Mrs. Bakul Akter Vs. Bangladesh and others

Mrs. Bakul Akter (Petitioner)

Vs.

Bangladesh and others (Respondents)

 

Supreme Court

Appellate Division

(Civil)

JUSTICE

Mohammad Fazlul Karim CJ

Md. Abdul Matin J

ABM Khairul Haque J

Md. Muzammel Hossain J

Judgment dated : March 10, 2010.

Lawyers Involved:

Md. Nawab Ali, Advocate-on-Record-For the petitioners.

Not represented- the respondents.

Civil Petition for Leave to Appeal No. 245 of 2009.

(From the Judgment and order dated 08-06-2008 passed by the High Court Division in Writ Petition No. 4092 of 2008)

JUDGEMENT

ABM Khariul Haque J. – This is a peti­tion for leave to appeal in respect of the judgment and order dated 08-06-2008, passed by the High Court Division, in Writ Petition No. 4092 of 2008, rejecting the petition summarily filed under Article 102 of the Constitution.

2. The facts leading to the filing of the writ petition are that the Agrani Bank Limited filed a suit under the provisions of the Artho Rin Adalat Ain, 2003, against M/S. Oyester Fashion Limited and others, praying for a decree for Tk.1, 90, 11,342.00. The defendant No. 3, the petitioner herein, filed a written statement on 01-04-2008, denying all materi­al averments and also prayed for dismissal of suit against her. Another application under Order X Rule 2 of the Code of Civil Procedure, was also filed on her behalf on 01-04-2008, praying for striking out of her name as a defendant.

3. The learned Judge, Artho Rin Adalat, Chittagong, by Order No.11 dated 01-04-2008, rejected the petition of the defendant No. 3. Being aggrieved, the petitioner filed the instant writ petition. The High Court Division, also summarily rejected the petition.

4. Mr. Md. Nawab Ali, the learned Advocate-on-Record appearing on behalf of the petitioner, submits that the correct princi­ple of law has not been reflected in the order passed by the High Court Division.

5.  We have heard the learned Advocate-on-Record, and perused the order passed by the High Court Division and the Artho Rin Adalat.

6.  A company incorporated under the Companies Act is a juristic person. A share­holder in not the owner of the company or its assets. The Company itself owns its proper­ties. A share-holder is only entitled to the divi­dends, if declared. On winding up however, after payment of its debts, he is entitled to par­ticipate in the distribution of its assets. The lia­bility of a share-holder, whether he is the Chairman of the Board of Directors, or a direc­tor, is only to the extent of the face value of the shares he holds, nothing more than that. But if he guarantees repayment of the loan, enjoyed by the company or mortgages his property to the creditor, to ensure repay­ment of the loan by the company, he on the failure of the company to make such repayment, becomes liable, not as a share­holder but as a guarantor or mortgagor or both as the case may be.

7. In the present case, the petitioner is a necessary party in the suit because the com­pany enjoyed the loan when she was its Chairman, as such, the suit should be dis­posed of in her presence. However, her liabil­ity is not dependent on her status as the Chairman or share-holder of the company unless it is found on evidence that she execut­ed the charge documents in favour of the bank or mortgaged her property in its favour in order to ensure repayment of the loan. Only in the case she will be liable.

With these observations, this petition is dismissed.

Ed.

Source : 7 LG (AD) (2010) 101

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