JANATA BANK Vs. NATIONAL ELECTRIC COMPANY

JUDGEMENT

(1.) This appeal by leave arises out of judgment and order dated 5.3.2002 passed by the High Court Division in Civil Revision No. 2051 of 1996 discharging the Rule.

(2.) The respondent, as plaintiff, filed Money Suit No. 135 of 1990 in the Court of Subordinate Judge (now Joint District Judge), and Commercial Court No.1, Dhaka praying for decree for a sum of Tk. 25,80,14,191.00 against the defendant appellants towards compensation on the averments that they obtained loan from Bangladesh Shilpa Bank to set up an industry for manufacturing electric bulbs and they also obtained loan of Tk. 1,50,00,000/- from the defendant No.1 against pledge and also another loan of Tk. 65,00,000/-against hypothecation and needing further money they approached Sonali Bank who agreed to extend further loan but the defendants, promising to extend further loan facilities, advised the plaintiff not to take loan from Sonali Bank and in view of the above the plaintiff did not take the loan from Sonali Bank but the defendant, though promised, ultimately did not give further loan to them and as a result the business of the plaintiff seriously hampered leading to the lay off of its factory; the defendants also took the keys of the office and the factory of the plaintiff on the plea of inspection but ultimately they did not return the same and as a result the plaintiff could not take proper care for maintenance to the raw materials, finished goods and the machineries which led to the damage of those; the plaintiff also deposited fixed deposit receipts amounting to Tk. 50 lacs belonging to others and the defendants, without any intimation to the plaintiff, encashed those making the plaintiff responsible to compensate the owners of the said fixed deposit receipts; during the pendency of the suit the respondent brought a surveyor from England who along with a few local engineers got the machineries and stock surveyed and assessed the loss of the plaintiff at Tk.45,56,70,942/- and then the plaintiff by amendment of the plaint increased its claim to Tk.45,56,70,942/-The defendants contested the suit by filing written statements denying the material allegations made in the plaint and contending that the plaintiff did not repay the loans within the period stipulated; there was no promise on the part of the defendants to give further loan to the plaintiff; the defendants by their letter dated 6.11.1986 requested the plaintiff to take delivery of the finished goods but they failed; the keys of the main gate of the factory were required for entering the godown for inspection but the plaintiff gave the key of the main gate along with 35 other keys which were not required and the defendants, after completion of inspection, though requested the Managing Director of the plaintiff to send a person, with his signature duly attested, to take back the keys but he did not take any steps in this regard; earlier a foreign expert made local investigation to ascertain the loss but at belated stage, when the suit has been fixed for hearing, the plaintiff filed an application praying for investigation by local engineers to assess the loss. Furthermore, commissioners cannot be appointed to assess the loss after six years of the filing of the suit. The learned Subordinate Judge (now Joint District Judge) by order dated 10.6.1996 allowed the said prayer. The defendants then moved the High Court Division and obtained Rule and after hearing the High Court Division discharged the Rule.

(3.) The learned counsel for the defendant-appellant submitted that from the records maintained it would not be difficult for the plaintiff to prove as to what was the price of various machinery as well as the stock at the time of institution of the suit which the plaintiff is to prove and as such there is no necessity of any local investigation and further the plaintiff, having previously elected to have the machinery and the stock surveyed privately, can prove the result of that survey and accordingly after lapse of six years they cannot seek local investigation when the value of machinery and stock has admittedly deteriorated and the High Court Division fell in error in holding that the trial court properly exercised its discretion.