In the Supreme Court ofBangladesh
High Court Division
(Special Original Jurisdiction)
Writ Petition No. 3391 of 2011.
In the matter of:
An application under Article 102(2) of the Constitution of the People’s Republic of
Bangladesh.
-And-
In the matter of:
A.B.M. Kamrul Ahsan,
…… Petitioner.
-Versus-
Bangladesh Bank and others.
…… Respondents.
Mr. Rokanuddin Mahmud with
Mr. Md.Nuruzzaman Khan
… For the Petitioner.
Mr. Mahbubey Alam, Attorney General
…. for respondent No.1
Mr. Yusuf Hossain Humayun
….. for respondent No. 6.
Mr. A.M. Amin Uddin with
Mr. Kazi Akhtar Hossain
…. For the Respondent No.3
Heard on 30.11.11, 7.12.11 & 12.12.2011. . Judgment on 13.12.2011.
Present:
Mr. Justice Hasan Foez Siddique
And
Mr. Justice Md. Jahangir Hossain.
Hasan Foez Siddique,J:
This Rule Nisi was issued calling upon the respondents to show cause as to why the impugned auction sale of the vessel namely, “M.V. Kirtankhola-1” held on 21.4.2011 and all subsequent actions of the respondent No. 3 shall not be declared to be made without any lawful authority and is of no legal effect and also to show cause as to why the respondent No. 3 shall not be directed not to register the petitioner’s vessel, namely, “M.V. Kirtankhola-1” with the office of the respondent Nos. 4 and 5.
2. The short facts, for disposal of this Rule, are that one Monjurul Ahsan Proprietor of M/S. Salma Shipping Corporation was the lawful owner of the vessel in question, who built the said vessel taking loan facility from respondent No. 3, the Premier Bank Limited. He failed to deposit the loan and the outstanding stood of Tk.302.42 lac with interest till 28.6.2007. Thereafter, said Monjurul Ahsan decided to transfer the vessel and the present petitioner agreed to purchase the same. Due to shortage of fund the petitioner requested the bank to transfer the loan of said Monjurul Ahsan in his favour against collateral security. The bank agreed. A Tripartite agreement was executed between the Premier Bank Limited, Monjurul Ahsan, Proprietor, M/S. Salma Shipping Corporation and A.K.M. Kamrul Ahsan, Proprietor M/S.Shah Amanat Shipping, the petitioner on 08.7.2007. Accordingly, the petitioner availed loan facility amounting to Taka 190.57 lac from respondent No. 3, Bank and renovated the vessel. After so renovation the said vessel started plying in Dhaka to Barishal toDhakaroute. The petitioner incurred huge loss in business. Consequently, the petitioner defaulted to pay loan. Even making the loan rescheduled repeatedly the petitioner could not pay the loan. The Bank filed an application addressing the respondent No. 4 on 27.12.2010 to stay the survey certificate of the vessel and accordingly the same was stayed. The petitioner by a letter dated 28.12.2010 requested the respondent No. 3 Bank not to cancel the survey certificate. On 7.2.2011 depositing Taka 22.00 lac to the respondent No. 3 Bank , the petitioner prayed for three months time to repay the rest loan amount and allow him to run the Vessel but in vain. On 24.3.2011, the petitioner again wrote a letter addressing the respondent No. 3 Bank, to allow him to deposit Tk.30.00 lac and prayed for three months time to repay the rest amount. The respondent No. 3 Bank without disposing of the application dated 24.3.2011, issued a notice through his learned Advocate directing the petitioner to make payment of entire outstanding dues of Tk.2,43,07,0668/- within three days from 29.3.2011. Thereafter, on 5.4.2011 the respondent No. 3 Bank published a notice to sale the said vessel in auction in the Daily Jai Jai Din scheduled to be held on 21.4.2011. The amount claimed by the Bank mentioned in the said notice was of Tk.2,44,56,313.23. In such a situation the petitioner filed Writ Petition No. 3118 of 2011 in this Court challenging the notice of auction and a Division Bench of this Court by an order dated 18.4.2011 directed the respondent No. 3 Bank to dispose the application of the petitioner dated 24.3.2011. The petitioner informed the respondent No. 3 Bank about the order of this Court on 20.4.2011 but they did not take any positive step on the basis of the said application inspite of the order of this Court. On 19.4.2011 the office of the respondent No. 3 informed the petitioner that his application dated 24.3.2011 has not been considered. The petitioner received that letter at 5-30 P.M. on 24.4.2011. The petitioner issued legal notice to the Bank on 20.4.2011 for taking steps in the light of the order of the High Court Division. Inspite of repeated notices, requests and the service of the order of this Court the respondent No. 3 held auction of the vessel on 21.4.2011. On 21.4.2011 one Rezaul Karim, Proprietor of M/S Shah Amanat Shipping auction purchased the same. The petitioner came to know about the auction on 23.5.2011. The present market price of the vessel in question is about Tk.7,25,00,000/- but the same was sold at a low price. Challenging the said order of auction of the vessel the petitioner moved this application in the Court and obtained the present Rule. It has been stated in the supplementary affidavit filed by the petitioner that the said auction has not been held in accordance with law. There were three bidders participated in the auction, namely, Mr. Rezaul Karim, who offered Tk.2,75,00,000/- and one Md. Monirul Islam offered Tk.2,55,00,000/- and Md. Manjurul Ahsan offered Tk.2,50,00,000/-. The second and third bidder are the full brother and the bidder No. 1 is the cousin of bidder Nos. 2 and 3. The bidders, in collusion with each other, managed to auction purchase the Vessel. According to survey report the value of vessel is Tk.7,25,00,000/- and the offer was shocking low.
3. It has further been stated in the affidavit-in-reply of the affidavit in opposition filed by the added respondent No. 3 that by practicing fraud, in collusion with Bank, the added respondent managed to purchase the vessel. It has further been stated that the petitioner has neither mortgaged the vessel nor the same was hypothecated to the respondent No. 3 Bank. No power of attorney was executed by the petitioner in favour of the Bank to sell the vessel. So, the impugned auction process exercising the power under section 12 of the Ain was totally without jurisdiction and the same is malice in law which has got no legal footing.
4. The respondent No. 3 and added respondent No. 6 contested the Rule by filing two sets of affidavit-in-opposition. The respondent No. 3 in its affidavit-in-opposition, inter alia, stated that following all the legal formalities the auction of the vessel was held on 21.4.2011 and accordingly a deed of sale was executed in favour of the highest bidder and possession of the vessel was also delivered to him. On 25.4.2011, the Bank issued a letter to the registering authority of the vessel to change the registration of the vessel in the name of auction purchaser. The auction purchaser got the vessel registered temporarily on 3.5.2011. By this way the porcess of auction has been completed. In supplementary affidavit filed on behafl of the respondent No. 3 it has been stated that the temporary registration permit, survey certificate and route permit of the vessel were also in the name of the respondent No. 3 only.
5. The respondent No. 6 in his affidavit-in-opposition contending, inter alia, that the respondent No. 3 published the notice of auction of the impugned Vessel in the Daily Bhorer Kagoz and Daily Jai Jai Din on 15.4.2011. This respondent participated in the said auction and it was found that his offer is the highest and accoridngly deposited the bid money. The Bank executed and registered the sale deed in favour of the respondent No. 6 and handed over the possession of the vessel on 22.4.2011. The Bank informed the Bangladesh Inland Water Trasnport Authority to register the vessel in the name of the respondent No. 6 on 25.4.2011. The respondent Nos. 4 and 5 issued temporary route permit and registered the name of the respondent No. 6 by letter dated 3.5.2011. There is no illegality in the process of auction. It has further been stated that the instant Writ Petition is not maintainable beccause the relief as calimed for is against Premier Bank Ltd. which is a private enterprise. It has further been stated that the provision of section 12(8) of the Artha Rin Adalat Ain prohibits any legal action in respect of auction sale. The Rule should be discharged.
6. Mr. Rokanuddin Mahmud, the learned Senior Advocate along with Mr. Mostafizur Rahman Khan and Mr. Md. Nuruzzaman Khan appeared on behalf of the petitoner. Mr. Rokanuddin Mahmud, the learned Senior Advocate submits that the impugned auction sale has been held as per provision of section 12 sub-section (3) of the Artha Rin Adalat. He submits that the Bank is only entitled to sell the hypothecated is goods excercising power under the said Law if the right to sell is given to the Bank concerned. But in the instant case neither the petitioner hypothecated the Vessel of the Bank nor he executed any power of attorney to sell the vessel, in such view of the matter the impugned sale is void. He submits that since the Bank, exercising power under section 12(3) of the Ain sold the impugned vessel in auction and that power is statutory power so the instant Writ Petition is maintainable. Mr. Mostafizur Rahman Khan, the another learned Advocate for the petitoner, submits that since the respondent No. 3 being a company incorporated under the Companies Act exercising power vested under section 12(3) of the Artha Rin Adalat sold the vessel, in fact, has exercised statutory power so writ petition against the said Private Bank is maintainable.. In support of his submission Mr. Rahman has relied upon the case of Zakir Hossain Munshi Vs. Bangladesh and others reported in 8 MLR page 33, the case of Conforce Limited Vs. Titas Gas Transmission and Distribution Co. Limited reported in 42 DLR page 33 and the case of Farzana Moazzem
Vs. Securities and Exchange Commission and others reported in 54 DLR page 66. On 2.7.2007 on the basis of the application made by the petitioner, the Bank rescheduled the loan Annexure-‘A’ to the Writ Petition. The same was again rescheduled on 17.8.2009 and third reschedule made on 30.12.2010. Mr. Khan submits that at the time of rescheduling the loan third time on 30.12.2010 it was decided that the said loan should be repaid within three months from the date of making reschedule. Such reschedule was made after payment of Tk.22.00 lac. But within three months from the date of rescheduling the loan the impugned auction has been held. Mr. Khan submits that on 24.3.2011 the petitioner went to the Bank with an application making offer to accord an opportunity to pay Tk.30.00 lac and allow further three months time but the Bank Officials misbehaved with the petitioner. Accordingly, after getting direction from this Court the same was produced before the Bank but no effect and after holding auction replied the same. He submits that the impugned auction was held at a shocking low price which is a gigantic fraud.
7. Mr. A.M. Amin Uddin along with Mr. Kazi Akhtar Hosain appearing on behalf of respondent no. 3 Bank Mr. Amin Uddin submits that the respondent No. 3 Bank is neither Government nor public authority within the meaning of Article 102 of the Constitution. The said Bank is a private Bank and has been running its business getting Licence from Bangladesh Bank as per provision of Banking Companies Act. He submits that the petitioner is a defaulter and complying all legal formalities the auction was held and it was found that the added respondent No. 6 was the highest bidder. Accordingly the respondent no. 3 Bank executed and registered transfer deed in favour of the respondent No. 6 accepting his offer and handed over the vessel to him and the respondent No. 6, taking over the possession of the vessel, got his name mutated in the office of the BIWTA.
8. Mr. Mahbubey Alam the learned Senior Advocate along with Mr. Yousuf Hossain Humayun appeared on behalf of added respondent No. 6 the auction purchaser. Mr. Alam submits that this Writ Petition against a private Bank is not at all maintainable and the Rule should be discharged. Mr. Yousuf Hossain Humayun, the learned Advocate for the respondent No. 6, submits that he is bonafide purchaser of the impugned vessel. He participated in auction and it was found that his bid is the highest and accordingly respondent No. 3 Bank accepted his offer and executed a sale deed . After getting the sale deed this respondent took over possession of the vessel and mutated his name.
9. We have heard the learned Advocates for the petitioner and the respondents and perused the Writ Petition, affidavit-in-opposition, supplementary affidavit and other materials on record.
11.. It is admitted that M/S Salma Shipping Corporation was the original owner of the vessel in question. He took loan from the respondent No. 3 the Premier Bank Limited and outstanding dues was Tk. 302.42 lac with interest till 28.6.2007. Accordingly, the owner of the vessel proposed to sell the vessel for payment of loan and the petitioner agreed to purchase the same but due to shortage of cash money the petitioner requested the respondent No. 3 to transfer the loan money in his favour which was allowed. It appears from Annxure-A-2 that on the basis of the prayer of the petitioner the Bank rescheduled the loan of the petitioner on 30.12.2010. On 7.2.2011, the petitioner deposited Tk. 22.00 lac and requested the Bank to allow three months time for adjustment of loan. Thereafter, on 24.3.2011 he again issued a letter requesting the respondent No. 3 Bank to deposit Tk.30.00 lac and allow further three months time to deposit the rest amount. Without disposing the said letter dated 24.3.2011, the respondent Bank issued a notice on 30.3.2011 through his lawyer requesting the petitioner to deposit the entire dues of 2,43,07,0668/- within three days. The petitioner could not deposit the same. Accordingly the Bank, on 5.4.2011, published a notice in the “Daily Jai Jai Din” to sell the vessel in auction and date for holding auction was fixed on 21.4.2011. On 21.4.2011, auction was held and respondent No. 6 was found to be the highest bidder and his bid was accepted. Challenging the said auction process the petitioner moved this application in this Court and obtained the Rule.
12. Mr. Mahbubey Alam and Mr. A.M. Amin Uddin, the learned Advocates while making their submissions seriously raised a point that the instant Writ Petition is not at all maintainable against the Private Bank. Mr. Mahbubey Alam drew our attention to the prayer of the petitioner submits that, in fact, the petitioner has sought for relief against the action of respondent No. 3, that is, Premier Bank Ltd.
13. It is not disputed that the said Bank, after getting license from the Bangladesh Bank, has been running his banking business Mr. Rokonuddin Mahmud submits that the Premier Bank Ltd. though incorporated as a company and registered under the provision of Banking Companies Act but since it carries on its objects and performs its functions as the government instrument and its activities which has been done by the respondent No. 3 is purely an instrumentality of the government, by virtue of its operation activities and performance the respondent No. 3 cannot be termed as a normal ordinary company incorporated under the Companies Act but as a subordinate functionary or an instrumentality of the government. In the case of Farzana Moazzem Vs. Securities and Exchange Commission and others reported in 54 DLR (2002) 66 it was argued that Dhaka Securities Exchange although incorporated as a company and registered under the Companies Act, but it carries on its objects and performs its functions as a Stock Exchange Commission.
14. It was held :
“DSE has been performing its duties in carrying out its object and business as an instrumentality or a subordinate functionary of the SEC, a local authority, which in fact has also stepped into the shoes of the Government in respect of some matters provided for in the erstwhile Capital Issues (Continuance of Control) Act 1947 (Act XXIX of 1947). DSE is thus amenable to the jurisdiction of the High Court Division under Article 102 of the Constitution.”
15. In the case of Conforce Limited, a Limited Liability Company Vs. Titas Gas Transmission and Distribution Co. Limited reported in 42 DLR (1990) 33 it was observed :
“So, the Government in exercise of the sovereign powers of the state has the exclusive right to sell and distribute natural gas and for performing this function the respondent No. 1 has been functioning under the control and supervision of, and as a subordinate functionary, of a statuary corporation that is, the Bangladesh Oil and Gas Corporation. Under Clause (5) of the Article 102 “a statutory public authority” is a “person” within the meaning of the said Article. The Bangladesh Oil and Gas Corporation is undisputedly a statutory public authority established under section 2(b) of the Bangladesh Petroleum Act, 1974 and as such, it is a person within the meaning of Article 102 and the Respondent No. 1 being a subsidiary of this parent Corporation is attracted within the jurisdiction of Article 102 of the Constitution.”
16. Mr. A.M. Amin Uddin while answering the submission of Mr. Mahmud produced a judgment of unreported case passed in Writ Petition No. 5330 of 2008 with Writ Petition No. 6173 of 2008 ( One Entertainment Limited Vs. Bangladesh Bank and others). In the said case it appears that Prime Bank sold some machineries and equipment of the petitioner, namely, Channel One in auction under Section 12 of the Artha Rin Adalat Ain which was challenged in the said petition. In that case it was argued before the High Court Division that the Prime Bank Ltd. being private bank and sold the equipment under the provision of section 12 of the Artha Rin Adalat Ain writ petition against the said private bank is not maintainable. Taking into consideration of the case of Mofizul Huq Vs. Mafizur Rahman, 48 DLR (AD)121 and the case of Nur Alam Vs. Government of Bangladesh reported in 17 DLR (AD) 74 it was observed that Prime Bank is a private banking company governed by the statutory provision of the Banking Company Act, 1991 for the purpose of management and banking not created by or under any statute and as such not a statutory body or local authority amenable to the writ jurisdiction of the High Court Division. While drawing such conclusion the said Division Bench also took into consideration on the case of Farzana Moazzem Vs. Securities and Exchange Commission and others reported in 54 DLR 66. It was finally observed in that case that the Premier Bank since a private bank and it is neither statutory nor local authority within the meaning of the General Clauses Act 1897 and the writ petition against private person is not at all maintainable.
17. This issue was settled by the Supreme Court of India in the case of Federal Bank Ltd Vs. Sagar Thomas reported in AIR 2003 SC 4325. While deciding this issue Supreme Court of India relied on the case of Ajay Hasia Vs. Khalid Mujib Sehravardi and others reported in AIR 1981 (SC) 487. In the said case it was observed that the Writ Petition is maintainable against :
“(i) the State (Govt.); (ii) Authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding ; (vii) a private body discharging public duty or positive obligation of public nature; (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.”
18. In the said case an employee of Federal Bank Limited which was private company carrying banking business was terminated from his service. The said employee filed a Writ Petition in Karala High Court which was allowed. Against which the Federal Bank Limited appealed before the Supreme Court of India. The Supreme Court of India observed that :
“A private company carrying on banking business as a scheduled bank, can not be termed as an institution or company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. Such conditions are not fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline do not confer any such status upon the company nor puts any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution.”
19. Merely, because the respondent No. 3 Bank, after getting license from the Bangladesh Bank as per provision of the Banking Companies Act, has been running his business or commercial activities of banking discharging its objects and function cannot be formed as an institution or Company or any statutory or public duty within the meaning of Article 102 of the Constitution. The Premier Bank is a private banking company not created by or under any statute and not a statutory body or local authority.
20. We do not find anything to make disagreement with view as taken by another Division Bench of this Court in Writ Petition No. 5330 of 2008 and Writ Petition No. 6173 of 2008.
21. Since the Writ petitioner has brought specific allegations against the process of holding auction and material irregularity and fraud against the respondent No. 3 Bank and some other points have been agitated by the learned Advocates for the petitioner, we are of the view it would not be proper to make any comment on merit of the case since the same may prejudice the parties if the petitioner is advised to take recourse to ventilate his grievance to any other competent court.
22. Our considered view is that the instant Writ Petition is not maintainable.
In the result, the Rule is discharged without any order as to costs. The order of stay granted at the time of issuance of the Rule is hereby recalled and vacated.
Md. Jahangir Hossain, J
I agree.