Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J
Nasir Hossain Chaklader and others……………………………………………..Petitioners
Joint District Judge & Artha Rin Adalat No.2, Dhaka and others…………….. Respondents
November 9, 2008.
Case Referred to-
Saloman Vs. Saloman and Co. Ltd. (1887) A.C.22.
Md. Nawab Ali, Advocate-on-Record-For the Petitioners.
A.K.M. Shahidul Huq, Advocate-on-Record- For Respondent No.2.
Not represent -Respondent Nos.1, 3.
Civil Petition for Leave to Appeal No. 1228 of 2007
(From the judgment and order dated 25.04.2007 passed by the High Court Division in Writ Petition No. 8184 of 2006.)
Md. Abdul Matin J. – This petition for leave to appeal is directed against the judgment and order dated 25.04.2007 passed by the High Court Division discharging the Rule in Writ Petition No.8184 of 2006.
2. The petitioner filed Writ Petition being No.8184 of 2006 contending, inter alia, that M/S. Shinan Bangladesh Limited was engaged in the Business of Manufacturing readymade garments and exporting the same in the foreign countries. Thus the company was 100% export oriented Manufacturing Company. The company was a joint venture undertaking with a Korean National Mr. Jong Gil Kim, Chairman, M/S. Shinan (Bangladesh) Limited, 102/351, Hwaqok-Cong Kanesco-Ku-Seoul, Korea.
3. In the year 1990, the respondent No.2, National Bank Limited, Motijheel Branch, Dilkhusa Commercial Area, Motijheel, Dhaka as plaintiff filed a Money Suit No. 84 of 1990 in the Court of Subordinate Judge, 3rd Court, Dhaka claiming an amount of Tk.5, 52, 60,832.43/- The said amount according to the plaintiffs bank arose out of L/Cs opened by Shinan (Bangladesh) Limited in connection with importing fabrics and also for exporting the finished products.
4. The Managing Director, Mr. Masudul Alam Chaklader, husband of the petitioner No.1 and father of the petitioner Nos. 2 and 3 has not given any personal guarantee nor he has mortgaged any of his properties to the Bank for the purpose of any L/Cs. The plaint also does not disclose any fact of any personal guarantee having been given by Mr. Masudul Alam Chaklader for the purpose of securing any credit of the limited company namely Shinan (Bangladesh) Limited and as such none of the properties of M.A. Chaklader can be attached and sold in connection with any so called liability of Shinan (Bangladesh) limited.
5. Mr. Masudul Alam Chaklader while alive contested the suit by filing a written statement denying his liability for any dues if any for Shinan Bangladesh Limited as responsibility for meeting the liabilities of any limited company is of the company and in law shareholder and Director including Managing Director is not liable for the debts and liabilities of the company as per law enunciated in case of Saloman Vs. Saloman and Co. Ltd. (1887) A.C.22.
6. The aforesaid money suit was renumbered as Money Suit No. 523 of 1990 and subsequently renumbered as Money Suit No. 126 of 1998 in the Court of the learned Additional Subordinate Judge and Artha Rin Adalat No.2, Dhaka which passed the judgment on 24.10.1999, decreeing an amount of Tk.5, 52, 60, 832.43/-
7. On 26.07.2000, Mr. Masudul Alam Chaklader the then Managing Director died at Advanced Medicare and Research institute, calcutta-029, the dead body was brought to Bangladesh and buried him, at Dhaka.
8. Thereafter on 30.10.2002 after 2½ years of the decree the respondent No.2, Bank filed Execution Case No.41 of 2002 against M/S. Shinan Bangladesh Limited only and not against another defendants as Masudul Alam Chaklader who died on 26.07.2002. The execution case was filed with an attested copy of the decree without the certified copy of the original decree. After taking three adjournments on the 4th date on 22.04.2003 the decree holder bank filed the certified copy of the decree and also the vakalatnama of the respondent bank and hence the execution case having been filed long after two and half years is hopelessly barred by limitation and as such are liable to be rejected as per provisions of Section 28 of the Artha Rin Adalat Ain, 2003.
9. As no property of the now deceased Mr. Masudul Alam Chaklader was mortgaged with the said, bank and the learned Court vide Order No. 19 dated 11.07.2005 (Annexure-H series to the writ petition) clearly found that there is no mortgage property in the said Bank and subsequently the Bank obtained a property certificate of the petitioners as 357/A, Madhubag, Moghbazar, Dhaka from the Dhaka City Corporation and annexing the certificate the learned Court vide order No.24, dated 22.02.2006 most illegally included the petitioners property for sale.
10. The petitioner Nos.1, 2 and 3 are the legal heirs of deceased judgment debtor No.2 and they are wife and sons as well. The petitioner Nos.1 and 3 have signed a letter of authorization for the petitioner No.2 for which the petitioner No.2 can swear an affidavit on behalf of the petitioner Nos.1 and 3.
11. The High Court Division after hearing was pleased to issue a Rule and stay. Thereafter the writ petition came up in the list for hearing and the High Court Division discharged the Rule by the impugned order dated 25.04.2007.
12. Being aggrieved by the judgment of the High Court Division the petitioners have filed this petition for leave to appeal.
13. Heard the learned Advocate-on-Record and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
14. It appears that the High Court Division found that the writ petition is not maintainable as the petitioner did not exhaust the remedy available under the law.
15. It further appears that Mr. Masudul Alam Chaklader, Managing Director was impleaded as judgment debtor No.2 and because of the death of the heirs the petitioner has been substituted. The petitioner’s application under Order 21 Rule 58 of the Code of Civil Procedure was also rejected and their further applications under Sections 28/37/27 and 57 of the Artha Rin Adalat Ain, 2003 Ain was also rejected and the petitioner moved the High Court Division by suppression of these facts. The impugned order was acted upon in the execution case before issuance of the Rule. Considering these circumstances of the High Court Division discharged the Rule and directed the execution case to be disposed of in accordance with law.
We find no substance in this petition which is accordingly dismissed.