SMITH COGENERATION (BANGLADESH) PVT. LTD AGAINST BANGLADESH POWER DEVELOPMENT BOARD [2024] ScotCS CSOH_48 (07 May 2024)

SMITH COGENERATION (BANGLADESH) PVT. LTD AGAINST BANGLADESH POWER DEVELOPMENT BOARD [2024] ScotCS CSOH_48 (07 May 2024)

The defender satisfied all three conditions of Rule of Court 19.2(5): it was not at fault for failing to defend due to genuine governmental constraints in Bangladesh; it disclosed a prima facie defence on jurisdiction and time bar; and it enrolled the motion within a reasonable time. The court exercised discretion in favour of the defender, recalling the decree in absence and allowing defences to be received.

Citation
[2024] ScotCS CSOH_48
Parties
Pursuer: Smith Cogeneration (Bangladesh) Pvt. Limited; Defender: Bangladesh Power Development Board
Jurisdiction
Scotland
Judgment Date
07 May 2024
Procedural Posture
Commercial Action / Motion to Recall Decree in Absence and Allow Defences
Outcome
decree in absence recalled; defences allowed to be received
Legal Topics
Enforcement of Foreign Arbitral Awards, Recall of Decree in Absence, Jurisdiction, Time Bar, Competency
Arbitration Civil Procedure International Enforcement Enforcement of Foreign Arbitral Awards Recall of Decree in Absence Jurisdiction Time Bar Competency

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Parties

Smith Cogeneration (Bangladesh) Pvt. Limited

Pursuer

Bangladesh Power Development Board

Defender

Procedural Posture

Commercial Action / Motion to Recall Decree in Absence and Allow Defences

Legal Issues

  1. 1 Whether the defender satisfied the three conditions of Rule of Court 19.2(5) for recall of decree in absence and allowance of defences
  2. 2 Whether the defender was without fault in not defending the action in time
  3. 3 Whether the defender disclosed a prima facie defence on the merits

Ratio Decidendi

The defender satisfied all three conditions of Rule of Court 19.2(5): it was not at fault for failing to defend due to genuine governmental constraints in Bangladesh; it disclosed a prima facie defence on jurisdiction and time bar; and it enrolled the motion within a reasonable time. The court exercised discretion in favour of the defender, recalling the decree in absence and allowing defences to be received.

Court Disposition

decree in absence recalled; defences allowed to be received

Orders

  • Recall of decree in absence pronounced on 31 May 2023
  • Allow defences to be received although late