MD. SHAH ALAM Vs. BANGLADESH WATER DEVELOPMENT BOARD

JUDGEMENT

(1.) This rule by the plaintiff, directed against judgment and order No. 209 dated 17.06.2009 passed by the learned Joint District Judge, Comilla in Arbitration Suit No. 01 of 1995 of that Court rejecting the application of the plaintiff dated 23.01.2006 under Section 30 and 33 of the Arbitration Act, 1940 as amended/added by Ordinance No. 49 of 1978 published in the Extra Ordinary Dhaka Gazette dated 05.12.1978 read with section 151 of the Code of Civil Procedure for rejecting the objection petition dated 09.10.2005 and 14.11.2005 filed by the defendant No. 5 against award and to pass a decree in terms of award dated 20.08.2005 filed by the learned Arbitrator.

(2.) The short facts relating for disposal of the rule, is that, the opposite party, Bangladesh Water Development Board, floated Tender Notice No. T-3 of 1987-88 issued from the Office of the Executive Engineer, Gomati Water Development Division, Bangladesh Water Development Board, Comilla; (here we tempted to note that whenever our national poet, Kazi Nazrul Islam went to Comilla, his father-in-law's house, he spent time on the bank of river Gomati and in some of his eternal songs river Gomati occupy considerable place) petitioner submitted tender on 10.04.1988 for construction for Flood Control Embankment in Reach No. K-1(A) at length of 32.00 chainage both sides of Gomati River from Eliotgonj to Kushiara under sub-project of Gomati first phase during the year 1987-88; original tender amount was Tk. 21,04,600/-; total work at length 0.00-32.00 chainage; during progress of the work, opposite party No. 4 change alignment of the respective design and for that, quantum of work was enhanced; from 30.04.1988 plaintiff started his work according to the aforesaid work Order being No. 834 dated 24.03.1988 and completed 9% of work which is evident by the progress report dated 26.03.1989 prepared by Sub-Divisional Engineer, Gomati Water Development Board, Comilla. After one year, vide certificate dated 02.10.1989 issued by the Executive Engineer, plaintiff came to know that the alignment and design of the aforesaid work has been again changed and re-fixed from country side to deep river side and duration of the said work extended up to 1989-90; subsequently, duration of the aforesaid work was extended up to June 1991, which is evident from Certificate dated 29.05.1990 issued by Executive Engineer, Gomati Water Development Board, Comilla. Thereafter, plaintiff completed the work i. e. the north side of Kaladumuria River from Eliotgonj to Kushiara and able to complete the entire work within 30.06.1991. Plaintiff was entitled to get Tk. 98,84,098.00 but he was paid Tk. 16,29,436.00 only. Plaintiff on 02.09.1992 submitted bill and requested defendant opposite party No. 1 to pay the bill. Subsequently, plaintiff petitioner on 02.09.1992 submitted representation and asked for settlement of the bill through Arbitration. Since the defendant opposite parties failed to start Arbitration proceedings, plaintiff-petitioner by issuing legal notice dated 01.04.1995 upon the opposite parties, appoint an Arbitrator under the Arbitration Act of 1940 to settle the dispute.

(3.) After several bouts of legal proceedings for appointment of arbitrator, lastly, Mr, Justice M. A. Wahab (Retired) was appointed as arbitrator who gave the disputed award.