Homeland Builders and Ors. vs. Respondent: Director General, Bangladesh Rice Research Institute and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

First Appeal Nos. 384 and 472 of 1999

Decided On: 21.11.2011

Appellants: Homeland Builders and Ors.
Vs.
Respondent: Director General, Bangladesh Rice Research Institute and Ors.

**Hon’ble Judges:**Md. Abdul Hye and Md. Rezaul Haque, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: A.J. Mohammad Ali, Senior Advocate, Rubaiyat Hossain, Bilkis Jahan and Zamila Mamtaz, Advocates

For Respondents/Defendant: Rabia Bhuiyan, Senior Advocate, Shahanara Bhuiyan, Nikhil Kumar Biswas and Mohammad Alamgir Kabir, Advocates

Subject: Commercial

Catch Words

Mentioned IN

**Acts/Rules/Orders:**Limitation Act, 1908 - Section 22(1)

Disposition:
Appeal Allowed

Industry: Construction/ Building Products

JUDGMENT

Md. Rezaul Haque, J.

1. First Appeal No. 384 of 1999 and First Appeal No. 472 of 1999 have been preferred respectively by M/s. Homeland Builders and Bangladesh Rice Research Institute (BRRI) and another against the same judgment and decree dated 31.01.1999 passed by the learned Subordinate Judge, 1st Court, Comilla in Money Suit No. 1 of 1996. Since both these appeals have been preferred from the same judgment and decree and involve common questions of law and facts, so these have been taken for hearing analogously for disposal by the same judgment.

2. Facts leading to preferring First Appeal No. 384 of 1999 by M/s. Homeland Builders, in brief, are that the appellant plaintiff had filed Money Suit No. 1 of 1996 in the 1st Court of Subordinate Judge in Comila against the General Manager of BRRI and the Senior Scientific Officer of BRRI, Comilla as the principal defendants, and the government of Bangladesh as proforma defendants claiming compensation for Taka 76,09,166.20, alleging that the plaintiff is a listed contractor and Mr. Anowarul Haque is the sole proprietor of the plaintiff firm. The plaintiff was given work order by order dated 07.08.1980, to construct a building as per tender floated by BRRI and he had accordingly commenced and started the construction works. In the course of execution of the works the plaintiff had to do some additional works with the consent of the Executive Engineer of BRRI, as requested in a letter dated 12.09.1980 of the plaintiff. The defendant No. 1 accepted the said letter without any objection. Hence the plaintiff had started construction of the building as well as done the additional works of filling sand at the site. Pursuant to this, an agreement dated 15.10.1980 was also signed between the plaintiff and the defendant No. 1. The plaintiff had completed the construction works and the additional works to the satisfaction of the defendants. But the defendant No. 1 had been denying to pay the final bill of the plaintiff on some or other excuses and have been delaying the settlement process for long. Hence the plaintiff had referred the matter to arbitrator, for recovery of the final bill, as per clause 12 of the agreement. Both the parties having appointed arbitrators and the arbitrators, having considered the statement of the parties and other documents placed before them, had passed an unanimous award on 12.02.1988 and directed the defendant No. 1 to pay Taka 9,30,239/08 within thirty days, but the defendant No. 1 did not make payment as per the award, even without challenging the award before any court and by disregarding an opinion of the Ministry, of Agriculture. The plaintiff was thus constrained to file an application before the 1st Subordinate Court, Comilla to make the award a rule of the court, which has been registered as Miscellaneous (Arbitration) Case No. 3 of 89. The said learned court has passed a judgment and decree on 22.01.1991 making the award a rule of the court. Thereafter the defendants No. 1/2 have preferred an F.M.A. No. 33 of 1991 before the High Court Division challenging the said order dated 22.01.1991, but the said appeal was dismissed on contest on 12.04.1994. Then the said defendants had again filed a Civil Petition for Leave to Appeal No. 371 of 1994, which was also dismissed on contest. As such the defendants have deferred and delayed payment of the final bills and the amount of the award in violation of the terms and conditions of the tender documents and thereby caused damages to the plaintiff to the extent of taka 76, 09,166.20/-. He has, however, admitted that he has received the entire amount of the award, being Taka 9,30,239/08 in the year 1995, after all the cases mentioned above were disposed off.

3. The defendant No. 1 and 2 had contested in the suit by filing written statement and denying all the material allegations made in the plaint.

4. In the course of trial, the plaintiff examined himself as P.W. 1, while the defendant adduced three witnesses in support of defence case.

5. The trial court, after hearing the parties and having considered the evidence on record, by the impugned judgment and decree dated 31.08.1989 had decreed the suit on contest, in part, against the contesting defendants and experts as against the rest and directed the defendant to make payment of taka 6,20,000/- by way of damages to the plaintiff within four months from the date of the judgment.

6. Being aggrieved by this judgment and decree the plaintiff Anowarul Haque, proprietor of Homeland Builders Ltd., has preferred First Appeal No. 384 of 1999 for non payment of entire damages of Taka 79,89,166.20 claimed by him and BRRI has preferred another First Appeal No. 472 of 1999 contending that the court below has committed error of law and facts in passing the impugned judgment and decree for taka 6,20,000/- as damages in favour of the plaintiff.

7. Mr. A.J. Mohammad Ali, Senior Advocate along with Ms. Rubaiyat Hossain with Ms. Bilkis Jahan and Ms. Zamila Mamtaz, Advocates for the appellant in First Appeal (FA) No. 384 of 1999 and for the respondent in First Appeal No. 472 of 1999, having placed the Memorandum of appeal and the evidence on record, submits that the appellate court has failed to appreciate the facts and circumstances of this case and has also failed to appreciate the evidence led to prove that the plaintiff has suffered damages to the extent of taka 79,89,166.20/-. He further submits that it is apparent from the materials on record that the delay caused in making payment of the final bill and the money awarded in favour of the plaintiff was intentional and was caused without challenging the award passed by the arbitrators and, as such, the plaintiff is, entitled to receive the entire amount claimed as damages. Otherwise, he submits, misuse of power by the persons holding public office cannot be prevented. But the court below has failed to appreciate this aspect of this case. Hence the impugned judgment and decree is liable to be modified and the entire amount claimed should be decreed as damages in favour of the plaintiff appellant.

8. Dr. Rabia Bhuiyan, Senior Advocate along with Mrs. Shahanara Bhuiyan, with Mr. Nikhil Kumar Biswas and Mr. Mohammad Alamgir Kabir, Advocates appearing for the appellant in First Appeal No. 472 of 1999 and for the respondents in First Appeal No. 384 of 1999, having placed the Memorandum of Appeal along with the evidence on record submits that the plaintiff Anowarul Haque (contractor) has received the entire amount of the award, as admitted in the plaint, in the year 1995, in full and final satisfaction of the award. But he has filed Money Suit No. 1 of 1996 thereafter only with collateral intention to secure unlawful financial gain to himself in as much as there is no evidence on record showing that the plaintiff has suffered any loss or damages as claimed in the plaintiff. She next submits that there were no intentional latches on the part of the BRRI to make payment of the money awarded in favour of the plaintiff. BRRI has simply taken recourse to the law by preferring appeal and by filing C.P.L.A. challenging the order dated 11.02.1988 making the award a rule of the court as because it was aggrieved by the amount awarded against it, while the contractor, had left the work unfinished as has been admitted by him at the time of his cross-examination. She continues that, taking legal steps by BRRI in the superior courts to protect its own interest cannot be a cause of action for preferring a suit for damages. She next submits that the trial court has passed the impugned judgment and decree for taka 6,20,000/- in favour of the contractor, as damages, without at all appreciating that there was no evidence on record showing that the plaintiff had at all suffered any damages or incurred any cost or expenditure and in support of her contention she has referred to the deposition of the P.W. 1 made in the course of his cross-examination. The learned advocate also submits that the plaintiff-contractor prayed for cost and interest before the arbitrators and the arbitrators considered his prayer at the time of passing the award and the award includes the principal sum as well as the cost and interest claimed by the contractor. She also submits that a separate suit is not maintainable seeking cost or interest of a previous proceeding and as such the suit itself was misconceived and ought to have been dismissed on this ground alone and in support of this contention she has cited before us the case reported in 2001 BWDB v. contractor, BWDB v. Contractor Mannu Barrage: 9 BLT 21; LEX/BDHC/0072/1989 : 42 DLR 107: Abdullah v. Mangal Saine AIR 1932 (Lahore) 257: Bhuban Joy v. Jinnat Ali and 53 CWN (IDR) 99; and Sonali Bank v. Mahbubul Amin reported in 42 DLR (AD) 107. She also submits that even no schedule has been given to the plaint specifying the claim and as such the claim is vague and no evidence in support thereof has been led by the plaintiff. She finally submits that, even the suit has not been filed against the proper persons in as much as no suit is maintainable against mere designation. Accordingly, she has prayed for setting aside the decree passed in Money Suit No. 1 of 1996 and for dismissal of the First Appeal No. 384 of 1999 and for allowing First Appeal No. 472 of 1999. Dr. Rabiya Bhuiyan has also opposed the petition for amendment, filed by the appellant on 16.11.2011, on the ground that as per provisions of section 22(1) of the Limitation Act, 1908 the proposed amendment would be infructuous and that, BRRI not being a party to the original suit, addition of BRRI as defendant No. 1 at this stage would amount to inclusion of a judgment debtor, although it was not a party to the suit and it had no scope to contest in the suit.

9. We have heard the learned advocates, perused the memorandum of appeal and considered the evidence on record.

10. The points for determination in this case are l) whether the suit is maintainable against the defendants No. 1 and 2, whether the impugned judgment and decree passed by the court below is supported by the evidence on record. 3) whether a subsequent suit is maintainable to recover the cost and interest claimed in respect of a former suit and 4) what relief, if any, the parties are entitled to in this case.

11. A mere perusal of the plaint shows that the suit has been filed against the Director General and the Senior Scientific Officer of BRRI as the principal defendants without naming any person holding the offices and the against the Government of Bangladesh as pro-forma defendant. Apparently the suit has not been filed either against the BRRI, which is a body corporate capable to sue and to be sued in its own name. Nor the suit has been filed against any other persons by name holding the office of the Director General and the Senior Scientific Officer of BRRI. In our considered view no suit is maintainable and no decree can be passed or executed against mere designation. The government of Bangladesh, pro-forma defendant is not a necessary party, considered in the context of this case. Hence the suit is not maintainable and ought to have been dismissed by the court below for defect of parties. However, when this point was raised Mr. A.J. Mohammad Ali, learned senior counsel for the plaintiff-appellant, has filed an application on 16.11.2011 proposing to add BRRI as defendant No. 1 in the place of the Director General BRRI, to insert the Director General BRRI as defendant No. 2 and to insert the Senior Scientific Officer BRRI as defendant No. 3 and to include the Government of Bangladesh as defendant No. 4 in the place of existing defendant No. 1, 2 and 3, in order to overcome the defects in impleading the parties.

12. True, an appeal is continuation of the suit and in an appropriate case the court can allow amendment even at the appellate stage, the purpose being to adjudicate the dispute between the parties completely and properly. But the amendment, prayed for in this case, is proposing to add BRRI as one of the judgment debtors in the suit in which judgment and decree has already been passed and in which the BRRI was not a party. No decree was passed against it in Money Suit No. 1 of 1996. As such, we do not find any legitimate ground or valid reason to add BRRI a as defendant No. 1, at this stage, as proposed, and thereby to add it as a judgment debtor though no decree was passed against it. Besides, BRRI is neither an assignee nor the successor of any of the other defendants so that it could have been substituted as a defendant. Besides, in view of section 22(1) of the Limitation Act, 1908 we find this proposal to add BRRI as a party at this belated stage is infructuous. Hence, in our view, the amendment proposed at this stage does not merit any consideration and the petition for amended is liable to be rejected.

13. Having examined the deposition we find that the P.W. 1, during his cross examination, has admitted that his work order was for Taka 4,81,132/86 and that he could not complete the works in time. He further admits that, and that Even the plaint does not contain any specific schedule to show the alleged cost and expenditure incurred or any damages suffered by the plaintiff. Apparently the claim made by the plaintiff is vague.

14. We have also examined the documents marked as Exhibit No. 1 to 9 and ‘Ka’ to ‘Nio’ proved by the parties and marked before the trial court. But none of these documents shows that the plaintiff had incurred any cost or expenditure as mentioned in the plaint. As such, we do not find any evidence to support the plaintiff’s claim as regards the cost or expenditure. Hence, in our view the impugned judgment and order passed in Money Suit No. 1 of 1996 not based on any evidence showing that the plaintiff had suffered any loss or that he had incurred any cost or expenditure as alleged in the plaint. On the other hand, we are also of the view that BRRI had legal right to seek protection of law and to take steps in superior courts to protect its own interest as because it had felt aggrieved by the order dated 22.01.1991, passed in the arbitration Miscellaneous Case, making the award a rule of the court. For taking recourse to law a party cannot be subjected to pay compensation or damages simply because the superior courts have not decided the case in its favour or it has failed to obtain the relief, prayed for by it. Taking steps in higher forum, by itself, can not give rise to a cause for filing suit for compensation. Hence, for preferring a First Miscellaneous Appeal or for filing a Civil Petition for Leave to Appeal, cannot be a ground to award compensation or damage to the plaintiff.

15. We have also noted that the court below has utterly failed to appreciate the ratio of the case between Trang Ice and Cold Storage Company Ltd. Vs. Amin Fish Farm & Industries Ltd., reported in 46, DLR 39 holding that speculative damage can be treated as remote damage for which a court cannot passed any decree. But the trial court has misconceived the ratio and has passed the impugned judgment and decree referring to this decision. As such, on this ground also we find the impugned judgment and decrees are liable to be set aside.

16. We have considered the ratio of the cases cited by Dr. Rabia Bhuiyan, Senior advocate and we find no reason to take different views. We are also of the opinion that a subsequent proceeding or a separate suit is not maintainable for claiming the cost of a previous suit or for interest claimed in a previous proceeding.

17. We should record that, although BRRI was not a defendant in the Money Suit No. 1 of 1996, it can, however, prefer an appeal as a person aggrieved by the impugned judgment and decree. Hence the First Appeal No. 472 of 1999 preferred by BRRI is maintainable, although it was not party to the original suit.

18. In view of our deliberation recorded herein above, we find no merit in First Appeal No. 384 of 1999, while we find merit in First Appeal No. 472 of 1999.

19. In the result the petition for amendment filed on 16.11.2011 along with the First Appeal No. 384 of 1999 are hereby dismissed and the First Appeal No. 472 of 1999 is hereby allowed. The impugned judgment and decree dated 31.01.1999 passed by the learned Subordinate Judge, 1st Court, Comilla in Money Suit No. 1 of 1996 is hereby set-aside.

Send down the Lower Court Records.