M/s. F. Jahan Enterprise Vs. Commissioner of Customs, Chittagong and others, V ADC (2008) 779

Case No: Civil Appeal No. 120 of 1997

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,,

Citation: V ADC (2008) 779

Case Year: 2008

Appellant: M/s. F. Jahan Enterprise

Respondent: Commissioner of Customs, Chittagong and others

Delivery Date: 2005-7-11

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Syed J.R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
 
M/s. F. Jahan Enterprise
…………………..........Appellant
Vs.
Commissioner of Customs, Chittagong and others
…………………..........Respondent
 
Judgment
July 11, 2005.
 
The High Court Division observed the same under the circumstances it may have happened due to mistake in impression that the earlier sale of the goods to the writ petitioner was approved but as a matter of fact the same was never approved. Be that as it may, the respondent No. 6 was never aware of the same and he bonafide bided the goods under catalogue No. 94 at the said tender sale and the highest bid was approved by the authority at Tk.16,67,000/= and the authority issued the delivery order which he meanwhile took delivery and it is not possible to trace  out of the goods at the moment. ………(7)
 
Lawyers Involved:
Kazi Shahbuddin Ahmed, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Appellant.
Md. Nawab Ali, Advocate-on-Record-For Respondent No. 6.
Ex-parte-Respondent Nos. 1-5.
 
Civil Appeal No. 120 of 1997
(From the judgment and order dated August 28, 1997 passed by the High Court Division in Writ Petition No. 3532 of 1997).
 
JUDGMENT
Mohammad Fazlul Karim J.
 
This appeal by leave at the instance of the writ-petitioner-appellant is directed against the judgment and order dated 28 August, 1997 passed by a Division Bench of the High Court Division discharging the rule issued earlier in Writ Petition No. 3532 of 1997.
 
 2. The appellant filed the writ petition stating, inter alia, that the appellant is a business firm dealing, inter alia, with auctioning business submitted tender in auction tender sale No. 9/97 dated 30.4.1997 for purchase of 2350 pieces of Toshiba Brand Fluorescent Tube Light and 392 sets of National Brand VCR under catalogue serial No. 112 of lot No. 49/91(s). The tender was opened on the same day i.e. on 30.4.1997 and the appellant was found to be the highest bidder at Tk. 13,53,000/- in the published list of bidders. Later on another tender seal No.10/97 dated 14.5.1997 was published showing the same lot i.e. lot No. 49/9(s) catalogued as item No. 94. But subsequently the said catalogue No. 94 was withdrawn from sale by the customs authority (auction) through correction by way of amendment dated 12.5.1997. Though the said lot in catalogue No. 94 was withdrawn from the list of tender sale No. 10/97 but in the list of highest bidders the said catalogue was shown in serial No. 82 in the name of M. Monju, respondent No. 6, vide tender schedule No. 163 as the highest bidder at Tk. 16,67,000/-. Though tender sale No. 10/97 as per catalogue sale No.94 was withdrawn (Annexure-C to the writ peti­tion) but the same being approved by (Annexure-G to the writ petition) appel­lant by taking it to be an offer under clause 11 of the standing order 15 dated 12.12.1990 had met respondent No.1 on 4.6.1997 who informed him if he was interested to purchase at the highest price offered vide sale No.10/97 the sale would be approved in his favour. Accordingly the appellant made a written offer on 4.6.1997 to purchase the goods at the highest offer price of Tk. 16,67,000/-. Subsequent to making the written offer by the appellant on the same day on 4.6.1997 without informing the appellant as per clause 11 of the standing order No. 15 dated 12.12.1990, respondent No.2 by memo No.75/Cus/Auc/Sale No.10/97/301 (7) dated 4.6.1997 approved the solitary catalogue No. 94 in tender sale No. 10/97 which was not approved vide the regular memo of approval dated 2.6.1997 (Annexure-"E-1" to the writ petition) and as such the aforesaid approval is illegal and malafide. That it is stated that when the appellant deposited 10% of the earnest money out of his highest bid in sale No. 9/97 has accrued a vested right and when the said sale was under process, the custom authority acted malafide in approving the sale No. 1 0/97,of the respondent No.6 without complying with the clause No. 11 of standing order 15 of 1990 and as such the said approval has been malafide and without any lawful authority, That the customs authorities did not file any affidavit in opposition but the respondent No.6 has submitted affidavit-in opposition stating, inter-alia, that the bid of the appellant vide sale No.9/97 was not accepted by the customs authority, the appellant did not offer 20% more than the highest bid within 2 days from the date of, opening and acceptance of the earnest money for which clause 11 of the standing order No.15 dated 12.12.1990 is not applicable for the appellant's case, that sale No. 10/97 under catalogue No. 94 was not withdrawn by the customs authority when tender sale No. 10 of 1997 dated 13.5.1997 and 14.5.1997 was published. The respon­dent had no knowledge about the alleged withdrawal of the said item from tender sale No. 10/97, the approval of the said tender item No. 94 was duly given by the authority and respondent deposited the quoted price of Tk. 16,67,000/- with 3% advance income tax. That it is stated that the respondent No. 6 while filing the com­plete tender notice dated 13 and 14 May, 1997 vide Annexure-X fraudulently with­held the last page of the list after catalogue No. 177 which includes the amendment showing the withdrawal of item No.94 from sale which has been shown vide Annexure-C of the writ petition belies the contention of the added respondent No.6 on the basis of Annexure-X; withheldment of the last page of the list amounts to fraudulent suppression of the correct posi­tion of tender. That in the absence of any affidavit from the respondent No.1 regard­ing the withdrawal of the goods from ten­der sale No. 10/97 and in the absence of any denial from the respondent No.1 and in the face of admitted withdrawal of the goods vide Anenxure-C of the writ peti­tion the observation of the Judges of the Division Bench was wrong in holding that the withdrawal of catalogue No.94 from tender sale No. 10/97 was under some mis­taken impression that the earlier sale of the goods to the appellant was approved. Such observation is totally misconceived and imaginary. That it is stated that in view of the offer of the appellant to buy the goods at the highest offered price of the respondent No.6 on 4.6.1997, the very day of approval of the bid of the respon­dent No.6, the custom authority acted ille­gally in not publishing the notice as required under clause 11 of the SRO No. 15 dated 12.12.1990, the Judges of the High Court Division on an erroneous interpretation of the said SRO, was wrong in observing that since the appellant did not deposit 20% above the offered price, the customs authority is under no obligation to publish notice under clause 11 of SRO 15 and was thus wrong in discharging the rule.
 
3. Leave was granted to consider that:
 
"For that since the acceptance of the highest bid of the petitioner was under consideration of the custom authority and since they admittedly withdrew tender sale No.10/97 dated 14.5.1997under catalogue No. 94, subsequently approval of the officer of the respondent No. 6 under sale No.10/97 once withdrawn and without floating fresh and clean tender after cancellation of the highest bid money with added income tax from the respondent No. 6 is not legal and valid but is malafide, void and colourable exercise of official position of the respondents."
 
4. Mr. Kazi Shahabuddin Ahmed, the learned Counsel appearing for the appellant submitted that  the  High Court Division erred in discharging the rule in the face of admitted withdrawal of tender sale No. 10/97 dated 14.5.1997 under catalogue No. 94 and subsequent approval of the offer of the respondent No. 6 under sale No.10/97 once withdrawn and without floating fresh and clean tender on cancellation of the highest bid of the appellant under tender sale No. 9/97 the acceptance of the bid money with added income tax from respondent No.6 has been made malafide and without lawful authority, The learned Counsel further submitted that the High Court Division erred in discharging the rule in the face of withdrawal of sale No. 10 under catalogue No. 94 on giving surreptitious and subsequent approval of the sale once withdrawn by the customs authorities, more-so, when the appellant communicated his willing­ness in writing to accept the offered, price under Article 11 of the standing order 15 dated 12.12.1990 before the approval of sale No. 10/97. The learned Counsel fur­ther submitted that noncompliance of clause 11 of SRO No.15 on the face of written offer of the appellant to purchase the goods at the offered price before the approval of the bid of the respondent No. 6, the custom authority has acted malafide and in violation of provision of SRO No. 15 which the High Court Division failed to consider before dis­charging the rule.
 
5. The appellant filed the writ petition for reliefs, inter alia, that (a) the approval order bearing No. 75/Cus/Auc/T.Sale No.10/97/301 (7) dated 4-6-97 issued by the respondent No.2 approving the cata­logue No. 94 lot No.49/91(S) Estate Godown-1, T-08/97 in Tender Sale No. 10/97 should not be declared to have been issued without any lawful authority and is of no legal effect; (b) why the appellant should not be delivered the said lot No.49/91(S) of Catalogue No.94 in Tender Sale No. 10/97 at purported offer price i.e. Tk.16,67,000/- (Taka Sixteen lac sixty seven thousand) only by accepting the outstanding dues.
 
6. It appears from the record that pursuant to the approval of the bid of the writ-respondent No. 6 in respect of tender sale No. 10/97 approving the catalogue No.94 relating to lot No. 49/91(S) Estate Godown-1, T-08/97 in Tender Sale No. 10/97, the delivery of the said lot was effected in favour of respondent No. 6 making not only the rule infructuous but also the object of the rule impossible to perform, for the goods have been delivered to the auction purchaser about 10  years back and in case of success of the writ petitioner the same could not be physically possible to be restored to effect any delivery to the writ petitioner even if his bid is directed to be approved by this Court.
 
7. In that view of the matter, this rule has become infructuous. Besides the High Court Division on consideration of the material on record found that the goods in question were put to sale again on14.5.1997 and the highest bid of respondent No. 6 at Tk. 16,67,000/= was approved by the authority who paid the entire bid money and got the delivery order. The High Court Division further found that pursuant to clause 11 of SRO No. 15 dated 12.12.1990 though the appellant applied for buying the goods on 4.6.1992 by did not comply with the requirement of the said clause. The High Court Division also found that the withdrawal of the goods in question from the tender sale No. 10/97, long after approval of the bid of the respondent No.6 and payment of entire bid money and the delivery order of the goods, was not known to the respondent No.6 inasmuch as no attempt was made to let him to know about the withdrawal of the goods in question from the tender sale No. 10/97 and the High Court Division as well could not reconcile as to why inspite of the withdrawal of the goods from tender sale No.10/97 the tender of the respondent No. 6 in respect of the said lot within catalogue No. 94 was accepted and the highest bid were accepted by the customs authority and consequent acceptance of the entire money and issuing delivery order pursuant to which the respondent No. 6 has obtained delivery of the goods, in question. The High Court Division, however, observed that the same under the circumstances may have hap­pened due to mistake in impression that the earlier sale of the said goods to the writ petitioner was approved but as a matter of fact the same was never approved. Be that as it may, the respondent No. 6 was never aware of the same and he bonafide bided the goods under catalogue No.94 at the said tender sale No.10/97 and the highest bid was approved by the authority at Tk. 16, 67,000/= and the authority issued the delivery order which he meanwhile took delivery and it is not possible to trace out the goods at the moment.
 
In view of the above, we do not find any substance in ground for which leave was granted and in the submissions made by the appellant.
 
The appeal is, accordingly, dismissed without any order as to costs.
 
Ed.