Habib Bank Limited (Appellant)
UAE Bangladesh Investment Company Limited and another (Respondent)
High Court Division
(Civil Appellate Jurisdiction)
Mahmudul Amin Choudhury J
Bijan Kumar Das J
Judgment : May 28, 1998.
Syed Ishtiaq Ahmed with Sayyid Shahid Hossain, Advocates—For the Appellant.
MA Halim, Shariful Islam Khan, Advocates—For the Respondent No. 1.
Dr Zahir, Advocate—For the Respondent No. 2.
Appeal from Original Decree No. 415 of 1996.
Mahmudul Amin Choudhury J.- This appeal is directed against judgment and decree passed by Artha Rin Adalat No. 2. Dhaka in Money Suit No. 34 of 1992. The Adalat by judgment dated 29-8-1996 decreed the suit for a sum of Taka 14, 05, 75,934.28 paisa with interest.
2. The short fact leading to this appeal is that, the plaintiff-respondent instituted the suit alleging that the plaintiff company is a joint venture project of which 40% share belongs to the Government and remaining 60% belongs to Abu Dhabi Fund for Development. The plaintiff gets 30 lac US dollars from Abu Dhabi and deposited the same with BCCI, Foreign Exchange Branch, Dhaka and on 16-3-89 BCCI affirmed the receipt of the aforesaid US dollars. The plaintiff then sought permission from Bangladesh Bank for depositing the aforesaid amount in the International Money Market for Profit and got the permission on 30-5-89 and on receipt of this the plaintiff directed defendant No.1 Bank BCCI Overseas Limited on 7-9-90 for further investment in the Bank of America International or American Express Bank. Defendant No.1 on 14-5-90 informed the plaintiff that on 14-5-90 30 lac US Dollars rose to 31,62,027.78 US Dollars with interest. On 19-4-90 the plaintiff asked defendant No. 1 to transfer the aforesaid Dollars to Habib Bank Limited, Singapore from New York. On receipt of this request defendant No.1 transferred the said amount to the aforesaid bank and informed the plaintiff on 19-4-90. It is also the case of the plaintiff that on 6-7-91 Bangladesh Bank stopped all business of defendant No.1. The aforesaid fund remained with defendant No.3 appellant-Bank. Then the plaintiff asked defendant No.1 to transfer the said amount from defendant No.3 to Sonali Bank, London Branch. But defendant No.3 has not transferred the amount. Then on 5-9-91 defendant No.1 asked defendant No.3 to transfer the amount to American Express Bank, New York Branch Account Agrani Bank. Defendant No.3 informed defendant No.1 that the matter was referred to their Head office at Karachi for proper instruction. Then again, defendant No.1 requested defendant No.3 for the transfer of the amount but that was not done. It was explained by defendant No.3 that the amount does not belong to defendant No.1 rather it belongs to their client. Defendant No.1 also brought to the notice of defendant No.3 of the decision given by Bangladesh Bank in the matter. It is the case of plaintiff that defendant No.3 illegally and with malafide intention has not transferred the aforesaid amount on being requested by defendant No.1. Rather they set up a claim over the amount stating that they will get some money from defendant No.1 and they wanted to set off their claim. It is the case of the plaintiff that they are the real owners of the aforesaid amount and they through defendant No.1 with the knowledge of Bangladesh Bank tried to get back the amount they deposited. They also time and again requested defendant No.1 for making arrangement for getting back their own money. It is also the case of the plaintiff that in spite of their and defendant No.1’s best efforts defendants 2 and 3 did not transfer the money as desired by the plaintif. It is also the case of the plaintiff that they time and again asked defendant No.1 for getting back their money and also requested defendant No.1 to make arrangement for realisation of aforesaid Dollars but without success which led to the filing of the present suit.
3. Defendants Nos. 2 and 3 entered appearance and filed written statement and there is no cause of action against them and their further objection is that the plaintiff is not a financial institution as contemplated under the Artha Rin Adalat Ain and, as such, the suit is not maintainable in that Adalat. They further contended that they are not aware of the dealing in between the plaintiff and BCCI Overseas Limited. Denying the plaintiff’s claim and the averment made in the plaint these answering defendants stated that the fund does not belong to BCCI Overseas Limited, rather it belongs to the constituent of BCCI Overseas Limited and they raised the claim of set off as against defendant No.1 and that they were not aware of the fact that defendant No.1 acted as agent of the plaintiff and the matter was not brought to their notice. Their further case is that the plaintiff may institute the suit where these two defendants are residing and the plaintiff is not entitled to any relief against them.
4. Defendant No.1 also entered appearance before the trial Court and filed written statement and their case is that they acted on the advice and direction of the plaintiff and they are mere agents of the plaintiff in the transaction and they transferred the money to various banks including defendants 2 and 3 on the advice and direction of the plaintiff and when defendant No.3 illegally retained the money defendant No. 1 may not be made liable and they have not anywhere claimed the 3 million dollars as their own as they have not deposited the same with defendant Nos. 2 and 3 as their own money. Their further case is that defendant No.3 disregarding the instructions issued on behalf of the plaintiff by defendant No.1 retained the aforesaid Dollars.
5. The contesting parties adduced oral and documentary evidence before the trial Court and the Adalat thereafter on consideration of the evidence on record by judgment dated 29-8-1996 decreed the suit as aforesaid.
6. Being aggrieved by and dissatisfied with the judgment and decree defendants 2 and 3 as appellants preferred this appeal.
7. Syed Ishtiaq Ahmed, the learned Counsel appearing on behalf of the appellants, at the very outset submits that the suit filed before the Artha Rin Adalat is not at all maintainable as the plaintiff is not a financial institution as contemplated under the Artha Rin Adalat Ain. He submits that Artha Rin Adalat though is a Civil Court but it is a Civil Court of defined nature and it is not an Ordinary Civil Court as contemplated under the Code of Civil Procedure and when the plaintiff is not a financial institution they cannot maintain the suit before that Adalat. He further submits that the appellants are non-residents and as the cause of action of the suit arose in Singapore the same ought to have been filed in the Court or Courts in Singapore. He argued that the account stands in the name of BCCI at the Singapore Branch of defendant Nos. 2 and 3. It is submitted that excepting the BCCI nobody has privity over the amount deposited. The learned Advocate contends that nothing has been produced before the trial Court or brought to the notice of the appellants that defendant No. 1 acted as agent of the plaintiff.
8. Dr. Zahir, the learned Counsel appearing on behalf of the respondent No. 2 submits that respondent No.2 who stepped into the shoes of original defendant No.1 acted as agent of the plaintiff. He further argued that the appellants cannot retain the money and when respondent No.2 acted as per instructions issued from time to time by the plaintiff this respondent No.1 is not liable for any amount. It is submitted that the appellants are not disputing the deposit of the aforesaid Dollars but they put forward a case of set off against the BCCI Overseas Limited and the appellants also have not raised the plea of undisclosed principal of the said amount. He submits that the papers produced from the side of the plaintiff clearly proved that respondent No. 2 acted on the advice of the plaintiff and they acted merely as agent. They have not at their own initiative deposited the money with the appellants. What they have done, they have done under instructions from the plaintiff. He also argued that the case of set off by the appellants is that on global basis and if that is correct the excess amount ought to have been sent back to the defendant No.1 as requested. They cannot retain the excess amount.
9. The learned Advocate appearing on behalf of the respondent No.1, on the other hand, submits that respondent No. 2 acted as agent of the plaintiff and on the advice and direction of the plaintiff they deposited the money with Habib Bank. It is not the money of respondent No.2 but it is the money of the plaintiff. It is also submitted that when the money was deposited with the appellants at the instance of the plaintiff by respondent No. 2 the plaintiff is entitled to get back the aforesaid Dollars and the retention of the same by the appellants is illegal and against normal banking practice. The learned Advocate further contends that the appeal filed by the appellants is barred by limitation as the same has not been filed as contemplated under the Artha Rin Adalat Ain. It is submitted that the appeal ought to have been filed within 30 days from the date of decree excluding the time consumed in taking the certified copy of the judgment and decree. It is also submitted that it is mandatory to deposit 50% of the decretal amount with the Adalat before preferring the appeal which has not been done. So, this appeal is barred under the law.
10. Before entering into the merit of the appeal we intend to dispose of the initial objections raised by the parties. The first objection raised by Syed Ishtiaq Ahmed is on the maintainability of the suit before the Adalat as, according to him, the plaintiff is not a financial institution as contemplated under the Artha Rin Adalat Ain. It has been argued by Mr Ahmed that the plaintiff has not obtained any permission to act as a financial institution from the Bangladesh Bank as contemplated under sub section (6) of section 2 of the Artha Rin Adalat Ain. Sub-section provided that any authority on obtaining licence from Bangladesh Bank under Arthik Pratisthan Ain, 1993 may function as a financial institution and they may institute any suit for realisation of their money from the defaulters before the Artha Rin Adalat. According to Mr. Ahmed, the plaintiff has not obtained any licence required under the law and, as such, it is not a financial institution.
11. This contention of Mr. Ahmed has been seriously controverted by the learned Advocate for the plaintiff-respondent No.1. He submits that this suit was filed on 13-8-92 and at that time the law as regards financial institution was different. At that time sub-section (6) of section 2 of the Artha Rin Adalat Ain was in a different manner. The previous sub-section (6) provided that any financial institution which comes within the ambit of Chapter V of the Bangladesh Bank Order, 1972 may institute a suit before the Artha Rin Adalat. Article 50 (c) of the aforesaid Order defined financial institution as follows:
(c) financial institutions means any non-banking institution.
(i) which carries on as its business or part of its business the financing, whether by way of making loans or advances or otherwise, of trade, industry, commerce or agriculture.
(ii) which carries on as its business or part of its business the acquisition of share, stock, bonds, debentures or debenture stock or securities issued by a Government or local authority or other marketable securities of a like nature; or
(iii) which carries on as its principal business hire purchase transactions or the financing of such transactions.
Explanation—For the removal of doubts, it is hereby declared that a company registered under section 3 of the Insurance Act, 1938 for any class of insurance business and a company, not being a banking company, a corporation or a firm, carrying on, as its principal business, the management, conduct or supervision, as the foreman or agent, of any transaction or arrangement by which it enters into at agreement with a number of subscribers that everyone of them shall subscribe a certain sum by instalments for a definite period and each subscriber in his turn, as determined by lot or by auction or by tender or in such other manner as provided for in the agreement shall be entitled to prize amount shall be deemed to be, a financial institution as defined in this clause.
12. This provisions of the Ain was of course subsequently deleted and the new sub-section (6) has been incorporated in 1994. It appears from the original Artha Rin Adalat Ain that any institution which comes within the ambit of Article 50(c) of Chapter V of Bangladesh Bank Order, 1972 is a financial institution and it can institute suit before the Artha Rin Adalat. It appears from the material on record that the plaintiff is a joint venture investment company and, as such, it comes within the ambit of this unamended sub-section (6) of section 2 of the Ain and so they can maintain the suit. When the suit was filed in the year 1972 it was maintainable before the Artha Rin Adalat. Subsequent amendment of the law has not changed the forum as it is well-settled that such suit will continue to be proceeded with where it was filed. In that view of the matter we hold that the suit filed before Artha Rin Adalat is very much maintainable and we find no force in the argument advanced by Mr Ahmed.
13. Now we come to the next question as regards the maintainability of the appeal.
14. This appeal has been filed under section 7 of the Artha Rain Adalat Ain. The learned Advocate for respondent No.1 submits that as the appellants failed to deposit 50% of the decretal amount with the trial Court this appeal cannot be maintained before the High Court Division. Drawing our attention to section 7 of the Ain the learned Advocate contends that the appeal was entertained by this Court long after the statutory period of 30 days as provided under this section. Section 7 of the Ain provides that if anyone intends to prefer any appeal against the judgment and decree passed by the Artha Rin Adalat the same must be filed before the High Court Division within 30 days from the date of the decree. It has further been provided that if the judgment-debtor is interested to prefer any appeal against the judgment and decree passed by the Artha Rin Adalat it shall have to deposit 50% of the decretal amount with the Adalat before preferring the appeal and it has also been provided in-section (4) that if there is no deposit of this aforesaid 50% with the Adalat the appeal cannot be entertained. It is submitted by Mr. Ahmed that after getting the certified copy of the judgment and decree they approached the trial Court for permission to deposit 50% of the decretal amount US Dollars which the trial Court refused and thereafter they preferred this appeal on 5-10-1996 and along with the memo of appeal they filed an application seeking permission to deposit the required 50% of the decretal amount in US Dollars that was allowed by the High Court Division on 28-10-96 and they made the deposit on 9-11-96 and, such, the appeal can be maintained. In support of his submission Mr Ahmed placed reliance in the case of Benode Behari Saha Vs. Nityo Gopal Saha, reported in 1981 BLD (AD) 95=33 DLR (AD) 130. We have gone through this decision and it appears that the same was given in disposing of a case filed under Small Causes Courts Act.
15. The learned Advocate appearing on behalf of the respondent No. 1submitted that this decision of our Appellate Division has no manner of application in the present case before us as that was given under a different law. Where section 17(1) of the SCC Act has given some right to the appellant to file an application seeking permission from the Court for any deposit but the same is not available to any litigant in a suit filed under the Artha Rin Adalat Ain.
16. For deciding whether this decision has any application in the facts and circumstances of the present case, we intend to examine the provision of section 17 and 17(1) of the Small Causes Courts Act which reads as follows:
“17. (1) The procedure prescribed in the Code of Civil Procedure, 1908 (V of 1908) shall, save insofar as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits: Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.”
17. From this proviso to section 17(1) of the Small Causes Courts Act, it appears that an application for setting aside an ex parte decree may be filed within the period of limitation on complying with the requirement thereof or obtained a direction from the Court by filing a separate application for compliance of the requirements. Under the provision of the Small Causes Courts Act there is scope for filing an application for compliance of the Court’s direction while praying for setting aside the decree passed ex parte. But under the Artha Rin Adalat Ain there is no scope for filing such a petition. The condition precedent in preferring an appeal is deposit of 50% of the decretal amount with the trial Court and unless there is such deposit judgment-debtor cannot present any appeal before the High Court Division. Such deposit according to the Artha Rin Adalat Ain must be with the trial Court which passed the decree and not with the Appellate Court. Section 17(1) of the SCC Act is distinctly different from section 7 of the Artha Rin Adalat Ain. The decision of our Appellate Division is on a different law on a different fact and on different situation and in that view of the matter we hold that this decision has no manner of application in the facts and circumstances of the present case before us. The Artha Rin Adalat Ain provides a condition precedent that a judgment-debtor may prefer an appeal before the High Court Division on depositing 50% of the decretal amount. It has also provided that such an appeal must be filed within 30 days from date of the decree. Here in the present case it appears that the decree was signed on 5-9-96 though the judgment was delivered on 29-8-96 and the appellant applied for the certified copy of the same on 3-9-96 which was made ready on 16-9-96 and the appeal was presented on 5-10-96. From a calculation it appears that 30 days from 5-9-96 is 4-10-96 and the time consumed for obtaining the certified copy is 12 days. So the appellant was required to file the appeal by 16-10-96. The appeal was presented on 5-10-96 but as 50% of the decretal amount was deposited with the court below before presentation of the memo of appeal it was returned by the Stamp Reporter on 7-10-96 and thereafter it appears that on 28-10-96 a Division Bench of this Court permitted the appellant to deposit 50% of the decretal amount in US Dollars instead of in Taka within two weeks from date and that deposit was of course made within that period. Now the question arises here whether such a deposit can be accepted by this Division. Section 8 of Artha Rin Adalat Ain is abundantly clear in this respect. It provides that before preferring an appeal the judgment-debtor must deposit 50% of the decretal amount with the Adalat. Sub-section (4) of section 8 of the Artha Rin Adalat Ain provided that no appeal without any such deposit can be entertained. Where there is no deposit as contemplated under the Ain the tendering of this appeal without deposit is beyond the scope and, as such, the appeal cannot be entertained. No comes the question whether this Division can allow deposit of the decretal amount thereby indirectly extending the period of limitation. There is no provision in the Ain for seeking permission deposit 50% of the decretal amount with trial Court or with the High Court Division as in the case under section 17 of the Small Cause Courts Act. The High Court Division cannot entertain such an application and extend the time of deposit or order to deposit 50% of the decretal amount with the High Court Division. The deposit must be with the trial Court as provided under section 8 of the Artha Rin Adalat Ain. Here in the present case a Division Bench of this Court allowed the appellant to deposit 50% of the amount in US Dollars and accordingly, the same was done and that order was passed on 28-10-96 and the deposit was made on 9-11-96. The condition precedent for entertaining the appeal is deposit of the aforesaid amount with the trial Court. But here in the present case the Memorandum of Appeal though tendered within 30 days but there was no deposit and the actual deposit was made on 9-11-96 which was beyond the period of limitation and, as such, this appeal is not maintainable due to non compliance of the provision of section 8 of the Artha Rin Adalat Ain. We should bear in mind that an act which cannot be done directly cannot also be done indirectly. It is well-settled that Artha Rin Adalat Ain is a special law and the Adalat though is a Civil Court but is a Civil Court of defined nature having its own forum of appeal and section 5 of Limitation Act has no manner of application in Artha Rin Adalat Ain and when there is special limitation in a special law, that is, mandatorily to be followed. So, if any person is aggrieved by a decree passed by the Adalat he may prefer an appeal on depositing of 50% of the decretal amount with the trial Court which period of limitation cannot be extended by any order of the High Court Division either directly or indirectly.
18. Mr. Syed Ishtiaq Ahmed further submitted that the appeal was presented on 5-10-96 which was during the long vacation of the High Court Division and the stamp-reporter returned the Memorandum of Appeal on 7-10-96 to the filing Advocate. There is nothing on record to indicate that this Memorandum of Appeal was again presented on the date of re-opening of the Court on 26-10-96 on which date the office re-opened and the Court was also not moved on the following day for any favourable order. The Court was moved on 28-10-96, that is, beyond the statutory period of 30 days. Mr. Ahmed submits that before the trial Court they filed an application seeking permission to deposit 50% of the amount in US Dollars. But the decree passed is not in terms of US Dollars but in terms of Taka and the deposit must also be in terms of the decree, that is, in Taka. If the appellant had the intention to deposit it could have enchased the Dollars and then deposit the amount with the trial Court. So deposit of the US Dollars is not in accordance with the provision of the Artha Rin Adalat Ain.
19. Having considered all these aspects of the matter, we hold that the appeal has not been preferred within the statutory period as contemplated under section 8 of the Artha Rin Adalat Ain and, as such, this appeal is barred by limitation and it cannot be maintained.
20. We could have disposed of this appeal simply on the ground of maintainability but for proper appreciation of the whole matter and for avoiding future complications we intend to enter into the merit of the case and decide the same.
21. It is the definite case of the plaintiff-respondent No.1 that they kept 3 million US Dollars with respondent No.2 and they got the Dollars from UAE for investment and out of its profit to spend the same for human resources developments and for getting profit they kept the Dollars with respondent No.2 and under their instruction the Dollars were ultimately kept with the appellants who after the stoppage of operation of the BCCI Bangladesh refused to pay back the money to the plaintiff and they set up a case of set off. Mr Ahmed submits that defendant No.1 in this matter has not acted as agent of the plaintiff and when they have not acted as such they cannot claim the dollars from the appellants. Admittedly the plaintiff kept three million US Dollars with defendant No.1 and from Exts. 2(a), 5, 6, 7(a), 8, 9, 9(b) and 9(c) more particularly from the Exts. 2(a), 9(b), and 9(c) it appears that on the advice of the plaintiff defendant No.1 with the permission from Bangladesh Bank deposited the US Dollars to various foreign banks outside Bangladesh including the appellants. Mr Ahmed raised a point here that the appellant had no knowledge that defendant No.1 acted as agent of the plaintiff as this fact has not been brought to their notice. But from these Exts. it appears that defendant No.1 acted as agent and in their correspondences with the appellant it was clearly indicated that the dollars belong to the plaintiff and on their advice with the permission of Bangladesh Bank those were deposited with the appellant within their knowledge.
22. Before the trial Court the plaintiff examined one Mir Abdus Sattar as P.W.1 and he deposed that they kept the money with defendant No.1 and under their instruction and advice the dollars were kept with the appellant. Though this P.W.1 was thoroughly cross-examined by the defence we find nothing to disbelieve his evidence on the factum that under their instruction defendant No.1 acted. Defendant No.1 examined D.W.1 who is their First Assistant Vice President. He also categorically stated in his evidence that under instructions from the plaintiff they kept the fund with the appellant and they acted as agent of the plaintiff and under their instruction they transferred the dollars. During cross-examination this D.W.1 stated that they informed the appellant that the amount involved does not belong to them but is of their client and that fact was notified before set off claim by the appellants. This witness replying to a question during cross-examination stated that it is the practice of the bank to keep the money of the clients in placement but bank’s own money cannot to keep in placement which has been done in the present case. From the side of the defence D.W. 2 Syed Perves Mehdi, an officer of Habib Bank in Singapore stated in his examination-in-chief that he has no knowledge that defendant No.1 was acting as an agent of the plaintiff. This witness deposed that they have borrowed the money from BCCI Dhaka. But in their written statement it was not the case of contesting defendant that the appellants borrowed the money from BCCI. No supporting document has been filed to prove that. This is a new case put forward by this witness before the trial Court. By this probably he intended to say that the money belongs to BCCI over which they have claimed set-off. He admitted that they have claim of over 1.65 million US dollars from BCCI. But it appears that they were holding more than that which belong to BCCI and actually according to this witness BCCI is to get 8.43 million US dollars from Habib Bank. This witness failed to impress that the amount deposited with them belonged to BCCI. From the evidence both oral and documentary it appears that defendant No.1 acted as an agent of the plaintiff under whose instructions the US Dollars were deposited or kept with the appellants in their Singapore Branch. The deposit of the US Dollars by BCCI with the appellants has not been denied, rather admitted. But the appellants have set up a case of set off and from the evidence both oral and documentary when it is found that the dollars do not belong to BCCI but to the plaintiff and under their instruction the same were deposited with the appellants we hold that the trial Court has not committed any illegality or wrong in passing the decree.
23. Mr. Ahmed while pressing the appeal has raised the question on the cause of action of the suit. According to him, the cause of action arose outside Bangladesh, that is, in Singapore where the aforesaid US Dollars have been deposited. He submits that the plaintiff may file the suit against the defendants in Singapore or in Pakistan where the head office of the appellant is situated. But from the perusal of the plaint it appears that the US Dollars were deposited by the plaintiff in Bangladesh and in support of this the plaintiff produced Ext.2 which is an advice on receipt of the amount by defendant No.1 and from the materials on record, particularly the exhibits and the evidence of P.W.1 and D.W. 1 it appears that the amount was deposited with defendant No.1 in Dhaka, Bangladesh and those were subsequently deposited with the appellants with prior permission from Bangladesh Bank. In such a situation when the plaintiff is not getting back their Dollars as deposited with defendant No.1 we hold that the cause of action of the suit arose Bangladesh.
24. It has also been argued by Mr. Ahmed that as the dollars have been kept or deposited with defendant No.1 as no dollar has been deposited with the appellants. We have gone through the evidence on record both oral and documentary and it appears that initially the amount was kept with defendant No.1, but under the instruction of the plaintiff with permission from the Bangladesh Bank same were ultimately transferred to the appellants and we have already decided that defendant No.1 acted as agent of the plaintiff. It is the money of the plaintiff and that defendant No.1 acted as their agent and for non-payment of aforesaid US Dollars defendant No.1 cannot be made liable and the trial Court rightly passed the decree against the appellants.
25. Having given our anxious consideration the materials on record and after hearing the learned Advocates of both the sides we hold that the Artha Rin Adalat has rightly passed the decree and there is nothing to interfere with the same.
26. There is, therefore, no merit in this appeal and the same is liable to be dismissed.
27. Court-fees paid are correct.
28. The appeal is accordingly dismissed with costs.
The judgment and decree passed by Adalat is hereby affirmed.
Send down the lower Court records expeditiously.
Source : 52 DLR (HCD) (2000) 25