ASALAT ZAMAN (MD) Vs. GOVERNMENT OF BANGLADESH

JUDGEMENT

(1.) These two appeals by leave arose out of the selfsame arbitration proceeding, one at the instance of Janab Md. Asalat Zaman, the Contractor (in Civil Appeal No. 97 of 2000) and another at the instance of the Chief Engineer, West, Bangladesh Railway, Rajshahi (in Civil Appeal No. 98 of 2000) are directed against the judgment and order dated 21-7-1999 passed by the High Court Division in Appeal from Original Decree No. 371 of 1996.

(2.) Janab Md. Asalat Zaman, the appellant as the contractor entered into two agreements namely, agreement No. 16/LMH dated 12 September, 1988 and agreement No. 27/LMH dated 17 September, 1988, with the Government of Bangladesh for reconstruction of the railway line damaged, by flood. After the completion of the works the contractor submitted bills for payment which were not finally paid. This gave rise to a dispute. According to the provision of the General Conditions of Contract and Instructions for the Guidance of the Contractors, the matter was, referred to a sole arbitrator namely, Md. Abul Hashem, Additional Chief Engineer, East/Track, Bangladesh Railway. The arbitrator gave his award on 16 January, 1991 and submitting the same before the Subordinate Judge the contractor thereupon made an application for making the award a Rule of the Court. But the Chief Engineer, West, Rajshahi and Divisional Engineer, Bangladesh Railway Lalmonirhat, filed an objection under section 30 of the Arbitration Act, 1940 which was subsequently transferred to the Subordinate Judge, First Court, Rangpur and registered as Miscellaneous (Arbitration) Suit No. 42 of 1993. There was no appearance from the side of Bangladesh Railway. Resultantly, the learned Subordinate Judge passed an ex parte decree on 21 August 1996 making the award 4, Rule of the Court directing payment of the dues to the contractor with interest according to the bank rate within 30 days.

(3.) Aggrieved thereby, the Government of Bangladesh represented by Chief Engineer, West, Bangladesh Railway, Rajshahi and the Divisional Engineer, Bangladesh Railway, Lalmonirhat, preferred an appeal being FA No. 3 71 of 1996 to the High Court Division under section 39 of the Act. It was subsequently converted into an appeal under section 17 of the Act.