Arbitration Act, 2001 | Case Reference

Arbitration Act, 2001

Section 1(6), (8), 16, 20, 31, 32, 33(3)

Whether the plaint is liable to be reject- ed being barred by section 32 of the Arbitration Act. M/S. Concord Engineers vs Govt. of The People's Republic (Mohammad Fazlul Karim J) (Civil) 3 ADC 23

Section 1 (2)

The ex-parte arbitration proceeding.

Non-issuance of notice by the Arbitrator is a legal misconduct on the part of the Arbitrator which is very much patent in law and vitiates the Award. Even in case of due notice for appointment of Arbitrator and the party failure to appoint Arbitrator, the Arbitrator could not have proceeded ex-parte without express notice upon the other side disclosing the intention to do so. Govt. of Bangladesh -Vs.- MOL Enterprise INC. 6 ALR (AD) 2015 (2) 33

Section 2(Ga) of the Arbitration Act, 2001: Merely because the contract has come to an end by its termination due to breach, the arbitration clause does not get perished nor rendered inoperative; rather it survives for resolution of disputes arising "in respect of" or "with regard to" or "under the contract". Issues as raised in the application should be determined by the tribunal. (Para-32 & 33, Mr. Justice AKM Abdul Hakim). 

21 BLC 122

Ref: AIR 1959 SC 1362.

Section 3-The provisions of this Act are enacted by the Parliament having aimed at governing the different provisions starting from making of the 'arbitration agreement right up to the end of arbitration, which include initiation of arbitration, appointment of arbitrators, constitution of arbitration tribunal, arbitral award and its execution. Section 3 seeks to state that the provisions of the Arbitration Act are the guidelines for arbitration, i.e. for arbitration tribunal (not for Courts), within Bangladesh territory, as the foreign arbitration tribunals are formed and their businesses are conducted as per the laws of the foreign countries or international bodies, such as ICC and other International Commercial Chambers/forum. Thus, there is apparently по mentioning about conferring or ousting of the jurisdiction of the High Court Division or the Court in Section 3 of the Arbitration Act. Southern Solar Power Ltd and another Vs. Bangladesh Power Development Board and others (Spl. Original) 16 ALR (HCD) 91-109

Section 3 

Section 3 of the Arbitration Act is a general statement about the 'scope' of applicability of the provisions of the Arbitration Act for 'the arbitration'; it does not make any statement about the functions or jurisdiction of the Court. Southern Solar Power Lid and another Vs. Bangladesh Power Development Board and others (Spl. Original) 16 ALR (HCD) 91-109

Section 3- This Section is not about jurisdiction of the Courts. Section 3 of the Arbitration Act makes a general statement about the 'scope of application of the provisions of Arbitration Act. Southern Solar Power Lid and another -Vs- Bangladesh Power Development Board and others (Spl. Original) 16 ALR (HCD) 91-109

Sections 3 and 28       

Enlargement of time (beyond 4 months) for giving the award by consent of the both parties, permissible-Such enlargement of time may be provided for in the agreement-In the absence of such agreement consent may be inferred by conduct of parties. Government of Bangladesh vs Jalaluddin Ahmed 37 DLR (AD) 27. 

Section 3

Section-3 of the First Schedule

Section 3 of the Arbitration Act provides that unless a different intention is expressed in the arbitration agreement it shall be deemed to include the provisions set out in the First Schedule which enacts that the arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow. Thus where the arbitration agreement did not provide for the time within which Arbitrators shall make their award but made the award beyond four months from the date of entering on the reference the question arises as to whether the award before such period without any extension of time is valid or not. M. Ahmed Rashid & Ors Vs. M. Shafi & Ors 15 BLT (AD)88

Section 3, 29

In the Arbitration Act there is no provision which confers power on the court to grant interest prior to the date of the decree by the Court itself...... The Arbitrator could not grant future interest beyond the date of passing of the award. This part of the award about further interest was beyond the powers of the Arbitrator because it is only the Court which could award interest..... Hence in this case the Arbitrator had no jurisdiction to grant interest beyond the date of the decree as the power to grant interest after passing of the decree vests exclusively in the Court under section 29 of the Act. Bux Shipping Line vs BWDB (Md. Ruhul Amin J) (Civil) I ADC 476 

In the case of Swan Gold Mening Limited vs Hindustan Copper Ltd., (2005) 5 SCC 739 Supreme Court of India has held, "The Arbitrator's decision is generally considered binding between the parties and therefore, the power of the Court to set-aside the award would be exercised only in cases where the Court finds that the arbitral award is on the face of it erroneous or patently illegal or in contravention of the provisions of the Act." [73 DLR (AD) (2021) 286]

It is a well settled proposition that the Court shall not ordinarily substitute its interpretation for that of the Arbitrator. In M/s Navadaya Mass Entertainment vs M/s JM Combines, (2015) 5 SCC 698 it was observed that where there is an error apparent on the face of the record or the Arbitrator has not followed the statutory legal position, then and then only it would be justified in interfering with the award published by the Arbitrator. Even if two views are possible, in view taken by the Arbitrator would prevail." [73 DLR (AD) (2021) 287]

The Supreme Court of India in Patel Engineering Ltd. vs North Eastern Power Cor. Ltd., (2020 SCC Online SC 466) has once again exposited the 'patent illegality' reaffirming the test of patent illegality as set out in Associate Builders vs Delhi Development Authority, (2015) 3 SCC 49 which was reiterated in Ssangyong Engineering (supra). [73 DLR (AD) (2021) 287]

An arbitral tribunal must decide in accordance with the terms of contract, but if an Arbitrator construes a term of the contract in such a way that it could be said to be something that no fair minded or reasonal person could do, the same will render the award "patent illegal". [73 DLR (AD) (2021) 287]

A Court can set-aside an award only on the grounds provided in Arbitration Act. Arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter, without there being a possibility of alternative interpretation, which may sustain the arbitral award. (Dyna Technologies Pvt. Ltd. vs Coromption Graves Ltd. 2019 SCC online SC 1656)" [73 DLR (AD) (2021) 287]

Section 5

Revocation of arbitral authority— Code of Civil Procedure 1908- Order 39 rule 1 and 2 and section 151- Scope of temporary injunction against arbitration proceedings—

In an Arbitration case under section 5 of the Arbitration Act, 1940 seeking revocation of arbitral authority of the tribunal and during the pendency of the case the petitioner-respondent sought for temporary injunction under Order 39 rule 1 and 2 read with section 151 C.P.C. for staying further proceedings of the I.C.C. Arbitration case which was rejected by the Arbitration court but in an appeal taken by the petitioner-respondent the High Court Division granted adinterim injunction staying further proceeding of the I.C.C. Arbitration case for 8 weeks which was ultimately modified in the form of restraining the petitioner-respondent from proceeding with the I.C.C. Arbitration case No.7934/C.K. Since the High Court Division directed the Subordinate judge to dispose of the Arbitration case positively by a certain date without, fail, the Appellate Division declined to interfere with the said order in the interest of justice. Saipem S.P.A. Vs. Bangladesh Oil Gas and Mineral Corporation (Petro-Bangla)-5 MLR (2000) (AD) 245.

Section 6

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 

Section 7-Clause 25 of the Terms and Condition of the Work order of the Agreement.

When a party in a pending proceeding willingly participate by filling a written statement instead of invoking provision of the Arbitration clause raising legal issue in 3 suit surrendering his jurisdiction of arbitration and thereby the provision of section 7 of the Arbitration Act become nugatory regarding the said proceeding.

The Appellate Division on a careful reading of the stipulations of clause 25 of the বাংলাদেশ ফরম নং ২৯১১ is of the view that it can't be treated as bar to sought relief in a suit claiming compensation. The terms and subjects of the said clause of arbitration as laid down specifically which are not the subject of the suit nor on a plain reading of the averment of the suit it appears that its touch the subject of clause 25 of the Agreement. Executive Engineer, Roads and Highway Department (RHD), Road Division, Munshiganj Vs. Md. Nurul Islam and others (Civil) 16 ALR (AD) 163-168

Section 7 Jurisdiction of the Courts in arbitration matters

'Parties to the arbitration' are barred by the provisions of Section 7 of the Arbitration Act to file any legal proceeding in any Court. However, there is permissive space for the parties to the arbitration' to file legal proceedings, about which the Arbitration Act makes provisions to approach the Courts. Southern Solar Power Lid and another -Vs.- Bangladesh Power Development Board and others (Spl. Original) 16 ALR (HCD) 91-109

Section 7-When a party in a pending proceeding willingly participate by filling a written statement instead of invoking provision of the arbitration clause raising legal issue in a suit surrendering his jurisdiction of arbitration and thereby the provision of section 7 of the Act become nugatory regarding the proceeding. Executive Engineer, Roads and Highway Depart- ment (RHD), Road vs Md Nurul Islam (Civil) 71 DLR (AD) 349

Section 7-It is the Section 7 of the Arbitration Act which deals with the issues of jurisdiction of the Courts. The position of Section 7 is superior than other provisions of the Arbitration Act and other laws and till now it retains its aforesaid superiority, except in the case of passing the injunction Order, preservation Order and other interim/interlocutory Orders enumerated in clauses (a) to (g) of Section 7A(1) of the Arbitration Act. Southern Solar Power Ltd and another -Vs. Ban- gladesh Power Development Board and others (Spl. Original) 16 ALR (HCD) 91- 109

Section 7A-Provisions of Section 7A of the Arbitration Act being supernal, this newly inserted provision extended the jurisdiction of the Courts of Bangladesh investing the power of issuance of injunction Order, preservation Order and other interim Orders not only for the arbitrations taking place in Bangladesh, but also for the foreign arbitrations by clearly stating that "Notwithstanding anything contained in Section 7...... until enforce- ment of the award under Section 45. the High Court Division........ may pass Order". Southern Solar Power Ltd and another -Vs.- Bangladesh Power Development Board and others (Spl. Original) 16 ALR (HCD) 91-109

Section 7A-Power of the High Court Division under Section 7A of the Arbitration Act.

The High Court Division is amply empowered to make almost all types of interim Order/s and, for the aforesaid purpose, this Court has been equipped with all necessary arms and ammunitions, as are available in any proceedings, be it a civil suit or a criminal case inasmuch as the Legislature has employed the expressions ".....any other legal proceedings. ." in sub-Section (2) of Section 7A of the Arbitration Act. While sub-Section 1(e) of Section 7A of the Arbitration Act empowers this Court to issue adinterim in- junction, sub-Section 1(g) of Section 7A of the Arbitration Act grants this Court the power of taking protective measures and, in issuing the Orders under the clauses (e) & (g) of sub-Section (1) of Section 7A of the Arbitration Act, this Court is endowed with ample power to pass necessary Order/s, Direction/s or to take any other appropriate initiative under sub-Section (2) of Section 7A of the Arbitration Act. Frigo Mekanik Insaat Tesisat Ve Taahhut Sanayi Ve Ticarest A.S. -Vs.- Bangladesh Milk Producers' Co-operative Union Limited (BMPCUL). (Spl. Original) 16 ALR (HCD) 257-274

Section 7A-This Court is under an obligation to embark on the scrutiny as to whether the facts and circumstances stated in an application under Section 7A of the Arbitration Act fulfills the legal criteria for passing adinterim Order/s or Directions. When any of the circumstances set out in sub-Section (1) of Section 7A of the Arbitration Act would be found to have existed in an application under Section 7A of the Arbitration Act, this Court shall unhesitatingly pass the necessary Order/s or Direction/s, but if this Court finds that the stated-facts do not attract the circumstances enumerated in sub-Section (1) of Section 7A of the Arbitration Act, in that event, this Court has to be satisfied that whether the stated-circumstances fulfill the cardinal principles of granting interim Orders, namely, whether (i) there exists a primafacie case, (ii) whether the balance of inconvenience is in favour of the applicant and (iii) whether, if the other party is not restrained, the applicant shall suffer irreparable loss and injury not commensurable in monetary terms. Frigo Mekanik Insaat Tesisat Ve Taahhut Sanayi Ve Ticarest A.S. Vs. Bangladesh Milk Producers' Co-operative Union Limited (BMPCUL). (Spl. Original) 16 ALR (HCD) 257-274

Sections 7(ka) and 12 read with Civil Rules and Order (C.R.O) Rule 774- Whether Section 7(ka) contemplates an independent proceeding and cannot be brought as an application within Section 12 of the Arbitration Act.

The High Court Division held that the filing of an application under Section 7(ka) under the umbrella of Section 12 is not an inherent illegality, but it is rather an irregularity which can be rectified and corrected upon by filing a separate Misc case under Section 7(ka) of the Arbitration Act, 2001. Hence it is view of the the High Court Division that the order passed by the trial court is not illegal in itself in limine and whatever irregularity there might be in the procedure followed in that case in filing the application under Section 7 Ka of the Arbitration Act, 2001, such irregularity or aberration is rectifiable. Multiplan Ltd. Vs. Barrister Md. Abdul Baten Sheikh (Civil) 18 ALR (HCD) 252-257

7K (1)

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 

Section 7ka (1)

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

Section 7ka

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 

Section 7K

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 

Section 7K, 17(ka)

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 

Section 7 and 10

Civil suit is, never ipso facto intended to be barred in view of the existence of an arbitration clause in the agreement–

53 DLR AD 62 this Division held that– “The Court while deciding application about rejection of plaint is not permitted in law to travel beyond the averments made in the plaint.”

When a party in a pending proceeding willingly participate by filling a written statement instead of invoking provision of the Arbitration clause raising legal issue in a suit surrendering his jurisdiction of arbitration and thereby the provision of section 7 of the Arbitration Act become nugatory regarding the said proceeding. On a careful reading of the stipulations of clause 25 of the h¡wm¡­cn glj ew 2911 we are of the view that it can’t be treated as bar to sought relief in a suit claiming compensation. The terms and subjects of the said clause of arbitration as laid down specifically which are not the subject of the suit nor on a plain reading of the averment of the suit it appears that its touch the subject of clause 25 of the Agreement.

It civil suit is, therefore, never ipso facto intended to be barred in view of the existence of an arbitration clause in the agreement. The defendants take the plea of bar only for dragging the proceeding of the suit which is deprecated by this Division. This Division find no illegality and infirmity in the judgment of the High Court Division. The appeal having no merit. …Roads & Highway Department (RHD) =VS= Md. Nurul Islam, (Civil), 2019 (2) [7 LM (AD) 132] 

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 

Section 7        

Pronouncing of the judgment under section 17 is made subject to the expiration of the period of 30 days from the date of service of the notice of filing of the award and this is a condition precedent to· the exercise of the jurisdiction by the Court under the section.

Section 8        

Objection against appointment of Arbitrator who he has already entered on the reference following unacceptable - Conduct displayed by the objector appears to be a technical objection not entertainable at a belated stage. Coal Controller, Government of Bangladesh vs Ventura Industries Ltd 44 DLR (AD) 183.

Sections 8, 30 & 33   

Arbitration­ Conclusiveness of award-The work order given to the tenderer became an instrument necessary for understanding the contract with him. Though not a part of the contract itself it is a contemporaneous document accepted by both sides throwing light on the interpretation of schedule of work. Mohammad Eunus and Brothers (Pvt) Ltd vs University of Chittagong 44 DLR (AD) 296.

Section 8(2), 10 (d)

Whether the Court in England or the Court in Bangladesh has jurisdiction over an arbitration in terms of an Agreement between the appellant and the respondent. Bangladesh Air Service (Pvt) Ltd British Airaways PLC VS (Mustafa Kamal J)(Civil) 3 ADC 218

Section 8

Respondent praying for appointment of an Arbitrator by the court on the ground that in respect of supply of certain quantity of coal of specf1c size and quality by a contract, dispute arose between the respondent and the petitioner but in spite of repeated request and a formal notice to appoint an Arbitrator in terms of the contract, the petitioner failed to do so and so the application to the court—section 8 of the Arbitration Act, 1940 was not at all attracted as contended by the learned petitioners counsel.

Held: We find that the Arbitrator has already entered on the reference and has started issuing notices to the parties. In that view of the matter we are not inclined to entertain this technical objection at this stage. [Para- 12] Coal Controller Vs. Venture Industries Ltd. 1 BLT (AD)-50

Section 8(2)

Jurisdiction of Court to appoint umpire

Jurisdiction of the court to make an appointment under sub-section (2) arises only when (he parties have failed to come to an agreement in respect of appointment of a new arbitrator or umpire within the time of 15 days allowed for so doing. Government of Bangladesh Vs. M/S. Samir & Co- (1976) 28 DLR (SC) 21.

Section 8(2)

While passing an award the Arbitration must consider the evidence produced before him otherwise it will not be an award at all– The respondent has not prayed for interest but the High Court Division has given 16% interest to the contractor-respondent till realisation of award passed by the Arbitrator.

Giving such interest to the respondent without any claim by it is nothing but a gratuitous relief which is not permitted by law and even no reason was assigned therefor. We do not approve of giving such interest without any prayer made by the respondent.

While passing an award the Arbitration must consider the evidence produced before him otherwise it will not be an award at all. This civil appeal is allowed and the impugned judgment and order passed by the High Court Division is set aside. ...Ministry of Defence, Bangladesh =VS= M/S. Aminul Haq, (Civil), 2020 [9 LM (AD) 106] 

Section 9-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 International Pte Ltd. -Vs- Vietnam Northern Food Corporation (Vinafood)) (Spl. Original) 19 ALR (HCD) 368-376

Section 9-An arbitration agreement must be in writing and the agreement may be deemed to be in writing if it is contained in a contract signed by the parties or contained in written communication.

An arbitration agreement can be in the form of a clause in a contract or as a separate agreement. Corona Fashion Limited-Vs.- Milestone Clothing Resources LLC and others (St. Original) 15 ALR (HCD) 38-54

Section 9(2)(b)-For determining the existence of an arbitration agreement through Section 9(2)(b) of the Arbitration Act, the following conditions are to be satisfied: (1) the subject matter of agreement i.e. arbitration agreement shall be mentioned in a letter, telex, telegram, email, fax or any other medium and (2) the party on whom such agreement has been served shall agree to such communication. If the second condition as aforesaid is disregarded, and Section 9(2) of the Arbitration Act is found independent, then it would make arbitration obligatory only on the willingness of one party. Corona Fashion Limited -Vs.- Milestone Clothing Resources LLC and others (St. Original) 15 ALR (HCD) 38-54

Section 9(2)(c) -For determining the existence of an arbitration agreement through Section 9(2)(c), the following con ditions are to be satisfied: (1) the subject matter of agreement i.e. arbitration agreement shall be mentioned in an exchange of statement of claim or defence and (2) the agreement is alleged by one party, and not denied by the other. It ap- pears from the second condition that the af- firmation to enter into an arbitration agreement is confirmed, by the party to whom such statement of claim of defence has been served, through omission to decline such proposal. Corona Fashion Limited-Vs.- Milestone Clothing Resources LLC and others (St. Original) 15 ALR (HCD) 38-54

Section 9(b)

Appointment of Arbitrator-notice of such appointment upon other party for the purpose is imperative because only upon such notice being given the right of each party to appoint Arbitrator arises but the right to appoint the sole Arbitrator arises only if there is failure or default on the part of other party to appoint his own Arbitrator within the statutory period as required under law and failure to give such notice renders very appointment of Arbitrator itself is illegal and imperative. In the facts, circumstances and materials on record it appears that the award made by the sole Arbitrator is a nullity and without jurisdiction under the provisions of the Arbitration Act, 1940. Govt.of Bangladesh and others-Vs.-MOL Enterprise INC. 4 ALR (AD) 2014 (2) 29

Sections 9(1) & (2)

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 

Sections 9, 12, 17

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 

Section 10

When parties to the suit submit themselves to the jurisdiction of the Civil Court, the dispute should not be referred to arbitration.

The defendant have submitted themselves to the jurisdiction of the Civil Court by filing written statement and contested the suit and thereby they failed to avail the opportunity of resorting to the arbitration by seeking stay of the suit before the Civil Court. Executive Chairman, BEPZA -Vs.- M/S. Abdul Mannan 3 ALR(2014)(1)(AD)168

Section 10(1)-Any objection regarding the proceeding in the civil Court that must be taken in the earliest opportunity before filling the written statement in the suit. There is no legal impediment or any cogent reason to hold that clause 25 of the agreement stands as a bar to file the suit for compensation. Executive Engineer, Roads and Highway Department (RHD), Road vs Md Nurul Islam (Civil) 71 DLR (AD) 349

Section 10

The appellant entered into a share purchase agreement with the respondent ....(2)

The dispute between the parties arising out of the buy-back agreement was required to be resolved by arbitration in accordance with Clause 13 of the share purchase agreement and that further the proceedings in the Artha Rin Suit are li. able to be stayed under Section 10 of the Arbitration Act, 2001; that IPDC ha the right to sell the shares in the market at any time and as such, purported to resolve the dispute between the parties arising out of the said agreement and in fact assured the functions of the arbitrator under Clause 13 of the share purchase agreement and the High Court Division failed to give a harmonious interpretation to Clause 6 of the share purchase agreement and Clause 4 of the buy-back agreement, according to which the IPDC was under an obligation to sell the entire amount of shares to the appellant and erroneously concluded that the IPDC has the right to sell the shares at any time in the market. The learned Counsel finally submitted that there was genuine dispute between the parties regarding the interpretation/application of the provisions of the share purchase agreement and the buy-back agreement which is an admitted fact between the parties and that accordingly, the matter was required to be resolved by arbitration in accordance with Clause 13 of the share purchase agreement. Meghna PET Industries Limited vs. 2nd Court of Artha Rin Adalat) Mohammad Fazlul Karim J) (Civil) 8 ADC 280

Section 11      

Parties refer their dispute to arbitration to get an amicable settlement which is encouraged even though Arbitrators do not follow strict and delicate procedural technicalities. If any party has lack of confidence in the Arbitrator he may seek his removal in accordance with law. Messrs Rising Sun Traders vs Chittagong Port Authority 43 DLR 1.

Section 12      

The scheme of section 12, particularly of sub-section (2) thereof, clothes the court with the authority of appointing an arbitrator in its discretion after the parties fail to nominate a common arbitrator. Bangladesh Water Development Board vs Zakir Construction and Co and another 48 DLR 261.

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 

Sections 12

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 

Section 12

Each party to appoint their own arbitrator to proceed arbitration expeditiously– The High Court Division held that the Court below did not commit any illegality either by rejecting the application for dismissal of the arbitration miscellaneous case or in appointing two arbitrators, and thereby discharged the Rule. Both partiers indicated that they would each wish to appoint their own Arbitrator. Consequently, the learned Advocate for the plaintiff-respondent herein suggested the name of Mr. Justice Md. Abdur Rashid, a retired Judge of the Supreme Court of Bangladesh, and the petitioner before us (defendant) suggested the name of Mr. Justice Moyeenul Islam Chowdhury, a retired Judge of the Supreme Court of Bangladesh as his nominated Arbitrator. Appellate Division asked both the learned Advocates appearing for the parties concerned whether they have any objection to such appointment, to which each indicated that his client does not have any objection. Since each party has chosen his own arbitrator and there is no objection from his opponent, let the matter of arbitration proceed expeditiously in accordance with law. The judgement and order of the High Court Division is set aside and the Civil Petition for Leave to Appeal No.1976 of 2021 is disposed of. ...Quamrul Huda =VS= Mohammad Nazrul Islam Alam, (Civil), 2021(2) [11 LM (AD) 56] 

Section 12 -The contractor at the first instance without resorting and adopting the procedures provided in the contract directly invoked writ jurisdiction in which they become successful but finally, the Appellate Division set aside the judgment observing that the matter in dispute may be settled by way of arbitration as provided in the contract.

The High Court Division held that the contractor did not take recourse to the provisions of the contract under clause 82.1 and 82.2 and directly served a notice seeking arbitration under clause 82.3. In the application under section 12 of the Arbitration Act, the contractor also took a shortcut way in getting appointment of arbitrator on behalf of employer, BWDB. All the steps adopted by the contractor is really unwarranted and not in accordance with law. However, considering long standing dispute between the employer and contractor and ultimate way or procedures to be followed by both the parties under the contract for settlement of the dispute and to save time and expenses of the parties, the High Court Division thinks that the purpose will be served and the justice will be met, if the arbitrator appointed by the learned District Judge on behalf of the employer, BWDB is changed as agreed by the learned advocate for the contractor directing them to the dispute within a short possible time. In view of the above, the rule may be disposed of with the modification in the following manner, "Md. Abdur Rahman Akand, Additional Director General (Planning), Bangladesh Power Development Board, Dhaka, is appointed as arbitrator for the employer, BWDB in place of Mr. Md. Fazlul Karim, retired Registrar, Supreme Court. Both the Arbitrators shall constitute Arbitration Tribunal by appointing a chairman of their choice. The Arbitration Tribunal shall initiate arbitration proceedings afresh with due notices to the parties to the proceedings and conclude the proceedings as early as possible." With the above modifications the Rule is disposed of. Bangladesh Water Development Board and another -Vs.- Md. Abul Hossain (Civil) 21 ALR (HCD) 119. 122

Section 12-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 abovementioned 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.

While the wordings ............ the parties are free to agree on a procedure............. used in sub-Section (1) under Section 12 of the Arbitration Act sufficiently imply that if in the arbitration agreement a procedure for appointment of the arbitrator/s has been adopted by the parties to the arbitration agreement, they shall be at liberty to proceed with the said provision, the expres sions in an arbitration with a sole arbitrator...... and in an arbitration with three arbitrators...... ........ employed in sub-Sections (3)(a) and (3)(b) under Section 12 of the Arbitration Act respectively amply suggest that if the arbitration clause contains provision regarding appointment of sole arbitrator or three arbitrators, the provisions enshrined in the sub-Sections subsequent to sub- Section (1) are applicable. Again, by the wordage 'where under an appointment procedure agreed upon by the parties engraved in sub-Section (7) to Section 12 of the Arbitration Act, the Legislature pinpoints to the fact that when there is an agreement between the parties containing a provision regarding appointment procedure and if either (a) a party fails to act as required under such procedure or (b) the parties/arbitrators fail to reach an agreement under the same procedure or (c) a person/any third party fails to perform any function assigned to him under that procedure, then, a party may apply to the High Court Division in the case of international arbitration and to the Court of the District Judge in the case of local arbitration and the High Court Division/the District Judge, as the case may be, shall appoint the Chairman of the tribunal along with the other arbitrators. Agrocorp International Pte Ltd. Vs. Vietnam Northern Food Corporation (Vinafood1) (Spl. Original) 19 ALR (HCD) 368-376

Section 12-Without having existence of an arbitration agreement between the parties, the entire provisions of Section 12 of the Arbitration Act would have no application.

Given that the very meaning of the terminology 'arbitration agreement' is the voluntary consent of the parties concerned for making an arrangement of resolution of their present or future dispute outside the Court, there must be the existence of written agreement inked previously or at any time after arising of any dispute between the parties. Agrocorp International Pte Ltd. Vs. Vietnam Northern Food Corporation (Vinafood!) (Spl. Original) 19 ALR (HCD) 368-376

Section 12-Whether the Court should examine the issue of "existence of an arbitration agreement" in an application under Section 12 of the Arbitration Act.

The Court must examine, at least the prima facie existence of an arbitration agreement. The words incorporated in Section 12(1) "সালিসকারীর নিয়োগ সম্পর্কিত পদ্ধতি" (procedure for appointing arbitrator), words in Section 12(3)(a) "একমাত্র সালিসকারীর সমন্বয়ে গঠিত সালিসী ট্রাইব্যুনালের ক্ষেত্রে" (in an arbitration with a sole arbitrator); words in Section 12(3)(a)(i) "আন্তর্জাতিক বাণিজ্যিক সালিস ব্যতিত অন্যান্য সালিসের ক্ষেত্রে" (in case of arbitration other than international commercial arbitration); words in Section 12(3) (a) (ii) "আন্তর্জাতিক বাণিজ্যিক সালিসের ক্ষেত্রে" (in case of international commercial arbitration); words in Section 12(4)(c) "আন্ত জাতিক বাণিজ্যিক সালিস ব্যতিত অন্যান্য সালিসের ক্ষেত্রে" (in case of arbitration other than international commercial arbitration); words in Section 12(4) (d) "আন্তর্জাতিক বাণিজ্যিক সালিসের ক্ষেত্রে" (in case of international commercial arbitration) etc. are clearly indicative that the Court shall prima facie examine the existence of an arbitration clause. Further, throughout the entire provisions of Section 12 of the Arbitration Act, the words 'party' & 'parties' have been employed on a number of occasions and the meaning of the word "party" is given in Section 2(g) of the Arbitration Act, which reads as follows: "Party means a party to an arbitration agreement;"

If the terminologies "party" and "parties" imprinted in Section 12 of the Arbitration Act are read with the above definition of "Party", it becomes clear that Section 12 of the Arbitration Act will apply and an application thereunder can be maintained only if a party to an "arbitration agreement" invokes Section 12 of the Arbitration Act. What is an "arbitration agreement" can be found in Section 2(n) of the Arbitration Act. Corona Fashion Limited-Vs.- Milestone Clothing Resources LLC and others (St. Original) 15 ALR (HCD) 38-54

Section 12-Difference between arbitration agreement" and "valid " arbitration agreement".

The terms "arbitration agreement' and 'valid arbitration agreement' are different expressions and terminologies. Under Section 12 of the Arbitration Act, the Court will not venture to determine a valid arbitration agreement, but will satisfy itself that there is prima facie an arbitration agreement to assume jurisdiction for appointing arbitrator under Section 12 of the Arbitration Act. In other words, while the Court is competent to carry out the necessary scrutiny as to 'existence of an arbitration agreement' (সালিশ চুক্তির অস্তিত্ব), in an appropriate application under Section 17(a) of the Arbitration Act, the arbitral tribunal will determine the "existence of a valid arbitration agreement" (বৈধ সালিস চুক্তির অস্তিত্ব). Corona Fashion Limited -Vs.- Milestone Clothing Resources LLC and others (St. Original) 15 ALR (HCD) 38-54

Sections 12 and 17-Whether Sections 12 & 17 of the Arbitration Act are in conflict with each other.

If the Court, while assuming the jurisdiction of the prima facie existence of an arbitration clause for the purpose of appointing an arbitrator, the same will not be in conflict with Section 17(a) of the Arbitration Act. Section 17 of our Arbitration Act is to be interpreted in the manner that the arbitral tribunal has the competence to rule on its own jurisdiction when such issues arise before it. This can happen when the parties have gone to the arbitral tribunal without recourse to Section 12 of the Arbitration Act. In other words, it would be incumbent upon the arbitral tri- bunal to determine the issue when the parties themselves constitute the tribunal without the Court's intervention. Corona Fashion Limited -Vs.- Milestone Clothing Resources LLC and others (St. Original) 15 ALR (HCD) 38-54

Section 12(2), 30 and 33-The officials of the Government in the capacity of a litigant as like the general citizens of the country can not take legal steps very quickly and they are bound to comply certain formalities and as such the delay occurred for the reason and there is no latches and negligence on the part of the petitioners and they have a good case to support in the appeal and fair chance of success and unless the delay is condoned and the appeal is heard on merit.

The High Court Division has carefully gone through the application for condonation of delay and considered the submission of the learned Deputy Attorney General for the petitioners and there is no latches or negligence on the part of the petitioners. The High Court Division finds substance in the submission of the learned Deputy Attorney General for the petitioners and are inclined to make the Rule absolute. Accordingly, the Rule is made absolute without any order as to costs. The delay of 187 days in preferring the miscellaneous appeal is hereby condoned. A.H.Q. Dhaka Cantonment, Dhaka and another -Vs.- M/s. Ali Morshed Khan (Civil) 18 ALR (HCD) 397-398

Section 13      

E.x parte decision in arbitration proceeding-Powers of the Arbitrator-The respondent Port Authority did not appear before the Arbitrator at all nor did they express their intention to appear on receiving notice from the Arbitrator. In such circumstances the Arbitrator is not bound to give them notice about ex parte hearing and passing of ex parte award in the arbitration proceeding before him. Messrs Rising Sun Traders Ltd vs Chittagong Port Authority. 43 DLR 1.

Sections 13 & 14

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 

Sections 14 and 17    

The learned Subordinate Judge, without following the mandatory provisions of section 14 of the Act, fell in serious error of law in pronouncing the judgment. The decree followed such judgment must be held to be clearly in excess of the award. The appeal from such decree is therefore quite competent and must succeed. Titas Gas Transmission and Distribution Co. Ltd vs Shams Company and others 54 DLR 128.

Sections 7ka, 17, 19

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 

Section 14

The partition award which was made on 16.7.48 was not made a rule of the court and as such it is not valid and legal as contended by the learned petitioner’s Advocate.

Held : With regard to the award it may be stated that the award was made 30 years back — from the materials on record it is abundantly clear that the award which was made between the parties 30 years back was acted upon and in that view of the matter the jointness of the properties and common business cannot be denied. The parties have voluntarily acted on the basis of the award 30 years back. Further in view of the fact that the plaintiffs are in part possession of the suit properties in their own right, the submission of the learned Advocate that the award is not legal and valid cannot be accepted. [Para-71]

M.F. Ban & Ors. Vs. A. Razzaq & Ors. 4BLT (AD)-151

Sections 15 and 16-Mr. Justice Md. Fazlul Haque, one of the then learned Judges of this Division, heard the Civil Petition for Leave to Appeal No. 750 of 2002 arising out of the same subject matter and as such, he should not have been appointed as Arbitrator and the award passed by him was highly improper.

The Appellate Division observed that what is important to note here is that Mr. Justice Md. Fazlul Haque, one of the then learned Judges of this Division, heard the Civil Petition for Leave to Appeal No. 750 of 2002 arising out of the same subject matter and as such, he should not have been appointed as Arbitrator and the award passed by him was highly improper. In order to avoid any controversy and for the sake of transparency, the Appellate Division is of the view that the Arbitration should be held afresh by a new Arbitrator. To settle the dispute by way of fresh arbitration, Mr. Justice M. M. Ruhul Amin, former Chief Justice of Bangladesh, is appointed as the Arbitrator. The parties will bear the fees of the arbitrator and other incidental costs in equal shares. The fees of the Arbitrator are fixed at Tk. 1500000/- (fifteen lac) which will be borne by both the parties equally. In the light of the findings made before the impugned judgment delivered by the High Court Division is set aside and the award dated 03.10.2006 passed by Mr. Justice Md, Fazlul Haque is also set aside. Bangladesh Jute Mills Corporation. Vs. District Judge, Dhaka and another. (Civil) 15 ALR (AD)33-35

Section 16

Setting aside of an award by the court does not by itself supersede the arbitral reference—

Section 16 leaves it to the discretion of the court while setting aside an award to decide as to if the arbitral reference will be superseded thereby or not. Unless the court expressly decides so to do, the setting aside of an award does not by itself construct any such supersesion and as such the arbitral reference shall continue notwithstanding the setting aside of the award. M/s. A. Z. Co. Karachi Vs. M/s Maula Boksha- (1965) 17 DLR (SC) 404.

Section 17-The tribunal may rule on its own jurisdiction and, in doing so, the arbitration tribunal may examine the 'validity' of an arbitration agreement. And, the question of validity of an arbitration agreement may arise only when there is an existence of an arbitration agreement. Agrocorp International Pte Ltd. -Vs- Vietnam Northern Food Corporation (Vinafood1) (Spl. Original) 19 ALR (HCD) 368-376

Sections 17, 33 & 39(1)(vi) 

Arbitration award-Question of setting aside an award- The appellants did not file any application to set aside the award or to challenge the existence and validity of the award. It is absurd to say that by making the award a Rule of the Court, the Court has refused to set aside the award. The act of refusal must be in pursuance of a positive move by the party affected either under section 17 or section 33. An ex parte order, as in the present case, making an award the Rule of the Court is not amenable to under section 39 of the Arbitration Act. Bangladesh vs KM Shafi Ltd 43 DLR (AD) 217.

Section 17

If the award directs a party to do an act which is prohibited by law or if it is otherwise patently illegal or void, it would be open to the Court to con-sider this patent defect in the award suo motu and when the Courts act suo motu, no question of limitation can arise. The Project Director, P.L. and another. -Vs.- Latiff Company Ltd. (Civil) 14 ALR (AD) 45-49

Section 17(ka)

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 

Sections 17(ka), 19(2)(c)

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 

Section 17

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 

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 

Section 20

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

Section 20

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 

Section 20(2)

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 

Section 20      

Forfeiture of insurance claim­ - The arbitration agreement contained in the insurance policy in question provided that if a claim be made and rejected and an action be not commenced within 3 months after such rejection all benefits under the policy shall be forfeited. The Insurance Company having informed the plaintiff that their claims under the policy were not payable and, as such, rejected the same as per condition No. 13 of the policy and the plaintiff having not commenced any action within 3 months, have forfeited all their rights under the policy. Sadharan Bima Corporation vs Dhaka Dyeing & Manufacturing Co Ltd 43 DLR 286.

Section 20

Provision for arbitration could not be invoked by the respondent inasmuch as the appellant having not accepted the experimental bills submitted by the respondent, which was a condition precedent for the agreement (dated 16.2.88) to take effect, the agreement never became effective and remained in a stupor. Bangladesh Lithi VS Enterprises Ltd. (A.T. M. Afzal C J)(Civil) 2 ADC 691

It appears that at no point of the proceeding before the trial court the petitioner raised any objection with regard to jurisdiction rather participated in the proceeding and when the award has gone against them raised objection with regard to jurisdiction before the High Court Division in the first appeal and in the miscellaneous appeal which the High Court Division has rightly rejected. Bangladesh Bank vs. a Latif & Company Limited (Md. Abdul Matin J) (Civil) 5 ADC 753 

Possession of the partitioned land obtained through the Title Execution Case No. 10 of 1989 are illegal, void, collusive, null and void, fraudulent, inoperative, without jurisdiction, malafide and not binding upon the plaintiffs Mahmuda Haq vs. Abdul Mannan Miah (Md. Ruhul Amin CJ) (Civil) 5 ADC 759

Section 20

Scope of challenge when parties submitted to the jurisdiction—

After the appellant, had submitted to the jurisdiction of the Court in an arbitration proceeding arising out of contractual disputes and the Arbitrators appointed by the Court from the respective panel of the parties submitted, the award which was made rule of the Court, subsequently the award so made cannot the challenged on the ground of non-maintainability of the contract becoming not valid and enforceable. Award may be set aside only on the ground of misconduct on the part of the arbitrators. Bangladesh Telegraph and Telephone Board Vs. Lithi Enterprises Ltd- 3, MLR (1998) (AD) 275.

Sections 23, 25, 42 and 43

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.

Section-23, 30

The findings arrived at and the decision made by the High Court Division having been based on proper appreciation of law and fact do not call for interference. .....Md. Kabir & others =VS= Dreebajati Hore & others, (Civil), 2016-[1 LM (AD) 332] 

Section 23

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 

Section 24

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 

Section 27

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.

Section 28

Explanation 1— Submission to foreign jurisdiction for arbitration—

Explanation 1 of section 28 of the Contract Act provides for submission of parties to the contract to foreign jurisdiction in matter of resolution of dispute arising out of contractual obligation by arbitration. Since no state can live in isolation and when reciprocal arrangements in commercial deals are recognised, such provision relating to submission to foreign jurisdiction is not opposed to Stale Sovereignty and inconsistent with independent State Policy. Bangladesh Air Service (Put.) Lid. Vs. British Air Ways P. L. C- 2, MLR (1997) (AD) 169.

Section 29

Under this provision if award is brought to the Court then the Court in its discretion may or may not grant interest on the award amount and it is not the jurisdiction or power of the Arbitration/ Umpire.The jurisdiction or power of Arbitrator/Umpire, in the absence of any agreement, to grant future interest in the awarded amount till realisation thereof is not within the power or jurisdiction of the arbitrator/Umpire but such power of granting interest on the awarded amount or part thereof till realisation could be awarded as per provision of section 29 of the Arbitration Act which is within the jurisdiction of the Court or in other words, when the Award is brought to the Court then the Court in its discretion may or may not grant interest on the award amount or part thereof as decreed till realisation.

Janab Md. Asalat Zaman -Vs.- The State 3 ALR(2014)(1)(AD) 205

Section 29      

Interest for the future, that is, from the date of the award till realisation of the money through section 29 of the Arbitration Act, did not give the Arbitrator this power, he may allow interest on his award till realisation on the same analogy to court's power. This will be in accord with justice and fairness. BADC vs Kibria & Associates Ltd 46 DLR (AD) 97.

Section 29      

In the absence of agreement the arbitrator or umpire has no jurisdiction to grant interest on awarded amount till relisation. But the Court has jurisdiction in its discretion to grant interest on the awarded amount or part thereof till realisation. Asamat Zaman (Md) and others vs Government of Bangladesh and others 55 DLR (AD) 139.

Section 30      

Misconduct on the part of the arbitrators may be a ground for setting aside their award. But such misconduct, when not agitated in the trial Court, could not be raised afresh before the superior Courts. Bangladesh Telegraph and Telephone Board vs Lithi Enterprises Ltd 50 DLR (AD) 63.

Sections 30 and 33   

Pendente lite interest -An arbitrator may allow pendente lite interest on the analogy of court's power to grant interest if the disputes were agitated before it.

The Arbitrator may allow interest pendente lite for a period beyond four months if the prolongation of the proceeding is caused by circumstances beyond his control. Again, to avoid any controversy, the period for pendente lite interest will start from the date on which the Arbitrator enters upon the arbitration proceedings and end on the day the award is made. BADC vs Kibria & Associates Ltd 46 DLR (AD) 97.

Sections 30 and 33     

Arbitrator's power to award interest-Interest as to pre-reference period-In the absence of any law or agreement providing for payment of interest by an Arbitrator it will not be proper to vest in him power to award interest for the pre-reference. BADC vs Kibria & Associates Ltd 46 DLR (AD) 97.

Section 30

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.

Sections 30 and 33

During pendency of the order of stay any further order is clearly a misconduct.

The Appellate Division observes that it is patently clear that the order appointing the learned Arbitrator was stayed by the court making the appointment and the fact of the stay order and the challenge against the appointment before the High Court Division was brought to the notice of the learned Arbitrator. It appears that the High Court Division has overlooked this aspect of the case. It is also apparent that the learned Arbitrator acted beyond his jurisdiction when the order appointing him as Arbitrator was stayed. These facts having been brought to his notice in the application for adjournment, it was clearly misconduct on the part of the learned Arbitrator to proceed with hearing the arbitration and making an award during the pendency of the order of stay. Secretary, BADC -Vs.- M/S. Greeners Engineering Ltd. 5 ALR (AD)2015(1) 131

Sections 33 and 30     

Arbitrator's power to award interest-Interest as to pre-reference period-In the absence of any law or agreement providing for payment of interest by an Arbitrator it will not be proper to vest in him power to award interest for the pre-reference. Bangladesh Agricultural Development Corporation vs Kibria and Associates Ltd 46 DLR (AD) 97.

Sections 33 and 30     

Pendente lite interest-An arbitrator may allow pendente lite interest on the analogy of court's power to grant interest if the disputes were agitated before it. Bangladesh Agricultural Development Corporation vs Kibria and Associates Ltd 46 DLR (AD) 97.

Section 33

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.

Section 34     

Objection against the maintainability of the suit must be raised at the very preliminary stage of the proceeding even before taking any step for filing written statement. This having not been done, the trial Court's decree is set aside with a direction to write out a judgment on consideration of materials on record. Nur Nabi Chowdhury vs Bangladesh Krishi Bank 46DLR 509.

Section 34

Jurisdiction of the Civil Court —The Appellant filed Money Suit against the respondent No.1-6 —the respondent took steps on several occasions to adjourn the case in the name of filing Written statement

—Held; when the arbitration proceedings commences the parties should be ready and willing to do all things necessary to the proper conduct of the arbitration. But as it appears before ICC Paris the respondent Nos. 1 and 2, expressing their unwilling to continue with the Arbitration proceeding. backed out from the arbitration proceedings stating that ‘they will not bear any further expenses in the arbitration proceeding. In view of above, the arbitration proceeding could not commence at Dhaka —While staying the proceedings of the trial court, did not at all take into consideration the two basic lawful aspects of the case i.e. the respondent. Nos.3-6 took steps on several occasions to adjourn the case in the name of filing written statement and that the respondent Nos. 1 and 2 backed out from the arbitration proceedings which was pending before the ICC Paris. So the judgment and order dated 15.5.2000 passed by the High Court Division in staying the suit cannot be sustained. Popular Biscuit Ltd. Vs. Beximco Bremer Export Contor Brand, Repprecht Gmbh & Ors 15 BLT (AD)282

Section 34

Provides for stay of proceedings of suit for arbitral reference—

Defendants in a suit before taking, any steps may seek for staying further proceedings of the suit and referring the dispute for resolution through arbitration. After certain steps are taken by the defendants upon submission to the jurisdiction of the Civil Court, further proceedings of the suit can not be stayed as contemplated under section 34 of the Arbitration Act, 1940. Popular Biscuit Limited Vs. Biximco Bremer Export Contor Brand and others 11 MLR (2006) (AD) 366.

Section 34

Unwillingness to deposit the balance portion of their fees; in the above situation ICC Paris on 14.2.1991 finally informed the appellant as well as the respondent Nos. 1 and 2 that the claims are considered withdrawn without prejudice to the parties and as a result the above arbitration case could no longer be proceeded and hence the suit. Popular Biscuit Limited vs. Beximco Bremer Export Contor Brand (Md. Tafazzul Islam J) (Civil) 4 ADC 743

Section 34 

Praying for stay of the suit to take steps for settling the dispute. Bengali version of the plaint which being allowed the appellant after preparing the Bengali version of the plaint submitted the same in the court. Popular Biscuit Limited vs Biximco (Md. Tafazzul Islam J) (Civil) 3 ADC 375

The term misconduct occurring under Section 30 of the Arbitration Act is no! doubt includes neglect for duties and responsibilities by an Arbitrator. But in the instant case we do not find any neglect to duties or responsibilities by the Arbitrator. Arbitrator gave award in favour of the appellant with regard to the rates of the works actually done and certified by the respondent. Therefore. it was not at all necessary for the Arbitrator to make physical verification of the works in question. Managing Director, Foundation Engineer Shatu vs The Civil Engineer (RHD) Sarak Bahan (Mohammad Gholam Rabbani J)(Civil) 2 ADC 782

Section 35      

In order to hold an arbitration proceeding invalid notice of the legal proceeding must be given to the Arbitrator. Adamjee Sons Ltd vs Jiban Bima Corporation 45 DLR 89.

Section 37(4) 

Where an arbitration agreement provides that a claim shall be barred unless it is referred to arbitration within certain time the Court is empowered to interfere if it is of the opinion that in the circumstances of the case undue hardship would otherwise be caused to a party. Sadharan Bima Corporation vs The Dhaka Dyeing and Manufacturing Company Ltd 43 DLR 286.

Sections 39, 42, 43 and 44

A combined reading of the provisions of sections 42, 43 and 39 of the Act, 2001 clearly shows that the only remedy open to a person who wants to set aside an arbitral award is to file an application under section 42 of the Act, 2001 within sixty days from the date of receipt of the award and after the expiry of the period of sixty days as envisaged in the section, the award becomes enforceable within the meaning of section 44 thereof and thus, jurisdiction of the civil Court has impliedly been barred if not expressly. In the context, we may also refer to section 9 of the Code which has clearly provided that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred and therefore, in view of the provision of section 42 of the Act, 2001, clause (d) of rule 11, Order VII of the Code is attracted. .....Md. Nurul Abser =VS= Alhaj Golam Rabbani & others, (Civil), 2016-[1 LM (AD) 212]

Section 39      

It is not permissible in law to grant interest on the decretal amount of the award in appeal when no such interest was awarded by the arbitrators and no such claim was made by the respondent before the court which made the award rule of the court. Bangladesh Oil, Gas and Mineral Corporation (Petro-Bangla) vs Nuruzzaman Khan and others 51 DLR (AD) 52.

Sections 39, 42, 43 and 44

A combined reading of the provisions of sections 42, 43 and 39 of the Act, 2001 clearly shows that the only remedy open to a person who wants to set aside an arbitral award is to file an application under section 42 of the Act, 2001 within sixty days from the date of receipt of the award and after the expiry of the period of sixty days as envisaged in the section, the award becomes enforceable within the meaning of section 44 thereof and thus, jurisdiction of the civil Court has impliedly been barred if not expressly. In the context, we may also refer to section 9 of the Code which has clearly provided that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred and therefore, in view of the provision of section 42 of the Act, 2001, clause (d) of rule 11, Order VII of the Code is attracted. …Md. Nurul Abser Vs Alhaj Golam Rabbani & ors, (Civil), 6 SCOB [2016] AD 54 

Section 39      

It is well settled that in an appeal under section 39 of the Arbitration Act the decision of the arbitrator cannot be reviewed and the appellate Court cannot construct an award for the arbitrator. The appellate Court is only to see whether the award can be challenged on the ground of excess of jurisdiction or income, petence or misconduct on the part of the arbitrator. Bangladesh vs. National Construction And Consult Ltd. 17BLD (AD) 308. 

Section-41      

Rule—4 of the Second Schedule Read with Section-41

In the matter of a company, it is advisable that the court should not interfere by granting injunction where in the internal management and functioning of the company may be affected. (Para-4) Mr. Mainul Hosein Vs. Mr. Anwar Hossain 4 BLT (AD)-76.

Section 41(b) and item 42nd Sch    

An Arbitrator exercises a quasi-judicial function. He is both a judge of law and of fact and hence a pure question of law whether the executive authority acted beyond power could be a matter of arbitration reference.

The law in this regard is also well settled that when parties to building construction or supply of goods and the like designate a person to be authorised to finally determine question relating to the execution or non-execution as per terms of the contract and stipulated that the decision of the person shall be final and binding on both the parties, it would be binding except in cases of fraud, gross mistake on his part, as would imply an act of bad faith or failure to exercise an honest judgment on grounds of collusion with the other party or an act of misconduct. AIR 1975 (Madhya Pradesh) 152. Coal Controller vs Ventura Industries Ltd 46 DLR 5.

Sections 42(2) and 43-Because the arbitration tribunal derives its jurisdiction on and from the matter and issues referred to it by the parties to the arbitration. It has no power of its own to decide any matter which is not referred to it or which has no basis in their respective claims or counter claim, if any.

When there is no counter claim made by the other party it clearly proves that it does not have any claim of its own rather it simply defends itself against the genuineness of the claim of the claimant. And when no such counter claim is being made the tribunal has the jurisdiction only to see whether the claim of the claimant is genuine/proved and can decide the matter only to the said extent and not beyond that, not to speak of giving award which has not been sought for by the other party to the arbitration. Roads and Highways Department Vs. Startus Construction Company and another (Civil) 19 ALR (AD) 188-192

Section 42      

After the final decision in the suit and in this appeal therefrom, it is very difficult for us to appreciate the submissions of Mr Rafiqnr Rahman that in view of the arbitration agreement having remained alive, the suit is not maintainable. Moreover, we find no such provisions in the Act barring a suit on the ground of existence of an arbitration agreement. Bangladesh Water Development Board vs Contractor, Manu Barrage 53 DLR 200.

Sections 42 and 43

The arbitration tribunal derives its jurisdiction on and from the matter and issues referred to it by the parties to the arbitration It has no power of its own to decide any matter which is not referred to it or which has no basis in their respective claims or counter-claim, if any. [73 DLR (AD) (2021) 370]

Jurisdiction

Since there was no counter-claim the tribunal rightly did not frame any issue on it. But in passing an award of taka six crores and odd or the reduced amount of taka three crores and odd in favour of the department the tribunal has travelled beyond the terms of reference and, as such, the same is beyond its jurisdiction. [73 DLR (AD) (2021) 371]

The High Court Division also relied on the case of Chetandas and others vs Radhakrisson Ramchandra and others reported in AIR 1927 Bombay 553 wherein it has been held:

"In cases where an arbitrator enters into the consideration of matters which are not referred to him, or which he has no jurisdiction to try, Blackburn, J in Ring Land vs Lowndes (1) (1864) 12 WR 1010) said that the question is not one of the waiver or of estoppels, but of authority, and a party continuing to attend the reference after objection taken and protest made does not give the arbitrator authority to make an award. Even if a party under protest continues to attend before arbitrators and cross examines witnesses, he does not thereby waive his objection, nor is he stopped from saying that the arbitrators have exceeded their authority by awarding on the matter." [73 DLR (AD) (2021) 375]

Sections 42 and 43

For setting aside the arbitral award Whether in a proceeding sprang out from the Arbitration Act, 2001, the Code of Civil Procedure is applicable or not.

The High Court Division held that the term "জেলা জজ" 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 and as such the instant revisional application is maintainable.  [2023] 27 ALR (HCD) 20

Sections 42 and 43-When a court is applying the public policy test to an arbitration award, it does not act as a court of appeal for reassessing or reappreciating the evidence and consequently errors of fact cannot be corrected. No less important in the principle now recognized as a salutary juristic fundamental in the administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a court of law. The Court shall not ordinarily substitute its . interpretation for that of the arbitrator. Saudi Arabian Airlines Corporation vs Saudi Bangladesh Services Company Ltd. (Civil), 73 DLR (AD) 277

Sections 42 and 43-The arbitration tribunal derives its jurisdiction on and from the matter and issues referred to it by the parties to the arbitration. It has no power of its own to decide any matter which is not referred to it or which has no basis in their respective claims or counter-claim, if any. Roads and Highways Department, Ministry of Communication vs Startus Construction Company (Civil), 73 DLR (AD) 370

Section 42 and 43

The question herein is whether the arbitrators themselves got adequate opportunity for discussions among them- selves and who would decide such adequacy. These important facts and points of law were not addressed to in the earlier judgment. Saudi Arabian Airlines vs. M/S. Saudi Bangladesh Services (Syed Mahmud Hossain J) (Civil) 10 ADC 492

Constitution of Bangladesh

Article 109 read with Code of Civil Procedure [V of 1908]

Section 115

Since there is specific provision in the Code of Civil Procedure, it will govern the field so far revisional jurisdiction is concerned. Apart from that, after the amendment of Section 115 of the Code of Civil Procedure, the High Court Division  may call for any record of any suit or proceeding upon an application of any aggrieved party whereas before amendment, the High Court Division was empowered to call for the record of any case suo motu which has been decided by any Court subordinate to it where no appeal lies. [2023] 27 ALR (HCD) 20

Editors’ Note:

এই মোকদ্দমায় প্রতিবাদীপক্ষ ১৮৮ দিন বিলম্ব মওকুফের প্রার্থণাসহ জেলা জজ আদালতে সালিশ আইনের ৪২ ধারা অনুসারে সালিশী রোয়েদাদ বাতিলের আবেদন করেন। আদালত তামাদি মওকুফ করে শুনানির জন্য দিন ধার্য করে। আদালতের আদেশে সংক্ষুদ্ধ হয়ে দরখাস্তকারীপক্ষ হাইকোর্ট বিভাগে অত্র সিভিল রিভিশন মোকদ্দমাটি দায়ের করলে আদালতের সামনে প্রশ্ন উত্থাপিত হয় যে, সালিস আইন ২০০১ এর ৪২ ধারায় উল্লিখিত ৬০ (ষাট) দিন সময়সীমা অতিক্রান্ত হওয়ার পর কোন পক্ষ বিলম্ব মওকুফের আবেদনসহ সালিশী রোয়েদাদ বাতিলের আবেদন করলে আদালত কর্তৃক তা মঞ্জুরের আইনগত কোনো সুযোগ রয়েছে কি না? হাইকোর্ট বিভাগ সালিস আইনের ৪২ ধারা এবং তামাদি আইনের ৫ ও ২৯ ধারা বিশ্লেষণ করে এই সিদ্ধান্তে উপনীত হয় যে, বিশেষ আইনে ভিন্নতর তামাদির মেয়াদের বিধান সুনির্দিষ্ট থাকলে তামাদি আইনের ২৯(২) ধারা মোতাবেক তামাদি আইনের ৫ ধারা সেক্ষেত্রে প্রযোজ্য হবে না। পরিণামে হাইকোর্ট বিভাগ রুলটি চূড়ান্ত করে জেলা জজ আদালতের আদেশ বাতিল করে। [17 SCOB [2023] HCD 57]

 Editors’ Note:

In the instant Civil Revision question arose whether the learned District Judge while entertaining an application under section 7K of the Arbitration Act 2001 can pass an order under section 45 of the Evidence Act, 1872. The petitioner Anamika Corporation Ltd. filed an Arbitration Miscellaneous Case under section 7K of the Arbitration Act, 2001 before the court of learned District Judge praying for an order to restrain the opposite parties from transferring or entering into deed of agreement or otherwise disposing of the scheduled property to any third party until disposal of the arbitration proceedings under section 7A(a)(b) and section 7A(1)(c) of the same Act. The opposite parties denying the existence of an agreement made an application under Section 45 of the Evidence Act, 1872 for examination of the signature of the opposite parties by hand writing expert. The Court of the learned District Judge allowed, in part, the application for examining the signature of the opposite parties by hand writing expert against which the petitioner filed this Civil Revision. The High Court Division held that the power to issue an order for examination of a signature by hand writing expert has been conferred upon the Arbitral Tribunal only under the provisions of section 17(ka) of the Arbitration Act, 2001. While issuing an order of ad[1]interim restraint or injunction whatsoever, the learned District Judge is not empowered to pass an order under section 45 of the Evidence Act. Civil court cannot travel beyond the limited powers of passing ad-interim orders in a situation of urgency conferred upon it under Section 7K of the Act. In the result, the rule was made absolute.

7K (1) of the Arbitration Act, 2001: 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. (Para-32)

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 (A¿¹haÑ£L¡m£e ¢e­od¡‘¡) under sub Rule ‘P’. (Para-33) 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. (Para 42)

Section 19(1) and 19(2) read with section 17(ka) of the Arbitration Act, 2001: 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. (Para-43)

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. (Para-44)

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. (Para-47)

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. (Para 49)

Section 7K of the Arbitration Act of 2001: 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. (Para-51, 52)

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. (Para - 54) [17 SCOB [2023] HCD 119]

Arbitration Act [I of 2001] (সালিস আইন)

Article 3 of the First Schedule to the Act — ­Time for award 4 months

The appellant would seem to have no ground to stand upon, since it appears that the award was made beyond the period mentioned therein.

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

Enlargement of time (beyond 4 months) for giving the award by consent of the both parties, permissible-Such enlargement of time may be provided for in the agreement-In the absence of such agreement consent may be inferred by conduct of parties. Government of Bangladesh vs Jalaluddin Ahmed 37 DLR (AD) 27.

Sections 42 and 43

Setting aside arbitral award on the grounds enumerated u/s 43—

read with

Contract Act, 1872—

Section 73— Not attracted in the instant case—

The appellant claimed compensation on account of delay in. completion of the project. The Arbitration Tribunal did not allow compensation on account of the delay. The District Judge refused to set aside the award as there was no such ground as enumerated under section 43 of the Arbitration Act, 2001. The High Court Division held section 73 of the Contract Act, 1872 is not attracted in the instant case. It is further held arbitral award can only be set aside when it is opposed to law and public policy, excessive, malafide and not based on materials on record. As the arbitral award does not suffer from any infirmity the learned judges of the High Court Division dismissed the appeal. Bangladesh Power Development Board and others Vs. M/s Arab Contractors (BD) Ltd. and others 15 MLR (2010) (AD) 153.

Sections 42 & 43

The High Court Division was right in holding that the 3rd arbitrator was neither consulted nor given an opportunity by the Chairman to deliberate and express his views on the issues before making and signing the award in question. Saudi Arabian Airlines Corporation vs Saudi Bangladesh Services Company Ltd 15 BLC (AD) 156.

Section 42

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

Sections 42 and 43

Setting aside the arbitral award on ground of being opposed to law and public policy—

Section 73— Counter claim based on remote and indirect consequence is not admissible—

The dispute in the instant case was referred to a three-member arbitration tribunal which made the impugned award. The third member gave a dissenting note as he was not given the opportunity of participation in the deliberation. The Arbitration Tribunal did not allow the counter claim based on remote and indirect consequences as provided under section 73 of the Contract Act, 1872 with which the apex court concurred, but held that in order to be sustainable the award must be by majority upon participation of all the members of the tribunal which is the requirement of law. As the impugned award has not been passed in accordance with law and is opposed to public policy the High Court Division set-aside the same which the Appellate Division upheld. Saudi Arabian Air Lines Corporation, represented by its Country Manager Vs. M/S Saudi Bangladesh Services Company Ltd, represented by its Managing Director 15 MLR (2010) (AD) 153.

Section 42(2) r/w section 43

The Arbitral tribunal travelled beyond its jurisdiction by entertaining and deciding issues which has not been referred to by the contending sides– The issues framed for determination by the arbitral tribunal it appears that no such issue was framed to determine whether the Department would get anything because it made no counter claim against the clamant company. Since there was no counter claim the tribunal rightly did not frame any issue on it. But passing an award of taka six crores and odd or the reduced amount of taka three crores and odd in favour the Department the tribunal has travelled beyond the terms of reference and as such the same is beyond its jurisdiction.

It is held that the High Court Division did not commit any illegality in setting aside the award on the ground of lack of jurisdiction. Thus, Appellate Division does not find any reason to interfere with the impugned judgment and order of the High Court Divi-sion. ...Ministry of Communication, BD =VS= Startus Construction, (Civil), 2021(2) [11 LM (AD) 89] 

Section 42

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 

Section 42(1)

It appears that this court can interfere with the arbitration award only on limited ground where the arbitrators decided the matter on inadmissible evidence or on the principles of construction which the law does not countenance. No such case has been made out before us that the arbitrators relied on inadmissible evidence or misconducted themselves. Bangladesh power Development Board vs. M/s. Arab Contractor (BD) (Md. Abdul Matin J) (Civil) 6 ADC 952

Sections 42 and 43-When a court is applying the public policy test to an arbitration award, it does not act as a court of appeal for reassessing or reappreciating the evidence and consequently errors of fact cannot be corrected. No less important in the principle now recognized as a salutary juristic fundamental in the adminis- trative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a court of law. The Court shall not ordinarily substitute its . interpretation for that of the arbitrator. Saudi Arabian Airlines Corporation vs Saudi Bangladesh Services Company Ltd. (Civil), 73 DLR (AD) 277

Sections 42 and 43-The arbitration tribunal derives its jurisdiction on and from the matter and issues referred to it by the parties to the arbitration. It has no power of its own to decide any matter which is not referred to it or which has no basis in their respective claims or counter- claim, if any. Roads and Highways Department, Ministry of Communication vs Startus Cons-truction Company (Civil), 73 DLR (AD) 370

Section 43

An arbitral award may be set-aside by the court if the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. The legislative intent is that the parties should abide by the terms of the arbitration agreement if the arbitration agreement provides for arbitration by a named arbitrator, the court should normally give effect to the provisions of the arbitration agreement. 

29 BLC (AD) (2024) 1

Section 43

Arbitration award– Order sheet of the arbitration proceeding and the judgment of the High Court Division. We do not find any element as provided in section 43 of the Arbitration Act, 2001 for setting aside the arbitral award in the pleadings and other materials produced by the respondent. We also did not find any allegation and proof of fraud or corruption or the arbitration award has been made in contravention of law or the arbitrator have failed to give reasons in the arbitration award. The High Court Division has committed error of law in setting aside the arbitral award of the majority arbitrators. We find substances in this appeal. ...Saudi Arabian Airlines Corporation =VS= M/S Saudi Bangladesh Services Co. Ltd., (Civil), 2021(1) [10 LM (AD) 212] 

Section 43 (1)(b) (ii) and (iii)

The factual and contractual positions are matters for decision of the Arbitrator and as such, unless there appears to be gross illegality, neither the High Court Division nor this Division would enter into the merit of such arguments. .....TATA Power Company Ltd. =VS= M/S Dynamic Construction, (Civil), 2016-[1 LM (AD) 456]

Section 43(1)(b)(i)-One of the Arbitrator was completely left out of the process of consultation before making, finalizing and even delivering/passing the award. The spirit and intent of the Arbitration Act, 2001, is to ensure that the arbitration proceeding including the making, signing and passing of the award is conducted by effective participation of all the members of the Tribunal

The High Court Division is of the opinion that Impugned award passed by the majority Arbitrators of the Tribunal is not legal and binding upon the parties in view of the fact that one of the Arbitrator was completely left out of the process of consultation before making, finalizing and even delivering/passing the award. The spirit and intent of the Arbitration Act, 2001, is to ensure that the arbitration proceeding including the making, signing and passing of the award is conducted by effective participation of all the members of the Tribunal but in the instant case there was a clear deviation therefrom. There may be an award by the majority but such an award has to be made after taking due consideration of the views and opinion of the dissenting arbitrator. The award dated 12.10.2014 is not a valid award because the arbitrators did not act in a concerted manner nor there was any unanimous and effective participation in consulting and deliberating upon the award to be made, which is against the intent and purport of the Arbitration Act and the respondent's arbitrator was totally and completely excluded from the process of deliberation before the award was made and thus the majority arbitrators failed to do justice to the parties which is against the public policy of Bangladesh and thus this has vitiated the entire award and as such the impugned award has been set aside by the court below considering the provision of section 43(1)(b)(iii) of the Arbitration Act, 2001. In the premises above, the High Court Division does not find any reason to interfere with the findings of the learned District Judge in the Arbitration Miscellaneous Case No. 661 of 2007 setting aside the arbitral award dated 12.10.2006 passed by the majority arbitrators. Accordingly, the appeal is dismissed. Oram Limited Vs. Reckitt Benckiser (Bangladesh) Limited (Spl. Original) 18 ALR (HCD) 78-87 

Section 43

Bangladesh Energy Regulatory Commission Act

Section 40

The Substantive PPA and the Supplemental PPA-2 originated from the Private Sector Power Generation Policy of Bangladesh, 1996 and the subsequent Land Lease Agreement and Implementation Agreements executed between the Government and SPL which are indeed sovereign contracts and the Supplemental PPA-2 originated thereform cannot be termed as commercial contract. Further it would transpired from the perusal of Supplemental PPA-2 that different clauses of the agreement referred to the Substantive PPA in various ways, and as such it is clear that the Supplemental Power Purchase Agreement-2 is a continuation of the Substantive PPA of 2000 and it is not a fresh contract. ––Appellate Division is of the view that the Arbitral Tribunal constituted by the BERC had no jurisdiction to arbitrate the dispute referred by the SPL pursuant to the Clause 15.3 of the Substantive Agreement dated 10.02.2000 executed between the parties and as such arbitration proceeding and award passed by the said Tribunal are liable to be declared without lawful authority and of no legal effect. .....Bangladesh Rural Electrification Board =VS= Bangladesh Energy Regulatory Commission, (Civil), 2023(1) [14 LM (AD) 509] 

Sections 45 and 46

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.

Sections 45, 46 & 47-The Legislature by engraving the word 'scope' in the marginal note of Section 3 of the Arbitration Act sought to mean that while the provisions of this law shall be mandatorily applied to 'domestic arbitration', 'international commercial arbi- tration' which would take place in Bangladesh and execution of the award passed by the foreign arbitral tribunal as provided in Sections 45, 46 & 47, the provisions of the Arbitration Act may also be applied for foreign arbitration, if the parties to the foreign arbitration in their arbitration agreement makes such stipulation. Thus, clearly this Section is about the 'arbitration', and it does not seek to state anything about the business or role of the 'Court', as evident from the Bengali wordings 'উক্ত সালিশের ক্ষেত্রে' (for the said 'arbitration') as occurs in Section 3 of the Arbitration Act. So, it is crystal clear that the aforesaid 'limitation' is meant for mandatory application of the provisions of the Arbitration Act for arbitration, arbitrators, arbitration proceedings, arbitration award, arbitration tribunal; the limitation is in no way meant to be applicable for the Courts. Southern Solar Power Lid and another -Vs. Bangladesh Power Development Board and others (Spl. Original) 16 ALR (HCD) 91-109

Section 53

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 

Section 53

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 

Section 53

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

Arbitration Act, 1950 read with Clause 14 of the Agreement dated 18.4.80

Clause 14 of the agreement is held to be a composite whole, a self-contained indivisible covenant, having a meaning and content in its totality. Clause 14 is an arbitration clause stipulating not only that the parties shall submit all their disputes to arbitration but also that the arbitration shall be “in accordance with, and subject to the provisions of the Arbitration Act, 1950”. [Per Mustafa Kamal J.]

Bangladesh Air Service (Pv.) Ltd. vs. British Airways PLC, 17 BLD (AD) 249

Bangladesh Courts and English Law

It is true that Bangladesh Courts often follow the English Law when there is no municipal law on the subject, as in the field of Marine Insurance, but in the English Arbitration Act, 1950, the procedural law includes the forum for administration of the procedure and it is a poor defence to say that clause 14 has not settled the venue of arbitration. If the arbitration “is in accordance with, and subject to, the provisions of the Arbitration Act, 1950”, the parties do not have to travel far to look out for the venue beyond the Arbitration Act, 1950. [Per Mustafa Kamal, J.1 Bangladesh Air Service (Pv.) Ltd. vs. British Airways PLC, 17 BLD (AD) 249

Arbitrator awards––   

Arbitrator awards–– Both the parties appointed their respective Arbitrators, who could not concur with each other in their opinion and gave different Awards. Thereafter, the Chairman of the Arbitral Tribunal finally arrived at his own decision with a completely separate award on 20.02.2013. In the above award, the learned Chairman of the Arbitral Tribunal accepted the price for 10% defective Dal at Tk.78 per K.G. as fixed by the Price Fixation Committee of TCB and also declared that the respondent is entitled to get refund of Tk.95,00,000/- deposited by the respondent as performance security forfeited by the petitioner.

Against the decision Nos.II and part of III of the Award passed by the learned Chairman of Arbitral Tribunal, the petitioner TCB filed a case before the District Judge seeking to set aside the award and the learned District Judge after hearing of both the parties allowed the Arbitration Miscellaneous Case No.227 of 2013 and set aside Clause II and part of Clause III of the Arbitration Award dated 20.03.2013 passed by the learned Chairman of the Arbitral Tribunal in respect of Contract No.TCB/MP-2605/2010 dated 19.09.2010.

Being aggrieved by and dissatisfied with the aforesaid judgment, the 1st party-appellant (present respondent) preferred First Miscellaneous Appeal No.177 of 2015 before the High Court Division. The learned Judges of the High Court Division by the judgment and order dated 07.12.2016 allowed the appeal.

Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the leave-petitioner filed this civil petition for leave to appeal before this Division.

The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of law and fact do not call for interference. Accordingly, this civil petition is dismissed. ...Trading Corporation of Bangladesh=VS=M/S Trio Hologram Ind. Ltd. , [6 LM (AD) 186] 

The Judges are the final arbiter––    

The Judges are the final arbiter–– The Judges are the final arbiter between litigants and between the public and powerful authorities and organisations. The authority of the Courts and the Judges is not undermined in any way. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, [1 LM (AD) 28] 

The Act, 2001 is a special law and it has been enacted with the sole purpose of resolving the dispute between the parties through arbitration and after an award is given by the Arbitrator(s), if it is allowed to be challenged in a civil suit, then the arbitration proceeding shall become a mockery and the whole purpose of the arbitration scheme as envisaged in the Act, 2001 shall fail. Therefore, the trial Court rightly rejected the plaint. …Md. Nurul Abser Vs Alhaj Golam Rabbani & ors, (Civil), 6 SCOB [2016] AD 54

Arbitration proceeding: 

Arbitration proceeding: It appears from the judgment of the High Court Division that the High Court Division found that there was a valid agreement between the plaintiff and defendant wherein an arbitration clause has been stipulated and pursuant to the said agreement an arbitration proceeding has already been commenced before the Arbitration Tribunal at Liverpool. This suit has been instituted subsequent to the arbitration proceeding. The High Court Division held that though written statement has been filed but, in fact, the same can be treated as information to the court regarding pendency of arbitration proceeding before Arbitration Tribunal at Liverpool. Since arbitration proceeding has already been initiated between the parties before initiation of the instant suit, we are of the view that the High Court Division rightly disposed of the Rule staying further proceeding of the suit with a direction to settle the dispute in the arbitration proceeding. …Mosharaf Com. Tex. Mills Ltd & ors Vs. ECOM Agro. Corp. Ltd & ors, (Civil), 4 SCOB [2015] AD 28 

Arbitrator awards–

Both the parties appointed their respective Arbitrators, who could not concur with each other in their opinion and gave different Awards. Thereafter, the Chairman of the Arbitral Tribunal finally arrived at his own decision with a completely separate award on 20.02.2013. In the above award, the learned Chairman of the Arbitral Tribunal accepted the price for 10% defective Dal at Tk.78 per K.G. as fixed by the Price Fixation Committee of TCB and also declared that the respondent is entitled to get refund of Tk.95,00,000/- deposited by the respondent as performance security forfeited by the petitioner.

Against the decision Nos.II and part of III of the Award passed by the learned Chairman of Arbitral Tribunal, the petitioner TCB filed a case before the District Judge seeking to set aside the award and the learned District Judge after hearing of both the parties allowed the Arbitration Miscellaneous Case No.227 of 2013 and set aside Clause II and part of Clause III of the Arbitration Award dated 20.03.2013 passed by the learned Chairman of the Arbitral Tribunal in respect of Contract No.TCB/MP-2605/2010 dated 19.09.2010.

Being aggrieved by and dissatisfied with the aforesaid judgment, the 1st party-appellant (present respondent) preferred First Miscellaneous Appeal No.177 of 2015 before the High Court Division. The learned Judges of the High Court Division by the judgment and order dated 07.12.2016 allowed the appeal. Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the leave-petitioner filed this civil petition for leave to appeal before this Division.

The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of law and fact do not call for interference. Accordingly, this civil petition is dismissed. ...Trading Corporation of Bangladesh=VS=M/S Trio Hologram Ind. Ltd. , (Civil), 2019 (1) [6 LM (AD) 186]