Writ Petition Generally Not Maintainable Where Effective Arbitration Remedy (Clause) Exists: Appellate Division

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The observation was made in M/S. AMS Faraj Construction v. Government of Bangladesh and others (Civil Appeal No. 47 of 2025), in a judgment delivered on 22 February 2026. A copy of the judgment was published on the Supreme Court’s website on 24 August 2026.

Background of the Case: Chisty Textile Mills Limited, situated in Daulatpur, Cumilla, was established in 1962. The enterprise was subsequently nationalised and, due to losses, was eventually closed.

Several attempts were made to sell the mill through tender, but those attempts were unsuccessful.

Subsequently, on 1 January 2014, an agreement was executed with the appellant, M/S. AMS Faraj Construction, for the sale of the mill for Tk. 35 crore. Under the agreement, Tk. 15 crore was to be paid as a lump sum, while the remaining Tk. 20 crore was to be paid in five instalments. The appellant paid a total of Tk. 22 crore and took possession of the mill.

Later, allegations were raised concerning irregularities in the sale process. An inquiry committee report referred to, among other matters, the sale of the mill without public tender. Subsequently, the Government refused to complete the sale transaction.

High Court Judgment and Subsequent Appeal: Seeking enforcement of the agreement, the appellant filed a writ petition before the High Court Division.

On 15 June 2015, the High Court Division directed the concerned authorities to allow the appellant to resume activities relating to the mill, receive the outstanding instalments, and take necessary steps for execution and registration of the sale deed in accordance with the agreement.

The Government and other respondents subsequently preferred an appeal. In Civil Appeal No. 181 of 2016, the Appellate Division set aside the judgment of the High Court Division.

The appellant thereafter filed a review petition, which ultimately led to the present appeal.

Appellate Division’s Key Observation on Arbitration: One of the most significant issues considered by the Appellate Division was the Arbitration Clause contained in the agreement.

The Court noted that the parties had agreed upon an arbitration mechanism for the resolution of disputes arising out of the contract. Therefore, disputes concerning enforcement of the agreement, payment of instalments or other contractual rights could be addressed through the arbitration procedure agreed upon by the parties.

However, instead of invoking the agreed arbitration mechanism, the appellant approached the Court under its writ jurisdiction.

The Appellate Division observed that where a contract provides an equally efficacious alternative remedy, that remedy should ordinarily be pursued. In particular, where an effective arbitration mechanism has been agreed upon by the parties, contractual disputes should ordinarily be addressed through that mechanism rather than by directly invoking writ jurisdiction.

In reaching this conclusion, the Court relied on the principles laid down in Bangladesh Telecom (Pvt.) Ltd. v. T&T, 48 DLR (AD) 1996 and Md. Mobarak Hossain v. Government of Bangladesh, VII ADC (2010) 835. These decisions recognise limitations on invoking writ jurisdiction to enforce contractual obligations where an effective contractual arbitration remedy is available.

Contractual Obligations Must Also Be Complied With: The Appellate Division also considered the appellant’s compliance with the terms of the agreement. Under the agreement, the second instalment was required to be paid by 30 April 2014. The appellant did not comply with the agreed payment schedule, which was raised by the respondents as a breach of the contractual terms. The Court therefore considered not only the appellant’s claim for enforcement of the agreement but also the contractual obligations and conduct of the parties.

Limited Scope of Review: The Appellate Division further reiterated that a Review is not a rehearing of the case. The scope of review is limited, and a review may be entertained where there is an error apparent on the face of the record.

The Court found that the appellant had essentially repeated arguments that had already been advanced in the earlier appeal. The appellant failed to demonstrate any apparent error in the previous judgment that would justify interference in review jurisdiction.

Appeal Dismissed: After considering the terms of the agreement, the existence of the arbitration clause, the conduct of the parties and the limited scope of review jurisdiction, the Appellate Division dismissed Civil Appeal No. 47 of 2025. The Court also made no order as to costs.

Key Legal Takeaway: The decision reiterates the importance of Arbitration as an agreed mechanism for resolving contractual disputes. Where parties have expressly agreed to an effective arbitration mechanism, the existence and effectiveness of that alternative remedy become significant considerations when a party seeks to invoke the writ jurisdiction of the Court for enforcement of contractual rights.

In short, where an effective arbitration remedy is available under a contract, a party cannot ordinarily ignore that mechanism and directly seek enforcement of contractual obligations through writ jurisdiction. The availability of an equally efficacious alternative remedy and the nature of the dispute remain important considerations.

BD Law Post/Masum