Mohammad Fazlul Karim J
Md. Joynul Abedin J
Shah Abu Nayeem Mominur Rahman J
M/S. R.M. Salt Crushing Industries……………………………….Petitioner
Sonali Bank, Cox’s Bazar Branch & others ………………….Respondents
March 9, 2009.
Sirajul Islam Khan, Advocate, instructed by Aftab Hossain, Advocate-on-Record-For the Petitioner.
Civil Petition for Leave to Appeal No. 515 of 2008.
(From the judgment and order dated 20.11.2007 passed by the High Court Division in Writ Petition No.4219 of 2005.)
Shah Abu Nayeem Mominur Rahman J. – This leave petition is against the judgment and order dated 20.11.2007 passed in Writ Petition No.4219 of 2005 by the High Court Division discharging the Rule.
2. The writ petitioner has challenged the filing and continuation of Artha Rin Suit No.73 of 2004 now pending in the Artha Rin Adalat, Cox’s Bazar. The Artha Rin Suit has been filed by the respondent No.1, Sonali Bank, for realization of its outstanding loan amount of Tk.1,24,93,829.19/- being principle loan amount plus the accrued interest amount thereon contending, amongst others, that the defendant-petitioner hereof took loan for its salt business but failed to repay the same within the time or thereafter, inspite of demands made by the bank. The petitioner hereof as principal defendant contested the suit by filing written statement asserting, amongst others, that it suffered loss due to devastating cyclone of 1997 and accordingly prayed for exemption of interest and that the plaintiff bank considered the prayer favourably and allowed exemption of a portion of the accrued interest amount subject to payment of the balance amount within 5 years in 20 quarterly installments effective from 20.4.2004. But the bank without communicating aforementioned decision as to the waiver of interest and granting of repayment by installments, filed the Artha Rin Suit on 29.4.2004 and thus the action of the bank in instituting the suit is fraudulent inasmuch as the privileges allowed by the bank in waving interest and allowing payment of the balance loan outstanding amount in installments were not communicated in one hand and on the other hand prior to expiry of the date allowed for payment of the installments the suit has been filed and that while granting repayment of the outstanding loan amount in installments the bank put a condition to the effect that in case of failure to pay two successive installments, the defendant would be disentitled from the privileges allowed i.e. the waiver of interest and repayment in installments, and that the defendant filed an application in the Court below for dismissing the suit on the ground of want of cause of action and prematurity in filing the suit but without any fruitful result and faced with such situation the defendant moved the High Court Division in Writ Petition No. 4219 of 2005 praying for a declaration that the continuation of Artha Rin Suit No. 73 of 2004, pending before the Artha Rin Adalat, Cox’s Bazar, is without lawful authority and of no legal effect relying on the aforesaid grounds and that the High Court Division issued a Rule thereon and that the said Rule has been discharged on contest by the impugned judgment and order dated 20.11.2007 and being aggrieved and dissatisfied there against the defendant has come up with this leave petition.
3. We have perused the impugned order, the writ petition as well as the leave petition and considered the submissions of the learned Advocate.
4. From the materials on record, it appears that the defendant appellant, subsequent to issuance of the letter communicating the decision of the bank as to the waiver of interest and granting of installments in the payment of the outstanding loan, did not comply with the terms put on by the Bank in allowing the benefits of waiver of interest and payment of installments and that considering the fact of non-payment of installments the High Court Division discharged the Rule observing, amongst others, that “Admittedly the petitioner paid only one installment of 6 lacs taka after issuance of this Annexure-D long before in the year 2005 and since thereafter he has not paid any installment. So, according to the terms of this Annexure-D the privilege of exemption of interest granted to this petitioner stood cancelled long before” and “it should be mentioned here that this petitioner, admittedly, took loan of total taka 71,27,873.19 from the plaintiff bank and the plaintiff bank filed the suit in question claiming taka 1,24,93,829.19 which is not more than 200% of the principal loan amount. So the petitioner can not argue also that if this suit was filed at a subsequent date after 30th April 2004, he would have get the benefit of section 47 of Artha Rin Adalat Ain, 2003. We therefore find no reason to declare the proceeding of this Artha Rin suit illegal.” The annexure-D is the letter of the Bank communicating the granting of waiver of interest and facility to repay the balance the loan amount in installments.
5. The learned Advocate submitted that during the pendency of the application for waiver of interest the bank filed the suit malafide and that on consideration of the application the bank allowed waiver of interest and payment of the balance outstanding amount in 5 year in 20 quarterly installments, but the Bank, without affording opportunity to the appellant-petitioner to make payment of the installments within time and prior to any default in the payment of two successive installments, as per the privileges allowed, filed the suit, which, therefore, is improper as well as against the principle of natural justice and bad in the eye of law.
6. Considering the fact and circumstances of the case, we do not find any merit in the leave petition inasmuch as the bank is entitle to realize its due money and admittedly the defendant appellant, though enjoyed the loan but failed to repay the same, and hence filed the suit and that it appears that suit was filed on 29.4.2004 and such decision for filing suit was taken earlier and accordingly the case brief must have been sent to the bank’s advocate earlier to the decision of the bank granting privileges to the defendant-appellant, who thereafter prepared the plaint, procured the Court Fees and then filed the suit, and in such circumstances it cannot be said that the suit as filed, was premature and that no cause of action arose for the suit, in view of the benefits allowed. The decision of the bank allowing benefits in reference to the appellant-petitioner, appears to have taken after instructing the learned advocate to file the suit, and that the defendant-appellant also failed to take advantage of the benefits allowed by the bank authority in the form of waiver of interest and repayment of the balance loan amount in installments, inasmuch as there was no bar in the payment of the installments, within the time allowed, even after institution of the Artha Rin Suit and the defendant-appellant could make such payment of installments and that would have helped the defendant-appellant-petitioner to move the bank authority and or the Court below for a favourable decision. In the premises the filing of and or continuation of the Artha Rin Suit in reference cannot be said to be without jurisdiction. There is no illegality in the impugned judgment and order.
Accordingly, the leave petition is dismissed.