Abdus Sattar and others Vs. International Finance Investment and Commerce Bank Ltd

Abdus Sattar and others (Petitioner)

Vs.

International Finance Investment and Commerce Bank Ltd (Respondent)

Supreme Court

Appellate Division

(Civil)

Present:

Latifur Rahman J

Bimalendu Bikash Roy Choudhury J

A M Mahmudur Rahman J

Judgment:

December 7, 1999.

The Artha Rin Adalat Ain, 1990 (IV of 1990), Section 7(2)

Bank guarantee can not construe security deposit for preferring an appeal against the decree of Artha Rin Adalat.

Lawyers Involve:

Mvi Md Wahidullah, Advocate-on-Record — For the Petitioners.

Not represented — The Respondent.

Petition for Leave to Appeal No. 812 of 1999

(From the judgment and order dated 16-05-1999 passed by the High Court Division in First Appeal Tender No. 83 of 1999).

Judgment

      AM Mahmudur Rahman J.- This leave petition by defendant-petitioners is from the order passed in FAT No. 83 of 1999 summarily rejecting the Memorandum of Appeal.

2. The plaintiff-respondent bank filed Title Suit No. 32 of 1994 for realisation of Taka 16,74,548.01 with interest @ 20% per annum from the petitioners. The suit was decreed by the trial Court leading to filing FA Tender No. 83 of 1999 in the High Court Division. An application for acceptance of the Memorandum of Appeal was filed by the petitioners stating that bank guarantee furnished by the petitioners was to be treated as 50% of the decretal amount as the bank guarantee is as good as cash money.

3. The learned Judges of the High Court Division by the impugned Order summarily dismissed the Memorandum of Appeal holding that the petitioners not having had deposited 50% of the decretal amount in cash the Memorandum of Appeal was not properly constituted.

4. Mvi. Md Wahidullah, learned Advocate-on-Record for the petitioners submits that the learned Judges of the High Court Division were wrong in holding that the bank guarantee can not be treated as cash within the meaning of section 7(2) of the Artha Rin Adalat Act, 1990 and that as the High Court Division had extended time for depositing 50% decretal money the learned Judges of the High Court Division were wrong to hold that deposit was not made at initial stage and in dismissing the Memorandum of Appeal although 50% of the decretal amount to the tune of Taka 8,37,229.01 was deposited in the trial Court.

5. In the instant case the decree was passed on 30-11-98 the Memorandum of Appeal was tendered in the High Court Division on 15-2-88 and 50% of the decretal amount was deposited in the trial Court on 5-4-99.

6. Section 7(1) of the Artha Rin Adalat Ain 1990 provides that within 30 days from the date of making the decree the appeal is to be filed before the High Court Division and sub-section (2) of section 7 provides that no appeal shall be entertained unless half of the decretal amount is deposited in the court making the decree in the suit thus, section 7 prescribes two conditions to be satisfied by an appellant—one the appeal must be preferred within 30 days from the date of the decree and the other, no appeal shall be entertained unless half of the decretal amount is deposited in the court making the decree. Section 7 of the Artha Rin Adalat Am, 1990 nowhere speaks about bank guarantee. The expression (Artha) used in sub-section (2) of section 7 of the Act can not be constructed to be “bank guarantee”. The expression Artha means (as used in this sub-section is equivalent in English cash money and not “Bank Guarantee”. At the time of tendering the Memorandum of Appeal before the High Court Division the appellant did not deposit half of the decretal amount in the trial Court. Nowhere in section 7 it is provided that such deposit beyond the period of 30 days from the date of decree is compliance with the requirement of section 7 for the purpose of entertainment of a Memorandum of Appeal. Even, on the event of granting time by the High Court Divisions for depositing, the same as contended by the learned Advocate of the petitioner, the deposit in the instant case not having been made within the statutory time cannot be construed to be a valid deposit for entertainment of a Memorandum of appeal.

7. The contentions raised for the aforesaid reasons are of no substance.

The petition is dismissed with any order as to cost.

Ed.

Source: 52 DLR (AD) (2000) 122

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