When a party before the arbitral tribunal does not raise any objection with regard to non-compliance of any provision of the Arbitration Act or with regard to non-fulfillment of any requirement set out in the arbitration agreement within the time prescribed in the Arbitration Act and/or within the time-limit stipulated in the arbitration agreement or, in the absence of any stipulation as to the time in the law or in the arbitration agreement, within a reasonable time without making any delay, for dealing with that scenario, the Legislature man-dated the arbitral tribunal and the Courts to take a presumption that the aforesaid party has waived his right to so object. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment

The substantive prayer in the Arbitration Miscellaneous case No. 7 of 2019 under section 7K (1) of the Arbitration Act, 2001 is basically a prayer for an order of restraint till arbitration proceedings are initiated and nothing else. Further I am also of the considered view that section 7K (1) sub-section Uma including other sections only contemplate the passing of an ad-interim order in case of urgency to address certain circumstances or situations either during an arbitration proceeding or before an arbitration case is initiated. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment

The provisions of any special statutory enactment must be construed strictly unless a different intention is otherwise implied:
Arbitration Act, 2001 is a special enactment of law and the provisions of any special statutory enactment must be construed strictly unless a different intention is otherwise implied anywhere in any other law. I am of the considered opinion that if the legislature intended to confer the power upon the learned District Judge besides what is expressly stated in section 7ka (1) of the Arbitration Act, 2001 in that event it would not have expressly laid the specified conditions and situations under which an order may be passed under section 7K (1) sub Rule (K-Q) including an order of ad-interim injunction (অন্তবর্তীকালীন নিষেধাজ্ঞা) under sub Rule ‘P’. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment

It is a principle of law that a statute in particular where a statute is a special piece enactment of law and addressing certain situations and circumstances, in that event unless a different intention is expressed elsewhere in the law the statute must be construed and interpreted in accordance with the strict meaning of the language as it expressly appears. The language of section 17(ka) is quite clear and there is no ambiguity as such in the provision. It is also a settled principle of law that where a specific provision of law is expressly stated such specific provision shall prevail over the general law. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment

While issuing an order of ad-interim restraint or injunction the learned District Judge is not empowered to pass an order under section 45 of the Evidence Act, 1872:
While issuing an order of ad-interim restraint or injunction whatsoever, the learned District Judge is not empowered to pass an order under section 45 of the Evidence Act, 1872 for purpose of having any signature examined by a hand writing expert. It is also necessary to be reminded that a report under section 45 of the Evidence Act, 1872 submitted by a hand writing expert is not a conclusive evidences of finding of facts but which must be corroborated by supporting evidences. It is needless to state that such assessment and adducing of such evidences is a longer process under the relevant procedural law. By no stretch of imagination can it be contemplated that section 7K of the Arbitration Act, 2001 including section 7K (1) P contemplate the power of a District Judge for passing of the ad-interim order beyond a situation of urgency. Section 7K (1) particularly sub section (P) of the Act of 2001, does not contemplate a lengthy trial pursuant to adducing evidences whatsoever. Therefore the provision of Section 7K is limited to passing certain orders under certain situations and circumstances. The intention of the legislators in enacting of those provision also upon comparison and analogy with Order 39 Rule (1) and (2) of the Code of Civil Procedure, 1908 is to address circumstances of urgency and nothing beyond. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment

The power to issue an order for examination of any signature by hand writing expert is conferred upon the arbitral tribunal only under the provisions of section 17(ka) of the Arbitration Act, 2001. Section 7K has limited powers and the civil court cannot travel beyond the limited powers while exercising the power conferred upon it under Section 7K of the Act of 2001. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment

Constitution of Bangladesh
Article 102
The Arbitration Act, 2001
Section 7
Restriction of judicial intervention in matters covered by arbitration agreement:
In the present case, clause 19.2 of the contracts dated 16.01.2008 entered into between the petitioner and the BPDB contains an arbitration clause stating that the arbitration shall be conducted in accordance with the Arbitration Act (Act No. 1 of 2001) of Bangladesh as at present in force and the place of arbitration shall be in Dhaka, Bangladesh, therefore, section 7 of the Arbitration Act, 2001 restricts judicial intervention in matters covered by arbitration agreement. Petitioner is trying to interpret the contract in the writ petitions which is impermissible, particularly when the petitioner is having a remedy to go for arbitration under the contract signed by the petitioner. Petitioner having signed contract with open eyes after reading the terms and conditions, it is unconscionable to raise these kinds of contention in the writ petitions. ...Energy Prima Ltd. Vs. Bangladesh & ors, (Civil), 8 SCOB [2016] HCD 84 ....View Full Judgment

Circumstances when the parties bound themselves for arbitration:
From a combined reading of the provisions of sub-Sections (1) & (2) under Section 9 of the Arbitration Act, it is crystal clear that a written arbitration agreement, either in a clause of a main contract or in a separate agreement, must exist in order to arbitrate any dispute between the parties. When (a) a written agreement containing the arbitration clause is signed by the parties or (b) if the parties through any written communication, which may be manual or digital, agree to arbitrate or (c) if one party makes a written claim containing a stipulation of holding arbitration in the event of denial of the claim and, in responding thereto, the second party though comes up with a defense as to material claim/s but remains silent about the proposal of holding arbitration, then, in those scenarios, the law of our country dictates the Courts to hold that the parties have bound themselves to go for arbitration. In addition thereto, if any special law prescribes for resolving a dispute through arbitration, either upon adopting the procedures laid down in the said special piece of legislation or in reference to the Arbitration Act, then, there shall not be any question as to having existence of any arbitration agreement. ...Agrocorp Int. Pte Ltd Vs. Vietnam Northern Food Corp., (Civil), 18 SCOB [2023] HCD 213 ....View Full Judgment

Arbitration Act, 2001 Sections 9, 12, 17 Absent of Arbitration agreement would not be a bar to arbitration when the parties consented mutually: In the case of international arbitration, this Court and, in the case of domestic arbitration, the District Judge Court is obligated to examine the issue as to whether there is an existence of an agreement between the parties for holding arbitration before entertaining an application under any provision/Section of the Arbitration Act. However, in absence of the arbitration agreement, if the parties decide to go for arbitration during pendency of an application under any Section of the Arbitration Act, they would be competent to proceed with arbitration in that the scheme of arbitration is founded on the mutual consent of the parties and there is no provision within the four corners of the Arbitration Act prohibiting initiation of arbitration proceeding during pendency of an arbitration application before this Court/the District Judge Court. ...Agrocorp Int. Pte Ltd Vs. Vietnam Northern Food Corp., (Civil), 18 SCOB [2023] HCD 213 ....View Full Judgment

Code of Criminal Procedure [V of 1898]
Section 344 read with
Negotiable Instruments Act [XXVI of 1881]
Section 138 read with
Arbitration Act [I of 2001]
Section 12
Arbitration proceedings, which is of civil nature, private rights and obligations of the respective contending parties are determined including recovery of money by way of damages for the loss caused by cheques, if any, cause of action so has arisen under section 138 of the Act and under section 12 of the Arbitration Act are altogether distinct having different entailment/consequence, as such criminal proceedings cannot be stayed.
The High Court Division held that in the instant case, pursuant to business transaction the accused petitioner entered into respective agreements with the complainant opposite party to sell agricultural products locally which were imported by the said complainant. During the course of business the accused petitioner issued 4 (four) post dated cheques in question, which were ultimately dishonoured by the drawee bank with the remark “payment stopped by drawer”. In this regard, the categorical assertion of the opposite party is that vide clause 3.4 of the agreement the opposite party company can take any legal action against the petitioner under the Act of 1881 if the cheques are dishonoured for any reason whatsoever. As such, merely because there is arbitration proceeding pending under section 12 of the arbitration in between the contending parties the proceeding under section 138 of the Act cannot be stayed. Mushfequr Rahman -Vs.- The State (Criminal) 2019 ALR (HCD) Online 155 ....View Full Judgment

Existence of an arbitration agreement is a pre-condition for invoking the power under sec 12 of the Arbitration Act:
If the parties to the arbitration have already devised a procedure for appointment of arbitrator/s, then the provisions of sub-Sections (2) to (13) under Section 12 of the Arbitration Act would have hardly any application. But in absence of any device agreed upon by the parties, the provisions of sub-Sections (2) to (13) under Section 12 of the Arbitration Act come into play. In both the above-mentioned paths, the implied precondition is that there must be the existence of an agreement between the parties to go for arbitration. In other words, in order to make the provisions of sub-Sections (1) to (13) under Section 12 of the Arbitration Act applicable, the parties must agree to resolve any dispute through arbitration; absence of an agreement among the parties to hold arbitration shall render the aforesaid provisions of the Arbitration Act nugatory. ...Agrocorp Int. Pte Ltd Vs. Vietnam Northern Food Corp., (Civil), 18 SCOB [2023] HCD 213 ....View Full Judgment

A party to an arbitration agreement may challenge any arbitrator’s competency and impartiality by making a written representation to the arbitral tribunal within 30 (thirty) days of knowing about the incompetency or partiality of the concerned arbitrator. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment

The power to decide on the existence of a valid arbitration agreement has been conferred upon the arbitral tribunal not upon the learned District Judge:
After perusal of section 17(ka) read along with the other provisions of chapter 5 particularly section 19(1), 19(2) of the Arbitration Act, 2001, I am of the considered view that the power to decide on the existence of a valid arbitration agreement has been conferred upon the arbitral tribunal under a specific enactment of law by way of the Arbitration Act, 2001 and has not been conferred upon the learned District Judge. If the intention of the law was to confer simultaneous or parallel jurisdiction to the learned District Judge in that case the statutory provision of Section 17 would not have expressly contemplated and stated the power so unambiguously as it has been expressly and unambiguously stated in section 17 of the Arbitration Act, 2001 including section 17(ka-Uma) and for our purpose particularly section 17(ka) of the Arbitration Act, 2001. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment

The existence of an arbitration agreement may be decided by the civil court being the learned District Judge, but where the existence of an arbitration agreement so far as its validity is challenged or under question that question must be decided by the arbitral tribunal following the provisions of section 17(ka) of the Arbitration Act, 2001. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment

The legislature has conferred the power to decide as to whether a valid arbitration agreement is in existence upon the tribunal only:
Section 19(2)(c) of the Act of 2001also contemplates a situation on the existence of an arbitration agreement when the arbitration agreement alleged by one party is not denied by the other. Therefore it is clear that to constitute a valid arbitration agreement within the meaning of the Act of 2001 the existence of the agreement must be agreed upon by both parties. In this case it is clear that the opposite parties denies the existence of the agreement itself. Therefore under the provisions of Section 17(ka) of the Arbitration Act, 2001 read with other provisions of the Act it is my considered view that the legislature has conferred the power to decide as to whether a valid arbitration agreement is in existence upon the tribunal only. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment

The Arbitration Act permits a party to an arbitration agreement to challenge the competency and impartiality of a single arbitrator or all the arbitrators by filing a written representation to the arbitral tribunal, so that the arbitral tribunal itself can give a decision on the aforesaid application for challenge. Also, if a party to the arbitration agreement raises question that the arbitral tribunal is not properly constituted, it is a mandatory duty of the arbitral tribunal to pass an Order on the issue. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment

Section 19(1) provides that any objection challenging the jurisdiction of the tribunal shall not be raised later than the submissions of the statement of defence. Section 19(2) of the Act contemplate a situation where any objection may be raised that the tribunal is exceeding the scope of its authority in that event such objection shall be raised as soon as the allegation is raised. Therefore it clearly appears that section 19(1) and 19(2) read along with other provisions of chapter 5 including section 17(ka) also contemplate that an objection against the jurisdiction of the tribunal shall also be heard by the tribunal itself and not by any other forum. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment

A petitioner, who has invoked Section 20 of the Arbitration Act, is under a mandatory obligation to satisfy the High Court Division that all the conditions stipulated in clauses (a) to (c) of Section 20(2) of the Arbitration Act are satisfied be¬fore entertaining or registering an application. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment

The power invested in the High Court Division for entertaining an application under Section 20 of the Arbitration Act is not an independent power, for, it can be exercised by the High Court Division only upon being satisfied that (a) the determination of the question is likely to produce substantial savings in costs, (b) the application was submitted without any delay and (c) there is good reason why the matter should be decided by the Court. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment

Section 20(2) of the Arbitration Act requires that the petitioner must simultaneously satisfy all the three conditions laid down in clauses (a) to (c) thereof, for, none of the clauses (a) to (c) ends up with the word ‘or’. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment

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.

As per section 23 of the Arbitration Act, the arbitrators are obligated to dispose of the disputes on perusal of evidence of the parties, if produced. So, there should be modalities how long and under what modes the arbitrators will maintain the evidences and other documents of the parties after giving the award, because those may be necessary for perusal in any legal proceeding if initiated challenging the award in the Court as mandated by law. ...Mitul Properties Ltd Vs. M.N.H. Bulu, (Civil), 18 SCOB [2023] HCD 257 ....View Full Judgment

As per Section 24 of the Arbitration Act, 2001 the arbitral tribunal in resolving disputes is not bound to follow the provisions of the Code of Civil Procedure and the Evidence Act, which signifies that the Tribunal in a given case is set to dispose of any dispute according to the terms and reference having set forth by them. ...Mitul Properties Ltd Vs. M.N.H. Bulu, (Civil), 18 SCOB [2023] HCD 257 ....View Full Judgment

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.

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.

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.

The term “জেলা জজ আদালত” as mentioned in Section 2(Kha) of the Arbitration Act, will be deemed as the ‘Court of District Judge’, not ‘persona designata’ for carrying out the object under Section 42 of the Arbitration Act, and any decision to be passed in a proceeding under Section 42 of the Act is amenable to revisional jurisdiction under the code of Civil Procedure. ...Mitul Properties Ltd Vs. M.N.H. Bulu, (Civil), 18 SCOB [2023] HCD 257 ....View Full Judgment

সালিশ আইন, ২০০১ এর ধারা ৪২ ও তামাদি আইনের ৫, ২৯(২) ধারাঃ
ধারা ৪২ সহজ পাঠে এটি কাঁচের মত স্পষ্ট যে, সালিশী রোয়েদাদ প্রাপ্তির ৬০ (ষাট) দিনের মধ্যে সংক্ষুব্ধ পক্ষকে বাংলাদেশ অনুষ্ঠিত আন্তর্জাতিক বাণিজ্যিক সালিশী রোয়েদাদ বাতিলের ক্ষেত্রে হাইকোর্ট বিভাগ এবং আন্তর্জাতিক বাণিজ্যিক সালিশ প্রদত্ত রোয়েদাদ ব্যতীত সালিশী আইন, ২০০১ এর অধীন প্রদত্ত সালিশী রোয়েদাদ বাতিলের ক্ষেত্রে জেলা জজ আদালতে আবেদন দাখিল করতে হবে। যেহেতু সালিশী আইন, ২০০১ এর ৪২ ধারায় দরখাস্ত দায়ের ৬০ (ষাট) দিন সময় প্রদত্ত হয়েছে সেহেতু তামাদী আইনের ২৯(২) ধারার বিধান মোতাবেক তামাদি আইনের ৫ ধারা প্রযোজ্য নয়। ফলে সালিশী আইন, ২০০১ এর ৪২ ধারায় বর্ণিত ৬০ (ষাট) দিন অতিবাহিত হওয়ার পর রোয়েদাদ বাতিলের দরখাস্ত আইন দ্বারা বারিত। ...বিগ বস কর্পোরেশন লিমিটেড বনাম আর্মি ওয়েলফেয়ার ট্রাস্ট Big Boss Corporation Limited Vs. Army Welfare Trust, (Civil), 17 SCOB [2023] HCD 57 ....View Full Judgment

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.

Once a party to an arbitration agreement approaches any Court, all the parties to the said arbitration agreement shall have to go to that Court for filing any additional or consequential or ancillary or any independent application, until the arbitral proceedings finally comes to an end. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment

There are two vital aspects of the provisions of Section 53 of the Arbitration Act. The first aspect is that through its non-obstante provisions, it seeks to herald that irrespective of any statements, stipulations and provisions to the contrary made in the Arbitration Act, or any other law, the pro-visions of Section 53 of the Arbitration Act shall stand. The second aspect is - if any party to the arbitration agreement registers its name in a Court for any purpose, that Court shall assume jurisdiction over the arbitration agreement and arbitral agreement in whose connection a party have moved before the Court. Ghulam Mohiud-din (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment

The specific jurisdictions conferred upon the High Court Division, thus, are not meant to have been taken away by the pro-visions of Section 53 of the Arbitration Act. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment

Appointment of Arbitrators under the Arbitration Act, 2001:
A legal notice cannot be construed as a notice for arbitration and a notice for arbitration cannot be addressed to the Advocate of the concerned party:
A legal notice cannot be construed as a notice for arbitration nor a notice for arbitration can be addressed to the Advocate for the concerned party. A notice for arbitration must be designated as such and be addressed directly to the party concerned. Even if a party on receipt of such a notice for arbitration does not respond or proceed for arbitration then the notice giver party should approach the concerned District Judge for appointment of Arbitrators under the Arbitration Act, 2000. The door for settlement of above dispute through arbitration is still open for the parties of this proceeding. .....Adv. Abu Saleh Ahmadul Hasan Vs. The State, (Criminal), 19 SCOB [2024] HCD 161 ....View Full Judgment