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Section 33(7) of Artha Rin Adalaat Ain, 2003
Without delivery of possession the execution case under the Artha Rin Adalat Ain, 2003 can not be disposed of as per provision of sub-section 7 of section 33 of the Artha Rin Adalat Ain, 2003. ................... (8)
Section 28, Artha Rin Adalat Ain, 2003
If the 2nd Execution case is filed after the expiry of one year from the rejection or disposal of the 1st Execution case or if any new execution is filed after expiry of six years of filing the first execution case, the same would be barred by limitation. ............... (12)
Expiry of an execution case
The
execution case does not come to an end with the issuance of a
certificate under section 33 (5) of the Artha Rin Adalat Ain, 2003.
Rather it remains alive till the possession of the property alleged to
have been sold in auction, was handed over to the auction purchaser................(17)
Md. Abdul Jabber Biswas Vs. Aysha Khatoon and others, 2008, 37 CLC (HCD)
Government of Bangladesh Vs. Kalimuddin Pramanic and others, 2006, 35 CLC (HCD)
S.M. Mohiuddin Hossain Vs. Jalalabad Co-Operative Housing Society Limited and others, 2008, 37 CLC (HCD)
Salima Akter Niluma Banu Vs. Shahin Shakhider and others, 2007, 36 CLC (HCD)
Rejection of the Plaint
The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action:
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiency stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law,
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not exceed twenty one days.
Aslam @ Billal & another Vs. State, 2012, 41 CLC (HCD)
সারবান সাক্ষ্য (Substantive Evidence)
ইহা প্রতিষ্ঠিত যে, সহযোগী আসামীর স্বীকারোক্তি সারবান সাক্ষ্য (substantive evidence) নয়। সারবান সাক্ষ্য ব্যতিত শুধুমাত্র সহযোগী আসামীর স্বীকারোক্তির ভিত্তিতে কাহাকেও দোষী সাবৎস্ত করা যায় না। কোন আসামীর বিরুদ্ধে সারবান সাক্ষ্য থাকেলেই কেবল সাক্ষ্য আইনের ৩০ ধারা অনুসারে উহার সহিত সহযোগী আসামীর স্বীকারোক্তি বিবেচনায় আনা যায়।
Conviction can not be based solely on co-accused’s confession
It is settled law that conviction can not be based solely upon the confession made by a co-accused as against the non-confessing accused and there is nothing to disagree with this settled position of law.......... (17)
Confession, not a mere scrap of paper
A confessional statement is not a mere scrap of paper and it provides a great clue in cases where the accuseds are unknown culprits and are Known only amongst their associates. In such cases it remains difficult to locate the other members of the gang except from the data and information available in the confessional statement....... (19)
Since
confessional statement is documentary evidence, it can be taken into
consideration at the time of trial as per section 30 of the Evidence
Act, 1872 and in appropriate case conviction of the non-confessing
co-accused can be sustained upon the confessional statement made by
another co-accused............(28)
Aftab Automobiles Ltd Vs. Superintendent Customs, Excise & VA, 2010, 39 CLC (HCD)
Jurisdiction of Concerned VAT officer
In case a petitioner takes excess rebate of VAT, the concerned VAT officer under section 9 (2) of the VAT Act has lawful Jurisdiction to cancel the rebate and adjust it on the current account register of the petitioner by necessary order. ........................ (26)
Show Cause notice
Section 9 of the VAT Act, provides that no show cause notice is necessary before adjustment of rebate enjoyed by the petitioner.
Doctrine of Exhaustion
A
petitioner in a VAT case can not take resort to invoke writ
jurisdiction without exhausting the forum provided under section 9 (2
ka) of the VAT Act. ........ (27)
Orascom Telecom Bangladesh Ltd Vs. Bangladesh and others, 2012, 41 CLC (HCD)
Article
102 (2) (a) (ii) of the constitution of the People’s Republic of
Bangladesh, The Telegraph Act, 1885 Section 4, Wireless Telegraph Act,
1933
Article 40 should go uninterrupted
The petitioner is entitled to carry out his business of mobile operator as per Article 40 of the Constitution of the People’s Republic of Bangladesh without interruption since there is an implied covenant that the petitioner’s right provide mobile operating service can not be interrupted by way of imposing unreasonable and discriminatory fee in violation of the Telecommunication Regulation Guideline and without giving the petitioner scope to defend themselves. ............ (13)
Section 6 (3) of the VAT Act, 1991 specifies the time when VAT for the services becomes payable. Since no service has been provided by renewal of license no VAT is payable. ........... (17)
Petitioner not supposed to pay VAT
BTRC is not a taxable service provider. Therefore, no VAT is payable by the petitioner on the license fee etc. ........... (18)
License renewal fee must be paid
The
issue of applicability of VAT and/or liability of the petitioner
company to pay the VAT has no relation whatsoever with regard to the
payment of license renewal fee and spectrum assignment fee. The
petitioner company is bound to pay the net amount of the license renewal
fee fixed by BTRC, without any kind of deduction. ............... (38)
Kamal Vs. State, 2012, 41 CLC (HCD)
Testimony of police personnel
Though it is well settled that a conviction can be based on the sole testimony of the police personnel if it appears true and unimpeachable, but the case where public witnesses depose in one voice contrary to what police personnel have deposed in that the testimony given by the police personnel shall be discarded........(20)
It
is well settled that to constitute an offence under section 19A and
19(f) of the Arms Act conscious possession and actual control are
required.
Deposition police personnel must be supported by public witnesses
Where police personnel have deposed that arms and ammunitions were recovered from the possession of a petitioner which contention shall have to be supported by public witnesses. ....... (21)
Corroboration by public witnesses
Conviction
can be awarded relying only upon the evidence of police personnel.
Corroboration by public witnesses must exist for awarding
conviction......... (22)
Mamun-ur-Rashid (Md.) Vs. Secretary, Ministry of Law and others, 2012, 41 CLC (HCD)
Mirza Abbas Vs. State, 2012, 41 CLC (HCD)
Swadhin Chandra Mandal and others Vs. Bangladesh University Grants Commission (UGC), 2012, 41 CLC (HCD)
Kazi Nasir Uddin Babul Vs. State, 2012, 41 CLC (HCD)
Ruhul Amin and others Vs. Bangabandhu Sheikh Mujib Medical University, 2012, 41 CLC (HCD)
Warid Telecom International Ltd Vs. Commissioner of Customs and others, 2012, 41 CLC (HCD)
Section 196 B of the Customs Act, 1969
As per section 196 B of the Act the Tribunal has jurisdiction either to confirm or modify or annul the decision or order appealed against, but the Tribunal neither confirmed nor modified or annulled the decision or order appealed against. The Tribunal simply dismissed the appeal for default. The order of the Tribunal is a non-speaking one.
Chapter xxvi of the Code of Criminal Procedure deals with of the judgment and the said chapter includes section 366 to section 373, where section 367 relates with the language and the contents of judgment. Section 367 of the Code of Criminal Procedure requires that every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision. This court finds that an Order (judgment) dismissing an appeal summarily in keeping with the provisions of section 367 must show that court dismissing it, as such applied its judicial mind to the question of fact and law. It has therefore, no power to dismiss such an appeal for default and must dispose of the appeal on merit no matter whether the appellant appears or not................( 18)
In the light of section 367 of the Code of Criminal Procedure, the Tribunal’s judgment shall contain the point or points or determination, the decision thereon and the reasons for the decision. But in the present case, the Tribunal by merely pronouncing the conclusion without assigning any reasoning in support of the same is found not to have persued the proper way of disposing of the Appeal. And whereas further the Order (Judgment) of the Appellate Tribunal has not touched on the evidence on record at all and has not taken into consideration the grounds of appeal the judgment, there is no scope in law for it to be treated in any manner as a judgment..................(19)
Rahima Khatun and another Vs. Sufia Begum and others, 2012, 41 CLC (HCD)
As per section 54 of Transfer of Property Act sale is a transfer of ownership i.e. actual sale and actual sale means transfer by registered document and unless agreement/bainama converted to a registered sale deed it merely an agreement binding the parties to the agreement, not a transfer of title to be used both as a weapon of offence or a shield of defence to all. Agreement or bainama unless converted to a registered sale deed it does not create any right, title, interest or title of the purchaser in property……(9)
Maisha Corporation (Pvt.) Ltd Vs. Bangabandhu Sheikh Mujib Medical University (BSMMU) and others, 2012, 41 CLC (HCD)
BSMMU authority
committed any wrongful act or omission in awarding the supply work in
spite of violation of the terms of first stage tender specification by
the claimant-tenderer and illegalities in accepting the 2nd stage tender
by alteration, the supplier ought to have sold the supplied Washing
Plant first when it was decided unacceptable and he ought to have set a
claim for the remaining loss, adjusting the sale proceeds. The
supplier-Company ought to have taken reasonable steps to mitigate the
loss consequent upon purchaser's wrong even if any, and then only ask
for the remaining loss and damages. But in the instant case, no
reasonable step was taken to mitigate the loss. If any such damage or
compensation, after adjustment of the sale proceeds of Washing Plant, is
necessary to be paid to the supplier, it should fall upon the personal
liability of those persons, who had issued notification of award (work
order) by accepting the 2nd stage tender violating the rules and against
the interest of national public institution like the BSMMU Neither the
BSMMU can be compelled to accept the Washing Plant as supplied by the
Claimant-Company nor any price of the plant or compensation for any part
thereof can be allowed to spend from the Public Fund. It is against the
Public Policy meaning thereby that Public Fund cannot be misused by
granting such Award. As such, the Award is not legally sustainable. The arbitrary award was passed
by the Tribunal to enforce the decision of the Syndicate in the line of
amicable settlement proposed by the supplier like a decree of suit for
specific performance of Contract. In doing so, the Tribunal appears to
have exceeded limit of its lawful authority in passing the award and, as
such, the Tribunal appears to have violated the provision of section
43(I)(a)(IV) of the Arbitration Tribunal Act 2001, which is obviously, a
cogent ground for setting-aside Arbitral Award.................(40 and 41)
Monsur Hossain (Md.) Vs. Rahima Khatun and others, 2012, 41 CLC (HCD)
Whether the suit by a purchaser is maintainable without any effective attornment?
The plaintiff has instituted the suit acting upon the agreement for lease (Exhibit 1) established between his mother and the defendant and he made his first purchase after started depositing rent with the Rent Controller by the defendant. We have also seen that no effective attornment was made after the purchase was made by the plaintiff. In such a situation a suit for eviction of the defendant lies only if the defendant is found to be a defaulter in paying rent as per the terms of agreement (Exhibit 1) otherwise the suit would be not maintainable in law. If the defendant defaulted in paying rent in favour of the landlord, the subsequent purchaser, as an assignee can maintain a suit for eviction of the tenant, without any effective attornment and on the ground of defaulter. This view finds support from the case law of section Khatoon Vs. Ajijur Nessa 6 BLC (AD) 115 in as much as the plaintiff has stepped into the shoes of the original landlord and the tenancy continues.
Sohrab Hossain (Md.) & others Vs. State & another, 2011, 40 CLC (HCD)
Jamuna Builders Ltd Vs. Bangladesh and others, 2012, 41 CLC (HCD)
Rule 13 Order IX speaks 'satisfaction' and this 'satisfaction' is satisfaction of the Court. From the facts of the case it appears that Government satisfactorily explained its non-appearance when the suit was decreed against Government……… (5)
President's Order No.142 of 1972 after amendment incorporated section 6 which is as:—
"No person shall, without joining the Government which shall be a necessary party, file or proceed with any suit.
(a) for the specific performance of any contract relating to the transfer of any immoveable property or for declaration of title to, or assertion of ownership of, any such property."…………………...(6)
Before amendment government was impleaded as proforma defendant but after amendment, government became necessary party………………..(7)