Act/Law wise: Judgment of Supreme Court of Bangladesh


Arbitration Act [I of 2001] (সালিস আইন)
Section/Order/Article/Rule/Regulation Head Note
Section 7 and 10

Civil suit is, never ipso facto intended to be barred in view of the existence of an arbitration clause in the agreement–
53 DLR AD 62 this Division held that– “The Court while deciding application about rejection of plaint is not permitted in law to travel beyond the averments made in the plaint.”
When a party in a pending proceeding willingly participate by filling a written statement instead of invoking provision of the Arbitration clause raising legal issue in a suit surrendering his jurisdiction of arbitration and thereby the provision of section 7 of the Arbitration Act become nugatory regarding the said proceeding. On a careful reading of the stipulations of clause 25 of the h¡wm¡­cn glj ew 2911 we are of the view that it can’t be treated as bar to sought relief in a suit claiming compensation. The terms and subjects of the said clause of arbitration as laid down specifically which are not the subject of the suit nor on a plain reading of the averment of the suit it appears that its touch the subject of clause 25 of the Agreement.
It civil suit is, therefore, never ipso facto intended to be barred in view of the existence of an arbitration clause in the agreement. The defendants take the plea of bar only for dragging the proceeding of the suit which is deprecated by this Division. This Division find no illegality and infirmity in the judgment of the High Court Division. The appeal having no merit. …Roads & Highway Department (RHD) =VS= Md. Nurul Islam, (Civil), 2019 (2) [7 LM (AD) 132] ....View Full Judgment

Section 10

When parties to the suit submit themselves to the jurisdiction of the Civil Court, the dispute should not be referred to arbitration.
The defendant have submitted themselves to the jurisdiction of the Civil Court by filing written statement and contested the suit and thereby they failed to avail the opportunity of resorting to the arbitration by seeking stay of the suit before the Civil Court. Executive Chairman, BEPZA -Vs.- M/S. Abdul Mannan 3 ALR(2014)(1)(AD)168 ....View Full Judgment

Sections 23, 25, 42 and 43

Arbitral Tribunal is mandatorily required to follow the procedure and deal with the issues at dispute fairly and impartially—
Award by majority does not mean exclusion of the other member from the participation in deliberation. Where Arbitral Tribunal is composed of more than one member all the members must participate in the deliberation of the arbitral proceeding before the finalisation and signing of the award. Award made by violating the mandatory provision is not sustainable in the eye of law. M/S Saudi Bangladesh Services Company Ltd. Vs. Saudi Arabian Airlines Corporation 14 MLR (2009) (HC) 441. ....View Full Judgment

Section 27

The dispute as to the breach of conditions laid down in the PG itself is the subject matter of arbitration. The petitioner has already appointed arbitrator and, according to the provision of section 27 of the Act, the arbitration proceeding has already been commenced. The disputed question as to weather the PG has been placed in the bank, before or after it has expired, is to be decided by arbitrators, not by this court. Siemens Bangladesh Ltd vs RZ Power Ltd (Statutory Original) 17 BLC 772. ....View Full Judgment

Section 30

read with Limitation Act, 1905; Article – 158
Section 30 of the Arbitration Act speaks as per Article 158 of the Limitation Act, if award is challenge it is to be filed within 30 days. All the Courts of this Subcontinent took view that Arbitration Act being a Special Act, 30 days of provision of mandatory not directory. Any appeal or objection challenging the award if filed after the period of 30 days shall not be entertained. M/s. Chittagong Steel Mills Ltd. Vs. M/s. T.M. Syndicate & Ors 20 BLT (HCD) 380. ....View Full Judgment

Section 33

We have scrutinize the entire order sheet but we do not find any order giving entry of such bond or security. No application for filling his 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 tricks stealthily which thus can not be accepted. Since there is no order entertaining 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 entertaining the bond on record as such we can safely say that no bond has been filed. Md. Shah Alain Vs. Bd. Water Development Board & Ors 20 BLT (HCD) 181. ....View Full Judgment

Sections 39, 42, 43 and 44

A combined reading of the provisions of sections 42, 43 and 39 of the Act, 2001 clearly shows that the only remedy open to a person who wants to set aside an arbitral award is to file an application under section 42 of the Act, 2001 within sixty days from the date of receipt of the award and after the expiry of the period of sixty days as envisaged in the section, the award becomes enforceable within the meaning of section 44 thereof and thus, jurisdiction of the civil Court has impliedly been barred if not expressly. In the context, we may also refer to section 9 of the Code which has clearly provided that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred and therefore, in view of the provision of section 42 of the Act, 2001, clause (d) of rule 11, Order VII of the Code is attracted. .....Md. Nurul Abser =VS= Alhaj Golam Rabbani & others, (Civil), 2016-[1 LM (AD) 212] ....View Full Judgment

Sections 42 and 43

Setting aside arbitral award on the grounds enumerated u/s 43—
read with
Contract Act, 1872—
Section 73— Not attracted in the instant case—
The appellant claimed compensation on account of delay in. completion of the project. The Arbitration Tribunal did not allow compensation on account of the delay. The District Judge refused to set aside the award as there was no such ground as enumerated under section 43 of the Arbitration Act, 2001. The High Court Division held section 73 of the Contract Act, 1872 is not attracted in the instant case. It is further held arbitral award can only be set aside when it is opposed to law and public policy, excessive, malafide and not based on materials on record. As the arbitral award does not suffer from any infirmity the learned judges of the High Court Division dismissed the appeal. Bangladesh Power Development Board and others Vs. M/s Arab Contractors (BD) Ltd. and others 15 MLR (2010) (AD) 153. ....View Full Judgment

Sections 42 & 43

The High Court Division was right in holding that the 3rd arbitrator was neither consulted nor given an opportunity by the Chairman to deliberate and express his views on the issues before making and signing the award in question. Saudi Arabian Airlines Corporation vs Saudi Bangladesh Services Company Ltd 15 BLC (AD) 156. ....View Full Judgment

Sections 42 and 43

Setting aside the arbitral award on ground of being opposed to law and public policy—
Section 73— Counter claim based on remote and indirect consequence is not admissible—
The dispute in the instant case was referred to a three-member arbitration tribunal which made the impugned award. The third member gave a dissenting note as he was not given the opportunity of participation in the deliberation. The Arbitration Tribunal did not allow the counter claim based on remote and indirect consequences as provided under section 73 of the Contract Act, 1872 with which the apex court concurred, but held that in order to be sustainable the award must be by majority upon participation of all the members of the tribunal which is the requirement of law. As the impugned award has not been passed in accordance with law and is opposed to public policy the High Court Division set-aside the same which the Appellate Division upheld. Saudi Arabian Air Lines Corporation, represented by its Country Manager Vs. M/S Saudi Bangladesh Services Company Ltd, represented by its Managing Director 15 MLR (2010) (AD) 153. ....View Full Judgment

Section 43 (1)(b) (ii) and (iii)

The factual and contractual positions are matters for decision of the Arbitrator and as such, unless there appears to be gross illegality, neither the High Court Division nor this Division would enter into the merit of such arguments. .....TATA Power Company Ltd. =VS= M/S Dynamic Construction, (Civil), 2016-[1 LM (AD) 456] ....View Full Judgment

Sections 45 and 46

On a careful exa­mination of sections 45 and 46 of the Arbitration Act, 2001 it appears that there is a forum, for seeking remedy against the execution of an Arbitration Award but the opposite-party No. 1 without making an application under section 46 of the Arbitration Act made an application under Order XXI, rule 29 of the Code. Therefore, in the facts and circumstances of the case vis-a-vis the provision of section 46 of the Arbitration Act, 2001 the grievance of the learned Advocate for the petitioner does not appear to be without substance. The learned District Judge seriously erred in law in passing the impugned order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice. Smith Co-Generation (BD) Private Limited vs Bangladesh PDB 15 BLC 704. ....View Full Judgment

The Act, 2001 is a special law and it has been enacted with the sole purpose of resolving the dispute between the parties through arbitration and after an award is given by the Arbitrator(s), if it is allowed to be challenged in a civil suit, then the arbitration proceeding shall become a mockery and the whole purpose of the arbitration scheme as envisaged in the Act, 2001 shall fail. Therefore, the trial Court rightly rejected the plaint. .....Md. Nurul Abser =VS= Alhaj Golam Rabbani & others, (Civil), 2016-[1 LM (AD) 212] ....View Full Judgment

The arbitral award is generally not open to review by Courts for any error in finding on facts and applying law for the simple reason that it would defeat the very purpose of the arbitration proceedings. .....TATA Power Company Ltd. =VS= M/S Dynamic Construction, (Civil), 2016-[1 LM (AD) 456] ....View Full Judgment

The High Court Division noted that the Arbitrator considered each and every item separately and individually and that in some items the Arbitrator did not pass any award as mentioned by first-party. The High Court Division came to a finding that it could not be said that the Arbitrator whimsically, erroneously, capriciously, passed the award in total non-consideration of materials on record. .....BWDB =VS= M/S. United Builders, (Civil), 2017 (2)– [3 LM (AD) 162] ....View Full Judgment

Whenever an award is challenged before any Court, the Court, i.e. either District Court or as in this case the High Court Division, does not sit on appeal over the decision of the learned Arbitrator. Therefore, the scope of considering the merits of the case and factual aspects is again very limited. .....TATA Power Company Ltd. =VS= M/S Dynamic Construction, (Civil), 2016-[1 LM (AD) 456] ....View Full Judgment

Arbitrator awards–
Both the parties appointed their respective Arbitrators, who could not concur with each other in their opinion and gave different Awards. Thereafter, the Chairman of the Arbitral Tribunal finally arrived at his own decision with a completely separate award on 20.02.2013. In the above award, the learned Chairman of the Arbitral Tribunal accepted the price for 10% defective Dal at Tk.78 per K.G. as fixed by the Price Fixation Committee of TCB and also declared that the respondent is entitled to get refund of Tk.95,00,000/- deposited by the respondent as performance security forfeited by the petitioner.
Against the decision Nos.II and part of III of the Award passed by the learned Chairman of Arbitral Tribunal, the petitioner TCB filed a case before the District Judge seeking to set aside the award and the learned District Judge after hearing of both the parties allowed the Arbitration Miscellaneous Case No.227 of 2013 and set aside Clause II and part of Clause III of the Arbitration Award dated 20.03.2013 passed by the learned Chairman of the Arbitral Tribunal in respect of Contract No.TCB/MP-2605/2010 dated 19.09.2010.
Being aggrieved by and dissatisfied with the aforesaid judgment, the 1st party-appellant (present respondent) preferred First Miscellaneous Appeal No.177 of 2015 before the High Court Division. The learned Judges of the High Court Division by the judgment and order dated 07.12.2016 allowed the appeal. Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the leave-petitioner filed this civil petition for leave to appeal before this Division.
The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of law and fact do not call for interference. Accordingly, this civil petition is dismissed. ...Trading Corporation of Bangladesh=VS=M/S Trio Hologram Ind. Ltd. , (Civil), 2019 (1) [6 LM (AD) 186] ....View Full Judgment

Article 3

Article 3 of the First Schedule to the Act — ­Time for award 4 months
The appellant would seem to have no ground to stand upon, since it appears that the award was made beyond the period mentioned therein.
When the arbitration proceedings continued beyond 4 months with the parties raising no objection-Conclusion is the party concerned has waived its right.
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