IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO.

OF 2006.

IN THE MATTER OF :
An application under Article 102
(2)(a)(ii) of the Constitution of the
Peoples Republic of Bangladesh.
And
IN THE MATTER OF :
A.K.M. Zahirul Haque Abu,
son of Late Afsaruddin Ahmed,
Proprietor of Bangladesh Meco
Engineering
Bonogram

Works,
Road,

of

P.S.

21,
Wari,

District: Dhaka-1203.
...... Petitioner.

-Versus1. Bangladesh, represented by the

Secretary, Ministry of Law,
Justice

and

Parliamentary

Affairs, Bangladesh Secretariat,

P.S. Ramna, Dhaka.
2. The Project Director (Joint
Secretary) Legal and Judicial
Company

Building

Project,

Ministry of Law, Justice and

Parliamentary Affairs, Concord
Tower (1st Floor), 113, Kazi
Nazrul Islam Avenue, Dhaka1000.
3. National

Bank

Limited,

represented by its Managing

Director
Commercial

of

Dilkusha
Area,

Motijheel, District: Dhaka.

P.S.

4. The Senior Vice President,

National

Bank

Imamganj

Limited,

Branch,

P.S.

Lalbagh, District: Dhaka.

..... Respondents.
And
IN THE MATTER OF :
Memo No.AAM/Pro/Furniture/43/
01/1992

dated

(Annexure-I)

21.10.2006

issued

by

the

respondent No.2, requesting the

respondent No.4 for encashment
of Bank Guarantee amounting to
Tk.12,93,856.00 (Taka twelve lacs
ninety

three

thousand

eighty

hundred and fifty six) only in

favour of respondent No.2.
To

Mr. Justice Syed J.R. Mudassir Husain, the Chief Justice of

Bangladesh and his Companion Justices of the said Honble
Court.
The humble petition on behalf
of the above named petitioner
most respectfully
SHEWETH:
1.

That the petitioner is a citizen of Bangladesh and having

his permanent address at Village: Pallilara, P.S. Bhanga,
District: Faridpur.

2.

That the addresses given in the cause title of the petition

are the correct addresses of the petitioner and respondents
for the purpose of serving summons/notices upon them.

3.

That the petitioner is the proprietor of Bangladesh Meco

Engineering Works and he is a renowned manufacturer of
all kinds wood and steel furniture and has been carrying
on business with good name and frame.

4.

That the office of the respondent No.2 invited tender bids

for supplying of certain goods and ancillary services i.e.
for supply and installation of furniture at eight District

Judges Court Premises and the petitioner submitted

tender on 17.10.2004 to the Project Director, Legal and
Judicial capacity building, the respondent No.2 herein
and offered to supply and deliver (description of the
goods and services) in conformity with the said bidding
documents for an amount of Tk.1,29,38,560.00 (Taka one
crore twenty nine lacs thirty eight thousand five hundred
sixty) only.
5.

That thereafter the office of the Legal and Judicial

Capacity Building, the respondent No.2 herein accepted
the bid for the supply and installation of furniture at eight
District Judges Court Premises namely Gazipur, Moulvi
Bazar,

Brahmanbaria,

Bagerhat,

Feni, Thakurganj,

Munshiganj and Gopalganj under the contract price of a

sum of Tk.1,29,38,560.00 (Taka one crore twenty nine
lacs thirty eight thousand five hundred sixty) only and
issued

work

order

vide

memo

No.Mol/Project/

47/2001/Contract Package G-25/83 dated 8.3.2005.

Photocopy of the said contract package

dated 8.2.2005 is enclosed herewith and
marked as ANNEXURE-A.
6.

That thereafter the office of the Legal and Judicial

Capacity Building the respondent No.2 and the petitioner
herein entered into an agreement dated 6.3.2005 under
the contract package No.G-25, wherein the respondent
No.2 is the Purchase of the one part and the petitioner
herein is the Supplier of the other part.
Photocopy of the said agreement dated
6.3.2005 is enclosed herewith and
marked as ANNEXURE-B.

7.

That thereafter as per terms and conditions of the contract

dated 6.3.2005 National Bank Limited, Imamganj
Branch,

Dhaka,

the

respondent

No.3

issued

Performance Guarantee for Tk.12,93,856.00 (Taka twelve

lacs ninety three thousand eight hundred fifty six) only.
i.e. 10% of the contract value dated 14.02.2005 under the
signature of respondent No.4 in favour of the petitioner,
herein and validity of the said performance guarantee

No.02/5 was extended upto 30.4.2007 vide memo

No.IHC/IMJ/B.G./2006/1015/05 dated 25.4.2006.
Photocopy of the said performance
guarantee

dated

14.02.2005

and

performance guarantee extension dated

25.4.2006 are enclosed herewith and
marked as ANNEXURES-C & C(1)
respectively.
8.

That as per terms and conditions of the contract dated

6.3.2005, the petitioner herein supplied and installed all
furniture a eight District Judges Premises as per schedule
and the concerned offices of 8 District Judges Court
received the same from by my client and the eight
District Judges Court issued clearance certificates to the
petitioner herein.
Photocopies of the clearance certificate
from eight District Judge are enclosed
herewith and marked as ANNEXURE-D.

9.

That thereafter the petitioner herein submitted the final

bills to the office of the respondent No.2 and the

respondent No.2 after thorough and proper checking,

examination and scrutiny of the all the papers documents,
bills etc. deducted income tax @ 4% and VAT @ 2.25%
and paid the petitioner balance amount deducting the
taxes and issued a income tax and Vat deduction
certificate to the petitioner vide Memo No.Mol/Pro/
Furniture/43/01/868 dated 4.10.2006.
Photocopy

of

the

said

clearance

certificate dated 4.10.2006 is enclosed

herewith and marked as ANNEXURE-E.

10.

That thereafter the Deputy Project Director (Joint

District Judge), Legal and Judicial Capacity Building
Project, Dhaka, wrote a letter to the petitioner herein
requesting him to repair the furnitures supplied earlier to
the said 8 different District Judges Court Premises,
otherwise the office of the respondent No.2 will deduct
the necessary fund from the performance guarantee vide
memo No.Mol/Project/47/2001/Contrract Package: G25/874 dated 8.10.2006.

Photocopy of the said letter dated

8.10.2006 is enclosed herewith and
marked as ANNEXURE-F.
11.

That thereafter the petitioner herein took steps in

repairing the furniture in compliance with the letter dated
8.10.2006 at Thakurganj on 17.8.2006 and obtained a
certificate from the concerned office.
Photocopy of the said certificate is
enclosed herewith

and marked

as

ANNEXURE-G.
12.

That thereafter the petitioner herein filed an application

on 9.11.2006 to the office of the respondent No.2,
informing him that due to unavoidable prevailing
political circumstances in the country, the petitioner could
not complete the repairing work and prayed for extension
of time, for repairing work upto 31st January, 2007.
Photocopy of the said application dated
9.11.2006 is enclosed herewith and
marked as ANNEXURE-H.

10

13.

That all on a sudden, the Deputy Project Director, Legal

and Judicial Capacity Building Project, Dhaka the
respondent No.2 herein, issued a letter to the Vice
President, National Bank Limited, Imamganj Branch,
Dhaka, the respondent No.4, herein requesting him for
encashment of the Bank Guarantee for in amount of
Tk.12,93,856.00 (Taka twelve lacs ninety three thousand
eight hundred fifty six) only infavour of the respondent
No.2 herein vide memo No.AAM/Pro/Furniture/43/
01/1992 dated 21.11.2006.
Photocopy of the said letter dated
21.11.2006 is enclosed herewith and
marked as ANNEXURE-I.

14.

That it is submitted that the impugned order dated

21.11.2006 issued by the respondent No.2 to the
respondent No.4 for encashment of bank guarantee of
Tk.1,29,38,560.00 (Taka one crore twenty nine lacs
thirty eight thousand five hundred sixty) only is without
jurisdiction inview of the fact that the petitioner has
perfectly performed and completed the works with the

11

satisfaction of the respondent Nos.1 to 2 and after

performance and completion of the work, there is no
scope to encash the performance guarantee and as such
the impugned order is liable to be declared to have been
issued without lawful authority and is of no legal effect.
15.

That it is submitted that the impugned order dated

21.11.2006 issued by the respondent No.2 to the
respondent No.4 for encashment of bank guarantee of
Tk.1,29,38,560.00 (Taka one crore twenty nine lacs
thirty eight thousand five hundred sixty) only is without
jurisdiction inview of the fact that the petitioner could not
complete the repair work due to unavoidable prevailing
political circumstances of the country and the petitioner
prayed for extension of time for the repairing work and as
such impugned order is liable to be declared to have been
passed without lawful authority and is of no legal effect.

16.

That it is submitted that the impugned order dated

21.11.2006 is illegal and without jurisdiction in view of
the fact that no notice was served upon the petitioner by
the respondents before issuance of the impugned order

12

and there has been violation of the principle natural

justice and as such the impugned order is liable to be
declared to have been issued without lawful authority and
is of no legal effect.
17.

That it is submitted that the issuance of the impugned

order dated 21.11.2005 by the respondent No.2 is
malafide and for collateral purposes accertated with
malice by the person or persons who are inimical to the
petitioner only with a view to fed fat their ancient grudge
they bore against him and as such the same is liable to be
declared to have been issued without lawful authority and
is of no legal effect.

18.

That it is submitted that the respondent No.1 did not

apply his judicial mind before passing the impugned
order and as such the same is liable to be declared to have
been issued without lawful authority and is of no legal
effect.

19.

That the petitioner served a notice of demand for justice

upon the respondents through his learned Advocate by
registered post but the respondents did not inform

13

anything to the petitioner or his learned Advocate and as

such justice has been denied.
Copy of the notice of demand for justice
is annexed herewith and marked as
ANNEXURE-J.
20.

That it is stated that the petitioner is not in a position to

file the original of Annexures and the petitioner craves
the leave of this Honble Court to file the photocopies of
the Annexures along with this Writ Petition.

21.

That there is no other alternative efficacious remedy

except by filing this Writ Petition under Article 102 of the
Constitution of the Peoples Republic of Bangladesh and
the remedy prayed for will be just adequate and
efficacious.

22.

That being aggrieved by and dissatisfied with the

impugned order as contained in memo No.AAM/Pro/
Furniture/43/01/1992 dated 21.11.2006 (Annexure-I),
issued by the respondent No.2, the petitioner, begs to
move your Lordships following amongst other
GROUNDS

14

I.

For that the impugned order dated 21.11.2006 issued by

the respondent No.2 to the respondent No.4 for
encashment of bank guarantee of Tk.1,29,38,560.00
(Taka one crore twenty nine lacs thirty eight thousand
five hundred sixty) only is without jurisdiction inview of
the fact that the petitioner has perfectly performed and
completed the works with the satisfaction of the
respondent Nos.1 to 2 and after performance and
completion of the work, thereis no scope to encash the
performance guarantee and as such the impugned order is
liable to be declared to have been issued without lawful
authority and is of no legal effect.

II.

For that the impugned order dated 21.11.2006 issued by

the respondent No.2 to the respondent No.4 for
encashment of bank guarantee of Tk.1,29,38,560.00
(Taka one crore twenty nine lacs thirty eight thousand
five hundred sixty) only is without jurisdiction inview of
the fact that the petitioner could not complete the repair
work

due

to

unavoidable

prevailing

political

circumstances of the country and the petitioner prayed for

15

extension of time for the repairing work and as such

impugned order is liable to be declared to have been
passed without lawful authority and is of no legal effect.
III.

For that the impugned order dated 21.11.2006 is illegal

and without jurisdiction in view of the fact that no notice
was served upon the petitioner by the respondents before
issuance of the impugned order and there has been
violation of the principle natural justice and as such the
impugned order is liable to be declared to have been
issued without lawful authority and is of no legal effect.

IV.

For that the issuance of the impugned order dated

21.11.2005 by the respondent No.2 is malafide and for
collateral purposes accertated with malice by the person
or persons who are inimical to the petitioner only with a
view to fed fat their ancient grudge they bore against him
and as such the same is liable to be declared to have been
issued without lawful authority and is of no legal effect.

V.

For that the respondent No.1 did not apply his judicial
mind before passing the impugned order and as such the

16

same is liable to be declared to have been issued without

lawful authority and is of no legal effect.
Wherefore, it is most humbly
prayed that your Lordships would
graciously be pleased to:
A)

Issue Rule Nisi calling upon the

respondents to show cause as to
why

the

impugned

order

as

contained in Memo No.AAM/

Pro/Furniture/43/01/1992

dated

21.11.2006 (Annexure-I), issued

by

the

respondent

No.2,

requesting the respondent No.4 for

encashment of Bank Guarantee
amounting to Tk.1,29,38,560.00
(Taka one crore twenty nine lacs
thirty eight thousand five hundred
sixty) only should not be declared
to have been issued without any

17

lawful authority and is of no legal

effect;
B)

Direct the respondents to certify

and transmit the relevant record of
the case to this Honble Court to
be dealt within accordance with
law;

C)

Stay

the

operation

of

the

impugned order dated 21.11.2006

(Annexure-I) till dispsoal of the
Rule.
D)

After perusal of the papers and

causes if any shown, and after
hearing the parties make the Rule
absolute.

E)

Award cost incidental to this

petition;

F)

And/or pass such other or further

order

or

orders

as

to

your

18

Lordships may seem fit and

proper.
And for this act of kindness, your petitioner as in duty
bound shall ever pray.

AFFIDAVIT
I, A.K.M. Zahirul Haque Abu, son of Late Afsarufddin Ahmed,
Proprietor of Bangladesh Meco Engineering Works of 21,
Bonogram Road, P.S. Wari, District: Dhaka-1203, by faith
Muslim, by profession business, by Nationality Bangladeshi,
aged about 56 years, do hereby solemnly affirm and state as
follows:
1.

That I am the petitioner of the case and well conversant

with the facts and circumstances of the case and as such I
am competent to swear this affidavit.

2.

That the statements made above are true to the best of my

knowledge and belief.
DEPONENT

Prepared in my office:

The deponent is known to me

and identified by me.

Advocate

19

Advocate
Solemnly affirmed before me
on this the th day of November,
2006 at ...

COMMISSIONER OF AFFIDAVITS
SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION, DHAKA.