Principle-in disposing of the goods by the bank
In the instant case, the plaintiff-bank took initiative to release the goods from the seaport at Chittagong, brought those to Dhaka and stored in a godown. The officials of the bank were aware that those imported clothing and fabrics were very expensive and its quality would certainly deteriorate with the passage of time, as such, they ought to have taken practical steps from commercial point of view, to dispose of those goods as soon as possible, to the relief of the borrower as well as of the bank both. In this case, the bank in its prudence, ought to have taken effective steps to dispose of the imported goods soon after
its release from the port in 1977, on information to the defendant-borrower. The delay in such disposal in 1981 shows inefficiency on the part of the officials of the bank, during which period the dues of the bank mounted to the prejudice of the defendant while the quality of the goods continued to deteriorate. Had those goods were disposed of earlier, it would have not only fetched better price but also the dues of the defendant might have been substantially adjusted to the relief of both. In these circumstances, the bank cannot avoid its part of the responsibility altogether.
Janata Bank Vs. Alhaj Abdul Hannan Chowdhury 10 BLT (HCD)-482
Section-5
ITCL is a business company and undergoing simple business on dividend and profit basis and it receives money from different persons and invest the same for different products as contended by the petitioners counsel.
Held: The ITCL do not come either within the ambit of Mudaraba or Musharik Method of business.
Islamic Trade & Commerce ltd. Vs. Bangladesh Bank & Ors. 9BLT (HCD)-183
Section-5 read with Artha Rin Adalat Ain, 2003 Section —2
Whether a guarantor would he come a defaulter within the meaning of the Bank Company Act.
A defaulter shall mean a person or institution that obtained advance or loan or interest thereupon which becomes ‘?????????????’ within the meaning as notified by the Bangladesh Bank and already expired six months. The ‘??’ what is popularly known loan has not been defined in the Bank Company Act but exhaustibly defined by Clause (kha) of section 2 of the Am as quoted above. Such definition includes amongst other a guarantor of a loan. It is true clause (chha) of section 5 of the Bank Company Act defines a “???????” that is a debtor which includes a “????????” that is a guarantor and in the definition of defaulter in said clause (t1) of section 5 such guarantor is not mentioned. Use of the word guarantor in such definition of a defaulter is not at all necessary. When a guarantor is clearly intended to be covered by the sweep of the above definition of a defaulter non-mention of the word “????????” does not make any difference.
IFIC Bank Ltd. & Ors Vs. M/S. Beximco Holding Ltd & Ors. 13 BLT (HCD)23
Section 5(Ga)(Ga) read with Bangladesh Bank Order, 1972 Article —42(b)
Whether a guarantors can be regarded as defaulting borrower
Since the petitioners ceased to be the Shareholders and directors of the Company, they ceased to be liable even as guarantors to repay the Loan of the financial institution as Contended by the learned Counsel as the petitioners —Held the word “borrower” is not defined in the Bank Companies Act, 1991 but it is defined under Article 42(b) of the Bangladesh Bank Order, 1972 as any person to whom any credit limit has been sanctioned by any banking company, whether availed or not. In view of this legal pension, the petitioners cannot be regarded as defaulting borrowers of the loan financial accommodations obtained by the
said three companies inasmuch as the said loan etc. was not given to them nor the said three companies can be considered or regarding as ??????? ????????? ?????????? of the petitioners within the meaning of section 5(Ga)(Ga) and its first proviso. Hence they cannot be regarded either as defaulting borrowers (?????? ?? ???????) for obtaining the loans in question for themselves
nor the said three defaulting borrower companies can be said to be the ??????? ????????? ?????????? of the petitioners.
Md. Mostafa Kamal & Ors Vs. Bangladesh Bank & Ors 14 BLT (HCD)492
Section- 17
We are of the opinion that since the said section if concerned with the subject matter of vacancy of the office of directors which is an additional occasion for vacancy other than those contained in the Companies Act. 1994 and since the entire scheme of the said Act is to bestow upon the Bangladesh Bank a strong regulatory power over the functioning and business of bank companies, it is enough if the offending director is intimated in a notice under section 17 of the said Act that he has a personal liability to repay a loan of the kind described in section 17 and that on the date of notice the loan remains liquidated upon expiry of the stipulated date of repayment of either the whole loan or an installment thereof. It is not necessary to describe in the notice the nature and number of document on the basis of which the offending director is claimed by the lender Bank to be personally responsible for repayment of a loan or an installment. But if offending director denies his personal liability to repay the loan in his written representation the Bangladesh Bank may send for the incriminating materials and confront the offending director with the same.
Masudul Alam Chowdhury Vs. Bangladeshn Bank & Ors 8BLT(AD)-13
Section-17
Admittedly, the petitioner took loan after providing adequate security and she did not repay her loan liabilities and as such the notice under Section 17 of the Act is valid notice.
Mrs. Khushi Akhter Vs. Bangladesh Bank & Ors 8BLT(AD).145
Section- 17
Held: In the case of Md. Saiful Alam alias Masudul Alam Chowdhury vs. Bangladesh Bank and others, C.P. 529 of 1999 we have held that it is the Bangladesh Bank which is authorized under the Act to determine the relevance, genuineness; connection
between the lender Bank’s documents and the loans in question and the liability or ‘non liability of the offending director and that the High Court Division is not, the forum for adjudication upon the documents of the offending director and the lender Bank.
Aminul Haque Chowdhury Vs. Bangladesh Bank & Anr. 10 BLT (AD)-36
Section-31(1) read with Section-52(1)
The ITCL has been carrying on Banking business, whatsoever be its now and the Bangladesh Bank after examining the necessary documents legally, holding the enquiry after observation all the necessary legal formalities formed its legal opinion that ITCL is a Banking Company based on which it can be called sufficient materials and it has been made on the basis of records of ITCL itself.
Islamic Trade & Commerce Ltd. Vs. Bangladesh Bank & Ors. 9BLT(HCD)-183
Section-45
In the public interest or in the interest of the depositors or the banking policy or even in the interest of the bank, the Bangladesh Bank as a central bank of the Country is empowered to determine banking policy in relation to loan or advances to be followed by the bank companies in general or any bank company in particular, and when a policy is so determined it shall have a binding effect. In particular, the Bangladesh Bank may time to time give directions with regard to the rate of interest and other terms and conditions for giving loan, advance or other financial accommodation. Such directions are always binding upon all bank companies. These powers are common and universal to all regulatory banks the world over.
Uttara Bank Ltd. Vs. Mrs. Ayesha Siddique & Ors. 12 BLT (HCD)-106
Section-46
The facts and circumstances prima facie indicate that the proceeding that has been initiated is only to circumvent the order passed by this Division in civil Miscellaneous Petition No. 534 of 1999 of which Bangladesh Bank was fully aware. When Bangladesh Bank petitioner is fully aware of this Division’s order or had knowledge of the order they are bound to honour the same. Reliance is placed on the principle of law enunciated by the House of Lords in the case of Attorney General Vs. Times Newspapers Ltd. and another reporter in (1991)2 All England law Reports Page- 398 wherein it has been held that a person who is aware of an order of the Court is bound to obey the same even though he was not a party to that when it affects the result of the earlier order. Here in the present case earlier order of this Division was to maintain status quo in respect of composition of the Board of Directors of the Bank and a copy of that order was sent to Bangladesh Bank by UCBL and in such a situation the Bangladesh Bank is bound to honour the order passed by this Division.
Bangladesh Bank & Ors. Vs. Zafor Ahmed Chowdhury&Anr. 9BLT (AD)-230
Section-46 read with the Section-48(1)
Subsection (1) of section 48 clearly provides that no order under section 46 shall be made except by the Governor of the Bangladesh Bank on the report by the standing Committee. So, the law itself provides that the order may be passed only on the
basis of a report of the Standing Committee and as such the governor of Bangladesh Bank had no scope of forming any independent opinion and he had to take action on the basis of the report of the standing Committee:
Kamal Uddin Ahmed &. Ors Vs.. Bangladesh Bank & Ors. 12 BLT (HCD)223
Section-46(2)
A reasonable opinion is formed by a reasonable person when he finds something relevant in existence in the objective world concerning any question or issue. If a person without the existence of any such relevant objective phenomenon fancies something and then forms an opinion concerning any question or issue such opinion is neither a reasonable opinion nor a reasonable person holds such an opinion. We have already noticed that the ‘opinion” of respondent No. I concerning the appellant is based on the inspection report and the report and recommendation of the Standing Committee. So it cannot be said that the “opinion” held by the respondent No. 1 concerning the appellant is not a reasonable opinion of a reasonable person.
Abdur Rahim Chowdhury Vs. Bangladesh Bank & Ors 8BLT (AD)-146
Section-46(2)
Under the service jurisprudence when an employee is charge sheeted he is also put under suspension till conclusion of the inquiry proceedings. A Director, Managing Director or Chairman of a banking company does not serve under the Bangladesh Bank which has been merely entrusted with the powers of supervision and control of the banking Companies Act, 1991. So the requirement of formation of an opinion by the Bangladesh Bank has been made before directing a Director Chairman of Chief Execute of a banking company to refrain from performing functions of his office during the pendency of the enquiry proceedings against him for his removal from office under Section him for his removal from office under Section 46 of the Act. Such opinion must be formed on the basis of relevant materials on record and not fancifully without any such material nor on the basis of irrelevant materials. But such opinion need not be mentioned in the order communicated to Director, Chairman or Chief Executive of the banking company.
A Rahim Chowdhury Vs. Bangladesh Bank & Ors 8BLT (AD)-280
Section—109/111 with Article—56 of P.O. 127 of 1972,
Clause-4 of the Non-Banking Financial Order, 1989
The company advanced a huge to the accused petitioner with 19 other directors of the Bangladesh Commerce and Investment Ltd. (BCI Ltd.) and their relations in violation of the laws. Warrant of arrest being issued, the petitioner was arrested on 1.8.92. He was granted an ad interim bail on 22.2.93 on condition of his depositing the entire loan money & filing certificate from the
Bangladesh Bank. On the expiry of extended period on 29.6.93, the accused petitioner, having not surrendered in the Court of M. M. is a fugitive from law and justice and he is not entitled to bail. Surrender in the Court of C. M. during the pendency of the bail. This will not prejudge what view the other courts will take in respect of future bail application filed by him.
Md. Saidul Islam Chowdhury Vs. The State & Anr. 3BLT (AD)-144.