Earnest money to bind a contract must follow and not precede the same. If there is no meeting of minds of the parties, consensus ad idem, there cannot be any question of earnest money. Bangladesh Moktijoddah Kalyan Trust represented by the Managing Director vs Kamal Trading Agency and others 50 DLR (AD) 171.

The tender floated by the House Building Finance Corporation for the sale of a mortgaged property has to be accepted for the purpose of concluding a contract. The alleged information by a nominated officer cannot be a proper communication of acceptance by the Corporation. The tenderer acquired no vested right on the property merely because his tender for that property had not been rejected and his earnest money had not been refunded by the Corporation. As there was no definite communication of acceptance of tender by the Corporation no vested right was acquired by the plaintiff. Sahana Chowdhury (widow) and others Vs Md Ibrahim Khan and another, 21 BLD (AD) 79.

The tenderer acquired no vested right of a property merely because his tender for that property had not been rejected and his earnest money had not been refunded by the Corporation. As there was no definite communication of acceptance of tender by the Corporation no vested right was acquired by the plaintiff. Sahana Chowdhury (Widow) and others vs Md Ibrahim Khan and another 6 BLC (AD) 67.

In the instant case, by accepting the offer of defendant No. 3 by defendant No. 1 and delivery of possession of a part of the suit holding there was a concluded contract between defendant No, 1 and defendant No. 3 and subsequent amendment of the Bangladesh Abandoned Property (Building in Urban Areas) Rules, 1972 by sub-rule (4A) could not take away the vested right or be detrimental to the right of defendant No. 3 but the Courts below committed an error of law in holding that, the auction sale was not complete and the plaintiff had pre-emptory right to make offer of the highest bid made in the auction on the strength of subsequent amendment of the Rules by inserting sub-rule (4A) in Rule 10 of the Bangladesh Abandoned Property (Building in Urban Areas) Rules, 1972. United Commercial Bank Ltd and anr vs Rahimafrooz Batteries Ltd and ors 7 BLC (AD) 73.

The offer of the plaintiff was accepted by the defendant seller by its letter of acceptance, Exhibit-2(a). Con­sequently, there was a concluded contract between the plaintiff buyer and the defen­dant seller as regards sale of the suit property. But the plaintiff buyer failed to pay the aforesaid sum even within the extended time and thus committed breach of the contract. The defendant seller was therefore entitled to forfeit and it did forfeit the earnest money for breach of the above terms and conditions of the contract. Mesbahuddin Ahmed vs James Finlay 12 BLC (AD) 156.

An acceptance must be expressed in some usual and reasonable manner, unless the proposal prescribes a particular manner in which it is to be accepted. Acceptance means, in general, communicated acceptance. In the instant case the manner of acceptance has been clearly indicated by the plaintiffs in Exhibit-8 signifying offer. [Per A.T.M. Afzal, C.J; (Majority)] Bangladesh Muktijoddah Kalyan Trust, represented by the Managing Director Vs Kamal Trading Agency and others, 18 BLD(AD)99

Earnest money does not form part of consideration—
Earnest money accompanying the tender signifies the bonafide of the proposal and it does not form part of consideration. Encashment of the earnest money sent with the tender does not amount to acceptance of tender. The matter of acceptance of the tender depends on the decision of the competent authority.
Bangladesh Muktyoddha Kalian Trust represented by the Managing Director Vs. Kamal Trading Agency and others. 3, MLR (1998) (AD) 1.

Price is the essence of sale of immovable property.
Unless price is shown there can be no sale of immovable property. M/s. Chittagong Engineering & Electric Supply Co. Ltd. Vs. Income Tax Officer (1970) 22 DLR (SC) 443.

The writ petitioner of his own filed an application to the manage­ment seeking reemployment upon giving an undertaking that he would realise the outstanding dues from BK Shaha and that in case of his failure the outstanding dues would be realisable from his salary and service benefits and that the letters impugned in the writ petition being the follow-up of 'the representation, the undertaking that was obtained from the writ petitioner can in no way be said that it was obtained by the authority under coercion and duress and while he was in distress situation or that'it was issued without lawful authority. Abdul Majid (Md) vs Bangladesh Chemical Industries Corporation 9 BLC (AD) 37.

Defendant No. 1 was undoubtedly in a dominant position on account of his high official position and close association with the Martial Law Authority at the relevant time and the plaintiff had a helpless role to play in the face of pressure from the Martial Law Authority. The bargain obtained by defendant No. 1 in the compromise petition was clearly unconscionable because the plaintiff had to give up his rightful claim in the contractual land. The burden of proof that the compromise was not attained by undue influence, therefore, lay squarely upon defendant No.1 which he has miserably failed to discharge. Abul Hossain Vs Farooq Sobhan and others, 19 BLD(AD)291

Undue influence defined—
Undue influence arises usually in contracts made between relations or persons in fiduciary position. But as between strangers certain forms of coercion, oppression or compulsion may amount to undue influence vitiating a contract. When element of undue influence is established in obtaining a compromise decree, such decree is liable to be declared viod and not binding upon the plaintiff. Abul Hossain Vs. Farooq Sobhan and others. 4, MLR (1999) (AD) 392.

Transfer of property in lieu of dower—
When not executed under undue influence, transfer of property by a registered deed in lieu of dower is not a fictitious transaction. Nasir Ahmed Khan Vs. Ismat Jahan Begum. (1969) 21 DLR (SC) 145.

Fraud—
The facts as noticed by the High Court Division are sufficient to hold that the nature of transactions among the defendants as fraudulent and collusive. Fraud cannot be directly proved, it has to be inferred from the conduct of the parties. Abdur Rashid & Bhiila and others vs Moulana Mobaswar Ahmed and others 8 BLC (AD) 11.

Mistake of fact— Legal position of contract—
Agreement based on mutual mistakes of the parties is viod. S. Sibtain Fazli Vs. M/s. Star Film Distributor. (1964) 16 DLR (SC) 198.

The JVA and GPSA having been procured by corruption would be void under section 23 of the Contract Act as being opposed to "public policy". Bribery and corruption are anathema to the concepts of rule of law and accountability and clearly against the "public policy". Public contracts procured by corruption are obviously against the "public policy" of Bangladesh. .....Niko Resources (Bd) Ltd Vs. Professor M. Shamsul Alam & ors, (Civil), 19 SCOB [2024] AD 125 ....View Full Judgment

The Contract Act, 1872
Section 23
The Prevention of Corruption Act, 1947
Section 5
Joint Venture Agreement–– Appellate Division hold that the High Court Division has rightly declared the Joint Venture Agreement for the Development and Production of Petroleum from the Marginal/Abandoned Chattak and Feni Fields (JVA) dated 16.10.2003 between the writ respondent Nos.3 and 4 to be without lawful authority and of no legal effect and thus, void ab initio and also legally declared the Gas Purchase and Sale Agreement for the sale of gas from Feni Gas Field (“GPSA”) dated 27.12.2006 between the writ respondents No.2, as Buyer, and a Joint Venture between the writ respondent Nos.3 and 4, as Seller, to be without lawful authority and of no legal effect and thus, void ab initio and attached the assets of writ respondent Nos.4 and 5, including their shareholding interest in Tullow Bangladesh Limited concerning Block-9. The civil petition is dismissed without any order as to costs. .....Niko Resources (Bangladesh) Ltd. =VS= Prof. M. Shamsul Alam, (Civil), 2023(2) [15 LM (AD) 108] ....View Full Judgment

Admittedly the Government was not a party to the alleged contract and, as such, the same could not be enforced against the Government whether it came to contest the suit or not. Bangladesh Railway and others vs Pranab Kumur Chakraborty and others 50 DLR (AD) 150.

The suit land being the property of the Government the Railway Administration could not make any contract with respect to the same. Bangladesh Railway and others vs Pranab Kumur Chakraborty and others 50 DLR (AD) 150.

If for withdrawing and compromising a non–compoundable case an agreement is entered into between the parties then the same is against public policy and the bar of section 23 of the Contract Act is attracted. Moti Mia vs Ayesha Khatun and another 48 DLR (AD) 64.

By an oblique and indirect reference the object of the agreement cannot be brought within the mischief of section 23 of the Contract Act. Moti Mia vs Ayesha Khatun and another 48 DLR (AD) 64.

If consideration is for compromising a non–compoundable offence then it is hit by section 23 of the Contract Act as opposed to public policy. Moti Mia vs Ayesha Khatun and another 48 DLR (AD) 64.

Contract entered into between estranged husband and wife giving the visiting right to the plaintiff–husband by sending their minor son to him is, by no stretch of imagination, void. Irfan Sayed (Md) vs Mrs Rukshana Matin and others 48 DLR (AD) 134.

The suit land being the property of the Government the Railway Administration could not make any contract with respect to the same as this will plainly offend Section 23 of the Contract Act. [Para- 12] Bangladesh Railway & Ors. Vs. P. K. Chakraborty 5 BLT (AD)-153

Agreement to compromise a criminal ease whether valid—Compromise of an of— fence which is not compoundable is against public policy—Such agreement is void—W validity of an agreement is impeached on r ground that it is opposed to public policy the party taking the plea must prove the same— party after securing his discharge in pursuance of a salishnama agreed by both the parties cannot disown the salishnama—Law does not encourage age a person to take advantage of his o wrong—The trial Court rightly dismissed t suit—Code of Criminal Procedure (V 1898)s. 345.Md. Joynal and others Vs. Rustani Ali Mia and others; 4BLD (AD) 86

Payment of Municipal Tax—Whether the agreement that such tax for the premises would be payable by the tenant is void—By mutual agreement payment of municipal tax is payable either by the tenant or the landlord— Whatsoever is agreed to between the parties can be a term of the tenancy as no prohibition exists in the matter of payment of such tax— Premises Rent Control Ordinance (XX of 1963)Ss.9 and 10. Meherunnessa Khatun Vs. Abdul Lcstif and another; 6BLD(AD)279

Agreement opposed to law is void—
In a case of eviction of tenant under the Premises Rent Control Act, 1991 on ground of bonafide requirement, the choice is with the land lord as to which of the several shops let out he/she requires for his/her use and occupation. Advance payment in excess of one month's rent and an agreement as to non-ejectability of tenant on ground of taking advance being opposed to the provisions of section 10 of the Premises Rent Control Act, 1991 and section 23 of the Contract Act, 1872 are void and can not defeat the ejectment of tenant as provided under the law. Jahanara Khatun (Most.) Vs. Md. Nurul Mam 12 MLR (2007) (AD) 241.

Agreement opposed to public policy is void—
The Bangladesh Telecommunication Regulatory Commission (BTRC) is empowered under sections 89 and 90 of the Bangladesh Telecommunications Act, 2001 to amend any condition of licence or licence agreement which are inconsistent with the provisions of the Act. The co-exclusivity agreement of the World Tel for 4 years in the Dhaka Multi-Exchange area in disregard of the huge unmet demand of the customers having been found opposed to public interest has been cancelled by the BTRC in exercise of its power under the law. The High Court Division upon scrutiny of the relevant provisions of the law held the impugned order of cancellation perfectly justified. The Appellate Division having found nothing wrong in the findings and decision upheld the judgment and order of the High Court Division and dismissed the civil petition for leave to appeal. World Tel Bangladesh Ltd. Vs. Bangladesh represented by the Secretary Ministry of Post and Telecommunications and others 11 MLR (2006) (AD) 65.

The Word 'public policy' The word 'public policy' is not easy to define but may include any injustice, oppression, restraint of liberty, commerce and natural or legal right, whatever tends to the obstruction of justice or to the violation of the statute and whatever against good morals when made the object of a contract and therefore void and not susceptible of enforcement. World Tel Bangladesh Ltd. Vs. Bangladesh & Ors 20 BLT (AD) 108.

Provides that an agreement is lawful unless it is forbidden by law. Therefore, no suit lies to enforce an illegal contract. The Appellate Division held that the disproved agreement for lease was void order section 23 of the Contract Act,1872 as its object was not lawful and that having not being registered was unenforceable and inadmissible in evidence.
Md. Monir Hossain (Moni) and another -Vs.- Md. Yousuf and others (Civil) 5 ALR (AD)2015(1) 20

The Transfer of Property Act, 1882
Section 53A, 54 r/w
The Registration Act
Sections 17 and 49 r/w
The Contract Act, 1872
Section 23
The documents clearly show that a substantial amount of money was received on the plea for selling the possession of the space for shop premises. The tenants have given the right of transfer of possession subject to payment of transfer fee. This sale of possession is hit by section 54 of the Transfer of Property Act, sections 17 and 49 of the Registration Act, and section 23 of the Contract Act, but this does not mean that the tenants can be evicted treating them as ejectable tenant. They have acquired interests in the premises by reason of payment of money towards sale of possession and their interest is protected under section 53A. .....Banichitra Pratisthan Ltd. =VS= Bilkis Begum, [3 LM (AD) 46] ....View Full Judgment

Minor's contract– want of mutuality– An agreement which is void ab initio cannot be validated by ratification. Julhash Mollah (Md) and another vs Ramani Kanta Malo and another 47 DLR (AD) 35.

An agreement which is void ab-initio cannot be validated by ratification. Au agreement for sale of the suit land not being enforceable against a minor it cannot been forced against the promisor as well for lack of mutuality. The submission that a contract entered into with a minor is not always void and a minor can ask for its enforcement if it is for his benefit is not applicable to the facts of the present case. Md. Julhash Mollah and another Vs. Ramani Kanta Malo and another, 14 BLD (AD) 263

There is nothing in Exception 1 to section 28 of the Contract Act prohibiting the parties to a contract from choosing a foreign forum under the supervision of a foreign court for arbitrating its disputes. Such contract does not offend the main provision of section 28, because the local Courts still retain the jurisdiction to decide the /is between the parties. Bangladesh Air Service (Pvt) Ltd vs British Airways 49 DLR (AD) 187.

The plea of sovereignty and interest of the country and its citizens, if accepted, will render foreign arbitral jurisdiction absolutely nugatory. Bangladesh Air Service (Pvt) Ltd vs British Airways 49 DLR (AD) 187.

Section 28 of the Contract Act makes void only those agreements which absolutely restrict a party to a contract from enforcing the rights under that contract in ordinary tribunals. But this section has no application when a party agrees not to restrict his right of enforcing his rights in the ordinary tribunals but only agrees to a selection of one of those ordinary tribunals in which ordinarily a suit would be tried. [Para-53] Bangladesh Air Service (Pvt.) Ltd. Vs. British Airways PLC. 5 BLT (AD)-242

Foreign Arbitration Clause is an integral part of International Trade and Commerce
Section 28 makes void to that extent every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract by the usual legal proceedings in ordinary tribunals but Exception 1 to section 28 provides that section 28 shall not render illegal a contract if disputes are referred to arbitration, that is, for determination by a person or persons other than a Court of competent jurisdiction. Exception 1 itself relaxes the rigours of section 28. The plea of sovereignty and interest of the country and its. citizens, if accepted, will render foreign arbitral jurisdiction absolutely nugatory. Such a consequence will itself be op. posed to public policy, for no country lives in an isolated island these days. Foreign arbitration clause is an integral part of international trade and commerce today. [Per Mustafa Kamal,J] Bangladesh Air Service (Pv.) Ltd. Vs. British Airways PLC, 17BLD(AD)249

There is nothing in Exception 1 to section 28 of the Contract Act that prohibits the parties to a contract from choosing a foreign forum under the supervision of a foreign Court for arbitrating their disputes. Such contract does not offend the main provision of section 28 of the Act because the local Courts still retain the jurisdiction to decide the us between the parties. [Per Mustafa kamal, J.] Bangladesh Air Service (Pv.) Ltd. Vs. British Airways PLC, 17 BLD (AD) 249.

Section 28 of the Contract Act deals with making those contracts void which restrict the right of a contracting party from taking legal actions in the ordinary tribunals through usual process of law. Exception (1) to Section 28 of the Contract Act, however, enacts a saving clause in favour of the contracts to refer to arbitration any dispute that may arise between the parties. Hence arbitration clause is protected by Exception (1) to Section 28 of the Contract Act. [Per Latifur Rahman, J.] Bangladesh Air Service (Pv.) Ltd. Vs. British Airways PLC, 17 BLD (AD) 249.

Plaintiff tenants under defendant No. 1 landlord having paid two installments one of three installments as advance as per a tenancy agreement for shop rooms of a multi- storied building under construction and tender of 3rd installment being disputed, the plaintiff instituted the suit seeking various reliefs. 50% of the advance being paid the landlord cannot do injustice to the existing tenant contract for construction though contingent the suit decreed justifiably.
Since the plaintiffs were the existing tenants having payment of regular rents and since 50% of the advance was paid in due time as per agreement, equity demands that the landlord-defendant No. 1 cannot do injustice to his existing tenants who were craning their livelihood from respective
shops. Though the contract for construction was a contingent and this plaintiffs suit was rightfully decreed specially when the multi- storied building was factually completed. [Paras- 5 & 6]
Shamsuddin Ahmed Vs. S. M. Harun-Or-Rashid 1 BLT (AD)-48

Objection against arbitration clause of contract—Not supported by affidavit—
Though section 33 of the Contract Act provides for deciding the objection against arbitration or award supported by affidavit, application not supported by affidavit is also maintainable. M/S. Badri Narayan Agarwalla Vs. M/S. Pak. Jute Bailers Ltd. (1970) 22 DLR (SC) 45.

The plaintiff being the C & F Agent of the defendant was responsible to clear the consignment from the Port authority and then make arrangement for necessary transportation and the equipment that may be required for the loading and desptach of the consignment and also effect delivery at the Mills site/godown as fixed by the defendant through its officers and the goods shall be treated in its possession until the same is delivered at the destination or the Mills site.
The trial Court as well as the High Court Division also failed to apply their mind as to the consequence that would follow, if it is held that a C & F Agent would be responsible upto the loading of the goods in a hired truck only, then the C & F Agent itself may behave in an unscrupulous way and in the process may join hands with the truck drivers in misappropriating the goods in the transhipment in the name of loss of the goods and in that case, the owner(s) of the goods, here the defendant shall be put to a helpess situation as well as in double jeopardy, i.e. it would lose the goods and at the same time have to also pay the commission fee to the C & F Agent for clearing the goods from the port.
We conclude that the trial Court and the High Court Division erred in law in holding that the plaintiff was not responsible for the loss of the goods of the defendant in the transhipment. ...M/S. Gramsico Ltd. =VS= Bangladesh Textile Mills Corporation, (Civil), 2020 [9 LM (AD) 271] ....View Full Judgment

Whether the plaintiff was entitled to retain the land without fulfilling the purpose for which lease was granted and secondly, whether the government is justified in canceling the lease pursuant to the inquiry report submitted by the Additional Divisional Commissioner, Chittagong.
A promisor under a contract is under an obligation to perform his promise or, at least to offer to perform it.
The Appellate Division held that the basic rule is that the promisor must perform exactly what he has undertaken to do. The obligation to perform the part of the promisor is absolute. The parties are bound by the terms of the contract. The promisor must perform within the time specified and the standard required by the contract. As to failure in performing particular terms of a contract, no positive general rule can be laid down as to its effect. The question in every case is whether the conduct of the party in default is such as to amount to an abandonment of the contract or a refusal to perform it, or, having regard to the circumstances and nature of the transaction, to evince an intention not to be bound by the contract.
Government of Bangladesh -Vs.- Messers Friends Industries Corporation and others (Civil) 12 ALR (AD) 1-5

It appears that the defendant failed to deliver the goods to the plaintiff in spite of repeated readiness expressed by the plaintiff to lift the goods in payment of balance money according to the contract. But due to the default of the defendant the plaintiff could not succeed. In case the seller insists on delivery to the buyer a quantity of goods less than he contracted to sell, the buyer has got the right to reject them and claim refund of the money paid by him to the seller. In the instant case, the seller failed to show that he was ready to deliver to the buyer the quantity/quality of the goods in good condition contracted to be delivered and, in fact, there is default by the seller and, in such view of the matter, there is no legal reason to authorise the seller to forfeit the good money paid by the buyer and, as such, the action of the seller in the present case in forfeiting the money of the plaintiff cannot stand in the eye of law. National Bank Ltd vs Pragati Industries Ltd 10 BLC (AD) 189.

Since there was no laches on the part of the respondent in the materialisation of the contract the Court has committed no error in making the direction for the payment upon making declaration that the contract contained in the letter of intent with the respondent issued by the petitioner has been breached. Privatisation Board vs AK Fazlul Huq 55 DLR (AD) 11

On perusal of the materials on record as well as from the reading of the judgment of the High Court Division it is seen that because of the conduct of the petitioner and that of other agencies of the Government and that non-disclosure of the amount as claimed by the Agrani Bank against the enterprise the contract to sell the enterprise to the petitioner ultimately could not be materialized. It is also seen from the materials on record there was no latches or lapses on the part of the Respondent No.1 in the materialization of the contract but because of the default of the petitioner and other Government agencies in several respects the contract ultimately did not reach finality. Since there was no latches on the part of the Respondent No. I in the materialization of the contract as such High Court Division has committed no error in making the direction for the payment of Tk. 4,00,02,499.75 upon making declaration that the contract contained in the letter of intent dated 11th February, 1999 with the respondent No.1 issued by the petitioner has been breached. Privatization Board Vs. A.K. Faziul Huq & Anr. 10 BLT (AD)95

Time is not essence of contract for sale of land—
Ordinarily time is not the essence of contract in an agreement for sale of land. Haji Abdullah Khan Vs. Nisar Mohammad Khan. (1965) 17 DLR (SC) 481.

Specific performance of contract—When time is the essence of the contract—Where time is intended to be of the essence of the contract, it is not sufficient to find whether here was such intention or not, hut it is necessary to find whose unwillingness to perform his part of the obligation eventually led to the non-performance of the contract—The plaintiff must succeed if his readiness and willingness to perform the obligation undertaken by him are proved even if time is made essence of the contract. Rain Chandra Das and others Vs. Md. Khalilur Rahman and another; 5BLD (AD) 41

Section 55 of the Contract Act, if it was the intention of the parties that the time should not be of the essence then the contract does not become voidable, but the promisee becomes entitled to receive compensation. Hence, it is our view that the Vendor is only entitled to receive compensation for the delay in performance of the agreement by the Purchaser. .....Mahua Khair =VS= Amena Begum Ali Ispahani, (Civil), 2017 (2)– [3 LM (AD) 246] ....View Full Judgment

Doctrine of frustration—Whether it applies to contract only or to leases also— Whether provision of section 108(e) of the Transfer of Property Act or doctrine of frustration as contained in section 56 of the Contract Act will apply in case where the entire structures of the tenancy was destroyed—Where only a material part of the tenancy is destroyed or otherwise rendered substantially and permanently unfit for the purpose for which it was let at the option of the tenant the lease will come to an end—But where the entire subject matter of the tenancy is destroyed the provision of section 108(e) of Transfer of Property Act will not be applicable—The doctrine of frustration as embodied in section 56 of the Contract Act will apply in case of destruction of the entire subject matter of the tenancy—Transfer of Property Act (IV of 1882) S. lO8(c. Azizur Rahman and others Vs. Abdus Sakur and others; 4BLD (AD) 287

Swaranarthapatra–– The Appellate Court found that the plaintiff admitted in her deposition that “the writer read out the contents of Chuktipatra after writing, i.e, she heard the recitals of the Chuktipatra and they put their signatures in the same. Therefore, she is stopped from saying anything contradictory to the Chuktipatra. The land described in the schedule in the plaint is not identical to that of the alleged Chuktipatra. Thus the suit was not properly framed and the plaintiff is not entitled to get the relief sought for. ––The High Court Division while passing the impugned judgment came to a definite finding that on perusal of the 2(two) Exhibits it appears that “Exhibit-1 is part of Exhibit-B and from the contents of these two documents, it appears that the defendant No.1 did not enter into any contract directly with the plaintiff for selling the suit land.” The particular fact that Exhibit-1 (bainapatra) and Exhibit-B (Swaranarthapatra) were executed and signed on the same date although not between the same parties but if we go through both the documents together then the intention of the parties could be understand and the ulterior motive of parties cannot be ignored. This is the reason why the documents cannot be treated separately. Moreover, defendant No.1 was not in a position to enter into the contract voluntarily and free consent is an integral part to enter into a valid contract. ‘Free consent’ is clearly defined in the Contract Act and it cannot be said that there was no undue influence over defendant No.1 from the part of the father of the plaintiff because of the defendant’s unsafe situation existing then. ––Appellate Division does not find any merit in the appeal. As such the findings and decision arrived at by based on proper appreciation of both fact and law the same does not call for any interference by this Division. .....Mosammat Momtaz Begum =VS= Santosh Kumar Sarker, (Civil), 2023(1) [14 LM (AD) 546] ....View Full Judgment

Doctrine of Frustration
Doctrine of frustration as embodied in Section 56 of the Contract Act is applicable to leases of immovable property. The plea of frustration of the contract of lease having not specifically taken in the written statement and the defence being one of denial of the plaintiff’s title, then one of permissive possession, then extinction of permissive possession by fire and thereafter possession of structures in his own right and title and the defendant successfully resisting the plaintiff’s attempt for taking the suit out of the S.C.C. Court for trial as a regular suit, the defendant’s plea for a regular suit for declaration of title and recovery of possession cannot be entertained as it will tantamount to putting a premium on the defendants desperate and contradictory stands. Md. Mokbul Hossain Khandker Vs. Mst. Jaheda Khatun, 15 BLD (AD) 185.

Doctrine of frustration—When applicable—
"Where the subject-matter of the lease of tenancy is completely destroyed and section 108 of the Transfer of Property Act is not attracted, the doctrine of frustration of contract becomes applicable. Azizur Rahman Vs. Abdus Sakur (1984) 36 DLR (AD) 195.

Frustration of Contract—
Considering the facts and circumstances of the case and evidence on record it appears that the contract was ultimately frustrated by the action of the plaintiff and as such no decree can be passed as has been rightly found by the High .Court Division. Sooraya Rahman vs Hajee Md Elias and others 8 BLC (AD) 7.

Novation of contract and corn pensation—Assurance to contractor for enhanced rate of remuneration—Assurance amounted to novation of contract or caused entitlement to fair compensation—After the contractor’s work as clearing and forwarding agent was finished and benefit there from was derived, the defendant T & T Board cannot get away without paying some remuneration on the basis of -as surance—The case would have been other had the contractor’s claim been rejected other wise—it is true, some meeting of minds the parties to a contract is necessary for novation of contract—But consent may also be-applied by conduct of the parties—In this ca conduct of the defendants although shows the. they recognised the difficulties the appellant was put into difficulties because of their o laches—Prolonged dialogues clearly indicate that the appellants claim for enhancement the rate got same merits—He is entitled to remuneration on the basis fair and reasonable rate. Baziur Rahinan Vs. People’s Republic of Bangladesh and others; 10 BLD(AD)66

Extension of time—
Time for performance of contract may be extended under section 63 of the Contract Act. Abdul Jalil Chowdhury Vs. Mohammadi Steamship Co. Ltd. (1961) 13 DLR (SC) 214.

The principle of award of compensation is that the injured party should as far as possible be placed in the same position in terms of money as if the contract had been performed by the party in default.
The Appellate Division held that it is apparent on the face of the award that the Arbitrator proceeded totally ignoring the principle underlying the provision of section 73 of the Contract Act in passing an award of taka more than 7 (seven) crore in favour of the contractor when the total value of the contract was only Tk. 99,49,729/-. The modification by the High Court Division also does not take into account the provision of section 73 of the Contract Act. The illegality of the award as well as the modification of it by the High Court Division can be seen on a bare look at the award and its modification. The award is per se preposterous or absurd for which also the the award and its modification are liable to be set aside.
The Project Director, P.L. and another. -Vs.- Latiff Company Ltd. (Civil) 14 ALR (AD) 45-49

In an appropriate case a Court of Law can apply and imply warranty, as distinguished from an express contract or express warranty, on the presumed intention of the parties and upon reason. Hutchison Telecom Bangladesh Ltd vs Bangladesh Telegraph and Telephone Board and others 48 DLR (AD) 30.

The remedy under these provisions of the Contract Act lies in the Civil Court, if at all, not under the Admiralty Jurisdiction on a Marine Hull Policy. Sadharan Bima Corporation vs Bengal Liner Ltd and another 48 DLR (AD) 143.

Section- 73 provides for compensation for loss or damage caused by breach of contract. It provides further that such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. [Para- 12] Sonali Bank Vs. M/S Kamaphuli Works Ltd. 2BLT (AD)-78

Breach of contract—Damages—All sorts of damages are not entertainable—In assessing damages only the circumstances resulting from the breach of contract are to he taken into consideration. Al-Sayer Navigation Co. Vs. Delta International Traders Ltd. & others; and Delta international Traders Ltd. Vs. M. V. Kuan Hal renamed M. V. Al-Sayer; 2 BLD(AD)69 ....View Full Judgment

Shipping Law—Delay in carriage—Remoteness of damage—Loss of profit—Loss of profit recoverable as damages for breach of lie contract of carriage by deviation involving delay—Loss of market will be found to be within the contemplation of the parties in car— ‘age of goods by sea—When ship was incapable of performing the voyage within the pulated period due to any fault in the ship, the carrier must face the consequence—Carriers ‘here apprised of the salt crisis and urgency mediate shipment—Carrier must be saddled with liability. Al-Sayer Navigation Co. Vs. Delta International Traders Ltd. & others; and Delta international Traders Ltd. Vs. M. V. Kuan Hai renamed M.D. Al-Sayer; 2BLD(AD)69 ....View Full Judgment

Suit for damage or compensation for breach of contract—
The terms and conditions of service of the petitioner are governed by the appointment which is in fact a contract. The relationship between the petitioner and the defendant is that of a master and servent for the termination of which without showcause notice the plaintiff petitioner is entitled to realize compensation in terms of his appointment. Alimuzzainan Khan (Md.) Vs. Mohammad Golam Kibria 11 MLR (2006) (AD) 149.

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 Conn try Manager Vs. M/S Saudi Bangladesh Services Company Ltd, represented by its Managing Director 15 MLR (2010) (AD) 153.

Suit for compensation-maintainability—
Damage or compensation for breach of contract can be claimed on the establishment of wilful breach of contract by the defendant. But when the plaintiff failed to establish that the part of his obligation was fully discharged his suit for damage or compensation is not maintainable. M/s Nozrul Islam Khan & Co. (Pvt) Ltd. Vs. Festasi Shipping Company S.A and others. 2, MLR (1997) (AD) 369.

Contract Act
Section 73
Article 102 of the Constitution of the People’s Republic of Bangladesh
We are led to hold that for breach of any of the terms and conditions of the contract in the present case before us, say for example, clause 14 of Annexure-‘C’ to the Writ Petition, the remedy of the petitioner lies in a properly constituted suit in the competent Civil Court for damages under section 73 of the Contract Act. So it necessarily follows that the writ jurisdiction of the High Court Division under Article 102 of the Constitution is not available to him. ...Md. Mahbubur Rahman Vs. Bangladesh and Others, (Civil), 10 SCOB [2018] HCD 104
The facts and circumstances of the case irresistibly lead us to uphold the contention of the contesting respondents that the petitioner was governed by the Rule of Master and Servant. As such the Board of Governors, that is to say, the master had the authority to terminate the petitioner (servant) at any time even before his attainment of 60 years of age as contemplated by clause 14. This is because no servant can be forced upon an unwilling master, for whatever reason it is. ...Md. Mahbubur Rahman Vs. Bangladesh and Others, (Civil), 10 SCOB [2018] HCD 104
It is a truism that no servant is entitled to any prior show cause notice in case of his dismissal, removal, termination etc. by his master. Had the Rule of Master and Servant not been applicable to the case of the petitioner, in that event, he would have been entitled to a prior show cause notice. As the relationship between the petitioner and the Board of Governors of the PDBF was regulated by the Master and Servant Rule, we opine that the Board of Governors did not commit any illegality in terminating the petitioner from the post of the MD without any prior show cause notice. ...Md. Mahbubur Rahman Vs. Bangladesh and Others, (Civil), 10 SCOB [2018] HCD 104 ....View Full Judgment

Forfeiture of earnest money in a contract for sale of property by auction sale on failure to deposit the consideration/bid money within stipulated time—
In a process of sale of property by auction the contract becomes absolute upon the acceptance of the offer and as such the purchaser is bound to make the payment of consideration money as per stipulation of contract and on the failure of the purchaser to pay the consideration money within the specified time, the seller can well forfeit the earnest money for breach of the contract. Mesbahiiddin Ahmed Vs. M/S nines Finlay 12 MLR (2007) (AD) 253.

An acceptance must be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. Bangladesh Moktijoddah Kalyan Trust represented by the Managing Director vs Kamal Trading Agency and others 50 DLR (AD) 171.

The High Court Division held that whatever might be the considera­tion of the defendant in delivering the disputed consignment to the buyer con­signee, it must be done at its own risk and peril and thus the action of the defendant No. 1, carrier could not be absolved from its responsibility to the consignor. Accordingly, the appeal is dismissed affirming the judgment and decree of the trial Court in Money Suit No. 3 of 1992 decreeing the suit. Nippon Liner System vs Mahi Fish Processing Ltd 11 BLC (AD) 124.

Bank guarantee—Bank under-taking to pay on the failure of performance of contract— No temporary injunction restraining the enforcement of the guarantee—Code of Civil Procedure (V of 1908) Or. 39 R.1 Uttara Bank Vs. Macneill & Kilburn Ltd. and others; 1BLD(AD)230

Guarantor’s liability as regards repayment of loan—The guarantor is not only responsible for repayment of the loan, his liability to repay need not even be postponed till the principal debtor fails to repay the loan—The choice lies with the creditor. M/s. M.M. Ispahani Ltd. Vs. Sonali Bank and others; 4 BLD(AD)242

Repayment of loan—Denying the liability on the ground that the security has been taken away—When a person contracts a loan from a banking institution by offering valuable security but retaining its possession with itself, if cannot possibly lie in its mouth to deny the liability on the ground that the security has been lost or it had parted with its possession under compulsion—For such loss or taking away of the security persons or bodies who are responsible for it may be liable but such a plea is not sufficient to absolve the person or its obligation to repay the loan. M/s. M.M. Ispahani Ltd. Vs. Sonali Bank and others; 4BLD (AD) 242

Liability of the Port Authority to pay compensation for non-delivery of goods— When the Shipping Company had delivered the goods the Port Authority must be deemed to be the agent for the consignee—The liability of the Port Authority is that of a bailee—They
would be liable in the absence of proof that they took as much care of the goods as a man of ordinary prudence would in similar circumstances take—A suit based on non-delivery is really based on a breach of the duty—The Chittagong Port Act (V of 1914), Ss. 50, 50A and 63. The Chittagong Port Authority Vs. Md. Ishaque and others: 3BLD(AD)338

The plaintiff did not make out any case under section 170 of the Act to retain the goods as a bailee.
In this case the plaintiff could have exercised his right under section 170 of the Contract Act if he had possession over the scheduled materials. The High Court Division's finding on the basis of the documents on record and the evidence adduced in the matter that the Bank had although been in possession of the attached goods does not suffer from any infirmity. In fact, the plaintiff did not make out any case that he was entitled under section 170 of the Contract Act to retain the scraps as a bailee till he received due remuneration for the services rendered by him. In the application for attachment; the plaintiff did not mention the word 'lien' nor did he do so in his written objection to the application for vacating that order. Muhammad Meah vs Pubali Bank 41 DLR (AD) 14.

(Minority view) Per BH Chowdhury– Section 170 says lien exists in the absence of a contract to the contrary. This question has agitated the minds of the English Judges and the law was surveyed in Tappenden vs Antus (1964) 2 QBD 185=1963 All ER 213. Muhammad Meah vs Pubali Bank 41 DLR (AD) 14. ....View Full Judgment

Lien cannot be a ground for action, it can be taken as defence. Lien cannot be a ground for action, it can be taken as defence. Prcisely that was done here in Miscellaneous Judicial Case No.1 which was brought to the Bank . Here the plaintiff can raise the point of lien in the face of the application for releasing the attached properties. And that has happened in this case. Muhammad Meah vs Pubali Bank 41 DLR (AD) 14.

Under section 170 of the Contract Act a ship breaker can retain goods for his remuneration. (Minority view) The bank granted the loan for buying the ship and the ship is to be scrapped and the scrap is to be sold in the market and the sale proceeds is to be deposited into cash credit account for liquidating the debt. Unless the ship is broken how the debt is to be liquidated? Therefore, the question comes what about the remuneration of the ship breaker and the law says in section 170 of the Contract Act that he can retain such goods. Muhammad Meah vs Pubali Bank 41 DLR (AD) 14.

(Minority Judgment) Per BH Chowdhury J–Execution of decree when all the properties are mortgaged to the Bank–Applica­tion of section 170 of the Contract Act–Plaintiffs claim on lien–Remuneration of the breaker – ­Omission to mention the word "lien" by the plaintiff–Effect of–Rule of pleading does not warrant it.
The crux of the problem as to how he could execute the decree when all the properties of Janapad Enterprise are mortgaged to the Bank. The only available property was the scheduled property which was valued for only eight lac. The question was, whether the plaintiff could retain this property. Plaintiffs claim for his remuneration is grounded on lien and section 170 says that he has a right to retain such goods until he receives due remuneration for the services in the absence of the contract to the contrary. ls there any contract to the contrary in this case between the Bank and the borrower that the remuneration of the breaker must not be given out of the sale proceeds of the ships? The answer is in the negative. If so, then why the ship breaker will be deprived of his remuneration. It was contended by the learned Counsel appearing for the respondent that in the application for attachment the plaintiff did not mention the word 'lien' nor did he do so in his written objection to the application filed by the Bank for vacating that order. To say the least rule of pleading does not warrant it. Muhammad Meah vs Pubali Bank 41 DLR (AD) 14.

Bailee’s Lien—Question of bailee’s right to retain goods and have order of attachment— The plaintiff (bailee) could have exercised the right of lien under the Contract Act if he had possession over the scheduled materials—The High Court Division’s findings that the Bank had been in possession of the attached goods will preclude him from relying on the cited decisions in support of his claim to retain the scheduled properties as a bailee—His application for attachment itself indicates that he was not in possession of the goods—Had he been in possession. he would have asked for an order of injunction, and not for attachment—Code of Civil Procedure (V of 1908) Or. 38 Rules 5 and 8. Mohaminad Meah Vs. Pubali Bank and others; 9 BLD(AD) 57.

Claim and counter–claim between the petitioner and the Agrani Bank– Petitioner (appellant) claimed a sum of Taka 75,55,020.28 paisa after adjustment in the suit­Trial Court allowed prayer for mandatory injunction–Appellant contended that the import passbook issued by the CCIE could not be a security for the purpose of Banker's general lien within the meaning of section 171 of the Contract Act–High Court Division issued order directing the petitioner to furnish security to the extent of the claim of the bank whereupon the defendant Bank is to return the import passbook either to the CCIE or to the nominated bank of the petitioner and set aside the order of mandatory injunction.
Held: The Court will not decide a point, especially in the interlocutory matter which will not advance the cause of justice. It will merely delay the process of coming to a conclusion as to claim and counter–claim which can only be thrashed out in the pending suit. The Dhaka Dyeing and Manufacturing Co vs Agrani Bank 42 DLR(AD) 60,

Law relating to the right of the pawnee does not require him to sell the pawned goods first and thereafter, if any amount remains due from the pawnor then to file the suit for the realisation thereof. Islami Bank Bangladesh Ltd vs Sub–Judge and Additional Artha Rin Adalat and others 55 DLR (AD) 121

Bailee’s pica of equity and pawnee’s right—Whether the Court could uphold the order of attachment in favour of the bailee as otherwise he will be left without any remedy- In this case equity is not in favour of the plaintiff (bai lee )—From the facts and circumstances of the case it is to be held that plaintiff knew about the defendant’s transaction that the vessel with all its materials was pledged with the Bank—Under the Contract Act and the terms of transaction the Bank is free to follow any of the ways legally available for realisation of its dues and the plea that the Bank ought to have proceeded against other securities has got no substance—The Court will refrain from making any officious direction to follow a particular secuirty. Mohaininad Meah Vs. Pubali Bank and others; 9BLD (AD)57.

The Appellate Division held that the essential element, in an agent's position. The functions of the agent are-(a) to do any act for the principal, or (b) to represent the principal in dealings with third persons. In determining the legal nature of the relationship between the principal and agent, the use of the word agent is not conclusive. According to the definition, an agent never acts on his own behalf but always on behalf of another either represents his principal in any transaction or dealing with a third person, or performs any act for the principal. In either case, the act of the agent is not his own out of the principal.
Marium Dawood -Vs.- Mr. Iqbaluddin Chowdhury (Civil) 9 ALR (AD) 239-243

On demise of either party to the power of attorney the relationship between the principal and the attorney ceases. Abdur Rahman (Md) vs Md Iqbal Ahmed and others 49 DLR (AD) 142.

Termination of Agency-Power of Attorney
The settled law is that on the demise of either parties to a power of attorney the relationship between the principal and the attorney ceases in terms of section 201 of the Contract Act. Defendant No. 8 represented defendant Nos. 1-7 both for the purpose of the suit land and for execution of the Kabala as their attorney. On the death of defendant No. 8 nothing devolved upon his heirs and as such there was no necessity for impleading his heirs in the execution case. Md. Abdur Rahman Vs Md. lqbal Ahmed and others, 17 BLD (AD) 175

This section does not purport to confer any power on the agent. It simply imposes an obligation on the agent to take all reasonable steps in the interest the representatives of the principal.
The Appellate Division held that where an agency is terminated either by the death of the principal, or by his becoming of unsound mind, the agent is bound to take, on behalf of the representatives of his late principal all reasonable steps for the protect on and preservation of the interest entrusted to him. This section does not purport to confer any power on the agent. It simply imposes an obligation on the agent to take all reasonable steps in the interest the representatives of the principal.
Marium Dawood -Vs.- Mr. Iqbaluddin Chowdhury (Civil) 9 ALR (AD) 239-243

The Constitution of Bangladesh
Article 102 r/w
The Contract Act, 1872
Section 211, 221
Whatever commission or remuneration the agent was entitled to for the acts done on behalf of the principal, it must be paid by the principal and not by the third party. There was an agreement to pay commission to writ petitioner, such commission could be recovered by invoking writ jurisdiction. The answer to this point is in negative. The writ petitioner’s remedy lies in the civil court for recovery of the money as per terms of the agreement. …Government of Bangladesh =VS= M/s. Excellent Corporation, [8 LM (AD) 215] ....View Full Judgment

This section states when the agent's right to remuneration accrues. It provides that in the absence of any special contract, payment for performance of any act is not due to the agent until the competion of the assignment . The agent, however, may retain moneys received by him on account of goods sold, although the whole of the goods consigned to him for sale may not have been sold. Government Of Bangladesh -Vs.- M/s. Excellent Corporation 2 ALR (2013)(AD) 42

The Constitution of Bangladesh, 1972
Article 102 r/w
The Contract Act, 1872
Statutory contract–– 31BLD(AD)1[2011], Appellate Division held that writ jurisdiction can be invoked in case of breach of contract when;
(a) The contract is entered into by the Government in the capacity as sovereign;
(b) Where contractual obligation sought to be enforced in writ jurisdiction arises out of statutory duty or sovereign obligation or public function of a public authority;
(c) Where contract is entered into in exercise of an enacting power conferred by a statute that by itself does not render the contract a statutory contract, but ‘if entering into a contract containing prescribed terms and conditions is a must under the statute then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory;
(d) Where a statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions and the contract so entered by the statutory power then merely because one of the parties to the contract is statutory or public body such contract is not a statutory contract;
(e) When contract is entered into by a public authority invested with the statutory power, in case of breach thereof relief in writ jurisdiction may be sought as against such on the plea that the contract was entered into by the public authority invested with a statutory power;
(f) Where the contract has been entered into in exercise of statutory power by a statutory authority in terms of the statutory provisions and then breach thereof gives right to the aggrieved party to invoke writ jurisdiction because the relief sought is against breach of statutory obligation.
Mere correspondence in the office of ministries concerned, does not fulfil any requirement to make a statutory contract or contract entered into by the Government in the capacity as sovereign, the relief sought by way of writ jurisdiction in the present case is not sustainable. The High Court Division cannot exercise its power conferred under Article 102 of the Constitution where the desire of buying and selling books without tender between the appellants and the present respondent is of inter-ministerial correspondences in nature. Apart from this, without tender and legal approval from the concerned authority, the proposal for buying additional 2317 sets of Dalilpatra would be an act of criminal offence that was realized later by the offices of ministries concerned and subsequently, it had to cancel for avoiding illegality in purchasing additional books in question. Such act of illegal attempt cannot be justified invoking Article 102 of the Constitution in the form of judicial review.
Appellate Division is of the view that the High Court Division made a serious error of law making the Rule absolute. So, this Division is constrained to hold that the writ petition was not at all maintainable under Article 102 of the Constitution. .....Government of Bangladesh =VS= Golam Mustafa, (Civil), 2023(1) [14 LM (AD) 523] ....View Full Judgment

Damage for breach of contract—
Party guilty of breach of contract shall be liable to pay compensation measure of which shall be assessed on the quantum of loss sustained on account of the breach or which the parties knew to be likely to flow from the breach. M/S. Amiii Jute Mills Vs. M/S. A.R.A.G. (1976) 28 DLR (SC) 76.

The Registration Act, 1908
Section 17A r/w
The Specific Relief Act, 1877
Section 21A r/w
The Contract Act, 1872
In a contract for sale of immovable property, a time, to be effective from the date of registration, shall be mentioned for execution and registration of the instrument of sale and if no time is mentioned, six months shall be deemed to be the time.
17A. Registration of contract for sale etc:
(1) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, a contract for sale of any immovable property shall be in writing, executed by the parties thereto and registered.
(2) A contract for sale referred-to in sub-section (1) shall be presented for registration within thirty days from the date of execution of the contract and the provisions regarding registration of instruments shall apply.
21A. Unregistered contract for sale not specifically enforceable—Notwithstanding any thing to the contrary contained in this Act or any other law for the time being in force, no contract for sale of any immovable property can be specifically enforced unless—
(a) the contract is in writing and registered under the Registration Act-1908, whether or not the transferee has taken possession of the property or any part thereof; and
(b) the balance amount of the consideration of the contract is deposited in the court at the time of filing the suit for specific performance of contract." .....Comprehensive Holdings Ltd. =VS= MH Khan Monju, [3 LM (AD) 198] ....View Full Judgment