Appellate Division Cases
(Civil)
PARTIES
Eastern Bank Limited ……………………….Appellant.
-vs-
Saudi Bangladesh Industries and Agricultural Investment
Company Ltd. …………………….…..Respondent.
JUSTICE
Syed J. R. Mudassir Husain C J
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
JUDGEMENT DATE: 9th March, 2004.
The Banking Companies Act, 1991, Section 77.
The Artha Rin Adalat Ain, 1990, Section 5(1).
Code of Civil Procedure (V of 1908), Order I
Rule 10(2). Order VII Rule 11..
High Court Division has committed an error of law in not considering the facts of the case and without applying its judicial mind wrongly discharged the Rule because of the fact that the learned Subordinate Judge, Commercial Court No.2, Dhaka, was required to decide as to whether it was necessary to add the parties to adjudicate all the issue effectively and completely and the matter in controversy between the parties. And as such, the findings and decisions as arrived at by the High Court Division are erroneous and so cannot be sustained in law………………….. (7)
Trial Court acted arbitrarily and without lawful authority in rejecting the application for addition of parties, addressing itself to wrong issue or question namely defect of parties which is not at all required to be gone into in deciding the application for addition of parties. The learned Judges of the High Court Division ought to have held that the trial Court acted without lawful authority in deciding the application under Order 1 Rule 10 without adverting itself to the issue mentioned in the said provision but deciding the application on a consideration not provided bylaw…………………. (8)
We are of the view that the provision of the code can be liberally construed. In such view of the matter that we are of the view that if the parties concerned are added in the suit, there is no likelihood of the respondents being prejudiced in any way. As such, we are of the view that the parties concerned should be allowed to be impleaded in the suit in question………………… (12)
Civil Appeal No. 125 of 2002. (From the Judgment and Order dated 9.2.2002 passed by a Division Bench of the High Court Division in Writ Petition No. 3123 of 1999)
Rokanuddin Mahmud, Senior Advocate instructed by Md. Ataur Rahman Khan,
Advocate-on-Record………………….For the Appellant.
Dr. Kamal Hossain, Senior Advocate, Instructed by A.S.M. Khalequzzaman. …………..For the Respondent No. 2
Not represented ……………………Respondent No. 1
JUDGMENT
1. Syed J. R. Mudassir Husain C J:– This appeal arises out of leave granted by this Division on 17-42002 in Civil Petition for leave to Appeal No. 366 of 2002 against the judgment and order dated 9-2-2002 passed by a Division Bench of the High Court Division in Writ Petition No. 3123 of 1999 discharging the Rule.
2. The appellant Eastern Bank Limited filed the above writ petition stating, inter alia, that it is a banking company incorporated under the law of Bangladesh, it was established in the year 1992 by the Bangladesh Bank by a gazette notification dated 8-8-1992 in exercise of the powers under Section 77 of the banking companies Act, 1991 providing for the Bank of Credit and Commerce International (Overseas) Limited (Reconstruction) Scheme 1992 (hereinafter called the “Scheme”). In terms of clause 6(1) of the scheme the business, properties, cash and liabilities in Bangladesh of Bank of Credit and Commarce Industries hereinafter be called BCCI were vested in the petitioner after reduction and adjustment, and subject to the terms and conditions of the Scheme or the Government order. According to the Scheme, the petitioner succeeded only to the liabilities of BCCI (Bangladesh) Limited and such liabilities as vested in the petitioner under the Scheme are liable to be discharged subject to the terms and conditions of the scheme. The liabilities of BCCI which have not been the subject matter of the scheme have not vested in the petitioner and as such the petitioner is not liable for the same. In the writ petitioner appellant as petitioner impugns the legality of an order dated 5-8-1999 passed in Money Suit No. 6 of 1994 instituted by respondent No. 1 in the Court of Subordinate Judge, Commercial Court No. 2, Dhaka.
3. The respondent No. 2, the Saudi Bangladesh Industrial and Agricultural Investment Company Ltd. (SABINCO) as plaintiff filed Money Suit No. 6 of 1994 against the appellant in the Court of Subordinate Judge, Commercial Court No. 2, Dhaka for realization of U. S. $ 9,8,10,011,48. contending inter alia, that the respondent No. 2 is a non-banking financial institution incorporated in Bangladesh pursuant to an agreement dated 15-5-1983 between the Government of Saudi Arabia and Bangladesh; that the respondent No. 2 opened Foreign Currency Account being F.C. Account No. 017-00206 at the principal office of the then BCCI, Dhaka and now Eastern Bank Limited (EBL) and deposited U.S. $ 6,000.000.00 in it being share subscriptions paid by the Gvernment of Saudi Arabia. The said amount was placed in an interest bearing foreign currency time deposit accounts known as placement funds on weelky, monthly, quarterly and half yearly basis as per renewal instructions and advices issued from time to time. The balance in the said account was U.S. $ 7.632,497.29 held in two placement founds of U.S.$ 2,46.291.76 and U.S.$ 5,169.205.53 with maturity date of i0.12.1991 2-8-1991 respectively; that the respondent No.2 by its letter dated 26-8-1992 requested the appellant E.B.L to furnish information as to the status of its deposits. Since the appellant filled to give any satisfactory reply, the respondent No. 2 by its letters dated 13-12-1992, 19-1-1993 and 20-21993 requested the appellant -EBL to furnish the status of the funds and deposits; that the respondent No. 2 continued to press its demand but the appellant refused to entertain the request and in that situation the respondent No. 2-SABINCO filed the aforesaid suit for realization of money with interest and costs.
4. The summons of the suit were duly served upon the appellant and about after a year the appellant filed its written statement in the suit on 19-11-1994. Issues were framed in the above suit and the peremptory hearing (PH) commenced by way of recording the oral testimony of Pw. 1 and a date was fixed for crossexamination by the defendant-appellant- SABINCO; that the appellant instead of crossexamining Pw. 1 filed an application under Order 7 Rule 11 for rejection of plaint on the ground, inter alia, that the suit is barred by Section 5(1) of the Artha Rin Adalat Ain, 1990 as the subject matter of the suit was not a loan within the meaning of the words as defined in the said Ain. The said application was rejected by the learned trial Court on contest by its judgment and order dated 18-7-1996. Then the appellant moved the High Court Division in Writ Petition No. 3344 of 1996 impugning the order dated 18-7-1996 rejecting the appellant’s aforesaid application for rejection of plaint. The High Court Division after hearing the parties was pleased to make the Rule absolute by its judgment dated 5-2-1997. The present respondent-No. 2-SABINCO then moved Civil Appeal No. 105 of 1997 before this Division against the impugned judgment of the High Court Division. After hearing the parties this Division allowed the same by its judgment and order dated 7-12-1998 and holding inter alia, that the deposit in question made by the present respondent No. 2-SABINCO is a loan as defined in the Artha Rin Adalat Ain.
5. After 4 years of time and upon disposal of the aforesaid appeal, the said suit was revived and fixed for hearing on 9-5-1999 by way of cross-examination of Pw. 1 by the defendant. The defendant appellant EBL again instead of cross-examination of PW. 1 filed anapplication under Order 1 Rule 10(2) of the Code of Civil Procedure for addition of parties. The said application of the appellant-EBL’s was posted on 25-5-1999 for hearing and it was ordered that the defendant-EBL do cross-examine PW. 1. Against the aforesaid order dated 9-5-1999, the appellant moved the High Court Division in Writ Petition No. 1762 of 1999 and obtained Rule along with an order of stay of all further proceedings of the aforesaid suit. Thereafter, the High Court Division disposed of the aforesaid writ petition by its judgment and order dated 6-6-1999 directing the trial Court to dispose of the application dated 9-5-1999 for addition of parties filed by the present appellant-EBL before examination of the witnesses. In accordance with the aforesaid direction of the High Court Division, the suit proceeded with and the trial Court heard the parities on the application for addition of parties and was pleased to pass its judgment and order dated 5-8-1999 rejecting the application for addition of parties holding that (a) if the suit fails for defect of parities, the responsibility is that of the plaintiff, (b) as the plaintiff in its objection pleaded that there is no defect of parties, the liability for defect of parities is that of the plaintiff and (c) the question of defect of parties will be decided at the time of hearing of the suit. Against the aforesaid judgment and order of the trial Court, the present appellant moved the High Court Division in Writ Petition No. 3123 of 1999 and the High Court Division issued the Rule along with an interim order of stay of all further proceedings of the aforesaid suit.
6. The present respondent No. 2-SABINCO contested the above Rule by filing an affidavitin opposition, statin;, inter alia, that the Government of Bangladesh, Bangladesh Bank, Liquidator and Joint Liquidator of BCCI S.A. are neither necessary nor proper parties and therefore, they are not entitled to be added as parties in the above suit. It was also submitted that the Eastern Bank Ltd. may take a defence in its written statement that the suit is liable to be dismissed for non-joinder of parties. The Eastern Bank Ltd. cannot compel the plaintiff to implead the aforesaid person on an alleged ground that the subject matter of the suit cannot be adjudicated in their absence. Eastern Bank Ltd. purposefully filed the aforesaid application for addition of parties with a view to delaying the disposal of the suit. The aforesaid action and conduct of the Eastern Bank Ltd. is an abuse of process of the Court and thereupon hearing the parties, the trial Court passed the impugned judgment and order dated 5-8-1999 with clear findings and quoting the submissions of the plaintiff. SABINCO, inter alia, that if the suit failed for defect of parties the responsibility is that of the plaintiff. In view of the above findings of the learned trial Court, there could be no reason for moving and obtaining the Rule since the plaintiff has taken the risk relating to the defect of parties. The Eastern Bank Ltd. by misleading the Court obtained the present Rule and therefore, the same is liable to be discharged with costs. The Eastern Bank Ltd. filed the aforesaid application for addition of parties for a dilatory purpose. The learned trial Court rightly rejected the same by assigning appropriate reasons and there is no ground to interfere with the impugned order. The said persons are neither necessary nor proper parties and the Court has no jurisdiction to add them as parties under Order 1 Rule 10(2) of the Code of Civil Procedure. Before a Court can implead a particular person as a party to a suit, in that situation the Court has to find out at every stage whether the party is a necessary or a proper party. The Govt. of Bangladesh, Bangladesh Bank, Joint Liquidators are neither necessary nor proper parties and therefore, the application filed by the Eastern Bank Ltd, for addition of the said persons /bodies was rightly rejected under the impugned order.
7. Mr. Rokanuddin Mahmud, the learned Counsel, appearing for the appellant, placed before us the impugned order of the High Court Division and also other relevant papers connected in the subject matter of the suit. He has firstly contended that the High Court Division has committed an error of law in not considering the facts of the case and without applying its judicial mind wrongly discharged the Rule because of the fact that the learned Subordinate Judge. Commercial Court No.2, Dhaka, was required to decide as to whether it was necessary to add the parties to adjudicate all the issue effectively and completely and the matter in controversy between the parties. And as such, the findings and decisions as arrived at by the High Court Division are erroneous and so cannot be sustained in law.
8. Mr. Mahmud next contended that under the facts and circumstances of the case, the High Court Division ought to have considered that the trial Court acted arbitrarily and without lawful authority in rejecting the application for addition of parties, addressing itself to wrong issue or question namely defect of parties which is not at all required to be gone into in deciding the application for addition of parties. The learned Judges of the High Court Division ought to have held that the trial Court acted without lawful authority in deciding the application under Order 1 Rule 10 without adverting itself to the issue mentioned in the said provision but deciding the application on a consideration not provided by law.
9. Dr. Kamal Hossain, the learned Senior Counsel, appearing for the plaintiff-respondent No.2, on other hand contended that the Govt. of Bangladesh, Bangladesh Bank. Liquidator and the Joint Liquidator of BCCI S.A. are neither necessary nor proper parties and therefore, they are not entitled to be added as parties in the above suit at the instance of defendant-appellant, Eastern Bank Ltd. since it is open to the appellant to take a defence in its written statement that the suit is liable to be dismissed for non joinder of the parities. And as such the appellant-Eastern Bank can not compel the plaintiff-respondent No. 2-SABINCO to implead the aforesaid persons on the ground that the subject matter of the suit can not be adjudicated in their absence. It is contended that filing of the application for addition of parties is nothing but to delay the disposal of the suit and it rs thus an abuse of process of the Court.
10. Dr. Kamal Hossain, next argued that the trial Court as well as the learned Judges of the High Court Division made a clear finding to the effect that if the suit fails for defect of parties, the responsibility is that of the plaintiffrespondent No. 2-SABINCO and it is a risk of the respondent No.2 relating to the defect of parties and appellant has nothing to worry about it and as such the findings and decisions as arrived at by the Courts of law are quite legal and lawful and there is no infirmity for which interference by this Court is called for.
11. It is argued in view of the facts and circumstances of the case, that the appeal is liable to be dismissed.
12. We have heard the submissions made by the learned Counsels of both the parties at length and perused the records of the case and the provision of Order 1 Rule 10(2) of the Code of Civil Procedure. We are of the view that the provision of the code can be liberally construed. In such view of the matter that we are of the view that if the parties concerned are added in the suit, there is no likelihood of the respondents being prejudiced in any way. As such, we are of the view that the parties concerned should be allowed to be impleaded in the suit in question.
13. For the above reasons, we are inclined to allow the appeal. In the result, the appeal is allowed without any order as to costs. However, we direct the parities to take steps for expeditious disposal of the suit preferably within 6 (six) months. The requisites for the service of summons are to be put in within 7 (seven) days from the date of the receipt of the judgment and if necessary order for substituted service may be passed.
Ed.
Source: I ADC (2004), 566