High Court Division :
(Civil Appellate Jurisdiction)
Sharif Uddin
Chaklader J
AKM Shahidul Huq J
BRAC Bank Ltd………….
………………..Appellant
vs
Multimode Ltd………..
…………Respondent*
Judgment
June 12th, 2013.
Principles of Natural Justice
The principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority while making an order affecting those rights… … (l9)
Kanchan Mala Bepari vs Ananta Kumar Bepari, 6 DLR 254; Government of Bangladesh vs Md Tajul Islam, 49 DLR (AD) 177; Mozibar Rahman vs Chairman, Dhaka Improvement Trust DIT Building, Dhaka, 41 DLR (AD) 131; D Wren International Ltd vs Engineers India Ltd, AIR 1996 Calcutta 424; Desai and Co. vs Hindustan Petroleum Corporation Limited, AIR 1987 Guj 19; Jamuna Oil Company Limited vs SK Dey, 44 DLR (AD) 104 and Rex vs Sussex Justice Exparte Meeonly, 1924, QB 256 ref.
Asaduzzaman, Advocate-For the Appellant
Raghib Chowdhury. Advocate with Khondaker Ahsan Habib, Advocate-For the Respondent.
Judgment
Sharif Uddin Chaklader J : This appeal, at the instance of the defendant, directed against judgment and decree dated 25-9-2011 passed by the learned Joint District Judge, 1st Court, Dhaka decreeing Title Suit No. 6726 of 2008.
2. Plaintiff instituted the aforesaid suit praying for decree as:
(a) for a decree of Taka 6,90,13,116.90 (Six crore ninety lac thirteen thousand one hundred sixteen and paisa ninety) only as on 31-10-2008 in favour of plaintiff and against the defendant;
(b) A decree for interest @ 16% on suit value wef 1-6-2007 to till realization in full; with some other prayers including interest at the rate of 16% with effect from 1-6-2007.
3. Learned Judge decreed the suit as:
“???? ?????????? ?????? ?????? ???????? ??-???? ?????? ?????? ?????? ??? ???????? ?????????? ????”? ?????????? ????? ???????? ???? ?? ??-?-???? ??? ??-?-???? ??????? ???????? ??-????, ??????????? ???????? ??? ?????????? ??? ??????? ??? ????? ????? ???
?????????? ????????? ??????? ?? ?-?-???? ????? ???? ??-??-???? ????? ??????? ??????? ????? ???? ?,??,??,???.?? (?? ???? ????? ???? ??? ????? ???? ??? ???? ????? ????) ????, ?????????? ?? (???) ?????? ????? ?????????? ????? ?????? ? ??????????? ????? ?????? ???????? ??? ?? ???? (%) ?????? ?????? ???????? ¯’??? ???????? ??? ?????? ????? ???? (%) ?????; ?????? ????? ???????????? ????? ??????? ????? ????
?-?-?????? ????? ???? ????? ???? ?????? ?????? ??????? ??????? ????? ???? ??????? ????? ???? ?????????? ??????? ??% ???? ????? ????? ????? ??????, ???????????? ???? ??????? ?????????? ???????? ???? ??? ???? ? ?????? ?????? ????? ???????? ???? ??-??-???? ?? ??????? ?????????? ??????? ?????? ?????? ? ??????? ????? ?? ????? ????? ???????? ?????? ????? ? ???? ????????? ??????? ?????? ?????? ????”? ?????? ??????? ??% ???? ???? ?????????? ?????? ?????? ???? ??????? ??????? ?????? ???? ???? ???????????? ????? Mandatory Injunction Gi ?????? ?????? ??? ????”
4. It is the plaint case that plaintiff is a Private Limited Company and defendant is Public Limited Company incorporated under the Companies Act, 1913. Defendant Bank as a schedule Bank, under the supervision and monitoring of Bangladesh Bank participates in various service such as, keeping deposit of money, providing loan facilities for multipurpose, monitory transactions of share business, open L/C for export and import business and of its clients. Western Union Financial Services International referred to as Western Union, a USA based internationally reputed money transferring company from one country to another. Defendant was intended to participate in money transfer business with Western Union but a scheduled bank does not have sufficient manpower and logistic and technical software support required for execution and performance for agency agreement with Western Union which is involved in money transferring business from about 160 countries of the world, to Bangladesh. Defendant also required no objection letter from National Bank Ltd., as there was an exclusive agency agreement executed between Western Union and National Bank Ltd., since 1993. Subsequently on the basis of a decision of the Board meeting of the directors of the defendant, the defendant agreed to approach the plaintiff to pursue Western Union on its behalf to enter into an agency business in Bangladesh with Western Union engaged in money transfer business from one country to another. Plaintiff being the expert of technical software service and other relevant functions relating to the money transfer business and having well connection and business relation with Western Union agreed to provide its active assistance to finalize and execute a formal agency agreement between the defendant and Western Union. The plaintiff provided its utmost sincere effort including monitory, support to pursue Western Union to execute a formal agency agreement with the defendant. Moreover, plaintiff managed no objection letter from National Bank Ltd., since there was an exclusive agency agreement executed for unspecified period of time between National Bank Ltd., and Western Union from 1993. Consequently, the formal agency agreement was executed on 5th November, 2003 in pursuance of deed of agreement between plaintiff and defendant dated 20th October, 2003. Under Section 18A of the Foreign Exchange Regulations Act, 1947, defendant required permission from Bangladesh Bank to be an agent of a foreign company. Plaintiff accordingly managed the permission letter from Bangladesh Bank. Plaintiff as per terms of the agreement dated 2010-2003 introduced, arranged, involved, negotiated and made all other necessary arrangement and convinced Western Union to deposit more or less US $ 75,000 within 15 days of the execution of the said agency agreement and accordingly, Western Union did the same. The deposit of the said amount was with a condition imposed on the defendant by Bangladesh Bank through permission letter. Plaintiff and defendant discharged the responsibility of promoting the business of Western Union in Bangladesh by way of advertisement and also developed the market for service and enhancing the customer interest through its service. Plaintiff and defendant agree to carry but joint marketing programme amongst the Bangladeshi origin. The cost of such programme have been mutually agreed to bear by the parties on case to case basis. It was further agreed if Western Union fails to remit the required remittances according to the payment made by defendant time to time and such cannot be restored by the deposited amount held in the, designated Bank account, plaintiff was committed to help the defendant to realize the shortage amount along with interest. Moreover, when the agency agreement will be terminated or suspended, the security deposit will not be released till the outstanding dues of the defendant are settled by the Western Union and the plaintiff was under obligation to cooperate in such situation to solve the problem. Plaintiff discharged all the responsibilities and obligations imposed upon by virtue of contract dated 20-10-2003 confirmed in clause 12 that the plaintiff and the defendant were intended to carry out the contract most lawful way and they were committed to change any unlawful or unenforceable provisions which might put the party in the condition of economic loss. This means that the plaintiff and defendant were committed to perform the contract overcoming any interventions of law or person. Plaintiff is entitled to be paid for their service by the defendant 21% of commission which the defendant earned thought remittance and foreign exchange gains from Western Union. The share of commission and foreign exchange gain agreed to settle between the plaintiff and the defendant within 5 working days upon receipt of the same from Western Union as per clause No.6 dated 20th October, 2003. The share of commission and foreign exchange gain agreed to settle between the plaintiff and the defendant. Defendant in compliance with the aforesaid agreement continued to pay the commission to the plaintiff from 5th November, 2003 to May, 2007 without any interruption and complain. Plaintiff agreed with defendant to maintain very cordial business relationship so that both parties of the aforesaid agreement cold retain the business interest as long as the monitory transaction business of the defendant and Western Union. Defendant suddenly on 31-5-2007 sent a letter purporting to terminate the aforesaid agreement dated 20-10-2003 with effect from dated 1-7-2007 of 30 days notice and stopped releasing of the commission since June, 2007, hence the suit.
5. Defendant contested the suit by filing written statement thereafter amended the written statement in which defendant did not deny the agreement dated 20- I 0-2003 and also that defendant did not deny that plaintiff was expending the business with the defendant and for running the business of the defendant, defendant took several time and as per terms of the agreement since plaintiff was not acted enough the defendant cancel the agreement dated 20-10-2003.
6. On these pleadings of the parties learned judge framed issues as to maintainability of the suit, whether there was agreement on 20-10-2003 in between plaintiff and defendant, whether as per terms of the agreement the termination letter is illegal and what other relief or reliefs plaintiff was entitled.
7. Learned Judge decreed the suit as aforesaid.
8. Mr Asaduzzaman, learned Advocate, appearing for the defendant-appellant, submits that, the impugned judgment is totally a wrong judgment as the learned Judge failed to consider that it is cardial principal of law that plaintiff is to prove his case but learned Judge did not at all considered the plaint case or deposition of the plaintiff, rather the learned judge found fault with defendant’s case. Learned Advocate further submits that there being no clause in the agreement for prior notice for cancellation of the contract, cancellation having been done in accordance with the terms of the agreement and being in exclusive jurisdiction of the defendant, as such termination cannot be called in question. Learned Advocate further submits that in the termination letter plaintiff was not given any stigma, it is simply a termination simplicitor letter by which plaintiff as per terms of the agreement has no legal right to file the suit. Learned Advocate further submits that the decision relied by the learned Judge in arriving at the decision have no mariner of application on the facts of the given case.
9. Mr Raghib Rouf Chowdhury, learned Advocate, appearing for the plaintiff-respondent, on the other hand submits that, before issuing termination letter, plaintiff was not given any chance to explain its conduct as to whether plaintiff committed any wrong with the contract/agreement as such learned Judge committed no illegality in decreeing the suit. Learned Advocate relied on the case of Kanchan Mala Bepari vs Ananta Kumar Bepari, 6 DLR 254, wherein it is held as ‘Mere unilateral repudiation in pais of contract does not rescind the contract. Court’s decree necessary.’
10. Learned Advocate next relied on the case of Government of Bangladesh vs Md Tajul Islam, 49 DLR (AD) 177, wherein on the question natural of justice, the Appellate Division held as ‘it is well settled that a show cause notice is not a technical requirement or an idle ceremony. The notice must not be vague or in bare language merely repeating the language of the statute.’
11. Learned Advocate next relied on the case of Mozibar Rahman vs The Chairman, Dhaka Improvement Trust (DIT) Building, Dhaka, 41 DLR (AD) 131 wherein it is held as ‘allegation of bias and malafide cannot be allowed as the Chief Engineer against whom the same was made was not even made a party in the writ petition.’
12. Learned Advocate next relied on the case of D Wren International Ltd vs Engineers India Ltd, AIR 1996 Calcutta 424, wherein it is held as ‘challenge to cancellation of contract on ground that it does not contain reasons- Cannot be made because authority can produce its records to show that such reasons are available on records.’
13. Learned Advocate further relied on the case of Desai and Co. vs Hindustan Petroleum Corporation Limited., AIR 1987 (Guj) 19, wherein it is held as ‘challenge to termination of dealership for sale of petroleum products by instrumentality of State, Allegations that binding executive instructions of Govt. not followed and that termination is arbitrary-challenge not raising question purely of breach of contract.’
14. Learned Advocate relied on the case of Jamuna Oil Company Limited vs SK Dey, 44 DLR (AD) 104, natural justice wherein it is held as ‘natural justice in a case of disciplinary proceeding. In a case of disciplinary proceeding against an employee, in the absence of statutory rules, the employee must be given prior notice of the proceeding so that he gets an adequate opportunity to defend himself.’
16. The case is that under contract plaintiff was appointed to facilities the defendant to have business with Western Union Financial Services International, a USA based internationally reputed money transferring company. As per terms of the contract, it is admitted fact that, plaintiff’s performed obligations i.e. plaintiff obtained no objection certificate from National Bank and also plaintiff provided, including monitory support, to pursue Western Union to execute a formal agency agreement with the defendant, plaintiff obtained permission from Bangladesh Bank to be agent of foreign company, plaintiff under take extensive marketing programme all over the world, USA, United Kingdom, Italy, France, Portugal, Spain, Saudi Arabia, Malaysia, Brunei, Darussalam, Kuwait, UAE, Oman, Bahrain, Libya, Iraq, Japan, Australia, Canada, South Korea, Germany, Sweden and many other countries. Defendant as it appears did not deny the performances of plaintiff. Defendant’s case is that he made simply agreement or contract and for that reason contract does not specify any prior notice for termination. We have considered the deed of agreement, exhibit-2, wherein clause 11 regarding notice which runs as any notice provided for in this agreement shall be in written and shall be fist transmitted by facsimile transmission and then confirmed postage, prepaid registered mail or by a recognized courier service, in the manner as elected by the party giving such notice.
17. In the matter of termination, clause 4, i.e. in the event of termination or suspension of the said agency agreement mentioned herein above at any stage, the security deposit shall not be released till all the outstanding claim of BBL from Western Union are settled by Western Union. First Party shall use its good offices and extend cooperation in settlement of outstanding issue of BBL with Western Union and its agents as and when required.
18. It is argued that agreement does not say any prior notice for termination but when there is termination itself gives a stigma which affect the business of the terminated company or person as such law requires prior notice. It is the case of the defendant that plaintiff acted negligence with the contract. In that case, it is defendant who requires to justify termination letter and from that angle learned judge considered defendant’s case. It appears that learned Judge extensively considered the case of natural justice upon referring to various decisions of the apex court of this country and on relying section 73 of the Contact Act, held that ‘defendant acted malafide in terminating the agreement or contract with the plaintiff.’
19. Natural Justice has no definition. It is to be inferred. It must be without bias and should render the decision in a judicial spirit and in accordance with the principles of substantial justice and fair play in action. The principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, or quasi-judicial authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. These principles are now well settled and are four in number:-
(1) That every person whose civil rights are affected must have a reasonable notice of the case he has to meet.
(2) That he must have reasonable opportunity of being heard in his defence.
(3) That the hearing must be by an impartial tribunal, i.e. a person who is neither directly nor indirectly a party to the case or is already biased against the party concerned.
(4) That the authority must act in good faith, and not arbitrarily but reasonably.
20. In the case of Rex vs Sussex Justice Exparte Meeonly. 1924 QB 256 at page 259, Lord Hewart CJ laid down the eternal principle of natural justice as ” That it is merely of some importance but is a fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
21. On a reading of the contract itself it is our considered view that when there is no clause given prior notice before termination of the contract defendant should act within the boundary of principal of natural justice so that plaintiff could not take shelter before law on the ground of violation of natural justice.
22. We find no substance in this appeal.
In the result, this appeal is dismissed. No costs.
Connected Civil Rule No.395(f) of 2012 is accordingly discharged.
(Civil Appellate Jurisdiction)
Sharif Uddin
Chaklader J
AKM Shahidul Huq J
BRAC Bank Ltd………….
………………..Appellant
vs
Multimode Ltd………..
…………Respondent*
Judgment
June 12th, 2013.
Principles of Natural Justice
The principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority while making an order affecting those rights… … (l9)
Kanchan Mala Bepari vs Ananta Kumar Bepari, 6 DLR 254; Government of Bangladesh vs Md Tajul Islam, 49 DLR (AD) 177; Mozibar Rahman vs Chairman, Dhaka Improvement Trust DIT Building, Dhaka, 41 DLR (AD) 131; D Wren International Ltd vs Engineers India Ltd, AIR 1996 Calcutta 424; Desai and Co. vs Hindustan Petroleum Corporation Limited, AIR 1987 Guj 19; Jamuna Oil Company Limited vs SK Dey, 44 DLR (AD) 104 and Rex vs Sussex Justice Exparte Meeonly, 1924, QB 256 ref.
Asaduzzaman, Advocate-For the Appellant
Raghib Chowdhury. Advocate with Khondaker Ahsan Habib, Advocate-For the Respondent.
Judgment
Sharif Uddin Chaklader J : This appeal, at the instance of the defendant, directed against judgment and decree dated 25-9-2011 passed by the learned Joint District Judge, 1st Court, Dhaka decreeing Title Suit No. 6726 of 2008.
2. Plaintiff instituted the aforesaid suit praying for decree as:
(a) for a decree of Taka 6,90,13,116.90 (Six crore ninety lac thirteen thousand one hundred sixteen and paisa ninety) only as on 31-10-2008 in favour of plaintiff and against the defendant;
(b) A decree for interest @ 16% on suit value wef 1-6-2007 to till realization in full; with some other prayers including interest at the rate of 16% with effect from 1-6-2007.
3. Learned Judge decreed the suit as:
“???? ?????????? ?????? ?????? ???????? ??-???? ?????? ?????? ?????? ??? ???????? ?????????? ????”? ?????????? ????? ???????? ???? ?? ??-?-???? ??? ??-?-???? ??????? ???????? ??-????, ??????????? ???????? ??? ?????????? ??? ??????? ??? ????? ????? ???
?????????? ????????? ??????? ?? ?-?-???? ????? ???? ??-??-???? ????? ??????? ??????? ????? ???? ?,??,??,???.?? (?? ???? ????? ???? ??? ????? ???? ??? ???? ????? ????) ????, ?????????? ?? (???) ?????? ????? ?????????? ????? ?????? ? ??????????? ????? ?????? ???????? ??? ?? ???? (%) ?????? ?????? ???????? ¯’??? ???????? ??? ?????? ????? ???? (%) ?????; ?????? ????? ???????????? ????? ??????? ????? ????
?-?-?????? ????? ???? ????? ???? ?????? ?????? ??????? ??????? ????? ???? ??????? ????? ???? ?????????? ??????? ??% ???? ????? ????? ????? ??????, ???????????? ???? ??????? ?????????? ???????? ???? ??? ???? ? ?????? ?????? ????? ???????? ???? ??-??-???? ?? ??????? ?????????? ??????? ?????? ?????? ? ??????? ????? ?? ????? ????? ???????? ?????? ????? ? ???? ????????? ??????? ?????? ?????? ????”? ?????? ??????? ??% ???? ???? ?????????? ?????? ?????? ???? ??????? ??????? ?????? ???? ???? ???????????? ????? Mandatory Injunction Gi ?????? ?????? ??? ????”
4. It is the plaint case that plaintiff is a Private Limited Company and defendant is Public Limited Company incorporated under the Companies Act, 1913. Defendant Bank as a schedule Bank, under the supervision and monitoring of Bangladesh Bank participates in various service such as, keeping deposit of money, providing loan facilities for multipurpose, monitory transactions of share business, open L/C for export and import business and of its clients. Western Union Financial Services International referred to as Western Union, a USA based internationally reputed money transferring company from one country to another. Defendant was intended to participate in money transfer business with Western Union but a scheduled bank does not have sufficient manpower and logistic and technical software support required for execution and performance for agency agreement with Western Union which is involved in money transferring business from about 160 countries of the world, to Bangladesh. Defendant also required no objection letter from National Bank Ltd., as there was an exclusive agency agreement executed between Western Union and National Bank Ltd., since 1993. Subsequently on the basis of a decision of the Board meeting of the directors of the defendant, the defendant agreed to approach the plaintiff to pursue Western Union on its behalf to enter into an agency business in Bangladesh with Western Union engaged in money transfer business from one country to another. Plaintiff being the expert of technical software service and other relevant functions relating to the money transfer business and having well connection and business relation with Western Union agreed to provide its active assistance to finalize and execute a formal agency agreement between the defendant and Western Union. The plaintiff provided its utmost sincere effort including monitory, support to pursue Western Union to execute a formal agency agreement with the defendant. Moreover, plaintiff managed no objection letter from National Bank Ltd., since there was an exclusive agency agreement executed for unspecified period of time between National Bank Ltd., and Western Union from 1993. Consequently, the formal agency agreement was executed on 5th November, 2003 in pursuance of deed of agreement between plaintiff and defendant dated 20th October, 2003. Under Section 18A of the Foreign Exchange Regulations Act, 1947, defendant required permission from Bangladesh Bank to be an agent of a foreign company. Plaintiff accordingly managed the permission letter from Bangladesh Bank. Plaintiff as per terms of the agreement dated 2010-2003 introduced, arranged, involved, negotiated and made all other necessary arrangement and convinced Western Union to deposit more or less US $ 75,000 within 15 days of the execution of the said agency agreement and accordingly, Western Union did the same. The deposit of the said amount was with a condition imposed on the defendant by Bangladesh Bank through permission letter. Plaintiff and defendant discharged the responsibility of promoting the business of Western Union in Bangladesh by way of advertisement and also developed the market for service and enhancing the customer interest through its service. Plaintiff and defendant agree to carry but joint marketing programme amongst the Bangladeshi origin. The cost of such programme have been mutually agreed to bear by the parties on case to case basis. It was further agreed if Western Union fails to remit the required remittances according to the payment made by defendant time to time and such cannot be restored by the deposited amount held in the, designated Bank account, plaintiff was committed to help the defendant to realize the shortage amount along with interest. Moreover, when the agency agreement will be terminated or suspended, the security deposit will not be released till the outstanding dues of the defendant are settled by the Western Union and the plaintiff was under obligation to cooperate in such situation to solve the problem. Plaintiff discharged all the responsibilities and obligations imposed upon by virtue of contract dated 20-10-2003 confirmed in clause 12 that the plaintiff and the defendant were intended to carry out the contract most lawful way and they were committed to change any unlawful or unenforceable provisions which might put the party in the condition of economic loss. This means that the plaintiff and defendant were committed to perform the contract overcoming any interventions of law or person. Plaintiff is entitled to be paid for their service by the defendant 21% of commission which the defendant earned thought remittance and foreign exchange gains from Western Union. The share of commission and foreign exchange gain agreed to settle between the plaintiff and the defendant within 5 working days upon receipt of the same from Western Union as per clause No.6 dated 20th October, 2003. The share of commission and foreign exchange gain agreed to settle between the plaintiff and the defendant. Defendant in compliance with the aforesaid agreement continued to pay the commission to the plaintiff from 5th November, 2003 to May, 2007 without any interruption and complain. Plaintiff agreed with defendant to maintain very cordial business relationship so that both parties of the aforesaid agreement cold retain the business interest as long as the monitory transaction business of the defendant and Western Union. Defendant suddenly on 31-5-2007 sent a letter purporting to terminate the aforesaid agreement dated 20-10-2003 with effect from dated 1-7-2007 of 30 days notice and stopped releasing of the commission since June, 2007, hence the suit.
5. Defendant contested the suit by filing written statement thereafter amended the written statement in which defendant did not deny the agreement dated 20- I 0-2003 and also that defendant did not deny that plaintiff was expending the business with the defendant and for running the business of the defendant, defendant took several time and as per terms of the agreement since plaintiff was not acted enough the defendant cancel the agreement dated 20-10-2003.
6. On these pleadings of the parties learned judge framed issues as to maintainability of the suit, whether there was agreement on 20-10-2003 in between plaintiff and defendant, whether as per terms of the agreement the termination letter is illegal and what other relief or reliefs plaintiff was entitled.
7. Learned Judge decreed the suit as aforesaid.
8. Mr Asaduzzaman, learned Advocate, appearing for the defendant-appellant, submits that, the impugned judgment is totally a wrong judgment as the learned Judge failed to consider that it is cardial principal of law that plaintiff is to prove his case but learned Judge did not at all considered the plaint case or deposition of the plaintiff, rather the learned judge found fault with defendant’s case. Learned Advocate further submits that there being no clause in the agreement for prior notice for cancellation of the contract, cancellation having been done in accordance with the terms of the agreement and being in exclusive jurisdiction of the defendant, as such termination cannot be called in question. Learned Advocate further submits that in the termination letter plaintiff was not given any stigma, it is simply a termination simplicitor letter by which plaintiff as per terms of the agreement has no legal right to file the suit. Learned Advocate further submits that the decision relied by the learned Judge in arriving at the decision have no mariner of application on the facts of the given case.
9. Mr Raghib Rouf Chowdhury, learned Advocate, appearing for the plaintiff-respondent, on the other hand submits that, before issuing termination letter, plaintiff was not given any chance to explain its conduct as to whether plaintiff committed any wrong with the contract/agreement as such learned Judge committed no illegality in decreeing the suit. Learned Advocate relied on the case of Kanchan Mala Bepari vs Ananta Kumar Bepari, 6 DLR 254, wherein it is held as ‘Mere unilateral repudiation in pais of contract does not rescind the contract. Court’s decree necessary.’
10. Learned Advocate next relied on the case of Government of Bangladesh vs Md Tajul Islam, 49 DLR (AD) 177, wherein on the question natural of justice, the Appellate Division held as ‘it is well settled that a show cause notice is not a technical requirement or an idle ceremony. The notice must not be vague or in bare language merely repeating the language of the statute.’
11. Learned Advocate next relied on the case of Mozibar Rahman vs The Chairman, Dhaka Improvement Trust (DIT) Building, Dhaka, 41 DLR (AD) 131 wherein it is held as ‘allegation of bias and malafide cannot be allowed as the Chief Engineer against whom the same was made was not even made a party in the writ petition.’
12. Learned Advocate next relied on the case of D Wren International Ltd vs Engineers India Ltd, AIR 1996 Calcutta 424, wherein it is held as ‘challenge to cancellation of contract on ground that it does not contain reasons- Cannot be made because authority can produce its records to show that such reasons are available on records.’
13. Learned Advocate further relied on the case of Desai and Co. vs Hindustan Petroleum Corporation Limited., AIR 1987 (Guj) 19, wherein it is held as ‘challenge to termination of dealership for sale of petroleum products by instrumentality of State, Allegations that binding executive instructions of Govt. not followed and that termination is arbitrary-challenge not raising question purely of breach of contract.’
14. Learned Advocate relied on the case of Jamuna Oil Company Limited vs SK Dey, 44 DLR (AD) 104, natural justice wherein it is held as ‘natural justice in a case of disciplinary proceeding. In a case of disciplinary proceeding against an employee, in the absence of statutory rules, the employee must be given prior notice of the proceeding so that he gets an adequate opportunity to defend himself.’
16. The case is that under contract plaintiff was appointed to facilities the defendant to have business with Western Union Financial Services International, a USA based internationally reputed money transferring company. As per terms of the contract, it is admitted fact that, plaintiff’s performed obligations i.e. plaintiff obtained no objection certificate from National Bank and also plaintiff provided, including monitory support, to pursue Western Union to execute a formal agency agreement with the defendant, plaintiff obtained permission from Bangladesh Bank to be agent of foreign company, plaintiff under take extensive marketing programme all over the world, USA, United Kingdom, Italy, France, Portugal, Spain, Saudi Arabia, Malaysia, Brunei, Darussalam, Kuwait, UAE, Oman, Bahrain, Libya, Iraq, Japan, Australia, Canada, South Korea, Germany, Sweden and many other countries. Defendant as it appears did not deny the performances of plaintiff. Defendant’s case is that he made simply agreement or contract and for that reason contract does not specify any prior notice for termination. We have considered the deed of agreement, exhibit-2, wherein clause 11 regarding notice which runs as any notice provided for in this agreement shall be in written and shall be fist transmitted by facsimile transmission and then confirmed postage, prepaid registered mail or by a recognized courier service, in the manner as elected by the party giving such notice.
17. In the matter of termination, clause 4, i.e. in the event of termination or suspension of the said agency agreement mentioned herein above at any stage, the security deposit shall not be released till all the outstanding claim of BBL from Western Union are settled by Western Union. First Party shall use its good offices and extend cooperation in settlement of outstanding issue of BBL with Western Union and its agents as and when required.
18. It is argued that agreement does not say any prior notice for termination but when there is termination itself gives a stigma which affect the business of the terminated company or person as such law requires prior notice. It is the case of the defendant that plaintiff acted negligence with the contract. In that case, it is defendant who requires to justify termination letter and from that angle learned judge considered defendant’s case. It appears that learned Judge extensively considered the case of natural justice upon referring to various decisions of the apex court of this country and on relying section 73 of the Contact Act, held that ‘defendant acted malafide in terminating the agreement or contract with the plaintiff.’
19. Natural Justice has no definition. It is to be inferred. It must be without bias and should render the decision in a judicial spirit and in accordance with the principles of substantial justice and fair play in action. The principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, or quasi-judicial authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. These principles are now well settled and are four in number:-
(1) That every person whose civil rights are affected must have a reasonable notice of the case he has to meet.
(2) That he must have reasonable opportunity of being heard in his defence.
(3) That the hearing must be by an impartial tribunal, i.e. a person who is neither directly nor indirectly a party to the case or is already biased against the party concerned.
(4) That the authority must act in good faith, and not arbitrarily but reasonably.
20. In the case of Rex vs Sussex Justice Exparte Meeonly. 1924 QB 256 at page 259, Lord Hewart CJ laid down the eternal principle of natural justice as ” That it is merely of some importance but is a fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
21. On a reading of the contract itself it is our considered view that when there is no clause given prior notice before termination of the contract defendant should act within the boundary of principal of natural justice so that plaintiff could not take shelter before law on the ground of violation of natural justice.
22. We find no substance in this appeal.
In the result, this appeal is dismissed. No costs.
Connected Civil Rule No.395(f) of 2012 is accordingly discharged.
