NUR MOHAMMAD AND COMPANY LIMITED Vs. BANGLADESH

JUDGEMENT

(1.) This petition for Leave to Appeal is directed against the judgment and decree dated 06.09.2007 passed by the High Court Division in First Appeal No. 80 of 1998 allowing the appeal setting aside those dated 27.11.1997 of the Subordinate Judge, 2nd Court, Chittagong in Other Suit No. 120 of 1993 thereby dismissing the same.

(2.) The facts of the case, in short, are that the plaintiff company is a private limited company incorporated under the Companies Act, 1913 and is a recognized company and it had got commendable certificate from the Government as a foreign exchange earner and also got President's Medal and it is stated that the suit land originally belonged to a company which was a British Company incorporated in London as "Rally Brothers" and after the liberation of the country the said property had been declared as an abandoned property under President's Order No. 16 of 1972 and it was notified in the Gazette and on 3rd April, 1975 an administrator was appointed by the Government to look after the property and as the same action had not been in accordance with law the Government of Bangladesh had entered into an agreement with the "Rally Brothers" for purchase of the said company along with its properties on 23.02.1977 and thereafter, the defendant No. 1 namely the Government became the owner of the property and thereafter the said suit land had been transferred to and vested in Bangladesh Jute Corporation by operation of law and it was done under Section 19 of Bangladesh Jute Corporation Ordinance and in the said property there were some properties which had been lying as unused property and the Government decided to transfer those properties and on this score the Government constituted a sale committee and the said sale committee took steps in this regard. The defendant No. 3 published a tender for sale of the suit land in the daily news paper on 20.06.1992 vide Tender No. 02 of 1992 and in the said tender the "Kha" schedule property had been included in item No.6 and after publication of the said tender notice the plaintiff had submitted a tender on 20.07.1992 amounting to Tk. 6, 02, 51,000.00 and as per the terms and conditions of the tender the plaintiff had deposited Tk. 60, 25,100.00 as earnest money in the Government Treasury. The plaintiff had been the highest bidder in respect of the property of "Ka" schedule and the defendant authority had accepted the said highest bid of the plaintiff and decide to sell the property to the plaintiff and thereafter the Ministry of Jute by a telex dated 05.09.1992 had directed the Managing Director of the plaintiff company to come and meet with the Secretary of Ministry of Jute on 07.09.1992 and accordingly, the Managing Director of the plaintiff company met the Secretary and the plaintiff company came to know from the Secretary that 3 (three) other suits namely Other Suit Nos. 81 of 1992, 82 of 1992 and 83 of 1992 over some properties of schedule "Ka" were pending before the Court of Subordinate Judge, 2nd Court, Chittagong and also stated in view of the pendency of the three other suits, the properties in respect of schedule "Ka" could not be transferred at that moment and also made a proposal to the plaintiff that if the judgment and decree of the said three other suits would go in favour of the Government then the defendant would sell those properties to the plaintiff company and the plaintiff by letter dated 16.09.1992 communicated the acceptance of the proposal to the defendant No.1. The defendant No.2 on 18.10.1992 by a memo had expressed their desire to sell the property of "Kha" schedule out of "Ka" schedule which were the subject matter of three suits. Thereafter, on 18.10.1992 the defendant No.2 had also issued a letter of intent in this respect and the proportionate price of the said property had been fixed at Tk. 4,50,00,000/- and also directed the plaintiff to deposit Tk. 4,50,00,000/- excluding the baina money of Tk. 45,00,000/- within 20.11.1992 and it was also proposed that if the plaintiff after disposal of three other suits deposit Tk. 1,37,25,100/- in respect of "Kha" schedule property then they would execute and register the safkabala deed for the said property. The plaintiff later on came to know that two other suits being Nos.113 of 1992 and 114 of 1992 were pending before the Court of Assistant Judge, 2nd Court, Chittagong and also in the Court of Assistant Judge, 3rd Court, Chittagong other three suits namely Other Suit No.87 of 1992, 88 of 1992 and 89 of 1992 were pending in respect of "Kha" schedule property and in all the suits the plaintiff company had been made as defendants. The plaintiff company by letter dated 08.11.1992 informed the defendant No.1 about the pendency of the said suits in the Court of Assistant Judges and also made a proposal for deleting those properties from the letter of intent and accordingly, the defendant No.1 accepted the proposal of the plaintiff and the defendant No.1 by letter dated 15.11.1992 modified the letter of intent issued by the defendant No.1 by memo, dated 18.10.1992 and as such, excluded the properties involved in those five suits and after exclusion of those properties the defendant No.1 revised the price of the suit land under 'Gha' schedule at Tk. 1,80,00,000/- which excluded the earnest money of Tk. 20,00,000/- and directed the plaintiff to deposit the said amount of Tk. 1,80,00,000/- and it was also decided by the defendant No.1 that after disposal of those suits if the plaintiff would pay Tk.4,02,5 1,000/- excluding the earnest money then the defendant No.1 would execute and register the said safkabala deeds and would also handover possession of the said excluded property, the plaintiff after receiving the letter of the defendant No.1 had deposited Tk.1,80,00,000/- by a payment order on 18.11.1992 in respect of "Gha" schedule property and also requested defendant No.1 to execute and register the saf-kabala deed and to hand over the. possession of the same to the plaintiff and the plaintiff thereafter on 23.11.1992 made a request to the defendant No.1 for execution and registration of the said sale deed and also for delivering possession of the same and the defendant No.1 by letter dated 30.11.1992 had requested the Secretary of Bangladesh Jute Corporation to hand over possession of the "Gha" schedule property to the plaintiff by 07.12.1992 but Bangladesh Jute Corporation did not hand over possession of the property to the plaintiff and thereafter the plaintiff by letters dated 29.12.1992 and 17.02.1993 requested the defendant No.1 to hand over possession of the said schedule property but the defendant No.1 instead of handing over possession of the said property most illegally had cancelled the letter of intent by a letter dated 02.03.1993 along with this letter sent a cheque of Tk.2,40,20,050/- to the plaintiff and thereafter the plaintiff sent a legal notice on 23.03.1993 to the defendant No.1 for executing and registering the said sale deed and also stated that if the defendant No.1 would withdraw the cancellation of the letter of intent then the plaintiff would return the said cheque of Tk. 2,40,20,000/- and the defendant No.1 did not take any step for withdrawal of cancellation of the letter of intent and as such, the plaintiff through his lawyer, Barrister Syed Ishtiaq Ahmed, had informed the defendant No.1 that the plaintiff had been compelled to encase the said cheque under protest and for the purpose of mitigation the loss and damages arising out of illegal cancellation and as such, the plaintiff had been compelled to file the instant suit.

(3.) The defendant Nos. 1-5 contested the case filing written statement denying the material allegation that the suit is not maintainable in its present form, barred by limitation as well as the principle of estoppel, waiver and acquiescence and further stated that as several suits are pending with relation to the major portion of the property and if a portion of the property is sold to the plaintiff then the Government would suffer loss and it might lead to further litigations in respect of those properties and with a view to avoid further complication, the defendants had decided to rescind the letters of intent and the defendants further stated that there was no concluded contract between the parties over the suit property and as such, the plaintiff is not entitled to get a decree for specific performance of contract on the basis of letter of intent and also as per the terms and conditions of the tender notice the Government reserved the right to cancel any tender without assigning any reason whatsoever and the defendants had cancelled the letter of intent for public interest. Moreover, the plaintiff had enchased the cheque after the cancellation of the letter of intent and as such, the plaintiff is not entitled to get a decree for specific performance of contract and as such, the defendant Nos. 1-5 prayed for dismissal of the suit.