Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Tuesday, December 19, 2017 02:16:34 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

When a judge can assume jurisdiction for modification of order?

By
06th-May-2017       
Comments
Share your thought
Post a comment »
Read all () »

APPELLATE DIVISION :
(Civil)
Md Abdul Wahhab Miah J
Md Imman Ali J
Md Nizamul Hoq J
MM Ibrahim ..........
.............. Petitioner
vs
Mizanul Haque Chowdhury and ors .. ......... Respondents
Judgment
September 5th, 2016

Code of Civil Procedure (V of 1908)
Sections 152 and 153
Companies Rules, 2009 Rules 8 and 263
Prayer for modification of the order would not attract the provisions of Sections 152 and 153 of the Code and Rules 8 and 263 of the Rules, 2009….(6)
Functus Officio
After passing the final order rejecting the substantive application and the order having been sealed and signed, the Company Judge became functus officio and had no power to assume jurisdiction by way of modification of the order, he could do so only on a proper application for review of the order. . ..... (6)
Principles of natural justice
The order was passed in complete violation of the principles of natural justice, be. without giving any chance of hearing to the petitioner and, as such, the order cannot he sustained.
Kamal-ul-Alam, Senior Advocate instructed by Zainul Abdin, Advocate-on-Record-For the Petitioner
Ahsanul Karim, Senior Advocate instructed by Md Zahirul Islam, Advocate-on-Record-For Respondent No. 1
 None Represented-For Respondent No 2-29
Judgment
Md Abdul Wahhab Miah J : This petition for leave to appeal has been filed against the order dated the 20th day of November, 2013 passed by the Company Bench of the High Court Division in Company Matter No.69 of 2012 modifying the ordering portion of the order passed on 7-4-2013 in the said company matter.
2. Facts necessary to dispose the petition are that the petitioner herein as the Director of Ahmed Brothers Limited (hereinafter referred to as the Company) filed an application on behalf of the Company under Sections 107 and 233 of the Companies Act, 1994 (the Act, 1994) before the High Court Division which was registered as Company Matter No. 69 of 2012. In that company matter, one Md Mizanul Haque Chowdhury, son of late Obaidul Hoque Chowdhury who was impleaded as respondent No.21 filed an application for rejection of the application giving rise to the above company matter and the learned Company Judge by the order dated 7-4-2013 allowed the modication (and rejected the application filed under Sections 107 and 233 of the Act, 1994. In the same order, the learned Company Judge directed the petitioner to pay Taka 50,000 (fifty thousand) as cost to respondent No. 21 within four weeks. Thereafter, respondent No.21 filed an application for modification of the order dated 7-4-2013 "by way of direction" upon the present petitioner to pay the cost of Taka 50,000 (fifty thousand) to him instead of by the Company. The learned Company Judge by the order dated 20th November, 2013 allowed the application and directed the present petitioner, namely, MM Ibrahim to pay the cost of taka 50,000 (fifty thousand) to respondent No.21; hence this Petition for Leave to Appeal.
3. Heard Mr Kamal-ul-Alam, learned Counsel, for the petitioner and Mr Ahsanul Karim, learned Counsel who entered caveat on behalf of respondent No. I (respondent No. I was respondent No.21 in the Company Matter).
4. Mr Kamal-ul Alam submits that the learned Company Judge erred in law in directing the leave petitioner to pay the cost of Taka 50,000 (fifty thousand) by modifying the earlier order by which the company was directed to pay Taka 50,000 (fifty thousand) inasmuch as after having pronounced the final order, signed and sealed the same on 7-4-2013, he became "Functus Officio" and, as such, had no jurisdiction to entertain a subsequent application by respondent No.21 for modification of his earlier order saddling the leave petitioner with the liability to pay personally the cost of Taka 50,000 to respondent No.21. He further submits that the leave petitioner was not personally a party in Company Matter No.69 of 2012, consequently the learned Judge of the Company Bench was wholly unjustified and wrong in law in passing the impugned order on an application for modification of the earlier order in the selfsame Company Matter No.69 of 2012 directing the leave petitioner herein to personally pay the cost of Taka 50,000 to respondent No. 21 without issuing any notice to him as per requirement of the principles of natural justice and the provisions of rule 261 of the Companies Rules, 2009 and without at all affording him any opportunity of being heard and, as such, the impugned order calls for interference by this Court. He lastly submits that the learned Judge of the Company Bench having himself found in his earlier final order dated 7-4-2013 in Company substantive application that the application has filed by the Ahmed Brothers Limited, i.e. the Company itself and not by any of its member for debenture-holder" committed gross error of law in holding in the impugned order that MM Ibrahim (leave petitioner herein) was not authorized to file Company Matter No.69 of 2012 on behalf of the petitioner company without at all considering the fact that the said company matter was filed by the Company through one of its directors MM Ubrahim and the provisions of Sections n and 225 of the Act, 1994 and rule 18 of the Companies Rules, 2009 which provide that a director of the Company is entitled to start any proceeding or file an application on behalf of a Company.
5. Mr Ahsanul Karim, learned Counsel who entered caveat on behalf of respondent No.1, however, supported the impugned order. But he could not lay his hand under what provisions of law the application for modification was filed and under what provisions of law the learned Company Judge assumed its jurisdiction and entertained the application. In the context, it needs to be mentioned that in the application no provision of law was mentioned.
6. From the statements made in the leave petition, it is clear that the impugned order was passed behind the back of the leave petitioner as it docs not appear that the copy of the application for modification was served upon him and/or he was given any chance of hearing before passing the impugned order. Therefore, we find substance in the submission of Mr Kamal-ul-Alam that the impugned order was passed in complete violation of the principles of natural justice, i.e. without giving any chance of hearing to the petitioner and, as such, the impugned order cannot be sustained. We also hold that after passing the final order on 7-4-2013 rejecting the substantive application under Sections 107 and 233 of the Act, 1994 and the order having been sealed and signed, the Company Judge became functus officio and had no power to assume jurisdiction by way of modification of the said order, he could do so only on a proper application for review of the order. In the context, we would like to further observe that the prayer for modification of the order dated 7-4-2013 would not attract the provisions of Sections 152 and 153 of the Code of Civil Procedure and rules 8 and 263 of the Companies Rules, 2009.
7. It further appears that although, in the order dated 7-4-2013, the learned Company Judge directed the company to pay the cost, but against that order the company did not file any leave petition before this Court. However, considering the fact that the application filed before the High Court Division under Section 233(1) of the Act, 1994 by the Company was, not maintainable and accordingly, the same was rejected and further in the facts and circumstances of the case, the company was not also liable to pay the cost of Taka 50,000. We invoke the power vested in this Court under Article 104 of the Constitution of the People's Republic of Bangladesh for doing complete justice in the matter and expunge the order of the learned Company Judge so far as it relates to giving cost against the Company.
In view of the above, this petition is disposed of in following terms:
The impugned order is set aside: the order dated 7- 4-2013 so far as it relates to the direction upon the Company to pay the cost of taka 50,000 (fifty thousand) to respondent No.21 is expunged.

Tariff
Add Rate

News Archive

Inside The New Nation

International »

Trump to lay out `America First` security strategy


AFP :President Donald Trump is set to lay out Monday a new National Security Strategy built upon his trademark "America First" slogan, which is expected to have economic security at its core.The US leader, who has dismantled the legacy of Barack Obama on issues ranging from climate change to free ...

Cricket »

Australia claim Ashes as Smith seeks whitewash


AFP, Perth :Steve Smith praised his "exceptional" team as Australia reclaimed the Ashes with an innings win over England in the third Test in Perth on Monday, and set his sights on a series whitewash. Australia dismissed England for 218 in their second innings after rain delays and a pitch ...

Football »

Brazil great Kaka retiring from soccer at age 35


Former Ballon d'Or winner Kaka says he is retiring from soccer at age 35.Kaka, who played for Brazil, AC Milan and Real Madrid, told Brazil's Globo TV on Sunday that "my last word is that the cycle of my career as a player ends here.""I needed time to think and ...

Football »

Messi misses penalty as Barca win big to increase lead


AP, Barcelona :Watch out Real Madrid.Barcelona can still outscore opponents even on a rare day when Lionel Messi is far from his brilliant self.Barcelona warmed up for next round's "clasico" match at Madrid by routing Deportivo La Coruna 4-0 Sunday to increase its lead of the Spanish league.Messi tried to ...

City »

President Abdul Hamid poses for photograph with the members of BDRCS Managing Board at the inauguration of the 13th Jatiya Juba Red Crescent Camp-2017 in the Osmani Memorial Auditorium in the city on Monday.


Entertainment »

Item girl Heena Panchal goes Topless in her recent photoshoot


The year winter season has been one of the hottest one as Heena Panchal has done very hot and bold photoshoots. Beautiful Model and actress Heena Panchal, seems sensationalizing the Bollywood industry with her bold and raunchy photoshoot. The glamorous diva was seen rising the temperature meter and has done ...

Entertainment »

BD Hip Hop Fest on Dec 21


Entertainment Report :Rendezvous Pvt Ltd, a unique concern of A Kabir R Group is going to organize AceOnline.store presents BD Hip Hop Fest 2017, one of its kinds for the third time in city. The fest will start by launching of A Kabir R Group’s new concern AceOnline.store which is ...

Editorial »

Myanmar`s criminal generals should be brought to book


ACCORDING to the medical charity MSF sources, at least some 6,700 Rohingyas got killed in the very first month of the Myanmar army's crackdown on the ethnic minority in Rakhine State. But it appears Myanmar government is trying to deceive the world by  avoiding to take back Rohingya refugees. It ...

Football »

Roma's Federico Fazio (hidden) celebrates with teammates after scoring the decisive goal during an Italian Serie A soccer match between AS Roma and Cagliari, at the Olympic stadium in Rome on Saturday.


Entertainment »

Athiya Shetty turns fashion designer


Ever since her debut, the 25-year-old actress has been in news for her chic sartorial choices. A source reveals, “According to the label, Athiya is known for her fashion sensibilities. She is a hit when it comes to red carpet appearances and nails the high street fashion.” “So, after meetings ...

Entertainment »

Virat-Anushka holidaying in heaven


The power couple, Virat Kohli and Anushka Sharma, who recently set some major wedding goals with their Italian destination ceremony, is now giving fans a glimpse into their post-married life. The ethereal couple tied the knot at a picturesque location in Italy on December 11. The 29-year-old newlywed, who is ...

International »

Trump allies say Mueller unlawfully obtained thousands of emails


Reuters, Washington :An organization established for US President Donald Trump's transition to the White House a year ago said on Saturday that the special counsel investigating allegations of Russian meddling in the 2016 election had obtained tens of thousands of emails unlawfully.Kory Langhofer, counsel to the transition team known as ...

City »

Ganoforum President Dr Kamal Hossain speaking at a discussion on 'Independence: Expectation, Achievement and Role' organised by 'Jatiya Oikya Prokriya' at the Jatiya Press Club on Friday.


.

International »

Trump promises `giant tax cut` as `Christmas gift` to Americans


PTI, Washington :US President Donald Trump today said the Congress has reached an agreement on tax legislation that will deliver more jobs, higher wages, and "massive tax relief" for American families and domestic companies.Trump recognised the tax reform as a campaign promise during his run-up to the 2016 presidential election, ...

Editorial »

Muslim leaders must continue to act together not to be ignored


WE welcome the OIC's (Organisation of Islamic Cooperation) decision declaring East Jerusalem as capital of Palestine at a summit at Istanbul on Wednesday as the most appropriate and timely action to denounce US President Donald Trump's unilateral declaration that Jerusalem is the capital of the state of Israel. Their call ...

 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news