLD (W.P) Lahore 601. Adamjee Sons Limited Vs. Jiban Bima Corporation reported in 45 DLR 89. Masud Ahmed Vs. Khushnehara Begum and another, reported in 46 DLR 665, Sonali Bank Vs. Md. Al-Akram (Badal) and others, reported in 46 DLR 122, Bangladesh Water Development Board and others Vs. Progati Prakaushali and another, reported in 49 DLR 335, Haji Amir Bux Vs. Sono Khan, reported in PLD 1979 Karachi 45, Bangladesh Water Development Board Vs. Nasim and brother and another, reported in 1988 BLD 369, Mol. Enterprises Inc. Vs. Government of the People's Republic of Bangladesh reported in 7 BLT 265. Mol. Enterprises Inc. Vs. Government of the People's Republic of Bangladesh reported in 4 BLC 407, 18 BLT (AD) 380, 1 BLC 81 and also referred to some decisions of Indian jurisdictions. Learned Advocates prays that the rule may be made absolute.

8.         Mr. Kamal Ul- Alam, learned Advocate along with Mr. Mir Joynal Abedin, learned Advocate, appearing for the opposite parties, submits that, since the arbitrator did not submit the report to the Court himself as such question of limitation does not arise in this case as, as soon as the opposite party came to know of filing of the award in Court, defendant No. 1 appeared and filed written objection. Learned Advocate further submits that date of knowledge can not be construed to be the date of notice, there is difference in between knowledge and notice and when the opposite party gathered knowledge he filed written objection and also security as such opposite partv cannot be thrown out of Court on the ground of limitation. Learned Advocate further submits that the security as submitted was submitted in accordance with the provision of law and this security is a legal one and was accepted by the Court as such filing of security cannot be challenged.

9.         Mr. Kamal Ul-Alam, learned Advocate, referred to the decision of Sonali Bank Vs. Hare Krishna Das and others, reported in 49 DLR 282 where their lordships observed that,

"The liability of the principal debtor is co-extensive with that of the guarantor. A creditor is at liberty to pursue either the principal debtor or the guarantor according to his sweet will for realisation of his dues or he can proceed against both of them simultaneously."

10.       Learned Advocate also referred to the decisions of Gangaram Vs. Chief Engineer (Projects), Orissa and other, reported in AIR 1983 (Ori) 262, case of Chokolinga Chttiar Vs. Dandayuthapani Chettiar, reported in AIR 1928 (Mad) 1262, the case of M R Sikder Vs. Bangladesh Water Development Board reported in 49 DLR 113, the case of Dhaka Leather Complex Ltd. Vs. Sikder Construction Ltd and another, reported in 8 LG (AD) 75, the case of Rajdhani Unnayan Kartipakkha (RAJUK) Vs. M N Mam and Associates Ltd. and another, reported in 54 DLR 161. He lastly prays that the rule should be discharged.

11.       We will refer to the decisions cited by the parties if required.

12.       Points formulated on the pleadings of the parties are (i) whether the written objection can be accepted when it is filed beyond the period of limitation as prescribed under Section 30 of the Arbitration Act and secondly, whether the security as deposited in the Court can be said to be filed as per Section 33 of the Arbitration Act.

13.       Let us take up first point first for consideration. From the order sheet of the case it appears that award was filed in Court on 20.08.2005. From order dated 27.08.2005, it appears that the learned Advocate for the Water Development Board in the margin of the order put his signature by signing. Thereafter, it appears that the learned Advocate for the Water Development Board took adjournment on 03.09.2005, 06.09.2005, 21.09.2005 lor filing written objection and on 09.10.2005 written objection was filed. Mr. A. K. M. Nazrul Islam, learned Advocate, submits, this is actually beyond the period of limitation as prescribed under section 30 of the Arbitration Act. Let us quote section 30 of the Act, Section 30 speaks,

"Grounds for setting aside award -An award shall not be set aside except on one or more of the following grounds namely: -
  1. that an  arbitrator  or umpire has  misconducted himself or the proceedings;
  2. that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35;
  3. that an award has been improperly procured or is otherwise invalid." If any party wants to set aside an award he must come within these three categories otherwise award shall remain valid.
Limitation filing written objection is 30 days as prescribed in Article 158 of the Limitation Act which is:-
Description of  application Period of limitation Time from which period begins to run
158- Under the Arbitration Act, 1940.(X of 1940) set aside an award or to get an award remitted for reconsideration. Thirty days The  date  of service  of the notice of filing of the award.
 
 
 
14.       For disposal of this rule, relevant sections of Arbitration Act as well as Limitation Act are required to be referred to. We have already referred Section 30 and 33 before. Now, we refer Section 37 and 42. Section 37 runs as:- "(1) All the provisions of the Limitation Act, 1908 (IX of 1908) shall apply to arbitrations as they apply to proceedings in Court. By this section, Arbitration Act give entry of Limitation Act in the proceeding of arbitration subject to the provision of Arbitration Act i. e. where the Arbitration Act itself provide for limitation then the period mentioned in the Limitation Act shall have no applicability as Arbitration Act being a special law its provisions shall have the effect over the period mentioned in the Limitation Act. When provision of Limitation Act made applicable to special law it applies specially and in applying the provision of Limitation Act Court must guard itself so that by applying the provision of Limitation Act the provision of special Act would not be given a meaning by which the special feature of special law would stand as nugtory. According to Black's Law Dictionary special law defined as 'a law that pertains to and affects a particular case, person, place, or thing, as oppose to the general public. But it is a paramount law as it continue in force with its special identity for an indefinite period i. e. a provision of law, which is not applicable generally, but which applies to a particular or specified subject or class of subject.' Since provision of Arbitration Act applies to a certain class of person with its provision, is a special law, as such, when it made provision of applicability of Limitation Act, the provision of Limitation Act should be applied specifically, strictly and specially.

15.       Mr. Kamal-ul-Alam, made his submission that since no notice was served by the Arbitrator, this opposite party filed the written objection within time of his knowledge with adequate security. From the papers produced, it appears that opposite party appears in the suit on 03.09.2005 and filed application for adjournment for filing written objection and court: allowed time and fixed 06.09.2005, when it again adjourned at the instant of opposite party and fixed 21.09.2005, when it again adjourned at the instance of the opposite party and fixed 09.10.2005 when written objection was filed. From 03.09.2005 upto 09.10.2005 is 36 days i. e. more than 30 days as provided under Article 158 of the Limitation Act. It is argued that notice of filing of the award was not served but when opposite party appeared on 03.09.2005 at that time this point may be taken, but on subsequent dates, till filing of written objection, opposite party continue with definite knowledge of filing of award as such, each day opposite party spend with definite knowledge of award in court and opposite himself allowed time to run out as opposite party filed the written objection on the 36th day.

16.       Let us refer to the decisions on this subject. In the case of Rajdhani Unnayanun Kartipakhya Vs. N. M. Alam and Associates Ltd and another, 54 DLR 161 where a Division Bench of the High Court Division held, "It appears from the record that the defendant-petitioner appeared in court on 3-2-1999 and after taking several adjournments filed the written objection on 28.3.2000 which is, in our opinion, not at all time barred. It also appears from the impugned order dated 7.5.2000 of the Court below that the Court not only rejected the written objection on the ground that the same was barred under Article 158 of the Limitation Act, but also for want of security deposit relating to the award. The order of the learned Court below is quoted is a clear bar against taking such a plea.

17. This decision did not find support from other decisions of this sub­continent.

18.     Next, the case of Dhaka Leather Complex Ltd BCIC Vs.  Sikder Construction Ltd. and another, 55 DLR 578, where it is observed and held as "Mr. Samad read order dated 20.3.2002 and submitted that by the order the written statement filed was accepted and after such acceptance, the delay, if any, in filing the written objection must be held to be condoned.

19.       We are unable to accept such submission. Receipt of the written objection by the court cannot be termed as condonation of the delay in making the objections. The defendant never sought for condonation of the delay by making any application. Limitation under Article 158 of the Limitation Act goes to the root of the right to set aside or get the award remitted for reconsideration. In the circumstances, there is no escape from the conclusion that the objection filed was out of time by more than a year and such objections did not deserve any consideration, and was, therefore, liable to be rejected outright upon such ground of limitation alone. It was however, rejected on merit."

20.       Next, the case Bangladesh Water Development Board and others -Vs-Progati Prakanshali and another, 49 DLR 335, it is observed and held as it appears from the order sheet that he appeared before the court on 15.5.1994 and ultimately filed the written objection/application under section 33 of the Arbitration Act on 20.7.1994 which is beyond the period of limitation and there is nothing on record to dislodge the finding of the learned Subordinate Judge on that point. It is further admitted that at the time of filing of the written objection/application under section 33 of the Arbitration Act the second party appellant did not make any deposit as was required under section 33 of the Arbitration Act and that rendered the application under section 33 of the Arbitration Act a nullity in the eye of law for non-compliance of the provision to section 33 of the said Act and the learned Subordinate Judge rightly took, the view that non-compliance of the proviso to section 33 of the Arbitration Act rendered the said written objection/application under section 33 of the Arbitration Act non existent in the eye of law.

21.       In the case of Hazi Amir Aux -Vs- Sonokhau, PLD 1979 Kar 45, it is observed and held as "Mr. Zafar submitted that the trial court has no power to extend and in support of this submission he referred me to judgment of a Single Judge of the West Pakistan High Court as Thai Development Authority -vs- Nisar Ahmed Qureshi( PLD 1962 Lah 830). The learned Single Judge held in that case section 5 of the Limitation Act was not available to extend time under Article 158 of the Limitation Act, no Judgment to the contrary has been cited. I would therefore, follow this Lahore case, and the result is that the trial Court's order permitting the respondent to file objections after 30 days as illegal. As the objections were thus time-barred, the First Appellate Court erred in setting aside the award on the basis of these time-barred application. And by so doing it committed an error affecting its jurisdiction, therefore, the Revision should be allowed."

22.       In the case of Mol. Enterprises Inc -Vs- Bangladesh, 1999 (VII) BLT 265, it is held as 'The application challenging the validity of the Award having been filed beyond limitation, the same could not be entertained and section 5 of the Limitation Act was not at all applicable for condonation of delay. Similarly, the Court also got no jurisdiction to decide the proceeding under section 14 of the Act. Support for this proposition of law is sought to be drawn from authorities placed before us on behalf of the appellant which are Mohamed Esoof -vs- VR Subramanyam and another Ganesh Chandra Misra -vs- Artatrana Misra, and others, AIR 1965 Orissa 17, Hastimal Dalichand Bora and others, AIR 1965 Orissa 17 Hastimal Balichand Bora and others -vs- Hiralal Motichand Mutha, AIR 1954 Bomiay 243, Divi Dilla -vs- Babu Ram, AIR 1927 Lahore 273, wherein it is laid down that a Court has no jurisdiction to entertain any application for setting aside an award if it is filed after the period of limitation of 30 days as enhanced in Article 158 of the Limitation Act and the Court also got no jurisdiction to condone the delay under section 5 of the Limitation Act which got no manner of application in this regard. In the unreported case Civil Appeal No. 1 of 1984, Khurshid Anwar and another, appellants -vs- Jamil Akthar, respondent, arising out of Civil Revision No. 149(c) of 1982, judgment dated January 14, 1985 their Lordships of the Appellate Division considered the question whether the inherent power under section 151 of the Code of Civil Procedure was attracted in condoning the delay in entertaining an objection to the Award given by the Arbitrator which was filed beyond 30 days ^ prescribed in Article 158 of the Limitation Act. The Appellate Division answered the question in the negative. The observations of the Appellate Division is couched in the following language:

"This clearly shows that the respondent got knowledge of the  filing of the award   in Court and as such, even if limitation starts from this date still the objection is found to have been filed beyond 30 days as prescribed in Article 158 of the Limitation Act. The provision for exercising Court's inherent power under section 151 of the Civil Procedure Code is not attracted to a case specifically governed by statute."

23.       In the decision of 52 DLR (AD) 178 it is held Arbitration Act is a special law, no application for extension of period of time limit can be entertained after the period prescribed as, learned Advocate submits, Article 158 of Limitation Act prescribe 30 days limitation from the date of service of the notice or filing of the award in Court.

24.       In 8 LG (AD) 75 in paragraph 17 it is held, as,

"In the instant case the appeal was filed under section 17 of the Arbitration Act, 1940 which amongst other provides that no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with the award. In the instant case the High Court Division observed that after an award is given under the Arbitration Act, various remedies are provided for under the Arbitration act by way of modification under section 15, correction under section 16 and setting aside the award on any of the grounds under section 30 of the Arbitration Act. But section 17 empowers the Court to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award. According to Section 17 of the Arbitration Act after the time for making an application for setting aside an award has expired or such an application having been refused, the court shall pronounce judgment according to the award and upon such judgment a decree shall follow and that no appeal shall lie against such a" decree except in a case where the decree was passed in excess of the award or not in accordance with the award. In the case of Abdus Salam and another Vs. Osman Gani and another reported in BCR 1984 (AD) 346 the Appellate Division held that a decree is to follow upon the pronouncement of the judgment according to the award. No appeal lies from such decree except on the ground that it is in excess of or not otherwise in accordance with the award. In this case objection filed out of time was rejected on the ground of limitation under Article 158 of the Limitation Act. The Appellate Division held that the Courts decreeing the suit in accordance with the arbitration award is justified and the appeal under section 17 of the Arbitration Act, 1940 before the High Court Division was not competent as the suit was decreed in accordance with the award."

25.                    Admittedly, the defendant-petitioner of this revisional application appeared before the Court on 03.02.1999 and after taking several adjournment filed written objection on 28.03.2000 which, according to Mr. M A Samad is beyond the period of 30 days and governed by Article 158 of the Limitation Act and the learned Subordinate Judge, according to him, rightly rejected the written objection of the defendant-petitioner being barred

26.       After appearance in Court the question of serving of notice does not arise as from that date, opposite party got definite knowledge of filing of the award in Court and time was running out from that date for filing written objection and if the time runs out then filing of written objection does not arise.

27.      As such we have no other option but to reject the written objection as it was filed long after the period of Limitation prescribed under Article 158. Mr. Kamal-ul-Alam, learned Advocate relied on the decision of 8 LG (AD) 75 wherein it is held that:-

"Knowledge of the filing of the award acquired otherwise than in the way prescribed by Section 14(1) should be distinguished from the service of notice under section 14(2) in the absence of the service of notice the application under section 14(2) for direction to cause the award to be filed in court should be made within three (3) years from the date when right to apply accrues according to the residuary provision of Article 181 of the Limitation Act."

28.       Even we accept the submission of Mr. Kamal-ul-Alam that the written objection so filed can be treated as an application for setting aside the award then also the written objection as filed can not be accepted as opposite party is bound by the provision of Section 33 of the Arbitration Act and is governed by the general principle that it shall be filed within a reasonable time with the security not after in ordinance delay.

29.       There is another hurdle for the opposite party. From the impugned order we find that learned Judge having found 'there is security' accepted the written objection as well as the security so filed. Here, Article 178 of the Limitation Act, governing limitation for filing security may be looked in which runs as:-
 
Description of application. Period of limitation. Time from which period begins to run.
178- Under the Arbitration Act, 1940. CX of 1940) for the filing in court of an award. Ninety days The date of service of the notice of making of die award.
 
 
30.       Proviso to section 33 of the Arbitration Act make it clear that unless there be any security filed no one can challenge the award as such, when an award is challenged, security must accompany with written objection or to be filed along with the written objection.

31.       Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit.

32.       Provided that no application challenging the existence or validity of an award or for having its effect determined shall be entertained by the Court unless the applicant has deposhed in the Court the amount which he is required to pay under the award or has furnished security to the satis faction of the Court for the payment of such sum or for the fulfilment of any other obligation by him under the award.

33.       Provided that where the Court determine it just and expedient, it may set down the application for hearing on other evidence also and it may pass such order for discovery and particulars as it may do in a suit.

34.       This proviso has been incorporated as per Law Reform Ordinance, 1978 and as per language of law, is mandatory and unless there be any security as  per law, court has  no  jurisdiction to  consider/entertain any objection either in the nature of application or written objection challenging the validity of the award.

35.       We have scrutinize the entire order sheet but we do not find any order giving entry of such bond or security. No application for filing this bond or security filed by the opposite party as such, it is clear that this bond or security placed in the record must be in connivance with some black under hand tries stealthily which thus can not be accepted. Since there is no order entering this bond or security in record we are taken a back how the learned Judge work on it and accepted it when law does not permit him to do so. It may presume that bond was filed beyond the period prescribed proviso to section 33 of the Act, as such, there was no order entering the bond on record as such we can safely say that no bond has been filed. In the: case of Bangladesh Water Development Board -Vs- Nasim & Brothers and another, 1988 BLD 369, it is held; In such circumstances, now we are to decide whether the letter of guarantee that was submitted long after the filing of the application under section 33 of the Act, is a valid deposit as contemplated under the law. The learned Advocate for the petitioner submits that lawyer did not know of the provision of law. The ignorance of law or mistake of law is no ground and the learned Advocate cannot lawfully plead that before this court. Further the language as quoted above clearly says that the application shall not be entertained if the deposit of money as required to pay under the award has not been made. Thus no application can be entertained if the deposit is not made in accordance with the law. We hold that the deposit under section 33 of the Act is a condition precedent for entertainment of the application and without the deposit it is to be construed as if there was no application in the eye of law. Thus it is correct to say that the guarantee that was filed look after is no deposit under the law and the application has been rightly rejected. 1

36.       54 DLR 161 wherein on similar fact, the High Court Division observed that,

"The deposit contemplated under the law is a condition precedent for entertainment of the application challenging the award. Deposit made during the pendency of the case cannot be treated a valid deposit as the language of the law is mandatory."

37.       Law is to obey and procedure is to follow if not justice being blind, can not resent the litigant. Here we refer to the provision of Section 29(2) of the limitation Act. SAVINGS- (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872 (IX of 1872.)      

(2) Where any special law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
a. the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special law; and
b. the remaining provisions of this Act shall not apply.

38.       In the decision of Bangladesh Water Development Board and others Vs. Progati Prokashani and another, 44 DLR 335 it is held

"if any party misled by the order of the Court filed objection to set aside the award, the mistake made by the party is nothing more than an irregularity which is not such as to entitle the Court to over look his objection and to pray a decree in term of the award. It means in any form when an award is to be challenged that must necessarily with security."

39.     Mr. Kamal-ul-Alam, learned Advocate for the opposite party referred to Article 181 of the Limitation Act i.e. relating to the application.

40.             Let us quote Article 181 of the Limitation Act which is-
 
Description of application Period of limitation Time from which period begins to run.
181- Application for which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908(V of 1908) Three years When    the   right   to    apply accrues
 
 
 
41.       Since we find the written objection and security is list by the provisions of Section 30 and 33 of the Act, provisions of Article 181 of the Limitation requires no consideration.

42.       Now, the mode of submitting security. Petitioner vehemently challenge the security as it is filed on stamp paper of Tk. 150 by an Executive Engineer who is not the authority but an employee and if the executant either removec from service either of his own volition or otherwise or died, then further complication would arise as such, security would be on such instrument which will not cause any hindrance in getting the decreed money on the event of success by the plaintiff. Mr. Kamal-ul-Ala submits that such type security on Tk. ISO/- stamp paper is accepted by court and refer to the decision of N. R. Sikder -vs.- Bangladesh Water Development Board, 49 DLR 113, where it is held,

"A copy of this bond or security has been annexed with the petition. We have carefully gone through this and it appears that one Mr. M. Majidul Islam, Chairman, Bangladesh Water Development Board on behalf of the said Board undertook to pay to the plaintiff a sum of Taka 4,95,29,000.00 (Taka four crore ninety five lac & twenty nine thousand) only as awarded by the learned Arbitrator Mr. Justice Abdur Rahman Chowdhury by his award dated 27th November 1993 and also undertook to pay any other sum as maybe adjudged by the court to be payable thereunder and the Board (BWDB) guarantees the payment of such sum in the event of above proceedings ending in favour of the plaintiff by the Court. It appears from this document that on behalf of Bangladesh Water Development Board the Chairman undertook to pay to the plaintiff any amount that may be allowed by the trial Court while disposing of Title Suit No. 284 of 1993 and this has been executed on behalf of the board and the Board guarantees payment of such sum. though in this security of guarantee of bond in which name this may be styled on properly has been included as required under Order 25 rule 1, Order 38 rule 5, Order 41 rule 5 of the Code of Civil Procedure but the plaintiffs in case of their success in the suit. Further, the Water Development: Board has been constituted under President's Order No. 59 of 1972 which is a body corporate having its  common  seal and this  Board is  governed  by  the provision of this order and it has also own properties. So far mere nor including of the properties in the security the same cannot be brushed asid< or rejected. The meaning of the word security that we have found out cover the bond that has been executed and filed on behalf of the Board."

43.       Since a Division of this Court accepted such type of Bond as security, the security so filed can be accepted if it is filed as per law provided under Section 33 of the Act.

44.       Question also be whether such type of security can be said to be good enough. It is our considered view that when a government functionary is involved then the security shall be either in the form of bank draft or pay order or bank guarantee otherwise it will take long time to get the money as if security given by the office i.e. the Executive Engineer on the event of either death or removal or retired from service then further such type of bond is required to be filed in Court.

45.      Mr. Kamal-Ul-Alam, learned Advocate for the opposite parties has submitted of Section 128 of Contract Act and referred to the decision of Sonali Bank -Vs- Hare Krishna Das, 49 DLR 282. Section 128 of Contract Act relating to liability of the surety which is co-extensive with the principal debtor, unless it is otherwise provided by the contract. This law binds the surety to perform obligation immediately on the failure of principle debtor to perform its part. In the cited decision it is held,

"It is true that the onus is on the petitioner to prove his case and in the instant case on perusal of evidence and materials on record we find that the plaintiff have been able to prove their case against the defendants. Besides, there is another aspect of the case which has been lost sight of by the learned Subordinate Judge that is, that the liability of the principal debtor is co-extensive with the guarantor. A creditor can pursue either the principal debtor or the guarantor according to his sweet will to realise his dues or can proceed against both simultaneously. In the instant case the defendant No. 1 is the principal debtor and defendant Nos. 2-4 are guarantors. The defendant Nos. 1-3 did not contest the suit. The case of the plaintiff with regard to defendant Nos. 1-3 remains uncontested. Moreover, the plaintiffs have proved their case against them by cogent evidence. In view of that matter we do not find any reason why the learned Subordinate Judge did not decree the suit at least against defendant Nos. 1-3 and the judgment is not sustainable on that count also.

46.       We have perused the materials and evidence on record and we have already found that the plaintiff have been able to prove their case against all the defendants who are jointly and severally liable to repay the loan. It appears to us that the Court below failed to appreciate the true import and tenor of the relevant provisions of the Negotiable Instruments Act, 1881, and the learned Subordinate Judge is  absolutely ignorant about the relevant provisions  of the  said Act.  The learned Subordinate Judge  on  a total misconception of lawr and facts misconstrued and misinterpreted the evidence and materials on record and most illegally dismissed the suit although th< plaintiffs have successfully proved their case. In the result the appeal i allowed without cost. The impugned judgment and decree dated 30.9.8 passed in Money Suit No.  11 of 1984 of the 1st Court of Addition Subordinate Judge, Chittagong, are set aside. The suit is decreed with cost."

47.       We do not understand how in applying Section 128 of the Contract Act improve the case of Mr. Kamal-ul-Alam improve as in the instant case the question of acceptance of written objection and security, liability of guarantor would arise if there be any dispute in payment of money so guaranteed.

48.       Since we find written objection is not maintainable, such valued submission do not require to be considered, we leave it to Mr. Kamal-ul-Alam to agitate it before the higher forum if required.

49.       We find substances in the rale.

50.       In the result, the rule is made absolute without any order as to costs. The judgment and order No. 209 dated 17.06.2009 passed by the learned Joint District J udge, Comilla in Arbitration Suit No. 01 of 1995 is hereby set aside.

51.       The order of stay at the time of issuance of the rule is hereby vacated. Let a copy ot the judgment be sent to the court below at once.

            Ed.