Pankaj Roy Vs. Alliance Securities and others, (Muhammad Khurshid Alam Sarkar, J.)

Case No: Cmpany Matter No. 163 of 2017

Court: High Court Division,

Advocate: Mr. Akhtar Imam with Mr. Reshad Imam, Advocates ,

Citation: 2019(2) LNJ

Case Year: 2019

Appellant: Pankaj Roy

Respondent: Alliance Securities & Management Limited and others

Subject: Constitution of Bangladesh

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(STATUTORY ORIGINAL JURISDICTION)

Muhammad Khurshid Alam Sarkar, J

 

Judgment on

06.02.2019

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Pankaj Roy

. . .Petitioner

-Versus-

Alliance Securities & Management Limited and others

. . .Respondents

Constitution of Bangladesh, 1972

Article 111

When the Supreme Court of Bangladesh, be it the High Court Division or the Appellate Division, passes a direction upon any individual or statutory body or State-functionary, it becomes a mandatory duty of this Court to compel the concerned person/statutory body/State-functionary to comply with the said direction either on arranging compromise between/among the parties or by passing appropriate Order/s, including passing contempt Order. If an Order for implementation is passed without arriving at consensus by all the parties, then, the parties will squander further invaluable working hours of this Court and, for that reason, it is a prudent practice to obtain consent directly from the parties to the case by asking them to appear in person in the Court room. . . . (10)

Words and Phrases

Recalling the Court’s order

When a party to a litigation approaches any Court with a prayer for recalling the Court’s Order/Direction which was passed modifying the original Judgment and Order on the consent of the said party, s/he must come with clean hands upon fully satisfying the Court that s/he is at once ready to comply with the original Judgment and Order.                                                          . . . (16)

Companies Act (XVIII of 1994)

Section 233

If the company is to be saved from winding up, there is no other option for the company’s directors other than to accept any one of this Court’s decision out of the above-mentioned two solutions. That is to say, either the petitioner shall purchase all the shares of the respondent nos. 2 & 3 through payment of the Pay Order to be handed over in the Court room upon execution of the share-transfer instruments instantly and the shares of respondent no. 4 shall be purchased by the petitioner in installments by depositing Bank Guarantee/s in the Court, or, in the alternative, the respondent nos. 2 & 3 shall purchase the petitioner’s entire shares with the promised solatium i.e. upon payment of the interest for delay together with the profit of the shares on top of the share-price, within the shortest possible time.                                     . . . (19)

Words and Phrases

Duties and liabilities of an Advocate

A truly professional Advocate would consider the legal advocacy to be a noble profession and s/he would not take up a meritless brief, rather s/he would feel duty bound to discourage the people not to get involved in a frivolous or fruitless litigation.                              . . . (21)

Bangladesh Legal Practitioners and Bar Council Order (PO 46 of 1972)

Article 34

The members of the Bar being the integral part of the Judiciary shoulder a solemn duty of upholding the majesty of the Court and, thus, they should not interact with their clients in a way which would damage and demean the prestige of the Court. Whilst it is the professional duty of the learned Advocates to protect the interest of their clients, it does not necessarily mean that they would be driven by the whimsical request or unlawful instructions of the clients; rather they should act on their good conscience. A gutsy Advocate shall never be motivated by mere material instructions, nor shall s/he ever get involved in squabble in the open Court for satisfying the client. The learned Advocates must not take any step to waste the invaluable business-hours of the Court. The members of the Bar should bear in mind that the Court room is considered and recognized all over the world to be the most formal place where the Judges and lawyers are obligated not only to comply with the rules regarding dresses/outfittings, but also they are required to maintain their professional ethics, etiquette and norms by mindfully using the words they utter before the Court in a genteel accent as well as by showing their demeanour to be humble without having the minimum characteristics of being egotistic or arrogant. They should not be oblivious of their status that they are addressed by the Court and the commoners as the ‘learned’ which implies that they are aristocrat and intellectual by virtue of their profession & knowledge and, inherently, an intellectual or aristocrat is expected to possess all the best qualities and features of a human being, that is to say, a member of the legal profession should not be impolite, discourteous, ill-mannered and inconsiderate either in speaking or in demonstrating any other type of performance. Therefore, it is the normal expectation of this Court and the citizenry that their conduct shall introduce themselves to be not only as knowledgeable persons, but also would suggest that they are accustomed to the sophisticated manner and attitude in all spheres of their lives.

                                               . . . (22 and 23)

AKM Asaduzzaman Vs. Public Service Commission 4 ALR 204(2) 278; Bandar Nagari Bahumukhi Samabay Samity Vs. Bangladesh 5 ALR 2015(1) 194 and Sharifa Begum Vs. Bangladesh 9 ALR 2017(1) 158 ref.

Mr. Akhtar Imam with

Mr. Reshad Imam, Advocates

. . . For the petitioner

Mr. Mejbahur Rahman, Advocate

. . . For the respondent Nos. 2 &3

Mr. Tanjib-ulAlam, Advocate

. . . For the respondent No. 4

Mr. AKM Badruddoza, Advocate

. . . For the respondent No. 8

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Original Judgment was passed in this Company Matter on 05.02.2018 and, subsequently, on the basis of the joint prayer the aforesaid Judgment and Order has been modified by this Court on 13.12.2018 and, now, when the parties to this case are required to comply with the Orders/directions passed by this Court in the aforesaid judgments, a number of applications have been filed by the different parties of this matter.

2.             The relevant facts for disposal of the aforesaid applications are that Alliance Securities & Management Limited (hereinafter referred to as the company) is a private company limited by shares, incorporated under the Companies Act, 1994 (hereinafter referred to as the Companies Act) on 09.04.2006. The company is engaged in the business of buying, selling and dealing in shares, debentures, bonds and other securities. The petitioner and respondent nos. 2 to 4 (4 persons) are holding the entire shares of the company, each of them having equal 25% of the company’s shares. The petitioner approached this Court invoking Section 233 of the Companies Act, impleading the company as the respondent no. 1, three other share holders as the respondent nos. 2-4 and the Registrar of Joint Stock Companies & Firms (RJSC) as the respondent no. 8,  with the following prayers;

(i)     To Order the respondent nos. 2-4 jointly or severally to purchase the shares of the petitioner at a fair valuation. Or, in the alternative, order the respondent nos. 2-4 to jointly or severally sell their shares to the petitioner at a fair valuation;

(ii)   In the absence of an agreement between the petitioner and the respondent nos. 2-4 as to fair valuation of the shares, pass an Order for Special Audit of the accounts of the respondent no.1-company by an independent auditor and/or expert valuer to be appointed by mutual consent of the petitioner and the respondent nos. 2-4 or in the absence of such an agreement in this regard, by the Hon’ble Court.

3.             The matter was registered as Company Matter No. 163 of 2017 on 21.05.2017 and, on the following day i.e. on 22.05.2017, after the admission-hearing of the matter, it was admitted with the following interim Order;

“Accordingly, the respondent nos. 2 and 3 are hereby directed to comply at once with the provisions of Article 45 of the Articles of Association of the company and to consult with the petitioner in discharging and performing his function as the Managing Director and also in the operation of the bank accounts. The respondent Nos. 2 and 3 having exclusive control in the board and in the managing affairs of the company and apparently acting as a group against the petitioner, therefore, respondent nos. 1, 2 and 3 are hereby further directed to make arrangement with the banks of the company for signing of all cheques and for operation of the bank account, jointly under signature of 2 (two) directors, one to be the petitioner himself and another to be any one from the respondent nos. 2 or respondent No. 3”

4.             Thereafter, upon observing the required legal formalities, the matter was heard at length and, then, Judgment was delivered by this Court on 05.02.2018. The operative-portion of the aforesaid Judgment runs as follows;

Order

In view of the deliberation, recorded above,

I.        The respondent nos. 2 & 3 are directed to purchase the share of the petitioner within 30th June, 2018 for Tk. 15,11,77,431-4,90,400=15,06,87,037/- and shall submit an affidavit-in-compliance  within one month thereafter.

The interim directions dated 22.05.2017, upheld in Civil Petition for Leave to Appeal No. 545 of 2017, shall continue until filing of the affidavit-in-compliance.

II.     The respondent no.4 can sell his shares in the manner prescribed hereinafter. The respondent no.4, who was earlier willing to purchase the shares of the petitioner, but has later decided not to buy the same, rather intended to sell his shares. Now, he can sell the same by making 1st offer to the respondent nos. 2&3, if they are willing to buy, and the respondent nos. 2&3 can either themselves purchase the shares of the respondent no.4 or they can purchase through their nominee.

III.  Costs of legal fees of Tk. 19,61,600/- shall be borne by all the four shareholders in equal proportion, i.e at the rate of Tk. 4,90,400/-”

5.             Against the aforesaid Judgment and Order dated 05.02.2018, two sets of Civil Petitions for Leave to Appeal (CPLA) were preferred before the Hon’ble Appellate Division. One CPLA was preferred by the respondent nos. 2&3 and the other one by the respondent no. 4 and eventually vide Order dated 16.07.2018 both the CPLA were dismissed by the Hon’ble Appellate Division. Thereafter, when the respondent nos. 2 & 3 were not complying with the directions passed by this Court in the Judgment and Order dated 05.02.2018, the petitioner filed a Contempt Petition against the respondent nos. 2 & 3 before a Division Bench of this Court. Simultaneously, the petitioner also filed another application for clarification of the Judgment and Order dated 05.02.2018 before this Company Bench claiming interest against the delay occurred in implementation of the aforesaid Judgment and Order, as well as for an entitlement to profit against the shares which he holds in the company. Eventually, the petitioner and the respondent nos. 2 & 3 came up with a joint application stating that the petitioner shall not pursue his above two applications (contempt petition and the application for interest & profit), as the petitioner and respondent nos. 2 & 3 out of the Court have amicably come to an understanding that the petitioner shall buy the entire shares of the respondent nos. 2 & 3 under certain terms and conditions instead of selling the petitioner’s shares. The aforesaid joint application was allowed on 13.12.2018 by this Court. Relevant portions of this Court’s aforesaid Order are quoted below:

“…………………………………………………………………………………………………………………….

         Today, by filing this joint application the learned Advocate for the petitioner as well as the learned Advocate for the respondents jointly submit that the respondent nos. 2 & 3 have not been able to comply with the direction of this Court and, under the circumstances, instead of purchasing the shares of the petitioner, the respondent nos. 2 & 3 have offered to sell their own shares to the petitioner and, in order to execute this alternative arrangement, they need sanction of this Court, they continue to submit. They submit that they have mutually reached an agreement under the following terms;

(a)    The Respondent Nos. 2 & 3 shall sell their entire shareholding in the Company comprising 200,000 (two hundred thousand) fully paid-up ordinary shares each (“the said shares”) to the petitioner or any person or person(s) nominated by the petitioner. The “consideration amount” for the sale of the said shares shall be as per Audit Report dated 20.11.2017 i.e. Taka 165,362,461.00 (Sixteen Crore Fifty Three Lakh Sixty Two Thousand Four Hundred and Sixty One) only and Tk. 114,475,412/00 (Eleven Crore  Forty Four Lakh Seventy Five Thousand Four Hundred and Twelve)  only payable by the petitioner to the respondent nos. 2 & 3 respectively, The payment of the consideration amount shall be made by the petitioner to the respondent nos. 2 & 3 by Pay Orders.

(b)   The Petitioner shall be granted 30(thirty) days time from the date of receipt of the Order of this Court to purchase the said shares by paying the consideration amount to the Respondent No. 2 & 3 as per paragraph 10(a) hereinabove.

(c)    The transfer of the said shares to the Petitioner and the payment of the consideration amount by the Petitioner shall take place simultaneously as far as practicable.

(d)   The sole signatory of all cheques to be issued by the Company from the date of receipt of the Order of this Court shall be the Petitioner. The Parties, as a matter of formality, shall pass a Board Resolution of the Company to this effect within 24(twenty four) hours of receipt of the Order of this Court and immediately inform/communicate to the concerned Banking institutions, including respondents  No. 5& 6 (The City Bank Limited and One Bank Limited), dealing with all the accounts of the company including but not limited to Fixed Deposit Receipt accounts of the company to implement the change of signatory with immediate effect in relation to all such accounts.

(e)    The Petitioner shall hand over two cheques to the custody of this Court as security in the following manner:

(i)     A cheque bearing No. SBC 9808348 in favour of respondent No. 2 for the amount of Taka 165,362,461/00 (BDT Sixteen Crores Fifty Three Lakhs Sixty Two Thousand Four Hundred and Sixty One) only.

(ii)   A cheque bearing No. SBC 9808346 in favour of respondent no. 3 for the amount of Taka 114,475,412/00 (BDT Eleven Crores Forty Four Lakhs Seventy Five Thousand Four Hundred and Twelve) only.

The said cheques shall be returned to the petitioner, subject to the Court’s approval, after completion of the process for the transfer of the said shares from the respondent nos. 2 & 3 to the petitioner and payment of consideration amount by the petitioner to the respondent no. 2 &3 as per the terms of the instant joint application. 

(f)     The petitioner hereby indemnifies the respondent nos. 2 & 3 from any liability arising out of any financial transaction of the company from the date of full effect of the change of signatory as described in paragraph 10(d) hereinabove till completion of the process for transfer of the said shares to the petitioner as per the terms of the instant Joint Application.

(g)    Prior to the transfer of the said shares to the Petitioner, the Parties shall hold necessary Board meetings and pass necessary Board resolutions, wherein the Parties shall appoint the person or persons as desired by the Petitioner as Directors of the Company and thereafter the respondent nos.  2 & 3 shall resign from the Board of Directors of the Company.

(h)   The respondent nos. 2 & 3 shall transfer the said shares to the petitioner by complying with all the formalities as enunciated in the Companies Act, 1994 as well as any other applicable laws in this regard.

(i)     The parties shall fully co-operate with each other to give full effect to the common objective specified in the instant Joint Application strictly within the time limit as elaborated in the instant Joint Application.

(j)     The parties shall individually or jointly file an affidavit of compliance before this Court within 7(seven) days of completion of the process of transfer of the said shares in accordance with the terms of the instant Joint Application.

6.             Upon going through this application, it transpires that the petitioner and respondent nos. 2 & 3 have put their respective signatures in the application at the time of swearing affidavit and, thus, there is no doubt that this settlement has been done on their own volition and consent, without being influenced by any one. Moreover, the learned Advocate for the petitioner and the learned Advocate for the respondent nos. 2 & 3 have categorically submitted before this Court that if this application is allowed upon approving the terms and conditions set out in this application, then the grievances of the parties to this matter shall be mitigated once and for all.

         In view of the fact that in the substantive application the petitioner’s prayer before this Court was either to direct the respondent nos. 2 & 3 to purchase the shares of the petitioner or, in the alternative, to direct the petitioner to buy all the shares of the respondent nos. 2 & 3 and since both the parties of the case have now amicably settled out of the Court that the petitioner shall buy all the shares of the respondent nos. 2 & 3, having been agreed to certain terms and conditions, this Court is of the view that there is no need to comply with the directions passed by this Court in the Judgment dated 05.02.2018. Instead, the parties are directed to comply with the following directions;

i)        The Petitioner and Respondent Nos. 2 & 3 are directed to implement/execute/comply with all the terms of their joint agreement, which are incorporated hereinbefore in this Judgment under sub-paragraph nos. (a) to (j).

ii)      Respondent Nos. 5 & 6 (the banking institutions) are hereby directed to change/modify the signatory requirements of Alliance Securities & Management Limited (Company) in relation to all the bank accounts of the Company, including Fixed Deposit Receipt (FDR) accounts, in accordance with the terms and conditions of the instant joint application within 24 (twenty four) hours of receipt of this Order.

iii)    The Petitioner and Respondent Nos. 2 & 3 are directed to execute/implement the terms and conditions of their mutual agreement, which are paragraphed hereinbefore as Paragraph nos. (a) to (j) within 30 (thirty) days and, thereafter, submit an affidavit-in-compliance within 10 (ten) days of the expiry of the aforesaid thirty days.

With the above directions and Order, this application is allowed.

As a step towards implementation of the mutual agreement, the petitioner has deposited two cheques in this Court as the security.

………………………………………………………………………………………………………………………………………..”. 

7.             At the time of hearing of the above-mentioned joint application, it was submitted before this Court that for implementation of the Judgment and Order dated 05.02.2018, the petitioner and the respondent nos. 2 & 3 are the necessary and relevant parties and, accordingly, they have come up with this joint application, and since the respondent no. 4 is yet to make up his mind about selling his 25% shares, his part may be dealt with separately at any subsequent time. Accordingly, the above Order dated 13.12.2018 was passed by this Court on being persuaded that since the key parties of this case have mutually agreed to implement the said Judgment as per their convenience, the application may be allowed. In passing the aforesaid Order, this Court wished that “…….the grievances of the parties to this matter shall be mitigated once and for all” (quoted from the Order dated 13.12.2018). However, when the petitioner was experiencing difficulties to execute the above-mentioned Order through the RJSC, after a couple of weeks i.e. in the first week of 2019, he filed an application before this Court seeking direction upon the RJSC to accept the Returns to be filed by the company for the change in shareholding position (duly stamped Form 117s) and directorship (Form-XII) in accordance with the Order dated 13.12.2018 passed by this Bench in the instant matter and to update their records accordingly.

8.             On the same day, the respondent no. 4 filed an application praying for rehearing the matter with an expectation of obtaining necessary direction upon the petitioner to purchase his shares, on the ground that the aforesaid application was moved without serving a copy upon the respondent no. 4 and, if the petitioner is not directed to purchase the shares of the respondent no. 4 at the price agreed to by the petitioner with the respondent nos. 2 & 3, the respondent no. 4 shall be the victim of injustice. This Court, then, was inclined to hear the respondent no. 4 and, accordingly, halted the transaction between the petitioner and respondent nos. 2 & 3 as to transfer of shares temporarily. After hearing Mr. Tanjib-ul-Alam, the learned Advocate for the respondent no. 4, it transpired that due to allowing the joint application in the absence of the respondent no. 4, the petitioner has now acquired a commanding position in dealing with the shares of the respondent no. 4. Whilst it is true that as per the original Judgment and Order dated 05.02.2018, the petitioner is not legally bound to purchase the shares of the respondent no. 4, the background of filing the instant case strongly suggests that it would be impossible for the respondent no. 4 to partner with the petitioner in any business and, thus, it is inevitable that either the original Judgment shall be complied with by the parties or the petitioner shall buy the shares of the respondent nos. 2, 3 and 4.

9.             It is contended by the petitioner that prior to passing the Order on 13.12.2018 by this Court, this matter was appearing in this Court’s Cause List for the last one month, since the date of filing of the petitioner’s application for payment of interest & profit on top of the share-price, by serving copy upon the respondent no. 4, but the learned Advocate for the respondent no. 4 did not bother to remain present in the Court-room. It is prayed by the petitioner that implementation of this Court’s Order dated 13.12.2018 should not be suspended or cancelled on the plea of hearing the application of the respondent no. 4 inasmuch as the claim of the respondent no. 4 requires to be adjudicated upon in an independent application under Section 233 of the Companies Act upon conducting fresh audit of the company. On the contrary, the contention of the respondent no. 4 is that the petitioner has succeeded to obtain the Order dated 13.12.2018 by misleading this Court inasmuch as the petitioner did not bring the fact to the notice of this Court that if the petitioner is made the sole signatory of the company’s bank account, it will not only be a violation of the provisions of Memorandum & Articles of Association of the company, but shall also create an opportunity for the petitioner to illegally divert  the funds of the company elsewhere, jeopardizing the rights and interest of the respondent no. 4.

10.         The learned Advocate for the petitioner was repeatedly emphasizing on the point that as per the original Judgment and Order dated 05.02.2018, the respondent no. 4 could have requested the respondent nos. 2 & 3 to buy his shares and, further, at the time of filing this joint application, had the respondent nos. 2 & 3 bargained with the petitioner about purchasing of the shares of the respondent no. 4, there would have been an occasion for the petitioner to consider the issue. In reply thereto, the learned Advocate for the respondent no. 4 Mr. Tanjib-ul-Alam commented that because of the aforesaid buggers’ (respondent nos. 2 & 3) such conduct, the petitioner is now exploiting the enfeeblement of the respondent no. 4 and, therefore, it has been the duty of this Court to protect the interest of the respondent no. 4 in the company by arranging sale of his entire shares at the price agreed to by the respondent nos. 2 & 3 as well as by the petitioner. On the next day, the respondent no. 4 came up with an application for obtaining an Order of injunction from this Court restraining the petitioner from diverting the funds of the company and also to have an Order from this Court directing the petitioner to refund all the money diverted by him from the company’s account and to recall the Order dated 13.12.2018 passed by this Court.

11.         Taking into consideration the contentions and submissions of the learned Advocates for all the parties, this Court asked all the parties of this case, namely, the petitioner, the respondent nos. 2 & 3 and the respondent no. 4 to appear in person in this Court and place their respective suggestions and opinions about how to implement the Judgment and Order passed by this Court on 05.02.2018 in the substantive matter (Company Matter No. 163 of 2017), for, the same having been upheld by the Hon’ble Appellate Division requires to be implemented by any means. It is worthwhile to record here that when the Supreme Court of Bangladesh, be it the High Court Division or the Appellate Division, passes a direction upon any individual or statutory body or State-functionary, it becomes a mandatory duty of this Court to compel the concerned person/statutory body/State-functionary to comply with the said direction either on arranging compromise between/among the parties or by passing appropriate Order/s, including passing contempt Order. So far as the question of implementation of any Judgment of this Court through compliance of any direction passed therewith is concerned, this Court always opts for taking recourse to the path of implementation of an Order/Direction by amicable settlement in order to save valuable time of this Court, for, if an Order for implementation is passed without arriving at consensus by all the parties, then, the parties will squander further invaluable working hours of this Court and, for that reason, it is a prudent practice to obtain consent directly from the parties to the case by asking them to appear in person in the Court room.

12.         After giving due importance to the submissions made by the learned Advocates for all the parties and the opinions and suggestions made by the parties in the Court room, yesterday, in presence of all the parties to this case, namely, (i) Mr. Pankoj Roy (the petitioner), (ii) Mr. Madhab Chandra Das (respondent no. 2), (iii) Mr. Partha Pratim Das (respondent no. 3) and (iv) Mr. Tapan Krishna Podder (respondent no. 4), I, as the Presiding Judge of this Court, expressed my view in the open Court that if the following terms and conditions are agreed to by all the parties, then this Court will pronounce a written Judgment on consent. The terms and conditions which were expressed in the open Court are as follows;

(i)     The respondent nos. 2 & 3 shall put their respective signatures on the transfer documents, namely, Form 117 and deed of purchase of the shares in this Court-room in presence of the learned Advocates for the RJSC on the one hand and, at the same time, the petitioner shall handover the Pay Orders of the agreed amount to the respondent nos. 2 & 3 on the another hand.

(ii)   The respondent no.4 shall get the full price of his 25% shares in the company, which is Taka 18,39,91,339/- as per the audit report dated 20.11.2017. However, the costs of legal fees of Taka 4,90,400/-, as ordered in the original Judgment and Order dated 05.02.2018, shall be deducted therefrom and, then, the due amount (18,39,91,339/- Taka – 4,90,400/- Taka) shall be paid in three installments. First installment of Tk. 2,00,00,000/- (two crores) shall be paid in next 30 days, Taka 11,00,00,000/- (eleven crores) shall be paid in 12(twelve) months from date and remaining amount shall be paid within 3(three) years of this Judgment and Order .

13.         The underlying reasons for the Order to make payment to the respondent no. 4 in installments is that the petitioner was not initially willing to purchase the shares of the respondent no. 4 on the ground that as per the Judgment and Order dated 05.02.2018, there was no legal obligations on the part of the petitioner to buy the shares of the respondent no. 4. On the query made by this Court to the petitioner as to whether he is at all willing to purchase the respondent no. 4’s shares, the petitioner at first made an offer of twelve crores in installments and, thereafter, on making further query as to the reason/s for offering a price lesser than the price agreed with the respondent nos. 2 & 3, the petitioner offered thirteen crores in installments of two years upon furnishing explanations and rationales thereof.

14.         When all the parties were in agreement to the views expressed by the Presiding Judge in the open Court, the learned Advocate for the respondent no. 4 made a humble prayer that if one condition is agreed to by the petitioner, then the proposed Judgment may be treated to have been passed on consent of all the parties. The condition is that the petitioner shall submit 3 (three) Bank Guarantees before this Court to secure the full amount of sale proceeds of the shares held by the respondent no. 4; one is for an amount of Taka 2 (two) crores, second one is for an amount of Taka 11 (eleven) crores and the third one is for the remaining amount, having validity period of 1 (one) month, 2 (two) years and 3 (three) years respectively. The plea taken by the respondent no. 4 for such demand is that since he wishes to part away with this company forever by selling his entire 25% shares in favour of the petitioner, he neither wants to approach this Court in the event of non-payment by the petitioner nor would he like to meet the petitioner any further for this purpose. It is proposed that the respondent no. 4 shall execute the share-transfer documents in the Court room in favour of the petitioner on the date fixed by this Court and the petitioner shall deposit the consideration-money in the account of the petitioner from time to time in three installments as scheduled by this Court or, in the alternative, the petitioner shall deposit separate Pay Orders in this Court on or before the date of each installment and, in the event of the petitioner’s failure to deposit the money in the account of the respondent no. 4 or to submit the Pay Order in this Court within/on time, the Court shall hand over the Bank Guarantees to the respondent no. 4 for their encashment.

15.         In dealing with this part of the claim and counter-claim in an expectation to resolve this matter amicably in presence of all these parties, yesterday the business-hours of the Court were over and, therefore, delivery of the written Judgment and Order in this matter was deferred to the next day. Hence, today is fixed for delivering the written Judgment. That is how, this Court remained in the process of implementation of this Court’s aforementioned Order dated 13.12.2018.

16.         Today, when the matter is taken up for delivering the written Judgment, the learned Advocate for the respondent nos. 2 & 3 came up with an application for recalling this Court’s Order dated 13.12.2018, which was supposed to be implemented today, and prayed for allowing them to purchase the petitioner’s entire share of 25% of the company so that this Court’s original Judgment and Order dated 05.02.2018 is implemented. They also offered solatium by paying the interest for the delay that took place in the meantime on the amount of the petitioner’s share-price together with the profit of the shares for the period of delay.

17.         At this juncture, this Court was a bit irritated at the mode and style of dealing with this case by the learned Advocate for the respondent nos. 2 & 3 and the Presiding Judge made few observations in the open Court. Eventually, this Court asked the respondent nos. 2 & 3 placing them in the Court-dock as to whether they are ready to pay off the entire amount with interest together with the profit of the petitioner’s shares to the petitioner by depositing Pay Order/s by today or tomorrow, against the backdrop that the petitioner is ready to pay off the amount of money agreed to by the respondent nos. 2 & 3 instantly through Pay Order. In reply thereto, the respondent nos. 2 & 3 informed this Court that if they are allowed to issue a post-dated cheque with 2 (two) months’ time, then they will be in a position to pay off the money as per the Judgment and Order passed by this Court on 05.02.2018 with the interest plus the profit of the petitioner’s shares which would be accrued till the date of payment through the Pay Order/s after 2 (two) months. Prayer of the respondent nos. 2 & 3 for allowing two months’ time for purchasing the petitioner’s shares appeared to this Court to be a cunning device with a motive to frustrate both the Judgments and Orders dated 05.02.2018 & 13.12.2018, given that after their failure to comply with this Court’s direction passed in the original Judgment, they had voluntarily made the joint application for selling their shares, instead of purchasing the petitioner’s shares. Moreover, the respondent nos. 2 & 3 did not make any prayer to this Court previously for extension of time in order to enable him to comply with the original Judgment and Order, nor did he file an application for arranging analogous hearing of the Contempt Petition by this Court with the petitioner’s application for granting interest and profit of the shares for the delay, at which event this Court would have been in a position to refer the application to the Hon’ble Chief Justice for his appropriate Order. In the alternative, the respondent nos. 2 & 3 directly could have approached the Hon’ble Chief Justice for obtaining an Order for analogous/simultaneous hearing of the Contempt Petition and this Company Matter by this Bench. Now, when this Court is going to implement the Judgment and Order dated 13.12.2018, upon directing the learned Advocate for the RJSC to remain present in the Court room to witness the transfer of shares by the respondent nos. 2 & 3 to the petitioner so as to relieve the parties from attending the office of the RJSC, the prayer of the petitioner to implement the original Judgment and Order dated 05.02.2018 does not appear to me to be bonafide. When a party to a litigation approaches any Court with a prayer for recalling the Court’s Order/Direction which was passed modifying the original Judgment and Order on the consent of the said party, s/he must come with clean hands upon fully satisfying the Court that s/he is at once ready to comply with the original Judgment and Order.

18.         While this offer and counter-offer was going on in a very congenial environs in the open Court with an expectation of perpetual settlement of the dispute among the directors of the company, the learned Advocates for all the parties to this matter indulged themselves in making some inappropriate comments to each other in ominous tones leading to an untoward atmosphere. Eventually, the learned Advocate for the petitioner informed this Court that the petitioner shall not purchase the shares of the respondent no. 4 and, at the same time, the learned Advocate for the respondent nos. 2 & 3 also told this Court that they shall not sell their shares to the petitioner, rather they want to implement this Court’s original Judgment and Order dated 05.02.2018 and, therefore, they prayed for passing appropriate Order on their application for recalling the Order passed by this Court on 13.12.2018.

19.         Given the fact that this Court had expressed its views in the open Court to arrange for transferring the shares of respondent nos. 2, 3 & 4 in favour of the petitioner, therefore, as the Presiding Judge, I was inclined to deliver the written Judgment in line with the views I had expressed in the open Court yesterday. However, since the petitioner has declined to purchase the shares of the respondent no. 4, I resisted myself from delivering the written Judgment in the aforesaid line. On the other hand, if this Court allows the application of the respondent nos. 2 & 3 for recalling the Order dated 13.12.2018 with the condition to pay off the petitioner’s money within a day, the respondent nos. 2 & 3 are not in a position to deposit the Pay Orders by tomorrow in this Court.

20.         It is my considered view that if the company is to be saved from winding up, there is no other option for the company’s directors other than to accept any one of this Court’s decision out of the above-mentioned two solutions. That is to say, either the petitioner shall purchase all the shares of the respondent nos. 2 & 3 through payment of the Pay Order to be handed over in the Court room upon execution of the share-transfer instruments instantly and the shares of respondent no. 4 shall be purchased by the petitioner in installments by depositing Bank Guarantee/s in the Court, or, in the alternative, the respondent nos. 2 & 3 shall purchase the petitioner’s entire shares with the promised solatium i.e. upon payment of the interest for delay together with the profit of the shares on top of the share-price, within the shortest possible time.

21.         In the light of the fact that it was an expectation of this Court that the matter should be disposed of once and for all on compromise by all the parties to this matter, in other words, all the parties to this case were expected by the Court to agree to receive an Order on consent and, now, since they have failed to arrive at an amicable settlement, I find it difficult to deal with this matter any further. Accordingly, I am referring the matter to the Hon’ble Chief Justice to make necessary arrangement for finally disposing of the matter by any other competent Bench. However, if all the parties to this case agree to any of the above two solutions, I shall be happy to proceed with the implementation process. 

22.         Before parting with this Order, I regret to record here that this case was being dealt with in an unbefitting manner by the learned Advocates for the petitioner, the learned Advocate for the respondent nos. 2 & 3 and the learned Advocate for the respondent no. 4. While it would have been a fair practice for the learned Advocate for the petitioners and the respondent no. 2 & 3 to obtain the Order on 13.12.2018 on their joint application in the presence of the learned Advocate for the respondent no. 4, it was the professional duty of the learned Advocate for the respondent no. 4 to remain vigilant on the steps taken by the petitioner and the respondent nos. 2 & 3 in the light of the fact that from the date of filing of the petitioner’s application for obtaining an Order of interest plus profit on the share-price, copy of which was served upon the learned Advocate for the respondent no. 4, it was within the knowledge of the learned Advocate for the respondent no. 4  that this Court is in seisin of this case. Secondly, when this Court allowed the learned Advocate for the respondent no. 4 to place his application, it was a sheer unexpected event for this Court to hear the indecent utterings, such as ‘bugger’ ‡e-Av`e (unmannerly) and some other remarks in taunting tone, made by the learned Advocates for the petitioner and the respondent no. 4. And, lastly, it was an incongruous step of the learned Advocate for the respondent nos. 2 & 3 to take a U-turn by stepping back to the previous decision at a belated stage when this Court had already fixed the time and date for execution of the Judgment and Order dated 13.12.2018 through handing over the Pay Order and signing the share-transfer instruments hand to hand. He ought to have filed this application before expressing the views by the presiding Judge in the open Court. In the cases of AKM Asaduzzaman Vs Public Service Commission 4 ALR 204(2) 278, Bandar Nagari Bahumukhi Samabay Samity Vs Bangladesh 5 ALR 2015(1) 194 and Sharifa Begum Vs Bangladesh 9 ALR 2017(1) 158, this Court has either slapped fine or has warned the learned Advocate when it was found that the conduct of the learned Advocates was not befitting with the norms of legal profession. In the aforesaid cases, it was observed that a truly professional Advocate would consider the legal advocacy to be a noble profession and s/he would not take up a meritless brief, rather s/he would feel duty bound to discourage the people not to get involved in a frivolous or fruitless litigation.

23.         It is to be remembered that the members of the Bar being the integral part of the Judiciary shoulder a solemn duty of upholding the majesty of the Court and, thus, they should not interact with their clients in a way which would damage and demean the prestige of the Court. Whilst it is the professional duty of the learned Advocates to protect the interest of their clients, it does not necessarily mean that they would be driven by the whimsical request or unlawful instructions of the clients; rather they should act on their good conscience. A gutsy Advocate shall never be motivated by mere material instructions, nor shall s/he ever get involved in squabble in the open Court for satisfying the client. The learned Advocates must not take any step to waste the invaluable business-hours of the Court.

24.         The members of the Bar should bear in mind that the Court room is considered and recognized all over the world to be the most formal place where the Judges and lawyers are obligated not only to comply with the rules regarding dresses/outfittings, but also they are required to maintain their professional ethics, etiquette and norms by mindfully using the words they utter before the Court in a genteel accent as well as by showing their demeanour to be humble without having the minimum characteristics of being egotistic or arrogant. They should not be oblivious of their status that they are addressed by the Court and the commoners as the ‘learned’ which implies that they are aristocrat and intellectual by virtue of their profession & knowledge and, inherently, an intellectual or aristocrat is expected to possess all the best qualities and features of a human being, that is to say, a member of the legal profession should not be impolite, discourteous, ill-mannered and inconsiderate either in speaking or in demonstrating any other type of performance. Therefore, it is the normal expectation of this Court and the citizenry that their conduct shall introduce themselves to be not only as knowledgeable persons, but also would suggest that they are accustomed to the sophisticated manner and attitude in all spheres of their lives.  

25.         Whilst this Court could have opted to send the file to the Hon’ble Chief Justice by merely recording that this Court is feeling embarrassed to hear this case, however, it preferred (i) to state the facts of this case, (ii) to quote the original Order passed in the application under Section 233 of the Companies Act, (iii) to embody the subsequent Orders and (iv) to describe the events that took place since the date of passing the original Judgment upto now, for the purpose of, firstly, to help this Court save its valuable time so that henceforth the Court can easily acquaint with the facts of the case without looking at the petitions, supplementary affidavits, annexed papers and this Order sheet; secondly, to be familiar with the background fact of sending the file to the Hon’ble Chief Justice and, lastly, to guide all the learned Advocates of this case to the right path with an expectation that they shall not squander any further business-hours of this Court. 

26.         Office is directed to place the file before the Hon’ble Chief Justice to allocate this case to any other Bench.

Ed.