Act/Law wise: Judgment of Supreme Court of Bangladesh

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Arbitration Act, 1950 (English)
Section/Order/Article/Rule/Regulation Head Note
Section 2(b)

Knowledge of making of the award, if any, is not sufficient to fix one with the notice of making of the award within the meaning of Article 178 of the Limitation Act. Dhaka Leather Complex Ltd BCIC vs Sikder Construction Ltd and another 55 DLR 578. ....View Full Judgment

Sections 3 and 28

Enlargement of time (beyond 4 months) for giving the award by consent of the both parties, permissible-Such enlargement of time may be provided for in the agreement-In the absence of such agreement consent may be inferred by conduct of parties. Government of Bangladesh vs Jalaluddin Ahmed 37 DLR (AD) 27. ....View Full Judgment

Section 7

Pronouncing of the judgment under section 17 is made subject to the expiration of the period of 30 days from the date of service of the notice of filing of the award and this is a condition precedent to· the exercise of the jurisdiction by the Court under the section. ....View Full Judgment

Section 8

Objection against appointment of Arbitrator who he has already entered on the reference following unacceptable - Conduct displayed by the objector appears to be a technical objection not entertainable at a belated stage. Coal Controller, Government of Bangladesh vs Ventura Industries Ltd 44 DLR (AD) 183. ....View Full Judgment

Sections 8, 30 & 33

Arbitration­Conclusiveness of award-The work order given to the tenderer became an instrument necessary for understanding the contract with him. Though not a part of the contract itself it is a contemporaneous document accepted by both sides throwing light on the interpretation of schedule of work. Mohammad Eunus and Brothers (Pvt) Ltd vs University of Chittagong 44 DLR (AD) 296. ....View Full Judgment

Section 11

Parties refer their dispute to arbitration to get an amicable settlement which is encouraged even though Arbitrators do not follow strict and delicate procedural technicalities. If any party has lack of confidence in the Arbitrator he may seek his removal in accordance with law. Messrs Rising Sun Traders vs Chittagong Port Authority 43 DLR 1. ....View Full Judgment

Section 12

The scheme of section 12, particularly of sub-section (2) thereof, clothes the court with the authority of appointing an arbitrator in its discretion after the parties fail to nominate a common arbitrator. Bangladesh Water Develop­ment Board vs Zakir Construction and Co and another 48 DLR 261. ....View Full Judgment

Section 13

E.x parte decision in arbitration proceeding-Powers of the Arbitrator-The respondent Port Authority did not appear before the Arbitrator at all nor did they express their intention to appear on receiving notice from the Arbitrator. In such circumstances the Arbitrator is not bound to give them notice about ex parte hearing and passing of ex parte award in the arbitration proceeding before him. Messrs Rising Sun Traders Ltd vs Chittagong Port Authority. 43 DLR I. ....View Full Judgment

Sections 14 and 17

The learned Subordinate Judge, without following the mandatory provisions of section 14 of the Act, fell in serious error of law in pronouncing the judgment. The decree followed such judgment must be held to be clearly in excess of the award. The appeal from such decree is therefore quite competent and must succeed. Titas Gas Transmission and Distribution Co. Ltd vs Shams Company and others 54 DLR 128. ....View Full Judgment

Sections 17, 33 & 39(1)(vi)

Arbitration award-Question of setting aside an award- The appellants did not file any application to set aside the award or to challenge the existence and validity of the award. It is absurd to say that by making the award a Rule of the Court, the Court has refused to set aside the award. The act of refusal must be in pursuance of a positive move by the party affected either under section 17 or section 33. An ex parte order, as in the present case, making an award the Rule of the Court is not amenable to under section 39 of the Arbitration Act. Bangladesh vs KM Shafi Ltd 43 DLR (AD) 217. ....View Full Judgment

Section 20

Forfeiture of insurance claim­ - The arbitration agreement contained in the insurance policy in question provided that if a claim be made and rejected and an action be not commenced within 3 months after such rejection all benefits under the policy shall be forfeited. The Insurance Company having informed the plaintiff that their claims under the policy were not payable and, as such, rejected the same as per condition No. 13 of the policy and the plaintiff having not commenced any action within 3 months, have forfeited all their rights under the policy. Sadharan Bima Corporation vs Dhaka Dyeing & Manufacturing Co Ltd 43 DLR 286. ....View Full Judgment

Section 29

Interest for the future, that is, from the date of the award till realisation of the money through section 29 of the Arbitration Act, did not give the Arbitrator this power, he may allow interest on his award till realisation on the same analogy to court's power. This will be in accord with justice and fairness. BADC vs Kibria & Associates Ltd 46 DLR (AD) 97. ....View Full Judgment

Section 29

In the absence of agreement the arbitrator or umpire has no jurisdiction to grant interest on awarded amount till relisation. But the Court has jurisdiction in its discretion to grant interest on the awarded amount or part thereof till realisation. Asamat Zaman (Md) and others vs Government of Bangladesh and others 55 DLR (AD) 139. ....View Full Judgment

Section 30

Misconduct on the part of the arbitrators may be a ground for setting aside their award. But such misconduct, when not agitated in the trial Court, could not be raised afresh before the superior Courts. Bangladesh Telegraph and Telephone Board vs Lithi Enterprises Ltd 50 DLR (AD) 63. ....View Full Judgment

Sections 30 and 33

Pendente lite interest -An arbitrator may allow pendente lite interest on the analogy of court's power to grant interest if the disputes were agitated before it.
The Arbitrator may allow interest pendente lite for a period beyond four months if the prolongation of the proceeding is caused by circumstances beyond his control. Again, to avoid any controversy, the period for pendente lite interest will start from the date on which the Arbitrator enters upon the arbitration proceedings and end on the day the award is made. BADC vs Kibria & Associates Ltd 46 DLR (AD) 97. ....View Full Judgment

Sections 30 and 33

Arbitrator's power to award interest-Interest as to pre-reference period-In the absence of any law or agreement providing for payment of interest by an Arbitrator it will not be proper to vest in him power to award interest for the pre-reference. BADC vs Kibria & Associates Ltd 46 DLR (AD) 97. ....View Full Judgment

Sections 31, 32 & 33

Arbitration award-It cannot be challenged by way of a suit-Once an award is made and it is filed in Court for making it the Rule of the Court, no suit can be filed for the purpose of avoiding the award. Remedy to the party desiring to challenge the validity of an arbitration agreement or the award itself is as provided in section 33. Shafiqur Rahman vs Nazmul Hossain Khan 44 DLR 428. ....View Full Judgment

Sections 32 and 33

A suit to challenge the existence of an arbitration agreement or an award is not maintainable by reason of section 33 which provides that such a challenge must be made by means of an application and not by means of a suit. Badsha Miah & others vs Abdul Kader and others 52 DLR (AD) 79. ....View Full Judgment

Sections 33 and 30

Arbitrator's power to award interest-Interest as to pre-reference period-In the absence of any law or agreement providing for payment of interest by an Arbitrator it will not be proper to vest in him power to award interest for the pre-reference. Bangladesh Agricultural Development Corporation vs Kibria and Associates Ltd 46 DLR (AD) 97. ....View Full Judgment

Sections 33 and 30

Pendente lite interest-An arbitrator may allow pendente lite interest on the analogy of court's power to grant interest if the disputes were agitated before it. Bangladesh Agricultural Development Corporation vs Kibria and Associates Ltd 46 DLR (AD) 97. ....View Full Judgment

Section 34

Objection against the maintainability of the suit must be raised at the very preliminary stage of the proceeding even before taking any step for filing written statement. This having not been done, the trial Court's decree is set aside with a direction to write out a judgment on consideration of materials on record. Nur Nabi Chowdhury vs Bangladesh Krishi Bank 46DLR 509. ....View Full Judgment

Section 35

In order to hold an arbitration proceeding invalid notice of the legal proceeding must be given to the Arbitrator. Adamjee Sons Ltd vs Jiban Bima Corporation 45 DLR 89. ....View Full Judgment

Section 37(4)

Where an arbitration agreement provides that a claim shall be barred unless it is referred to arbitration within certain time the Court is empowered to interfere if it is of the opinion that in the circumstances of the case undue hardship would otherwise be caused to a party. Sadharan Bima Corporation vs The Dhaka Dyeing and Manufacturing Company Ltd 43 DLR 286. ....View Full Judgment

Section 39

It is not permissible in law to grant interest on the decretal amount of the award in appeal when no such interest was awarded by the arbitrators and no such claim was made by the respondent before the court which made the award rule of the court. Bangladesh Oil, Gas and Mineral Corporation (Petro-Bangla) vs Nuruzzaman Khan and others 51 DLR (AD) 52. ....View Full Judgment

Section 41(b) and item 42nd Sch

An Arbitrator exercises a quasi-judicial function. He is both a judge of law and of fact and hence a pure question of law whether the executive authority acted beyond power could be a matter of arbitration reference.
The law in this regard is also well settled that when parties to building construction or supply of goods and the like designate a person to be authorised to finally determine question relating to the execution or non-execution as per terms of the contract and stipulated that the decision of the person shall be final and binding on both the parties, it would be binding except in cases of fraud, gross mistake on his part, as would imply an act of bad faith or failure to exercise an honest judgment on grounds of collusion with the other party or an act of misconduct. AIR 1975 (Madhya Pradesh) 152. Coal Controller vs Ventura Industries Ltd 46 DLR 5. ....View Full Judgment

Section 42

After the final decision in the suit and in this appeal therefrom, it is very difficult for us to appreciate the submissions of Mr Rafiqnr Rahman that in view of the arbitration agreement having remained alive, the suit is not maintainable. Moreover, we find no such provisions in the Act barring a suit on the ground of existence of an arbitration agreement. Bangladesh Water Development Board vs Contractor, Manu Barrage 53 DLR 200. ....View Full Judgment

Arbitration Act, 1950 read with Clause 14 of the Agreement dated 18.4.80
Clause 14 of the agreement is held to be a composite whole, a self-contained indivisible covenant, having a meaning and content in its totality. Clause 14 is an arbitration clause stipulating not only that the parties shall submit all their disputes to arbitration but also that the arbitration shall be “in accordance with, and subject to the provisions of the Arbitration Act, 1950”. [Per Mustafa Kamal J.]
Bangladesh Air Service (Pv.) Ltd. vs. British Airways PLC, 17 BLD (AD) 249
Bangladesh Courts and English Law
It is true that Bangladesh Courts often follow the English Law when there is no municipal law on the subject, as in the field of Marine Insurance, but in the English Arbitration Act, 1950, the procedural law includes the forum for administration of the procedure and it is a poor defence to say that clause 14 has not settled the venue of arbitration. If the arbitration “is in accordance with, and subject to, the provisions of the Arbitration Act, 1950”, the parties do not have to travel far to look out for the venue beyond the Arbitration Act, 1950. [Per Mustafa Kamal, J.1
Bangladesh Air Service (Pv.) Ltd. vs. British Airways PLC, 17 BLD (AD) 249 ....View Full Judgment