Appellate Division Cases
(Civil)
PARTIES
Bangladesh Shilpa Rin Sangstha and others…………………… Appellants.
-VS-
Nawada Navigation Limited, represented by its Managing Director, Kazi Hamidur Rahman and others……………………………..Respondents
JUSTICE
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 5th February 2006
Articles 33 and 34 of the Bangladesh Shilpa Rin Sangstha Order 1972 (P.O. 128 of 1972) ………………………(2)
Article 32 of the above Order 1972 the appellant No. 1 by notice could recall the entire loan forthwith to protect its interest; clause (5) of Article 34 of the above Order 1972, which is a constitutionally protected legislation, provided for such taking over of an industrial concern or transfer any property of such industrial concern …………………..(5)
That under Article 32 of the Order 1972, by notice, the entire loan of the respondent
No. 1 could be recalled as was done in the present case and the proceeds which were received by the appellant No. 1 on auction sale of the said two vessels under Article 34 of the above Order 1972 being insufficient, the appellant No. 1 is entitled to commence proceeding under Article 33 of the above Order 1972 for realization of its balance dues ……………………(6)
The industrial concern to which loan has been granted by the appellant No. 1 failed to repay the loan by the due date in compliance with the notice under Article 32 and since the proceeds of the sale of the vessels under Article 34 were not sufficient to meet the dues outstanding against the loan, the appellant No. 1 could file an application under Article 33 of the above order, 1972 to the concerned District Judge for an order for payment of the loan or any other sum relating thereto……….……. (8)
As it appears the above situation the appellant No. 1 had to sell the above vessels to Famous Rivers Transport and the sale proceeds of the vessels being not sufficient to repay the outstanding loan, the appellant No.l had to file Miscellaneous Case No. 3 of 1999 under Article 33 of the above Order 1972 in order to realize the balance dues……………………………. (14)
It also appears that the High Court Division failed to take into consideration the above facts as well as the position of law. Further the High Court Division, without any basis at all, took the view that the respondent No. 7 is the child of appellant No. 1 though in fact he respondent No. 7 is the child of respondent No. 1 as the rehabilitation scheme commenced at the request of the respondent No. 1 ……….(15)
Civil Appeal Nos. 212 OF 2002. (From the judgment and order dated 08.11.2000 passed by the High Court Division in Writ Petition No. 870 of 2000).
A.K.M. Nazrul Islam, Senior Advocate, Instructed by A.S.M. Khalequzzaman, Advcoate-on-Record ……………………..For the Appellants
Rafique-ul-Huq, Senior Advocate, Instructed by Aftab Hossain, Advocate-on-Record…………… For the Respondent No. 2
Nawab Ali, Advocate-on-Record ………………….For Respondent No. 7
Respondent Nos. 1, 3-6 …………………Not represented.
JUDGMENT
1. Md. Tafazzul Islam J :- This appeal, by leave, arises out of judgment and order dated
08.11.2000 passed by the High Court Division in Writ Petition No. 870 of 2000 making the Rule absolute.
2. The respondent No. 1 filed the above writ petition impugning initiating of proceedings
against them under Articles 33 and 34 of the Bangladesh Shilpa Rin Sangstha Order 1972
(P.O. 128 of 1972), hereinafter referred to as Order 1972, and also impugning the letter
dated 08.07.1996 by which the rehabilitation scheme regarding the transfer of the two passenger vessels to the respondent No. 7 was cancelled, stating, inter alia, that the appellant No. 1, for improvement and increasing the inland water transport facilities through private sector, sanctioned a loan of Tk. 1.65 million to the respondent No. 1 on 28.03.1979 for acquisition of two passenger vessels and subsequently the above loan amount was increased to Tk. 1.709 million out of which Tk. 1.702 million was disbursed to them towards construction of the above two passenger vessels; from the very beginning the two passenger vessels, so built, could not operate with commercial viability due to technical and mechanical faults and thereby the project became a sick project; them on the basis of report of BUET the Board of Directors of the appellant No. 1 in its 175th meeting held on 14.12.1992 approved a rehabilitation scheme to rehabilitate the above sick project by way of converting those two passenger vessels into cargo vessels of 250 tons each by way of allowing transfer of the above loan against those two vessels to the respondent No. 7 and also sanctioning Tk. 2.700 million to the respondent No. 7 as additional loan for converting the above two passenger vessels as cargo vessels and by letter dated 19.01.1993, Annexure B, the above decision was communicated to the respondent No. 7 enclosing therein further terms and conditions for sanction of the above additional loan of tk. 2.700 million which, amongst others, provided that respondent No. 1, would transfer to the respondent No. 7 the said two vessels and he amount of Tk. 34,80,298.42 already outstanding in the loan account of respondent No. 1 as on 30.06.1989 would be put into a interest free blocked account and the said amount will be repaid by the respondent No. 7 in 24 half yearly installments commencing after the
third year of the commercial operation of the converted cargo vessels; after completion of
the legal formalities with the appellant No. 1 in this regard the respondent No. 1 was to be absolved of their liabilities; the respondent No. 7, against the additional loan of Tk. 2.700 million which was sanctioned for converting two passenger vessels into two cargo vessels under the rehabilitation scheme, was to furnish collateral security worth Tk. 2.000 million; the respondent No. 1 on 12.04.1993 submitted a representation to the appellant No. 1 to complete the legal formalities; the respondent No. 7 by letter dated 18.07.1993 submitted to the appellant No. 1 the land documents worth Tk. 1.280 million as collateral security requesting the Managing Director of the appellant No. 1 to accept the same in place of collateral security of Tk. 2.000 million stating that in similar cases lesser amounts were accepted as collateral securities; the appellant No. 1 then by letter dated 23.06.1994 accepted the said collateral security of Tk. 1.280 million on the condition that before execution of the legal documents the respondent No. 7, out of Tk. 1.700 million which they were to invest in the project as additional paid up capital, shall deposit Tk. 05.000 million with the appellant No. 1 by way of equity participation in the rehabilitation scheme; the respondent No. 7 then by letter dated 29.01.1995, Anexure D(l), duly deposited Tk. 05.000 million which the appellant No. 1 duly received; then the respondent No. 7 by letter dated 28.03.1995, Annexure-E, requested the appellant No. 1 to expedite the formalities but nothing concrete was done; the respondent No. 7 by another letter dated 22.06.1996, Annexure-F, informed the appellant No. 1 that they are
fully prepared to undertake the implementation of the rehabilitation project provided the
financial plan prepared in the year 1992 is revised as the cost of the materials increased
in the meantime but the appellant No. 1 remained silent; thereafter by a letter dated
08.07.1996, Annexure-G, the appellant No. 1 referring to a letter of the respondent No. 7
dated 20.06.1995, informed the respondent No. 1 that Tk. 0.500 million deposited by
them with the appellant No. 1 equity participation has been confiscated and by another
letter of the same date informed the respondent No. 7 that the proposals put forward by
them in letter dated 22.06.1996, Annexure-F, for implementation of the rehabilitation
scheme at revised cost were not acceptable; the respondent No. 7 then by letter dated
25.07.1996, Annexure-H, requested the appellant No. 1 to allow them to implement
the project at the original project cost and that the escalation of the project cost will also be borne by them but by letter dated 03.08.1996, Annexure-I, the appellant No. 1 refused the above proposal and commenced the proceedings under challenge against the respondent No. 1.
3. The appellant No. 1 opposed the Rule by filing affidavit-in-opposition contending,
inter-alia, that by letter dated 20.06.1995 the respondent No. 7, having found both the vessels submerged under water expressed that they were no longer interested in the implementation of the rehabilitation scheme and in such a state of affairs the appellant No. 1 cancelled the rehabilitation scheme and took over the possession of the said two vessels which remained submerged under water and then sold those in auction under the provisions of Article 34 of the above Order, 1972 and since the sale proceeds of the above two vessels were not found sufficient to adjust the outstanding liabilities of the respondent No. 1, the appellant No. 1 filed Miscellaneous Case No. 3 of 1999 under Artrcle 33 of the above Order, 1972 in order to recover the balance dues after adjustment of sale proceeds of the two vessels; the letter dated 08.07.1996, Annexure-G(l) was also issued with copy to the respondent No. 1 with prior approval of the competent authority and subsequently it was confirmed by the Board of Directors of the appellant No. 1 in its meeting held on 27.10.1996; the present writ petition is not maintainable specially when disputed questions of facts are involved and further the respondent No. 1 has alternative remedy by way of filing written objection in the above Miscellaneous Case No. 3 of 1999.
4. The High Court Division, after hearing, made the Rule absolute holding that in terms
and conditions as contained in Annexure-B, the respondent No. 1 no longer remained the
owner of the two vessels and the appellant No.l became the owner of those vessels and
the respondent No. 7 is nothing but a creation of the appellant No. 1 and accordingly it was incumbent upon the appellant No. 1 to transfer the said two vessels to the respondent No. 7 and the provisions of Article 34 of the above Order, 1972 have no manner of application in the facts and circumstances of the present case as the respondent No. 1 had no part to play in the manner of the performance of the rehabilitation project and as such commencement of the above Miscellaneous Case No. 3 of 1999 by the appellant No. 1 against the respondent No. 1 is not only misconceived but also illegal and malafide.
5. Leave was granted on the submissions that under Article 32 of the above Order 1972 the appellant No. 1 by notice could recall the entire loan forthwith to protect its interest;
clause (5) of Article 34 of the above Order 1972, which is a constitutionally protected
legislation, provided for such taking over of an industrial concern or transfer any property
of such industrial concern by the appellant No. 1 in exercise of its powers of sale under
Clause (1) of Article 34 of the above Order, 1972 and further the respondent No. 1 is also
jointly and severally liable to the appellant No. 1 for their dues/over dues and as such the
High Court Division fell in error in making the Rule absolute.
6. The learned counsel for the appellant No. 1 submitted that under Article 32 of the Order 1972, by notice, the entire loan of the respondent No. 1 could be recalled as was done in the present case and the proceeds which were received by the appellant No. 1 on auction sale of the said two vessels under Article 34 of the above Order 1972 being insufficient, the appellant No. 1 is entitled to commence proceeding under Article 33 of the above Order 1972 for realization of its balance dues.
7. The learned counsel for the respondent No. 1 submitted that the appellant No. 1, having approved rehabilitation scheme and having issued sanction letter in favour of the respondent No. 7 for additional loan of Tk. 2.700 million and the previous liability of the
respondent No. 1 having been kept in a interest free blocked account and the respondent
No. 7 having agreed to repay the said loan kept in the above blocked amount, the respondent No. 1 stood absolved from the liability against the loan and so the appellant No. 1 can not cancell the rehabilitation scheme; the preconditions/prerequisites to treat the respondent No. 1 as boiTower is non existent in the present case and as such the exercise of authority by the appellant No. 1 under Article 33 of Order 1972 for realization of the balance outstanding loan from the respondent No. 1 is illegal and without lawful jurisdiction; other borrowers under the selfsame rehabilitation schemes having been absolved from their loan liability, the respondent No. 1, who stand on the same footing, has been treated discriminatorily by canceling the rehabilitation scheme and treating the respondent No. 1 as a borrower with liability to pay loan after they were absolved from loan liability under the said rehabilitation scheme specially when the respondent No. 7 deposited title documents worth Tk. 1.28 million as collateral security and also deposited Tk. 0.500 million as equity participation expressing their categorical intention to carry on the rehabilitation scheme.
8. As it appears Article 3 of the above Order 1972 provides that the provisions of the above Order 1972 and any Rule made thereunder shall have effect notwithstanding anything contained in any other law for the time being in force; further under Article 32 of the above Order 1972, notwithstanding any agreement to the contrary, the appellant No. 1 may require any industrial concern, to which it has granted any loan or any person who is liable, to pay such loan forthwith; under clause (5) of Article 34 of the above Order, 1972 which is a constitutionally protected legislation, the appellant No. 1 can take over any industrial concern and/or transfer any property as was done in the instant case and such taking over and sale by the appellant No. 1, in exercise of its powers of sale or realization under clause (1) Article 34 of the BSRS Order 1972. shall not be called in question in or before any court and no court shall entertain any suit, application or other legal proceeding; further in terms of Article 33 of the above Order 1972, since the respondent No. 1, i.e. the industrial concern to which loan has been granted by the
appellant No. 1 failed to repay the loan by the due date in compliance with the notice under Article 32 and since the proceeds of the sale of the vessels under Article 34 were not sufficient to meet the dues outstanding against the loan, the appellant No. 1 could file an application under Article 33 of the above order, 1972 to the concerned District Judge for an order for payment of the loan or any other sum relating thereto.
9. As it appears the respondent No. 7, towards rehabilitation of the project, deposited land
document worth Tk. 1.28 million as collateral security and, also deposited Tk. 0.500 million as equity participation towards the additional paid up capital and by letter dated 29.01.1995, Annexure-D(l), requested the respondent No. 1 to complete the formalities as follows:Thereafter by letter dated 28.03.1995 Annexure-E, the respondent No. 7 requested the appellant No. 1 as follows: (Bangla)
10. Thereafter no positive steps having been taken by the respondent No. 1 for transfer of
the vessels the appellant No.l, by letter dated 18.06.1995, Annexure I to the affidavit-inopposition filed by the appellant No. 1, informed the respondent No. 1 as follows: (Bangla)
11. The respondent No. 7 who in the meantime deposited land documents worth Tk. 1.28
million and also paid Tk. 0.500 million towards equity participation, by their letter dated 22.06.1996, Annexure-F, informed the appellant No. 1 that although they earlier expressed their dissatisfaction as regards to the condition of the two vessels but they are
prepared to undertake implementation of the rehabilitation project but felt that the project
cost and financial plan, which was estimated in the year 1989-90, requires revision and so
the respondent No. 7 may be allowed to implement rehabilitation project at revised
updated project cost and financial plan but appellant No. 1 by letter dated 8 July 1996,
Annexure-G(l), informed the respondent No. 1 that the proposal made by them in the letter dated 22.06.1996 was not acceptable.
12. As it appears nothing concrete been done the appellant No. 1 by letter dated 08.07.1996, Annexure-G, informed the respondent No. 1 as followsLBangla)
13. Further from the contents of Memo dated 27.10.1986 Annexure-4 of the affidavit-inopposition filed by the appellant No. 1 it also appears that by the above memo the Secretary of the Board of the appellant No. 1 informed, the Legal Department of the appellant No. 1 that in order to sell the above two vessels under Section 34 of the Bangladesh Shilpa Rin Sangstha Order, 1972 the appellant No. 1 on five occasions i.e. 16.04.1996, 12.05.1996, 17.06.1996, 17.07.1996 and 28.08.1996 invited tenders and only one tender was received against invitation dated 17.06.1996 with the offer of Tk. 6,14,172.00 only including earnest money and than on 22.09.1996, the appellant No. 1, again invited tender for the sixth time for sale of above two vessels and one Tota mia of M/S. Famous River Transport submitted tender for Tk. 5,57.000 only stating that since the vessels remained submerged, their engineers could not locate the engines and subsequently Tota Mia, in response to another tender, agreed to pay Tk. ,15,000/provided
the engines are located by them and thereafter inspite of negotiations made by the
appellant No. 1, Tota Mia did not agree to raise the tender price further.
14. As it appears the above situation the appellant No. 1 had to sell the above vessels to
Famous Rivers Transport and the sale proceeds of the vessels being not sufficient to
repay the outstanding loan, the appellant No.l had to file Miscellaneous Case No. 3 of 1999 under Article 33 of the above Order 1972 in order to realize the balance dues.
15. It also appears that the High Court Division failed to take into consideration the
above facts as well as the position of law. Further the High Court Division, without any
basis at all, took the view that the respondent No. 7 is the child of appellant No. 1 though in fact he respondent No. 7 is the child of respondent No. 1 as the rehabilitation scheme
commenced at the request of the respondent No. 1.
16. Accordingly the judgment and order found by the High Court Division can not be
sustained.
17. In the result the appeal is allowed without any order as to costs.
Ed.
Source: IV ADC (2007), 361