WRIT/TAXATION:
We are pleased to announce that judgement of writ Petition between Laugfs Gas(Bangladesh) Ltd. Vs. The President, The Taxes Appellate Tribunal was reported this year in Manupatra.
The Divisional bench comprising Hon’ble Mr. Justice Muhammad Khurshid Alam Sarkar and Hon’ble Mr. Mohi Uddin Shamim, J heard the matter. We have successfully represented Laugfs Gas (Bangladesh) Ltd. The case confirms that judicial review can be an alternative remedy where no appeal lies against the order in taxation matter. The judgement was delivered by Hon’ble Mr. Justice Muhammad Khurshid Alam Sarkar. The judgment can be found here LEX/BDHC/0006/2023
Civil Revision: on the rejection of an application for removal of the Chairman of the Arbitral Tribunal under section 15(2) of the Arbitration Act, 2001.
We are pleased to announce that, the judgment delivered in the Civil Revision between Metro Homes Limited Vs. Umee Kulsum and Ors were reported this year in Manupatra. Our Chambers’ lawyers appearing on behalf of the Respondents/Defendants in the Civil Revision, arising from the Arbitration Miscellaneous Case No. 59 of 2021, wherein the learned District Judge upholding the submissions made by our Chamber’s lawyers had dismissed the Misc Case; for appointing a new Chairman of the Arbitral Tribunal, due to the grounds that the Case (Arbitration) was at the “stage of passing award so there has been no reason to remove the chairman of the Arbitration Tribunal”)
The Hon’ble High Court in the Civil Revision, following perusal of all documents, Orders from the Arbitral Tribunal, and submissions of the learned counsels, observed that as the opposite Parties had arrived at a “consensus” with the learned counsel for the petitioner and made a common submission to the effect that, “if a chairman is appointed replacing the incumbent one, then a time frame be given to the chairman to be nominated on the concurrence of the parties so that the arbitration proceedings can be started from the stage where it had finally been ended.”, the Hon’ble Court was pleased to set aside the impugned Order dated 10.04.2022 passed by the learned District Judge, Dhaka in Arbitration Miscellaneous Case No. 59 of 2021 and make the Rule absolute.
Our Head of Chambers Mr. Mohammed Forrukh Rahman, Barrister along with other counsels of the Firm appeared before the Hon’ble Court on behalf of the Respondent/Defendant. The judgment is reported in the leading online law report Manupatra and can be found here LEX/BDHC/0006/2023
Civil Revision: on the rejection of an application for appointment of arbitrator under section 12 of the Arbitration Act, 2001 in the absence of any arbitration clause in the agreement.
We are pleased to announce that, the judgment delivered in the Civil Revision between Mr. Mohammad Abdul Wahab Vs. and Kashba Housing Private Limited and Ors. was reported this year in Manupatra. The Chambers lawyers have successfully represented the Appellant (Mr. Wahab) in an interesting matter involving the rejection of an application seeking the appointment of an Arbitrator by order of the Learned District Judge, where the agreement, concerning real estate disputes, executed between the Parties, did not include any such Arbitration clause as such, in the first place.
The Hon’ble High Court following perusal of all relevant laws, submissions, and pleadings by the learned counsels opined that “the learned District Judge upon misconception of law as well as upon misreading and misconstruing the total scenario of the dispute arose between the parties, rejected the application summarily, and as such, it has committed an error of law, in the decision occasioning failure of justice calling interference by this Court.”
Our Head of Chambers Mr. Mohammed Forrukh Rahman, Barrister along with other counsels of the Firm appeared before the Hon’ble Court for the Petitioner. The judgment is reported in the leading online law report Manupatra and can be found here LEX/BDHC/0187/2022
Writ Petition: on whether “segregation” for the dual purpose of classification of HS Code is allowed, for a single “fully integrated machine”
We are happy to announce that, the judgment delivered in the writ petition between G.A.B. Limited Vs. The Commissioner of Customs, Customs House, Dhaka, and Ors. was reported this year in Manupatra. The Chambers lawyers have successfully represented the Petitioner in a complex customs matter involving the importation of a consignment (single data processing machine) via L/C, identified under two HS Codes namely for (software and hardware) followed by the deviations and the dissimilarity of the HS Codes (from the final assessment report and the LC) resulting in dispute with the Customs Authority. The Hon’ble Court in this instance has interestingly observed an alternate forum in the name and form of the Import Trade Control (ITC) Committee empowered under chapter 8 of the Import Policy Order, 2015-2018 to adjudicate any dispute between importer (Petitioner) and the Customs Authority arising from an ITC classification or description of goods imported under the First Schedule of the Customs Act. The Hon’ble Court was also pleased to issued order to physically locate and identify the consignment under its present custodian, whilst maintaining status quo until a final determination is made by any concerned and relevant authority to whom either or any of the parties may refer the dispute at hand.
Our Head of Chambers Mr. Mohammed Forrukh Rahman, Barrister with external Counsel Mr. Abdullah Mahmood Hasan, Barrister, appeared before the Hon’ble Court for the Petitioner. The judgment is reported in the leading online law report Manupatra and can be found here LEX/BDHC/0047/2021
Writ Petition: Mediation under the Artha Rin Adalat Ain, 2003
We are happy to announce that, the judgement delivered in writ petition between Mohammed Ali Vs. Judge (Joint District Judge), Artha Rin Adalat, Chittagong and others were reported this year in Manupatra. The Chambers lawyers have successfully represented the respondent and argued before the Hon’ble court. The Hon’ble Court observed that “whether the provision of section 22(4) is mandatory or directory, the law is Well settled. When a particular law does not suggest any consequence of the non-compliance or any particular requirements, it is merely directory: …”
Our Head of Chambers Mr. Mohammed Forrukh Rahman, Barrister with Deputy head, Finance & Taxes Dept, Mr. Sheikh Abdullah, Advocate appeared before the court for the respondent. The judgment is reported in the leading online law report Manupatra and can be found here LEX/BDHC/0130/2019
Writ Petition: HC issued 6 point directive for misuse of electricity.
We are pleased to inform that the judgment delivered in the Public Interest Litigation (PIL), Human Rights and Peace for Bangladesh (HRPB) Vs. Government of Bangladesh and Ors. was reported this year in Manupatra. The Chambers’ lawyers from the Supreme Court team were present as Hon’ble High Court, whilst basing its decision from past a judgment in a similar matter, observed the importance of conservation of electricity and prevention against its misuses thereof.
In addition, the Hon’ble Court was also pleased to issue a six (6) point directive in this regard, namely as follows:
- “It is the duty of every citizen to be cautious about the use of electricity and be on guard so that it is not misused
- Some decree of austerity is to be maintained in the use of power/electricity and under no circumstances should there be any wastage.
- The clubs concern should have their power generating system. However, there is no bar in playing tennis but one must be on guard so that consumption of electricity in any manner is not misused or wasted.
- Electricity theft has to be reduced by applying technical solutions such as tamper-proof meters.
- Managerial methods such as inspection and monitoring in the clubs on a regular basis is necessary so as to prevent misuse of electricity and reduce the consumption.
- Energy saving bulbs should be used in the clubs and public places.”
The Hon’ble High Court without any order as to costs had issued the Rule be made absolute-in-part with the observations made in the body of the judgment. The judgment is reported in the leading online law report Manupatra and can be found here LEX/BDHC/0566/2011.
Writ Petition: on the absorption of the petitioner (govt. employee) in the (then) newly formed Dhaka Power Distribution Company Limited (Public Limited Company) to his original post in accordance with the Surplus Public Servants Absorption Ordinance, 1985.
We are pleased to announce that, the judgment delivered in the writ petition between Mr. Md. Moshiur Rahman Vs. The Govt. of Bangladesh and Ors. was reported this year in Manupatra. The Chambers’ lawyers, Mr. SK Abdullah, representing the petitioner, Mr. Moshiur Rahman, a govt. employee holding the post of Sub-Assistant Engineer in the now-dissolved Dhaka Electric Supply Authority (DESA), has been successful in issuing a Rule Nisi from the Hon’ble High Court, for absorption of the petitioner in the (subsequently formed and currently active) Dhaka Power Distribution Company Limited, a Public Limited Company, registered under Companies Act, 1994 to his post of Sub-Assistant Engineer in accordance with the Surplus Public Servants Absorption Ordinance (Ordinance No. XXIV of 1985), 1985.
Following perusal of the writ petition, its annexures, affidavit in opposition filed by the respondent, and other materials on record placed before the Hon’ble Court, it was determined that the petitioner was in fact a ‘surplus public servant’ however, due to the material facts and circumstances of the present case, discharged the previous Rule Nisi issued without any order as to costs.
The judgment is reported in the leading online law report Manupatra and can be found here LEX/BDHC/0404/2019
Income Tax matter: Estimation of sell & rate of gross profit
Grameen Danone Foods Ltd Vs. Commissioner of Taxes reported in 6 CLR (HCD) (2018) 25. The Hon’ble Court observed as follows, “Moreover, it appears from the assessment order that the assessee is a Bangladeshi company, but the DCT, while estimating the sale as well as rate of gross profit, rejecting the assessee’s claim, estimated those considering only the sale and rate of gross profit of a renowned multinational company registered in Bangladesh, namely, New Zealand Dairy Products Bangladesh Limited, which is not proper…(Paras 21-22)
In the above context, the matter is sent back on remand to the Tribunal for deciding the appeal afresh in accordance with law considering all the aspects of the appeal after giving the assessee an opportunity to take additional grounds in appeal, to produce further documents, if so required.
The Tribunal is further directed to dispose of the appeal within ninety days from the date of receiving a copy of the Judgment…(paras 28 & 29).
The Registrar, Supreme Court of Bangladesh is directed to take necessary steps under section 161(2) of the Income Tax Ordinance, 1984…(para 32)
Power & Energy: Gas Supply through dedicated line 150 psi 12- inch gas line
TM Textile and Garments Vs. Bangladesh reported in 6 CLR (HCD) (2018) 65, 70 DLR (2018) 409
The issues involved were that of a legitimate expectation of the Petitioner to keep its gas line dedicated & exclusive, denying any access to any other party as the Petitioner spent a significant amount of money for its construction. On the other hand TITAS claimed their excess gas in the pipeline which doesn’t belong to the Petitioner. The Hon’ble Court observed, “We do not find it necessary to proceed with an academic discussion on the legality of the impugned orders. We feel that justice would be best served if the Rule is disposed of with the direction upon all concerned to ensure the “approved gas supply and approved gas pressure” at all material times. No gas connection is to be provided to the other nine factories unless the “approved gas supply and the approved gas pressure” is ensured. The respondents are further directed to ensure strict compliance with the conditions set out in the aforesaid paragraphs in connection to the nine factories…(para 15)
Ship Finance and Jurisdiction of Admiralty court
First Security Islami Bank Ltd vs MV Javed and others reported in 69 DLR (2017) 408 – a Landmark decision confirming jurisdiction of Admiralty court as opposed to Artha Rin Adalat.
CIB Report of Nominee Director and Share Transfer
S.M. Akbar and Another vs Bangladesh reported in 70 DLR(2018) 52, 5 CLR(HCD)(2017) 307 & 23 BLC(2018) 126 . The Decision confirmed that prior permission of Lender is required before transfer of share. Otherwise, the name of the transferee will appear in CIB report. It is also decided that nominee director is also a director for the purpose of CIB Reporting.
Cheque Dishonour
Hasan Ali vs The State and Another reported in 4CLC(HCD)17 Whether other documents not related to cheque are required to be produced. The question is whether the trial court has judiciously applied its mind or not.
Freight and Charges
Maersk Bangladesh Limited vs Bangladesh reported in 4CLC(HCD)79. The collection of one person’s freight brokerage developed out of trade practice and the distribution of the same is lawfully made by the Government. No legislation is necessary to regulate Government trade practice.
Negotiable Instrument
Abdul Mannan vs State and Others 21 BLC (2016) 402. It was held that there was no bar in proceeding with a case under Negotiable Instruments Act while on the same matter, a Artho Rin matter is pending
Insurance Claim
Abdul Jalil & Others Vs. Judge, Artha Rin Adalat, 2nd Court, Dhaka & Another reported in 67 DLR 475 (In Artha Rin Execution case Bank needs to add Insurance Company as a party if claim remains unpaid)
LC Fraud (Hallmark case)
Alvi Spinning Mills Ltd & Others vs Govt of Bangladesh and others 19 MLR(HCD)277
Organisational Restructure
Md. Shamsuddin and 254 others vs Bangladesh 2 CLR (HCD) 523 :
Mr. Rahman successfully argued in favour of client as to the duty of Ministry of Establish while absorbing surplus employees. This was crucial argument taken as the ratio of the decision as the right to direct absorption has not been accepted.
International Trade
Freight Management and 16 others vs Bangladesh Bank 2 CLR (HCD) 586; 19 MLR (HCD)336: This is a landmark decision on Distinction between Master and House Bill of Lading and legality of House Bill for sea leg of the journey. Mr. Rahman successfully argued on the duties of the Carrier as opposed to freight forwarder under Foreign Exchange Regulations. Besides, Mr. Rahman successfully argued on the legality and confusion associated with circulation of two sets of title documents i.e. House and Master Bill of Lading for a single consignment.
Admiralty and Maritime claim
Marodi Services vs MV Swift Cro. in 2 CLR(HCD) (2014) 456: Chambers successfully represented its client in negotiation and reaching out of court settlement. The hon’ble court withdrawn the suit as per settlement terms and directed Central Bank to allow conversion of Takas into foreign currency upon submission of Chambers counsel
Arbitration (power plant)
BPDB vs. Summit Industrial & Mercantile Corporation Ltd & Others in 19 BLC(2014)284; 2 CLR(HCD) (2014)73: The Chambers successfully challenged the appointment of the arbitrator on the ground of Bias.
Tenancy
Dr. Moosa Bin Shamsher vs. Ayub Ali & Others 2 LNJ (2013) 1
CIB(Guarantor)
Anwar Cement Limited vs. Bangladesh Bank 65 DLR (2013) 97 The landmark decision on inclusion of the name of third party guarantor in the CIB report. The Chambers successfully argued on the legal position as the the guarantor as per Bank Company Ain 1991 and Bangladesh Bank Order 1972 and was successful in its submission that name of the third party guarantor may appear in the CIB report however this will not stop them from taking loan from Bank.
Natural justice
Amjad Hossain vs. Bangladesh Bank 17 BLC (HC) 188. This is a important decision on right to fair hearing principles. The Chambers successfully argues on the exception to such right in a suitable circumstances.
Natural justice
Amjad Hossain vs. Bangladesh Bank 41CLC(HCD)2012
CIB (Guarantor)
Anwar Cement Limited vs. Bangladesh Bank 40CLC(HCD) 2011