IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(Civil Appellate Jurisdiction)

First Miscellaneous Appeal No.173 of 2023

with

Civil Rule No. 493 (FM) of 2023

In the matter of:

Silver Composite Textile Mills Ltd (Unit-1, Garments) of B. K. Bari, Taltoli, Monipur Bazar, Gazipur Sadar, Gazipur, Bangladesh and also of Silver Tower 16th Floor, Gulshan Avenue, Gulshan-1, Dhaka-1212, represented by its

Managing Director.

… Plaintiff-appellant-petitioner

-Versus-

Fashion Options Inc. of OBA Generation one 1370, Broadway-suite 901, New York, NY 1001B, USA represented by its Managing Director and others.

…Defendants-respondents-opposite parties

Mr. Shah Monjurul Hoque, Advocate with Mr. Muhammad Harunur Rashid, Advocate

… For the plaintiff-appellant-petitioner

Mr. Mamun Chowdhury, Advocate with

Mr. Mohammad Zahirul Islam, Advocate with Mr. Sayedul Munim, Advocate

.... For respondent-opposite party No.3

Heard and Judgment on 25th January, 2024

Present:

Mr. Justice Md. Mozibur Rahman Miah

and

Mr. Justice Mohi Uddin Shamim

Mohi Uddin Shamim, J.

Since the point of law and facts involved in the appeal and that of the Rule are intertwined, they have heard been together and being disposed of by this single judgment.

At the instance of the plaintiff in Title Suit No.252 of 2023, this appeal is directed against the judgment and order dated 09.04.2023 passed by the learned Joint District Judge, 1st Court, Dhaka in the said suit rejecting the application filed by the plaintiff-appellant under Order XXXIX, rules 1 and 2 read with section 151 of the Code of Civil Procedure.

The salient facts so figured in the application for injunction on which the instant Rule being Civil Rule No.493 (FM) of 2023 was issued, in short, are that the present appellant-petitioner as plaintiff filed aforesaid suit (Title Suit No.252 of 2023) for declaration that, the defendant Nos.1 & 2 violated the terms of the Export Sale Contracts executed between them, a decree for damages, compensation for breach of contract by fraud and forgery committed by defendant Nos.1 and 2 companies against the plaintiff in collaboration with defendant Nos.3-6, a decree for the payment of total amount of USD 160,22,235.14/-

equivalent to taka 168,23,34690.10/- against the defendant Nos.1-7 jointly & severally and interest on the decretal amount under section 34 of the Code of Civil Procedure, a decree for declaration that defendant Nos.3-6 are not entitled to claim money under the Letter of Credit (LCs) being Nos. 188022060209 dated 13.10.2022, 188022060224 dated 31.10.2022, 188022060225 dated 31.10.2022, 188022060258 dated 22.12.2022, 188022060259 dated 28.12.2022, 188022060260 dated 29.12.2022, 188022060261 dated 29.12.2022, 188023060023 dated 09.01.2023, 188023060024 dated 09.01.2023 and 188023060025 dated 09.01.2023 (“LCs”) until settlement of liability due against the pro- forma invoices and all other relief and relives which the plaintiff is entitled to get under law and equity.

On the very day of filing of the suit, the plaintiff filed an application under Order XXXIX, rules 1 and 2 read with section 151 of the Code of Civil Procedure for temporary injunction restraining the respondents-opposite party No.8 from making any payment in favour of the defendant-respondent-opposite party Nos.3-6 and 9-11 against the aforementioned Letter of Credits (LCs).

But the learned Joint District Judge, 1st Court, Dhaka was pleased to reject the said application vide order dated 09.04.2023 holding that there was no ‘prima facie’ case found in favour of the plaintiff-appellant referring some reported decisions of the Apex Court.

Against the said rejection order dated 09.04.2023, the plaintiff as appellant preferred this appeal before this Court. After preferring the appeal, the appellant as petitioner then filed an application for temporary injunction seeking self-same relieves which was made at the trial Court under order XXXIX, rule 1 and 2 read with section 151 of the Code of Civi