Engineer Shaikh Rubaiyet Islam vs. Bangladesh & Others

IN THE SUPREME COURT OF BANGLADESH(HIGH COURT DIVISION)

Writ Petition No. 3675 of 2009

Decided On: 11.04.2010

Appellants: Engineer Shaikh Rubaiyet Islam
Vs.
Respondent: Bangladesh & others

Hon’ble Judges:Moyeenul Islam Chowdhury and A.K.M. Abdul Hakim, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Md Abdul Mazid, Advocate

For Respondents/Defendant: Rais Uddin Ahmed, Advocate - For Respondent No. 2

Subject: Contract

Catch Words

Mentioned IN

Acts/Rules/Orders:Constitution Of The People’s Republic Of Bangladesh - Article 102

Case Note:Commercial - Running account bill - Settlement of - Rule was issued calling upon respondents to show cause as to why arbitrary inaction of respondent No. 4 and other respondents for not setting bills of petitioner of remaining amount of running account bill No. 5 for construction of remaining works should not be declared to be without any lawful authority - Whether present writ petition maintainable - Held, all bills of petitioner’s company already been settled long before - Petitioner has no legal right whatsoever to ask for writ of mandamus - Writ petition fails on ground of incompetency - Rule discharged. [28]

Disposition:
Petition Dismissed

JUDGMENT

A.K.M. Abdul Hakim, J.

1. This Rule was issued calling upon the respondents to show cause as to why the arbitrary inaction of the respondent No. 4 and other respondents for not setting the bills of the petitioner of the remaining amount of the running account bill No. 5 for construction of remaining works of ICE and Denting Shop within the Workshop Complex at permanent Port Site, Mongla, Bagerhat and final bill for the said work and final bill for the construction of Equipment Workshop and Garage within Workshop Complex at permanent Port Site, Mongla, Bagerhat already done and completed by the petitioner as per work orders should not be declared to be without any lawful and/or such other or further order or orders passed as to this court may seem fit and proper. The case of the petitioner made out in the writ petition in short, is as follows:-

The petitioner as Class-1 contractor submitted two tenders, one for construction of Equipment Workshop and Garage on 26-1-1986 for estimated amount of Taka 85,64,741.75 and another on 25-7-1989 for construction of remaining works of ICE and Denting Shop within the workshop complex at permanent Port Site, Mongla, Bagerhat for estimated cost of Taka 56,50,401.87. The bid of the petitioner being the lowest work orders were issued by the respondent No. 4 in favour of the petitioner on 20-3-1986 and 25-10-1989 respectively. The petitioner thereupon started the execution of work and received running bill except a part of running Account bill No. 5 for construction of remaining work of ICE and Denting Shop. The Sub-Assistant Engineer of the concerned work whimsically and without any basis whatsoever entered in the Measurement Book (MB) lesser quantity of work of sand filling against schedule item No. 5. Subsequently lesser amount of money amounting to Taka 47,016,46 was paid to the petitioner against running Bill No. 5 and ultimately respondent No. 4 after completion of 98% of the work illegally cancelled the aforesaid contract on 15-10-1993. The work of construction of the Equipment Workshop and Garage was completed and accordingly respondent issued completion certificate on 5-12-1990. As per terms of contract the respondents were to supply construction materials from the store at the departmental rate but it failed to do so and consequently the petitioner had to purchase huge construction materials from local market at higher rates. The respondent adopted dilatory tactics in paying the amount exceeding the tendered amount. For all these matters, a dispute arose between the parties in respect of the works in question. In order to settle up the dispute, the Chief Engineer of Mongla Port Authority-respondent No. 4 was appointed as Sole Arbitrator as per terms of clause 25 of Conditions of Contract of the Bangladesh Tender Form No. 2911 inspite of written objections made by the petitioner on 2-5-1992 and 26-4-1994. The Executive Engineer of the Mongla Port Authority-Respondent No. 6 by Memo No……….dated 14-12-1992 requested the petitioner to appear before the Arbitrator-respondent No. 4 on 17-1-1993. The petitioner duly appeared before the Arbitrator on 2-1-1995 and filed written statement of claims for an amount of Taka 57,74,058.94 against the works of ICE and Denting Shop and Taka 68,87,803.60 plus final bill on the basis of the revised estimate against the works for construction of Equipment Workshop and Garage within workshop complex of permanent Port Site, Mongla, Bagerhat. The learned Arbitrator fixed several dates and lastly the respondent No. 7 asked the petitioner to appear before the Arbitrator on 8-5-1996. The petitioner duly appeared but the Arbitrator without hearing discontinued the arbitration proceeding and without giving any award as required under law verbally told petitioner that their claim cannot be sustained. Then the petitioner filed a complaint before the Chairman, Mongla Port Authority-respondent No. 2 by memo No. KCL/Port Cons-96/18 dated 9-5-1996 against the Arbitrator for his illegal and arbitrary action, but no steps were taken by the respondent No. 2. Then the petitioner wrote a letter to respondent No. 2 on 11-5-1997 requesting him to the make arrangement for payment of their dues for the contract work upon forgiving past misunderstanding between the parties. Thereafter the petitioner applied to the Hon’ble Minister for Shipping by memo No. KCL/Port-Cons 39/06 dated 13-4-2006 to make arrangement for payment of at least 25% of total dues of Taka 26,07,76,940.11 subject to arbitration award plus final bill for construction of Equipment Workshop and Garage but no action has been taken from his end. Thereafter the petitioner by memo No. KCL/Port Cons 06/19 dated 18-6-2006 requested the respondent No. 4 to make payment of the final bill against the works of Equipment Workshop and Garage but without any response. Then the petitioner requested respondent No. 2 by memo No. KCL/Port Cons 09/25 dated 25-3-2009 to supply attested/certified copy of the written award, if any, submitted by the arbitrator regarding two tender work of Equipment Workshop and Garage and the remaining works of LCE and Denting Shop. That on 8-5-1996 arbitration matter was fixed for final hearing but without any hearing the Arbitrator-respondent No. 4 verbally informed the petitioner that his claim cannot be sustained. That inspite of repeated written objections made by the petitioner, the arbitrator continued arbitration proceeding from 17-1-1993 to 8-5-1996 with a malafide intention to cause heavy financial loss to the petitioner. Inspite of repeated requests made by the petitioner, the respondent No. 4 and other respondents did not take any steps up the outstanding running bill No. 5 against construction of ICE and Denting Shop and final bill for construction of Equipment Workshop and Garage. The petitioner having no other speedy, alternative and other equally efficacious remedy in law, has come up with the instant writ petition and obtained the rule.

2. The respondent No. 2 contested the rule by filing affidavit-in-opposition. Their case, as set out in the affidavit-in-opposition, in brief, runs as follows:

The writ petition is not maintainable in its present form and manner and the petitioner has no locus standi to file a petition like the present one regarding a past and closed matter. The petitioner raised some disputed questions of facts, which cannot be decided under writ jurisdiction. That the writ petition is barred under section 49 of the Mongla Port Authority Ordinance, 1976. Mongla Port Authority issued two work orders which were awarded to a limited Company, namely, Kapatakha Engineers and Construction Ltd for construction of Equipment Workshop and Garage and construction of remaining work of LCE and Denting Shop within workshop complex at permanent port site, Mongala. The writ petitioner by his letter dated 11-5-1995 addressed to the respondent No. 2 annexing a Power of Attorney dated 1-6-1997 appointing Mr. Kazi Abdur Rafiq as his constituted Attorney to act in respect of above two work orders. Accordingly the said constituted attorney received all bills from the Port Authority to the full satisfaction of the company. Since all the issues related to the said work orders having being settled long ago, as such those are closed and past chapter. It is further stated that the arbitration proceedings was initiated at the request of the petitioner against construction of the Equipment Work shop and Garage and not for construction of Denting Shop as per Clause No. 25 of the Conditions of Contract. Respondent No. 4 Chief Engineer Mongala Port Authority as Sole Arbitrator entered on the reference on 17-1-1993. The petitioner submitted to the jurisdiction of the arbitration proceedings and put up its claim before the Sole arbitrator and after hearing both the parties, the arbitrator passed his award on 8-5-1996 and the same is binding on all concerned. According to the award, the petitioner is not entitled to get anything against the claim as made out in the writ petition. It is stated that due to inability of the company to complete the work of construction of remaining work of ICE and Denting Shop even after extension of period of work twice, last one upto 15-2-1992, their work order was cancelled on 3-4-1993. So there is no question of requisition for any money from the arbitrator on 2-1-1995 against the said work order. Upon cancellation of work order, the authority jointly measured the work done and ultimately on the prayer of the company dated 20-8-2000 all their goods kept at the site of the work were handed over to them on 28-8-2000. Finally as per request of the company, their claims were settled and the constituted attorney of the petitioner signed bills against their dues on 32-2-1998 and also received cheque against the bill on 11-1-2001. Accordingly all issues related to said two work orders were settled and all bills were paid long ago to the satisfaction of the company. Further, when the arbitrator gave his award in accordance with law, neither the present respondent nor the Hon’ble Minister could do anything beyond the arbitration award. Since the constituted attorney appointed by the petitioner has received all the bills from the authority and all issues related to said work orders have already been settled long before, those are past and closed matters. So the writ petition is liable to be discharged with cost.

3. The Respondent No. 2 also filed supplementary affidavit on 8-3-2010 stating that two work orders were issued by the respondents in favour of the petitioner’s company, Kapatakha Engineers and Construction Ltd. The said company is a juristic person, who can sue or be sued in its name. But the present writ petition has not been filed by the said company, rather a natural person in his individual capacity, who has no cause of action, has filed the present writ petition against the respondents. As such, the writ petition is not maintainable. If the petitioner’s company is aggrieved in that case, it could take legal action in appropriate civil court. Moreover, it is the consistent view of his Court that a company does not have any fundamental right as enshrined in article 102 of the constitution, which can be invoked by them by filing writ petition. In the writ petition, the petitioner claimed certain specified amount, which he cannot claim against the respondents under the law. The petitioner claimed that he was not aware about the outcome of the arbitration proceedings initiated by the company Such claim of the petitioner belied his letter dated 9-5-1996 (Annexure-D to the writ petition) wherein the petitioner requested the respondent No. 2 to rescind the arbitration award given by the sole arbitrator-respondent No. 4 since the company is aware about the arbitration award, the proper course of action open to them was to proceed as per provisions of the arbitration Act. 1940 and not by sending letter to the Chairman, Mongla Port Authority-respondent No. 2. All the issues were settled long ago and the constituted Attorney of the petitioner has duly received all bills against two works orders from the respondent in full in final settlement of the company’s claim. Further he received a cheque being cheque No. 2030557 dated 10-1-2001 of Janata Bank, Mongla Port Compound Branch, Mongla, Bagerhat issued in the name of the company and same was encashed by the said company on 14-1-2001 in due course through its own Bank account. Thus the petitioner has no locus standi to raise all those issues in the writ petition" against the respondents at this belated stage.
4. The petitioner filed two affidavits-in-reply dated 18-2-2010 and 18-3-2010 against the affidavit-in-opposition filed on behalf of the respondent No. 2. In the affidavit-in-reply it is stated that the Attorney did not receive any bills from the authority to the satisfaction of the company because in the voucher of the cheque delivery (Annexure-2)(a) there is no mention of bank cheque number or date and in that view of the matter, it clearly appears that the Attorney did not receive any payment of bills as alleged by the respondent in his affidavit-in-opposition. The arbitrator neither heard the parties nor gave his award on 8-5-1996 as alleged and, as such, the same is not binding on the petitioner. It was further alleged that the award was not given on the said date inasmuch as, the alleged award was neither delivered within prescribed time nor served upon the petitioner on 8-5-1996. That the signatures of respondent No. 4 as appeared in the Annexure-A and A1 do not at all tally with the signatures appeared in the alleged award filed by the respondent No. 2 with the Affidavit-in-opposition which clearly proved that the alleged award dated 8-5-1996 is collusive and ante-dated and has been created and manipulated for the purpose of frustrating the case of the writ petitioner. It is further stated that though the respondent No. 2 filed a counter foil of a cheque, (Annexure-4) showing receipt of a cheque of Taka 4,88,553 by the attorney but the attorney but no document of encashment was produced and due to subsequent strained relations between the petitioner and the Attorney, the Attorney did not inform the petitioner about the same and the said amount was not a stipulated amount on the basis of any award and is inconsistent with the statement of claims (Annexure-C and C-1 to the writ petition) submitted by the petitioner before the Sole arbitrator.
5. At the outset, Mr. Md. Abdul Mazid, the learned Advocate appearing on behalf of the petitioner, submits that the Arbitrator, Chief Engineer, being the controlling and supervising officer of the Tender works in question was not legally competent so act as arbitrator to settle the dispute arising out of contract agreement between the petitioner and Mongla Port Authority. He next submits that arbitrator-respondent No. 4 in gross violation of sections 3 and 4 of the arbitration Act, 1940 remained silent and due to arbitrary inaction for not settling up the bills of the petitioner and, as such, the conduct of the respondents rendered themselves liable to pay Taka 1,26,61,862.54 plus final bills of the petitioner for construction of Equipment Workshop and Garage with compensation and interest. He finally submits that the arbitrator proceeded with the arbitration from 17-1-1993 up to 8-5-1996 inspite of repeated written objections of the petitioner with a malafide intention causing heavy financial loss to the petitioner.
6. In support of his contention the learned Advocate for the petitioner has referred to an unreported decision in the case of Bangladesh Water Development Board and others vs. Golam Rabbani Khan and others pronounced in Civil petition for Leave to Appeal No. 1354 of 2006. He next referred the decision in the case of HD Vora vs. State of Maharashtra reported in : (1984) 2 SCC 337 and also referred a decision in the case of State of Karnataka vs. Shree Ramesh ware Rice Mills, Thrithahalli and State of Karnataka vs. K. Krishnappa Naidu and Co and The Executive Engineer, Thungabhadra Reservoir Division, Munirabad vs. S. Thippa Reddy reported AIR 1987 (SC) 1359.
7. On the contrary, Mr. Raisuddin Ahmed, the learned Advocate appearing on behalf of the respondent No. 2, submits that the petitioner has no locus standi to file the writ petition in his individual capacity since the contract in question was execute between the Kapatakha Engineers and Construction Ltd. and the Mongla Authority and since the company has not been impleaded in the writ petition as such, the writ petition is not maintainable. He next submits that the claim of the petitioner against the bills related to the contract has been settled long ago and the petitioner duly received all unpaid bills from the Mongla Port Authority, the petitioner has got no locus standi to raise this issue afresh which were past and closed chapter. He further submits that the arbitration proceeding was initiated at the instance of the party and as per terms of the contract agreement the designated person, Chief Engineer of Mongla Port Authority as Sole Arbitrator entered on the reference on 17-1-1993 and since the contractor has submitted to the jurisdiction of the Sole arbitrator passed an award on 8-5-1996 dismissing the claims made by the petitioner, it cannot now challenge the arbitration award on the grounds that the arbitration award is a nullity as the arbitration was an unqualified person to arbitrate the matter. He next submits that since the company was well aware about the arbitration award dated 8-5-1996 long before as such, there is no scope for the petitioner to raise their claim in the writ petition without taking any lawful steps under the provision of arbitration Act, 1940. He finally submits that since the constituted attorney of the petitioner has duly received all bills against two work orders towards full and final settlement of the company’s claim through a cheque of Taka 4,88,553 in the name of Kapathakha Engineers and Construction Ltd and the cheque was encashed on 14-1-2001 to the company’s own account, now the petitioner cannot raise its claim again before this Constitutional Court under article 102 of the Constitution and the Rule is liable to be discharged with cost.
8. We have heard the submissions of the learned Advocate from both the parties and perused the writ petition, affidavit-in-opposition, supplementary affidavit-in-opposition, affidavit-in-reply and relevant annexures, annexed thereto.
9. At first, we are to determine whether the present writ petition is maintainable or not under Article 102 of the Conditions of Contract for Construction of Equipment Workshop and Garage the Chief Engineer of the Port of Chalna Authority (PCA) is the designated person in the contract agreement to arbitrate the dispute. Accordingly, Chief Engineer, (PCA), now Mongla Port Authority (MPA) was appointed as sole arbitrator by memo No. KCL/port-cons-46/18 dated 14-12-1992 (Annexure-B to the writ Petition).
10. There is no dispute that the contractor got two work orders, one on 20-3-1986 for construction of Equipment Workshop and Garage at a total cost of Taka 85,64,741.65 and another on 25-10-1989 for construction of remaining works of ICE and Denting Shop for Taka 58,74,348. It is also admitted that the contractor started execution of the works after signing the contract and received running bills except a part of running Account bill No. 5 for construction of ICE and Denting Shop and final bill for construction of Equipment Workshop and Garage. Thereafter dispute and misunderstanding cropped up between the parties over the payment of running bills and final bills. Accordingly as per clause 25 of the conditions of contract, the matter was referred to the designated Sole-Arbitrator, Chief Engineer, Port of Chalna Authority (PCA), to arbitrate the matter. That the arbitrator entered on the arbitration proceedings on 17-1-1993 and both the parties appeared before the Sole Arbitrator and the Petitioner submitted its written claim on 2-1-1995 and also filed oral evidence on the same date.
11. It further appears from memo No. Mabak/Ni-Pro/B-5/77/Port-1/89-1228 dated 23-3-1996 (Annexure-B (1) to the writ petition) issued by the respondent No. 7 to the petitioner informing him to attend final hearing of the arbitration matter fixed on 8-5-1996 at 12 pm at the office of the Chief Engineer. It further transpires that the Arbitrator upon hearing both the parties passed an award on 8-5-1996 (Annexure-1 (a) to the Affidavit-in-Opposition) dismissed the claim of the petitioner.
12. It further transpires from (Annexure ‘C’ to the writ petition) dated 2-1-1995 that petitioner filed its statement of claim before the Arbitrator and Chief Engineer of MPA-respondent No. 4 claiming a sum of Taka 57,74,085.94 including interest and compensation. It further appears from the Memo No. KCL/Port cons 96/81 dated 9-5-1996 (Annexure-D to the writ petition) issued by the petitioner addressed to the chairman Mongla Port Authority respondent No. 2 stating that on the date of final hearing, the learned Arbitrator without hearing the petitioner pronounced his judgment (award). In view of such circumstances for ends of justice, the petitioner requested the respondent No. 2 to fix up the arbitration matter again for hearing after setting aside the award passed by the arbitrator.
13. It further appears that after lapse of long 10 years, the petitioner by a letter dated 13-4-2006 (Annexure-E to the writ petitioner) applied to the Minister-in-Charge, shipping for making arrangement for payment of at least 25% of the total dues of Taka 26,07,76,940 subject to passing of the arbitration award plus final bill for construction of the Equipment Workshop and Garage, Subsequently the petitioner issued memo dated 18-6-2006 (Annexure-F to the writ petition) to respondent No. 4 Chief Engineer by referring the memo No. Mobak/CE (C and Ha) Cons-211/85/1074 dated 14-1-1998 requested him to pay the final bill against construction of Equipments Workshop and Garage.
14. As it appears from memo No KCL/ Port cons-09/25 dated 25-3-2009 (Annexure-G to the writ petition) that the petitioner after 3 years requested the Chairman, Mongla Port Authority-respondent No. 2 to arrange a date of hearing of the arbitration matter or to supply attested/certified copy of the written award, if any passed by the arbitrator in respect of the Tender works of the aforesaid contract standing that the arbitration matter was fixed on 8-5-1996 for final hearing but without hearing the matter, the arbitrator pronounced his decision verbally and dismissed the claim of the petitioner illegally. Although the petitioner filed his grievance several times, but he did not get any response from the authority.
15. Thus it is evident from Memo dated 9-5-1996 (Annexure-D to the writ petition) that the petitioner had knowledge about passing of the arbitration award. The sole arbitrator on 8-5-1996 read out the award in presence of the petitioner but the petitioner did not take any steps to procure a copy of the award. Thereafter, the petitioner on 9-5-1996 requested respondent No. 2 to set aside the award. A bare reading of section 14 of the arbitration Act, 1940 makes it clear that after an award is given any party to the arbitration agreement may request the arbitrator to cause the award or a signed copy thereof together with the depositions and documents which might have been taken and proved to be filed in court if the Arbitrator or umpire does not file the award in court. Such court shall thereupon give notice to the parties of filing of the award and can also direct the arbitrator or umpire to cause the award or a signed copy thereof to be filed in court. No limitation has been provided by the Limitation Act for any party to the arbitration agreement to request the umpire to cause the award to be filed in court nor there is any limitation prescribed in the Limitation Act that the arbitrators or umpires to cause the award to be filed in Court upon such request. If a party to the arbitration agreement does not made a request to the arbitrator or umpire for filing the award in court, it can directly come to the court and request it to order the arbitrator or the umpire file the award or a signed copy thereof in court. Such an application will be governed by Article 178 of the Limitation Act, if notice of the award has been given to the applicant as provided under sub-section (1) of section 14, but if no notice is given then the only provision applicable is Article 181 of the Limitation Act, which provided a period of three years from the date when the right to apply accrues. The right to apply accrues to a party immediately when an award is made and he receives the knowledge thereof.
16. In the present case, it is manifestly clear from Memo dated 25-3-2009(Annexure-G to the writ petition) that the petitioner requested the respondent No. 2 to supply of the certified copy of the award to the petitioner but he did not file any application in court for a direction upon the arbitrator to file award in court for enabling it to file a proper application for setting-aside the award under section 30 of the arbitration Act. Therefore, the petitioner having knowledge about the arbitration award, it is obligatory on his part to make proper application in court within the period of limitation. But the petitioner without taking any steps under the provision of arbitration Act filed the writ petition after a long lapse of 14 years.
17. Section 14 applies in all cases whether the arbitration award has been filed in favour of the applicant or against him. After the award has been filed in the court, then the applicant will take appropriate steps either for passing a judgment in terms of the award or for remitting the award for re-consideration or to set aside award under section 17 of the arbitration Act on the grounds mentioned in section 30. If the award is filed in court, any party to the arbitration agreement has not filed any application for setting-aside the award, the court shall after the time for making an application to set aside award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award.
18. An application to set aside the award must be made within 30 days of service of notice of filing the award. Section 30 deals with the grounds on which the award can be set aside section 33 provides the procedure to be followed in making an application either for setting aside the award or arbitration agreement.
19. Admittedly, in the present case the contractor participated in the arbitration proceeding without protest and submitted to the jurisdiction of the Sole arbitrator, Chief Engineer Mongla Port Authority-respondent No. 4 and filed its statement of claim and fully availed the entire arbitration proceedings. Once the petitioner participated in the arbitration proceedings and then he found that the award has gone against him it is not open to him to turn round and say that the arbitrator has no jurisdiction. Where a party knew the incompetency and disqualification of the arbitrator and deliberately submitted to the arbitration in the hope of a favorable decision, he cannot subsequently say that the arbitrator had no authority/competency to act, and therefore, the award should be set aside or ignored. The party could have raised objection about the jurisdiction of the arbitrator to proceed with the matter and if he did not choose to do so and allowed the arbitrator to proceed with the arbitration proceedings and permitted the arbitrator to give an award in respect of the matters in dispute; after participating in the arbitration proceedings and not by raising any objection to the jurisdiction of the arbitrator to deal with the matter, any irregularity in the appointment of the arbitrator on account of this conduct was cured. From the conduct of the petitioner, he is stopped from questioning the validity of the award in the present writ jurisdiction.
20. Where a party to an arbitration having clear Knowledge of the circumstances on which he might have founded an objection to the arbitration proceedings to make the award, did submit to the arbitration going on and allowed the arbitrator to deal with the matter as it stood before him, taking his chance of the decision being more or less favourable to himself, it is too late for him after the award has been made to insist on the objection.
21. So we find that the contractor surrendered to the jurisdiction the arbitrator and after exhausting all remedies available and wasting for about 13 years after giving the award came up with a frivolous application on 25-3-2009 requesting the respondent No. 2, Chairman of MPA to fix up a date for hearing of the arbitration matter or to supply the attested/certified copy of the written award, if any, to the petitioner.
22. Thus it is clearly evident that the arbitrator after entering on the reference on 17-1-1993, the petitioner participated in the arbitration proceeding, filed statement of claims and the learned sole arbitrator-respondent No. 4 after hearing the parties passed the arbitration award on 8-5-1996.
23. Since the petitioner’s company participated in the proceeding before the sole arbitrator and has acquiesced in the reference made to him, he is stopped in law from challenging the validity of the reference on the ground that it was not made on his behalf. As he raised no objection to the appointment and continuance of Chief Engineer as arbitrator and the award was passed, now he is stopped by his conduct from challenging Chief-Engineer’s, jurisdiction to act arbitrator and cannot challenge the validity of the award on the ground that the award was made beyond the statutory period of 4 (four) months after entering on the reference. When the arbitration proceeding continued beyond 4 months with the parties raising no objection, the conclusion is that the party concerned waived its right. In the case of Government of Bangladesh vs. Jalaluddin Ahmed 37 DLR (AD) 27 it has been held:

When the arbitration proceedings continued beyond 4 months with the parties raising no objection-conclusion is the party concerned has waived its right.

24. It is further evident that the petitioner company was well aware about the arbitration award passed by the sole arbitrator on 8-5-1996, the proper course of action open for them to take steps as per provisions of section 30 and 33 of the arbitration Act 1940 in the appropriate forum.
25. Since no step was taken by the petitioner’s company for the last thirteen years time, now the petitioner has no legal right to raise any claim or objection whatsoever by filing this writ petition.
26. Further more, it appears that the constituted Attorney appointed by the petitioner has duly received all bills of the company from the Mongla Port Authority against the tender works namely Equipment Workshop and Garage and ICE and Denting Shop including security deposit for an amount of Taka 4,88,553 by a cheque dated 10-1-2001. Janata Bank, Mongla Port compound Branch, Mongla, (Annexure-4 to the supplementary affidavit-in-opposition) issued in the name of petitioner’s company and by voucher No. 24 dated 10-1-2001 (Annexure-2(a) to the affidavit-in-opposition) and in due course the same was encashed/transferred to the company’s account on 14-1-2001, which was clearly admitted by the petitioner in his affidavit-in-reply dated 18-3-2010. Thus all the related issues having already been settled long 8 years back are passed and closed chapter and the petitioner has no locus standi to raise the issues in this writ petition at this belated stage. In this respect, we can rely a decision in the case of Chairman, Bangladesh Water Development Board vs. Shamsul Huq and Co Ltd reported in 51 DLR (AD) 169 wherein it has been observed:

High Court Division in its writ jurisdiction is not a court for recovery of money and has no jurisdiction to give direction for payment of a particular amount of money to writ petitioner, unless the amount claimed both an admitted amount as well as statutory payment.

27. Now let us consider the decisions referred by Mr. Abdul Mazid in the case of Bangladesh water Development Board and others vs. Golam Rabbani Khan and others pronounced in Civil Petition for Leave to Appeal No. 1354 of 2006. He next referred the decision in the case of HD Vora vs. State of Maharashtra reported in : (1984) 2 SCC 337 and also referred a decision in the case of State of Karnataka vs. Shree Ramesh were Rice Mills, Thrithahalli and State of Karnataka vs. K. Krishnappa Naidu and Co and the Executive Engineer, Thungabhadra Reservoir Division, Munirabad vs. S. Thippa Reddy reported in AIR 1987 (SC) 1359. We find that the facts of those cases are quite distinguishable from the facts of the instant case and are not applicable to the present case.
28. From the forgoing discussion it is ex-facie clear that all the bills of the petitioner’s company have already been settled long before, the petitioner has no legal right whatsoever to ask for a writ of mandamus, regard being had to the fact and circumstances of the case. So our conclusion is that the writ petition is not maintainable under Article 102 of the Constitution. As we have found that the writ petition is not maintainable, we refrain from making any observation as to the merit of the case vis-a-vis the submissions advanced before us by the learned advocates from both the parties. In the result, the writ petition fails on the ground of incompetency.

Accordingly the rule is discharged without any order as to costs.