Humayun Hossain Khan Vs. Bangladesh, 2009

 Supreme Court

Appellate Court

(Civil)

Present:

Mohammad Fazlul Karim J

Md. Joynul Abedin J

SAN Mominur Rahman J

Humayun Hossain Khan………………..Petitioner

Vs.

Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Finance & others…………Respondents

 Judgment

April 8, 2009.

Lawyers Involved:

Dr. Kamal Hossain, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Petitioner.

Badruddoza, Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record—For Respondent No.3.

Not Represented—Respondent Nos. 1-2 & 4-5.

Civil Petition for Leave to Appeal No. 516 of 2008.

(From the judgment and order dated 8-1 -2008 passed by the High Court Division in Writ Petition No. 6107 of 2004).

Judgment

 SAN Mominur Rahman J.- This leave petition arises out of the judgment and order dated 8-1-2008 passed in Writ Petition No. 6107 of 2004 by the High Court Division discharging the Rule.

2. The Rule arises out of an order dated 4-10-2004 passed by the Artha Rin Adalat No.3, Dhaka, in Artha Rin Suit No. 32 of 2004 rejecting the application filed by the defendant-petitioner of fixing up the liabilities of the petitioner in terms of section 47 of the Artha Rin Adalat Ain, 2003 read with section 8(2) (a) (b) and 60(2) & (3) of the Artha Rin Adalat Ain, 2003. The Artha Rin Suit No. 32 of 2004 has been filed by Sonali Bank, against the defendant petitioner for reali­sation of its outstanding dues from the defendant-peti­tioner. The suit was filed on 27-3-2003 claiming Taka 38, 06,058 as against the original loan of Taka 7.50 lac sanctioned on 29-4-1990.

3. The defendant-petitioner contested the suit asserting, amongst others, that he has in the meantime paid Taka 3.50 lac and that as per section 47 of the Artha Rin Adalat Ain, 2003. The bank is barred from filing any suit for recovery of its principal loan amount plus more than 200 percent thereon as accrued interest but in the instant case the principal loan amount was Taka 7.50 lac, out of which repayment has been made amounting to Taka 3.50 lac. This balance outstanding stands at Taka 4.00 lac. The bank in terms of said section 47 is entitled to recovery of Taka 4.00 lac plus 8.00 lac (being 200% of the balance principal loan amount) i.e. total Taka 12 lac. Therefore, the amount claimed in the suit is excessive and cannot be recover­ed and hence the defendant-petitioner filed an appli­cation under Order XIV, rule 2 of the Code of Civil Procedure read with sections 47 and 60(3) of the Artha Rin Adalat Ain, 2003, to ascertain the outstanding amount as per section 47 of the Artha Rin Adalat Ain, 2003 but the same was rejected on the ground that on the date of filing of the suit on 27-1-2003 the provision of section 47 was not in existence, and the said section 47 has been provided in Artha Rin Adalat Ain, 2003 promulgated on 10-3-2003, and which was given effect from 1-5-2003 and the said provision of section 47 was given effect after one year.

4. Being aggrieved the  defendant-petitioner moved the High Court Division with the writ petition and the Rule issued therein has been heard and disposed of by the High Court Division by its judgment and order dated 8-1-2008 discharging the Rule holding that the provision of section 47 read with 60(3) have no manner of an application in a suit which was filed prior to the promulgation of Artha Rin Adalat Ain, 2003 and accordingly the order passed by the Artha Rin Adalat rejecting the prayer of the defendant-petitioner is in accordance with law.

5. The High Court Division relied on the judg­ment and order dated 28-3-2006 passed in Writ Peti­tion No.2526 of 2006, which was rejected summarily.

6. The learned Advocate appearing for the leave petitioner submitted that in view of the proviso 2, section 47 of section 3 which run as under:

“?? ????? ????? ?? ?? ??? ???? ????? ?? ???? ?? ??????? ????? ??? ???? ???? ??, ??? ?????? ??????????, ????? ?????, ?? ???? ??????? ????? ???????, ?? ????? ????? ?????? ????? ???????“

7. The banks have been given discretion as to the applicability of the provision of section 47 which limits the charging of interest of more than 200 percent of the principal loan amount and that from the provi­sion of section 47 it appears that the intention of the legislature is to give relief to the borrowers in respect of actual of interest, which increases mainly because of default on the part of the bank officials, inasmuch as the loanee being not aware about technicalities as to the addition of interest, which increases with the pass­age of time and because of default on the part of the bank officers, they being negligent in pursuing the borrower in regularising the outstanding account and in filing suit at the earliest stage of default in adjusting the loan accounts by the borrower.

8. We have perused the impugned judgment and order passed by the High Court Division and also the provisions of section 47 and section 60 of the Artha Rin Adalat Ain, 2003. There is no ambiguity in the language of the law, which clearly indicates that section 47 cannot be given effect to any pending suit filed prior to promulgation of the Artha Rin Adalat Ain, 2003. The discussions and observations as made by the High Court Division in the body of the judg­ment passed by it do not suffer from any illegality or any misconception of the law. The submissions of the learned Advocate points to the harshness but the same has no backing of any legal interpretation. Earlier in a similar case in Civil Petition for Leave to Appeal No.1268 of 2008, disposed of by judgment and order dated 25-3-2009, we have considered similar issue involved therein and dismissed the same. Thus we do not find any merit in the leave petition.

Accordingly, the petition for leave to appeal is dismissed.

Ed.

Source : 61 DLR (AD) (2009) 92

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