Decided on February 04,2009

Bangladesh Railway Appellant
Md. Ferozur Rahman Respondents


MD.JOYNUL ABEDIN,J. - (1.) This petition for leave to appeal at the instance of the defendants is directed against the judgment and decree dated 18.10.2006 passed by a Division Bench of the High Court Division in First Appeal No.108 of 1998 allowing the appeal by setting aside the judgment and decree dated 15.1.1998 passed by the learned Subordinate Judge, 1st Court, Dhaka in Title Suit No.14 of 1991 dismissing the suit.
(2.) The short fact is that the respondent as plaintiff filed Title Suit No.14 of 1991 in the Court of Subordinate Judge, 1st Court, Dhaka for a declaration and for compensation alleging, inter alia, that the defendant No.3 Chief Commercial Manager (East), Bangladesh Railway, Chittagong invited tenders for supplying foods to the passengers of Dhaka Chittagong Inter City Trains for the period from July, 1988 to June, 1991. The plaintiff as caterer participated in the bid and his tender was accepted as the highest bidder and he was appointed as caterer for 3(three) years. A contract between the parties was signed on 21.6.1988 agreeing upon the rate of each break-fast at Tk.30/- for the passengers traveling in the air-conditioned bogie. But some officers of Railway Department most illegally paid money to the plaintiff at the rate of Tk.25/- and Tk.30/- per coupon instead of Tk.30/- and Tk.38/- respectively. The defendants totally stopped payment of bills for the break-fast from November, 1990. The plaintiff made several prayers for making payment of bills but the defendants did not pay heed to it. The plaintiff paid Tk.6, 60,006/- as licence fee to the authority and requested the defendants to adjust his bills with the arrear licence fees. But the defendants without doing so illegally pressed the plaintiff to pay off Tk. 21, 16,048/-as licence fees. The plaintiff claimed for the payment of bills for breakfast as per the schedule rate of agreement but the defendants refused to pay the same. All on a sudden the defendant No.3 cancelled the agreement of caterer service by a letter dated 2.1.1991 without serving notice upon the plaintiff and on the same date he was driven out from the Restaurant and Buffet Car of the station and the inter city train respectively. The plaintiff incurred huge monetary loss by the illegal action canceling agreement in violation of its terms and conditions by the defendants. During pendency of this suit, the defendants instituted Certificate Case No.82/G-92-93 in the Court of Magistrate, 1st Class for recovery of Tk. 10,07,002/- from the plaintiff. Hence the suit is for declaration of the said Certificate Case as illegal and for recovery of Tk.50, 66,085/- as price of break fast and compensation.
(3.) The defendants contested the suit by filing written statement contending, inter alia, that the suit is not maintainable defending all the material allegations made in the plaint. The case of the defendants is that the Railway Authority entered into an agreement with the plaintiff for supplying food to the passengers travelling in Ka' group bogies on 26.6.1988. As per terms of the agreement the yearly licence fee was fixed at Tk. 12,12,112/- and the security money amounting Tk. 6, 60,000/- was received by the defendants. The defendants received half of the licence fee amounting Tk. 6,06,056/- from the plaintiff on 25.6.1988 before executing the said agreement. The plaintiff applied for enhancing the rate of breakfast at the increased rate of 20% and the same was allowed by the Railway Authority with affect from 1st July, 1988 to 31st December, 1990. It was further resolved that if the entire dues would have been paid within 31st December, 1990, then the plaintiff would be entitled to get price of each break-fast at Tk. 30/- for the passengers travelling in the 1st Class and Tk. 38/- for each break-fast for the passengers travelling in air-conditioned bogies. After making adjustment of dues of both the parties the defendants were entitled to recover excess amount of Tk.21,16,048/-from the plaintiff and he was asked to pay off the same within 22.12.1990 by a notice indicating failure to pay the dues would have resulted cancellation of the agreement. But the plaintiff did not pay off the same within the specified period of time. As a result the defendant No.3 cancelled in the said agreement, on 2.1.1991. Hence the suit is liable to be dismissed.;

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