Bangladesh Shilpa Bank (Appellant)
Bangladesh Hotels Ltd. (Respondent)
F.K.M.A. Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Judgment : April 9, 1985.
The Shipla Bank Order 1972 (P.O. 129 of 1972), Article 33
The Civil Procedure Code 1908 (V of 1908), section 10
The Shilpa Bank Order 1972 (129 of 1972)
The remedy for realizing dues is provided for in Article 33 of the Shilpa Bank Order, 1972. Since the subject matter of the two proceedings namely, Miscellaneous Case No. 88 of 1974 and Title Suit No. 193 of 1981 are the same, the later was rightly stayed by the Subordinate Judge, Third Court, Dhaka, till disposal of the former case. Judgement of the High Court Division rejecting the order is set aside.
Rafique-ul-Huq, Senior Advocate (Md Fazlul Hague, Advocate with him) instructed by Sharifuddin Chaklader, Advocate-on-Record — For the Appellant
Faqeer Shahabuddin Ahmed, Senior Advocate (Shah Abu Nayeem, Advocate with him) instructed by Abu Backkar, Advocate-on-Record—For the Respondent.
Civil Appeals No. 106 of 1984
From the Judgment and Order dated 9.7.84 passed by the High Court Division, Dhaka Bench in Civil Revision No. 412 of 1983.
Fazle Munim CJ.-This appeal arises from Civil Revision No. 412 of 1983 decided by a Bench of the High Court Division, Dhaka Bench on 9th July 1984
2. On 13th July 1974 appellant Bank filed Miscellaneous Case No. 88 of 1974 under Article 33 of the Shilpa Bank Order, 1972 (President’s Order No. 129 of 1972) in the Court of District Judge, Dhaka for realisation of its dues amounting to Tk. 1,31,15,907 38 as on 31-3-74. On 18th September 1976 the aforesaid case was decreed on compromise. Mr. A. Sattar, Chairman of the respondent Company, who is an educated person swore the affidavit stating that “the statements made in the annexed petition of compromise are true to my knowledge”. Thus the terms and conditions of the decree on compromise hound the parties to the decree,
3. As the respondent Company failed to repay the monthly installments from November 1974 as per terms of the compromise decree the appellant filed an application in the month of May, 1980 in the Court of District Judge, Dhaka for execution of the said decree as provided in Article 33 of the Shilpa Bank Order, 1972.
4. On 30th November 1979 respondent Company filed Title Suit No. 255 of 1979 in the 3rd Court of Subordinate Judge, Dhaka for declaration that the compromise was illegal, null and void and was not binding upon it. Respondent Company also filed an application under Order 39, rules 1 and 2 of the Code of Civil Procedure for an order restraining the appellant from executing the decree. Injunction was refused and the stay was also dismissed for default. Suit was, however, subsequently restored and is now pending for hearing. Having failed to obtain an order of injunction respondent Company filled an application under section 151 of the Code of Civil Procedure in the Court of District Judge, Dhaka for stay of further proceedings of Miscellaneous Case No 88 of 1974 till the disposal of Title Suit No. 255 of 1979. The application for stay was rejected by the Court.
5. On 6th May 1981 respondent Company filed Title Suit No. 193 of 1981 in the 3rd Court of Subordinate Judge, Dhaka for accounts and also challenging the compromise decree passed in the aforesaid miscellaneous case.
6. In April 1983 the appellant filed an application under section 10, C.P.C. in the 3rd Court of Subordinate Judge, Dhaka for stay of the proceedings in Title Suit No. 193 of 1981 till the disposal of the Miscellaneous Case No. 88 of 1974. After bearing both the parties, the aforesaid Court by its judgment and order dated both August 1983 allowed the application and stayed the proceedings in Title Suit No. 193 of 1981. Against this judgment, respondent Company filed an application under section 115, C.P.C. in the High Court Division, Dhaka, being Civil Revision No. 412 of 1983 contending, inter alia, that the provision of section 10, C.P C. had no manner of application to toe facts and circumstances of the case. By its judgment and order dated 9th July 1984 the learned Judges of the High Court Division made the Rule absolute with a direction that the aforesaid miscellaneous case and the title suit be heard and disposed of together by the same Judge.
7. Being aggrieved the appellant Bank moved this Court and obtained special leave to appeal to consider that since the Shilpa Bank Order, 1972 is a special law and the Miscellaneous Case started under its provisions was decreed on compromise the purpose of special law will be frustrated and also there will be no end to litigations if civil litigations are allowed to proceed. Further contention was that since the matter in controversy in the miscellaneous Case and the Title Suit are the same, the learned Judges of the High Court Division committed an error of law in not holding that section 10. C.P.C. is applicable to, the facts in the present case as the terms of section 10 being mandatory, no discretion had been left in the matter.
8. Mr. Rafique-ul-Huq, Counsel for the appellant Bank, submitted that since the matters in controversy in Miscellaneous Case No. 88 of 1974 and Title Suit No. 193 of 1981 were the same the learned Judges of the High Court Division ought to have found that the provisions of section 10, C.P.C. were applicable to the facts in the present case and that the Subordinate Judge had rightly stayed the proceedings of Title Suit No. 193 of 1981. Provisions of section 10 of the Code of Civil Procedure leave no scope for exercising discretion. The learned Judges in ordering that the Miscellaneous Case and the Title Suit should be heard and disposed of together by the same Judge committed an error of law since the procedure to be followed in the Miscellaneous Case is different from that in the Title Suit and the form of appeal from them is also different.
9. Mr. Faqueer Shahabuddin Ahmed, Counsel for the respondent Company, contended that since the relief claimed by the parties in the Miscellaneous Case which is a special law and the suit which is under general law are different, the learned Judges of the High Court Division committed no error of law in ordering that the miscellaneous case and the title suit should be heard together. The learned Counsel further submitted that the subject matter of the Miscellaneous Case and the Title Suit may have arisen on the same loan but they are different since the suit is for having a full and true account of the money advanced and interest received and further for a declaration that the compromise decree passed in the Miscellaneous Case was riot binding upon the respondent Company as having been fraudulently obtained.
10. Mr. Rafique-ul-Huq, appellant’s Counsel, submitted that how, if the subject matter of the Miscellaneous Case and the Title Suit arise from the same loan transaction between the appellant and respondent Company, they can be different further, the compromise decree was passed on the basis of a compromise petition which was signed by both the parties. No less a person than the Chairman of the Board of Directors of the respondent Company having signed the petition and having sworn an affidavit annexed to the petition neither his authority nor its authenticity can be questioned. Further, all disputes relating to and arising from any loan transaction entered between the appellant and respondent Company and also remedies, being governed under the provision of the Shilpa Bank Order, 1972 which is a special law, the respondent Company cannot proceed under the general law by alleging that a dispute had arisen out of the aforesaid loan transaction. He further mentioned that by proceeding under the special law, namely, Shilpa Bank Order. 1972 the appellant was seeking to recover money advanced to respondent Company with interest and other expenses and also other relieves available to it under the provisions of the aforesaid law. He then referred to the following prayer made by respondent Company in Title Suit No. 193 of 1981;
“(a) For having a full and true account of the monies advanced and received interest add other expenses charged by the defendant in terms of the loan agreement through a chartered Accountant to be appointed by the Court and after accepting the accounts recover the amount of Tk. 91,754.42 with interest @ 15% per annum up to the date of realisation;
(b) For declaration that the compromise petition filed in Miscellaneous Case No. 88 of 1974 in the court of District Judge, Dhaka is not binding upon plaintiff as being fraudulently obtained on misrepresentation;
(c) for costs; and
(d) any other relief or relieves the plaintiff is entitled to under the law and equity”
11. According to him, the learned Judges should not have, therefore, reversed the order of the trial Court staying the proceedings of Title Suit No. 193 of 1981. It appears from the following observations of the learned Judges of the High Court Division that after stating the contentions of the learned Counsels they came to the conclusion that ends of justice require that the Miscellaneous Case and the Title Suit should bf heard together by the same Judge and disposed of in accordance with law:
“According to us the subject matter of the miscellaneous case is for the realisation of the dues on the basis of the com-promise petition. According to the petitioner there was fraud regard with to the petition and on accounting nothing was dues to the petitioner. As such ends of justice demands that both the Miscellaneous case and the Title Suit should be decided together. There is no difficulty in the Miscellaneous case and the Title Suit being heard together. As such both the matters be placed before the same judge and be disposed of in accordance with law la that view of the matter the order of the learned Subordinate Judge is set aside and it is ordered that both the Miscellaneous Case and the Title Suit be heard and disposed of together by the same judge.”
12. The learned Judges of the High Court Division did not seem to have considered the provisions of section 10, C.P. C. and their application to the facts in the present case. By merely stating that there is no difficulty in hearing the Miscellaneous Case and Title Suit together the above-mentioned order was passed, must be specifically shown with reference to the provisions of law involved how the ends to justice will be met if such an order for analogous hearing is made. A mere ipse dixit of the Court without sufficient reason is not enough to conclude that the ends of justice would be met if a particular course is followed.
13. Apparently, the order for analogous hearing of the miscellaneous Case and the title suit by the same Judge has been made on no grounds other than mentioning ends of justice, This expression used in section 151 of the Code of Civil Procedure recognises wide powers inherently possessed by the Court to do justice in a given case. From this, it must not be supposed that the Court can, in disregard of the established principles and norms of law, make an order. The Shilpa Bank Order, 1972 is a special law establishing a Shilpa Bank “to provide credit facilities and equity support to industrial concerns in Bangladesh to provide for the vesting in that Bank of the undertakings of the Industrial Development Bank of Bangladesh and the Equity Participation Fund in Bangladesh and for matters connected there with or incidental thereto”.
14. It confers upon the Shilpa Bank powers to advance loan and provides the composition, powers and functions of the Bank. It also lays down elaborate procedure for recovering the loan advanced to various concerns engaged in industry or business, both in private and public sectors. The precise remedy for realising its dues is provided in Article 33 of the Order. If any of parties to the proceedings initiated under this Article is aggrieved by an order of the District Judge made there under, it may file appeal to the High Court Division of the Supreme Court within 30 days of the date of the Order. From a reading of the provisions of the Shilpa Bank Order, particularly provisions relating to the remedy provided against the loaner concerns, it appears that the legislature in enacting this special law, intended to provide speedy remedy. Obviously, speedy remedy against non-payment of dues or breach of any obligations under the agreement with the Bank is seen to be its sole aim. This has to be, otherwise not only the Bank will suffer from delayed recovery, the entire financial and economic interests of the society will be prejudicially affected. Hearing of a grievance in any proceeding under Article 33 of the Order cannot, for this reason alone, be tagged on with any other proceedings. Besides, Title Suit No. 193 of 1981 is pending before a separate forum and also its proceedings and relief against any order made by that forum are governed under separate provisions of law. These two proceedings cannot, therefore, be heard together. In addition, since the subject matters of the two proceedings, namely, Miscellaneous Case No. 88 of 1974 and Title Suit No. 193 of 1981 are the same, the latter was rightly stayed by the Subordinate Judge, 3rd Court, Dhaka.
For the reasons stated above, the appeal is allowed and the judgment of the High Court Division is set aside. There will, however, be no order as to costs.
Source : 38 DLR (AD) (1986) 70