Nur Hussain and another Vs. Jamuna Bank Ltd and others

Appellate Division Cases

(Civil)

PARTIES

Nur Hussain and another , Arifur Rahman and others

-vs-

Jamuna Bank Ltd and others ……………Respondents

Mur Hussain and others …………………Respondents

JUDGES

Md. Fazlul Karim J

M.A Aziz. J

Date of Judgment

4th January, 2005

Section 43 of the Companies Act, 1994 (Act DVIIIof 1994)

Section 14(A) of the Bank Companies Act. 1991

Director of the respondent No.l Bank ipso facto stood vacant and she ceased to be the director by operation of law (section 108 (4) of Companies Act, 1994 (9)

Company Judge of the High Court Dividion was quite competent to pass necessary order in respect of Tk. 100,22,000.00(Taka one crore twenty two thousand) only, that is, the amount paid by the petitioners more that 10%of the total pais pu share capital of the company by giving direction to therespondents to Civil Petition for leave to Appeal Nos.20,163 & 06 of 2004

The learned Judge of the High Court Division erred in law in not giving relief to the petitioners in respect of the said amount taking a contradictory view that respondent No.l was not liable for any of , its debts or liabilities incurred before its  incorporation; that in this regard the Company Judge also misconceived and misread the scope of section43 of the Companies Act, 1994 inasmuch as the same has not made any distinction between the

payment made but prospective buyer of shares or expected director of the company either before incorporation of after incorporation and as such the impugned judgment and order so far as it relates in respect of Tk. 58,70,000.00 (Taka fifty eight lac and seventy thousand) is liable to be interfered with. The learned Counsel submitted that the learned Judge taking com’ pany matters, erred in law in misinterpreting and misconstruing the scope and extent of the power/ jurisdiction vested in the Court number section 43 of the Companies Act, 1994, which has materially affected the interest of the petitioners and has resulted in miscarriage of justice (20)

High Court Division committed error in law in deciding highly disputed question of facts without examining any witnesses of either parties but simply basing upon the affidavits and documents filed thereto by the parties which required that the High Court Division acted illegally by taking into consideration of the unproved documents of the respondent-petitioners but left out the consideration, some valuable documents filed by the respondent No.3 i.e. the petitioner herein, by supplementary affidavit dated 19.7.2002, wherein some certificate showing receipt of payments by the sponsor directors of the concerned executant. The learned Advocate further submitted that the High Court Division failed to appreciate that the definite case as per the affidavit filed by the respondent petitioner No.3 i.e. the petitioner herein and on supporting affidavit filed by the sponsor directors stating, inter alia, that they have paid money to the petitioner-respondent No.l to hand over the same to the petitioner and which they have received back from the petitioner and the person who paid through petitioner-respondent No.l to this petitioner, have got their shares accordingly but the High Court Division failed to appreciate that the onus lies on the petitioner-respondent i.e. the petitioner. The learned Advocate further submitted that the High Court Division failed to consider in absence of any active participation of the respondent Bank, which do not come under section 43 of the Companies Act, but the same was nothing but a monetary claim which to be enforced under a civil proceedings (22)

ADVOCATES

T.H. Khan, Senior Advocate, (Dr. M. Zahir, Senior Advocate with him), instructed bx Syed mahbubur Rahman, Advocate-on-Record For the Petitioners (in C.P.No.20 of 2004). Sliamsuddin Babul, Advocate (Appeared with the leave of the Court), instructed by Md. Nawab AH, Advocate-on-Record For the Petitioners (in C.P.No.163 of 2004). Shamsul Huda Manik, Advocate, instructed by A.S.M. Khalequzzaman, Advocate-on-Record For the Petitioners (in C.P.No.06 of 2004). Rafique-Ul-Huq, Senior Advocate (Fhaqhimid Huq, Advocate with him) instructed by mvi. Wahidullah, Advocate-on Record For Respondent No.l (in C.P.No.20of2004). Shamsul Hilda Manik, Advocate, instructed bv Nitnil Iscihn Bhuixan, Advocate-on-Record For Respondent No.2 (in C.P. No.20 of 2004). Dr. M. Zahii; Senior Advocate, (“77/. Khan, Senior Advocate will; him) instructed by Syed Mahbubitr Rahman, Advocate-on-Record For Respondent Nos. 1 & 2 (in C.P. No. 163 of 2004). Dr. M. Zahir Senior Advocate, (T.II. Khan, Senior Advocate with him) instructed bx Syed Mahbubur Rahman, Advocate-on-Record For Respondent Nos.l & 2 (in C.P. No.06of2004). Not represented Respondent Nos.3-5 (in C.P.No.20 of 2004). Not represented Respondent Nos.3-5 (in C.P.No.163 of 2004). Not represented Respondent Nos.3-6 (in C.P.No.06of2004).

ORDER

1. Mohammad Fazlul Karim, J : The petitioners who were respondent before the Company Court seek leave to appeal against the judgment and order dated 18 and 20 August 2003 passed by the Company Judge of the High Court Division in Company Matter No.71 of 2001.

2. The petitioner in Civil Petition No.20 of 2004 have impugned the said judgment so far it relates to not ^ive any relief to the petitioners in respect of Tk.2.00.22.000/- admittedly

received by respondent Nos. 1-4 from the petitioner No.l in Order to for the share in the company and also in not giving any decision on the alleged forfeiture of the share of petitioner No.2 as alleged by the respondent Nos.l and 4. The petitioner in Civil Petition

No. 163 of 2004 impugned the said impugned order allowing the petition in part directing

ADC (2006)  Lid and others (Md. Fa/lul Karim respondent company to rectify registered of share showing respondent Nos.l therein as share-holder of 2 lac share of the respondent Bank.

3. The petitioner in Civil Petition No.6 of 2004 has impugned the said impugned order allowing the petition in part directing the respondent Bank to rectify its register of shares showing the petitioner No.l as shareholder of 2 lac shares of the respondent Bank. 4. The petitioners in Civil petition No.20 of 2004 filed an application under section 43 of the Companies Act. 1994 before the Company-Bench of the High Court Division stating, inter alia, that the petitioners are the citizen of Bangladesh and are sponsor contributor in the share capital of the respondent No.l company namely Jamuna Bank Limited. That the

respondent No.l is a public company limited by shares registered and incorporated under

the provisions of the Companies Act. 1994 (Act DVI11 of 1994) in the office of the Registrar of Joint Stock Companies and Farms of Bangladesh Dhaka on 02.04.2001 and obtained the certificate oi commencement of business on the same day; that respondent No.2 is the Chairman and respondent No.3 is the Vice-Chairman and are the principal initiating sponsors of the respondent No. 1 company: respondent No.4 is the Managing Director as well as the Chief Executive of respondent No.l company and respondent No.5 is the Registrar of Joint Stock Companies and Firms of Bangladesh. That the petitioners are citizen of Bangladesh having wide range of business experience in various files and gained experience goodwill, reputation and honor in the business circle both at home and abroad: that the petitioner No. 1 is the founder owner of the New Star Electronics based at Dhaka and the Sponsor Director of Exim Bank Limited and the petitioner No.2 is the Director of the Express Insurance Limited and Jamuna Bank Limited. Dhaka. Bangladesh. That respondent  No.2 as the promoter, Chief Organizer and Chairman of the then proposed Jamuna Bank Limited, respondent No.l in order to organize the Bank delegated wide range of power and authority to respondent No.3. namely. Mr. Arifur Rahman through a letter of authority Nur Hussain and another -vs- Jamuna Bank Lid and others (Md. Fazlul Karim J.) dated 6.6.2000 for collecting promoter directors to include as Sponsors and to take the decision of the share distribution and to take all other necessary decision and executed in the interest of the Bank at the formation stage with the aim of obtaining necessary approval from the concerned authority; that respondent No.3 subsequently was designated as Vice-Chairman and Director of the Jamuna Bank Limited. That respondent No.3 proposed and invited the petitioners during the initial state

to subscribe in the sponsors share capital and to accept 3 Directors position (from among

the family members of the petitioner) of the proposed Jamuna Bank Limited and the petitioners duly accepted the offer. That the petitioners in such initial stage paid Tk. 15,22.000.00 (Taka fifteen lac and twenty two thousand) to respondent No.3 for the shares and 3 Directors position of the proposed Jamuna Bank Limited through following cheques. Name of the Bank Cheque No.and Date Amount of Taka Exim Bank Limited 015549-25.05.2000 100,000.00 Exim Bank Limited 0002906-04.06.2000 200,000.00 Exim Bank Limited 0002910-14.06.2000 200,000.00.Exim Bank Limited 0002928-08.07.2000 100,000.00 .Exim Bank Limited 056812-30.09.2000 100,000.00.Exim Bank Limited 056825-01.11.2000 47,000.00 .Exim Bank Limited 082152-06.] 1.2000 20,300.00 .Exim Bank Limited 082154-06.11.2000 54,700.00.Exim Bank Limited 082158-21.11.2000 100,000.00 .Exim Bank Limited 082159-22.11.2000 100,000.00.Exim Bank Limited 082160-27.11.2000 500,000.00,Total Taka = 1.522.000.00

5. That the Bangladesh Bank. Head Office, Dhaka issued Letter of Intent to from and organize the proposed Jamuna Bank in favour of respondent No.2 vide its Memo No..BRPD (P)744 (Ka)/2000-4164 dated 29.11.2000. And respondent No.3 duly transferred the Photostat copy of the said letter of intent along with other relevant papers to the petitioners. The petitioners having been convinced on the effect of the issuance of the letter of intent by the Bangladesh Bank, paid further amount of Tk.4,85,00.000.00 (Taka four crore eighty five lac) to respondent No.3 for the shares and 3 Directors position of the proposed Jamuna Bank Limited through the following cheques : Name of the Bank Cheque No.and Date Amount of Taka Exim Bank Limited. 082164-30.11.2000 10,000,00 First Security Bank Ltd. 0041152-03.12.2000 50,00,000.00 First Security Bank Ltd. 004153-06 12.2000 20,00,000.00 Exim Bank Ltd. 02168-06.12 2000 30.00,000.00 Exim Bank Ltd. 082172-12.12.2000 30,00,000.00 Exim Bank Ltd. 082173-14.12.2000 20,00,000.00 First Security Bank Ltd. 0041155-13.12.2000 50,00,000.00 First Security Bank Ltd. 0041157-18.12.2000 50,00,000.00 Exim Bank Ltd. 085884-17.01.2001 1,00,00,000.00 Exim Bank Ltd. 085887-21.01.2001 50.00,000.00 Exim Bank Ltd. 085890-29.01.2001 20,00,000.00 Exim Bank Ltd. 085897-08.01.2001 5,00,000.00 Exim Bank Ltd. 101353-25.02.2001 5.00,000.00,Total Tk. 4, 85,00,000.00

6. That the petitioners submitted and handed over to respondent No.3 all the relevant applications particulars, statements, photos, declarations for sponsors shares in the name of the petitioners and also their daughter Mahmuda Siddique and son Muhammad Asif Hossain and declarations to the effect as to agree to work as Director in the proposed Jamuna Bank Limited. That respondent No. 1 obtained certificate of incorporation and certificate for commencement of business on 02.04.2001 from the office of respondent No.5 but the petitioners with great suiprise observed that there was no logical proportionate and lawful reflection of the petitioners contribution of total Tk.5, 00,22,000.00 (Taka five crores and twenty two thousand) in the sponsor’s share capital and promised 3 (three) Director positions in the Memorandum and Articles Association of the respondent No.l company; that only the name of petitioner No.2 Mrs.Ayesha Hussain has been included and shown as Director and holder of fully paid 100,000 (one lac) shares of Tk. 100.00 each of which total value stand at Tk. 100,00,000.00 (Taka one Crore) only in the Memorandum and Articles Association Company. That the petitioners being disappointed on the aforesaid event made several attempts, pursuation to the respondents on verbal and telephonic discussio’ns in respect of the petitioners remaining contribution of Tk.400.22.000.00 (Taka four crore twenty two thousand) in the sponsor’s share capital and promised further 2 (two) Director positions that were not been reflected in the Memorandum and Articles of Association of the respondent No.l company and requested the respondents to fulfil their commitment to issue and allot the shares against the petitioners remaining contribution of Tk. 400,22,000.00 (Taka four crore twenty two thousand) in the sponsors share capital and promised further 2 (two) director positions in the respondent No. 1 company and also requested the respondents for cancelling/rescinding the illegal and unlawful activities and decisions that were taken in respect of the issue of sponsors shares and directors position excluding the petitioners and

their family members with malafide motive and intention and without any lawful authority. But the respondents refused to do anything in favour of the petitioners. That the petitioners being aggrieved by the said activities of the respondent in the manner as stated above served a legal notice upon the respondents on 06.05.2001 through Mr. Shah Mohd. Ahsanur Rahman, Advocate stating all the facts and circumstances and requested them to cancel /rescind the unlawful decision in respect of the sponsor’s share, directors position distribution during the formation and registration of the respondent No.l bank and also requested them to take all necessary steps to fulfil the legitimate right and entitlement of the petitioners accrued by way of contribution as stated in the aforesaid paragraph in respect of the remaining sponsor’s share, directors position in respondent No.l bank within 21 (twenty one) days from the date of receipt of the notice failing which the petitioners would be compelled to take shelter of the High Court Division of this Court for amendment of the share register of the respondent No.l company under section 43 of the companies Act 1994; that the respondents in response to the said legal notice made a planned trap; that respondent No.2 and 3 assured the petitioners that the problem of remaining sponsors share of Tk.400.22,000.00 (Taka four crore and twenty two thousand) and 2 (two) directors position in the respondent No.l Bank will be given within 31.05.2001 in favour of the petitioners contribution and they further requested the petitioner to withdraw the legal notice of the sake of congenial atmosphere at the formation stage and ceremonial opening of respondent No.l bank. That the petitioners on 21.05.2001 instructed their lawyer to withdraw the aforesaid legal notice and accordingly the said legal notice was withdrawn on 26.05.2001.That the respondents again deliberately refrained to fulfil their assuri ance and commitment of issuing and allotting the remaining sponsor’s share equivalent to the petitioners remaining of Tk.400,22,000.00

(Taka four crore and twenty two thousand) and 2 (two) directors position in respondent No.l Bank within 31.05.2001 in favour of the petitioners. Not only that respondent No.3 instigated the other directors of the respondent No.l Bank who would be benefited in event of the Petitioners omissions in the sponsor’s share to employ their loyal mastans to issue continuous threat and harass the petitioner in all the ways and means at home and working place and surV prisingly at one stage on 23.05.2001 at the instance of respondent No.3. four directors of the respondent No.l Bank along with their mastans made an unpredictable criminal event and forcibly detained the petitioner, an acutely heart patient in the hotel lobby of the Pan pacific Sonargaon Hotel.

7. That the said event gave rise to multiple criminal proceedings including Ramna Police

Station G.D. No. 1611 dated 19.6.2001 under section 342/384/506 of the Bangladesh Penal Code. Due to the aforesaid illegal activities of the respondents in not fulfilling the commit. ment and assurance, the petitioners through Mr. Shah Mohd. Ahsanur Rahman, Advocate again served a legal notice upon the respondents on behalf of the petitioner on 6.6.2001 by canceling the withdrawal dated 26.5.2001 of the earlier legal notice dated 6.5.2001 stating all the facts and circumstances including the latest development in respect of the deliberate failure in fulfiling the committed and assured sponsors share and directors position distribution in favour of the petitioners requesting them to cancel/rescind unlawful decision in respect sponsors share, directors position distributaries during the formation and registration of the respondent No. 1 Company and also requested them to take all necessary steps to fulfil the legitimate right and entitlement of the petitioner accrued by way of contribution as stated hereinbefore in respect of the sponsors share, directors position in the respondent No.l Company within 21 (twenty one) days from the date of receipt of the notice failing which the petitioner would be compel to take shelter of the High Court Division for amendment of the share register of the respondent No. 1 Company under section 43 of the Companies Act. 1994. That Mr. Shamsuddin Babul, Advocate, in reply to the said legal notice though duly acknowledged the receipt of the legal notices dated 06.06.2001, withdrawal letter dated 26.5.2001, canceling the withdrawal letter and renewed legal notice dated 6.6.2001 silent in respect of the contribution of the petitioners of Tk. 500,22,000.00 (Taka Five crore and twenty two thousand) to the sponsors share capital directors position of the respondent No. 1 Company and gave no categorical relevant reply to the core issue the respondents inspite of the receipt of the said legal notices did nothings on respect of the legitimate damand of the petitoners. That the illegal allocation of sponsors shares and director postions in the respondent No. 1 bank Company omitting the name of the petitioners and their family membes in proportion to contribution of the petitioners at Tk. 500.22,000.00 (Taka Five crore and twenty two thousand) during the allocation of the sponsors shares and directors position in respondent No. 1 Company hab been done with malafide motive and intention, without any-lawful authority and the petitoners have no other option but to apply to the Court for rectification of the share register. The petitioners are entitled to get equivalent number of sponsors shares and 3 (three) directors position of the respondent No.l Company against their contribution of Tk. 500,22,000.00″(Taka Five crore and twenty two thousand) and damage and compensation for the delay in withholding of huge amount of investment. That for the sake of law. equity and justice, it is necessary to refrain the respondents from allotting further shares of the Jamuna Bank Limited to any

other persons without making proportionate offer to purchase shares to the petitioners.

8. The said application was contested by the respondent Nos. 1-4 by filing affidavit-inopposition stating, inter alia, that the petitioner No. 1 was not a sponsor subscriber to the share capital of the respondent No.l as alleged. Petitioner No.l has no connection whatsoever with the Bank. The petitioner No.l had no locus standi to file this application. The petitioner No.2 took 1,00,000 shares of Tk. 100.00 each of respondent No. 1 and kept the share money in the Motijheel Branch of Export Import Bank of Bangladesh Limited (hereinafter referred to as Exim Bank) in the form of FDRs. As per reqirment of letter No.BRPD(P)744 (Ka) 200-4168 dated 29.11.2000 issued by Bangladesh Bank, the petitioner No.2 furnished a certificate from her banker to the effect that her share money would not be allowed to be withdrawn without the permission of Bank and according the Bank included the name of petitioner No.2 in the and submitted the same to Bangladesh Bank. The respondent Bank was registered with Registrar of Joint Stock Companies showing petitioner No.2 as share holder and director of the respondent No.l Bangladesh Bank vide letter No. BRPD(P)744(Ka) 200-4168 dated 14.6.2001 accorded its no objection for transfer of the share capital of petitioner No.2 in the account of the respondent No.l. Thereafter on the strength of the said letter, respondent No.l vide letters Nos.JBL/F-T/2001/131 and JBL/FT/2001/133 both dated 17.06.2001 requested the Exim Bank for transfer of the fund in the account of respondent No.l. The Exim Bank without making any payment of the share money under cover of their letter No. EXM/MJ/FDR/0219/2001 dated 19.06.2001 forwarded a letter of petitioner No.2 wherein

she instructed Exim Bank to stop encashment of the FDR No. 003783/4100577-2 dated 17.01.2001 and FDRNo. 003826/41006191 dated 26.06.2001. This shows that no payment was fraudulently made by petitioner No.2. The persent application is a motivated one and is an attempt to earn illegal gain out of nothing. That the petitioners have totally distorted the contents of the authority dated 06.06.2000 to suit their own purpose.Respondent No.2 did not delegate wide range of powers and authority to respondent No.3 as alleged. It was simply a request to procure good people for becoming sponsor directors of the Bank in strict compliance with the terms and conditions set by Bangladesh Bank and other regulatory authority only. Respondent No. 3 was not given any authority to make any monitory transaction with any body in connection with the share capital and the alleged letter of authority dated 06.06.2000 was not a legal document, having legal value. In any case the said so-called letter of authority never authorized any body to make financial transaction with anybody. These respondents have no involvement in any such matter nor they are aware of any such transactions, if any. Before incorporation of the Bank petitioner No.2 having fraudulently dealt with the share

money is now trying to twist the contents of a paper which had no legal value. In any case the alleged transaction has nothing to do with respondent No. 1. The share moneys was required to be kept in any scheduled bank and bank’s certificate was required to be produced to the effect that the amount of share would not be allowed to be withdrawn without the permission of Bangladesh Bank as it appears from the letter of Intent No.BRPD(P)44(Ka) 2004168 dated 29.11.2000 issued by Bangladesh Bank. The transactions as alleged are all personal transaction of the petitioner and others and respondent No.l was not a party to such transaction. Respondent No.l had no knowledge of the issuance of the cheques or about the characteristics of those cheques as mentioned

of the petition. Since those transections appear to be of personal nature and the proceeds of those cheques did not come into the account of respondent No.l and hence respondent No.l Bank assumed no responsibility for those transactions, if at all made by the petitioners with respective parties in their personal level. It is absolutely immaterial as to who gave the letter of intent to petitoner No.2 or from where she got the same. The fact remains that petitioner No.2 never complied with the requirement of the letter of intent of Bangladesh Bank. That the Memo No. BRPD(P)744(Ka) 200-4168 dated 29.11.2000 issued by Bangladesh Bank for establishment of Bank clearly provided in item No.Gha that the members of a family either personally, jointly or in both cannot purchase more than 10% shares of respondent No.l. But in the instant application that the petitioners have claimed contribution exceeding 10% of the total share capital of respondent No.l which is in contravention of section 14A of the Bank Companies Act, 1991 and the terms of the Letter of Intent. It is to be mentioned here that the petitioner knowing fully well about the clear terms and conditions imposed by Bangladesh Bank could not engage themselves in irregular acts in contravention of the Letter of Intrn dated 29.11.2001. The petitioners were required to deposit the share money against purchase of respondent No. l’s shares with a schedule Bank as per terms of letter of intent dated 29.11.2001 issued by

Bangladesh Bank and the concerned Bank was required to issue a certificate to the effect that the amount deposited with for share of respondent No.l would not be allowed to be withdrawn without the permission of Bangladesh Bank. From the facts disclosed above it proves beyond doubt that the petitioners committed fraud on the respondent Bank. On the basis of Bank certificate, petitioner No.2 was shown as holder of 100.000.00 shares as fully paid but subsequently when she instructed her Bank not to make any payment the Bank made call on her to make the payment for the shares but when she failed her shares were subject to the forfeiture. After disposal of this case the Board of Directors of the Bank shall decide how to deal with those shares; that the Bank never received any application, particulars; declaration photos etc. as alleged by the petitioner in their statements of pursuing there on tlie company; that since there was no such deposit with any scheduled bank for taking share of respondent No. 1 other than the amount deposited by petitioner No.2. the petitioner’s claimed amount are not in any way the contribution for the share of the respondent No.l. Hence there is no question of giving share or directorships of respondent No.l. Petitioner No.2 who obtained and produced the certificate never raised any objection as to the alleged transactions in relation to herself and for her husband and never demanded any share or directorship of the respondent No.l at the time of her subscribing in the Memorandum and Articles of Association and at the time of her attending the meeting of the Board of Directors. It may further be stated that the certificate of incorporation and certificate of petitioner No.2 as a director of the said Bank knew their receipt from the Registrar of Joint Stock Companies instantly. If the petitioners had any further claim for directorships or share Nur Hussain and another -vs- Jamuna Bank Ltd and others (Md. Fazlul Karim J. in the respondent No.l they would have raised the matter then and there in the month of April 2001. In fact this is a malafide application and an attempt to blackmail the respondent Bank for ulterior purpose; that no request was ever made by anybody to the petitioners for withdrawal of their legal notice. The reason for the service of the legal notice and its withdrawal are entirely the business of the petitioners to suit their own ulterior motives. From the sequence of facts stated above it clearly transpires that the petitioners alleged transaction of money were not in any way linked with the purchase of share of respondent No. 1 or for the directorships; that the claim of the petitioners for extra shares and directorships in respondent No.l have no legal basis. No director of the Bank in his/her official capacity or the Bank itself was benefited from the personal transaction of the petitioners because the proceeds of the cheques did not come into the account of respondent No. 1. Hence the allegation of instigating anybody and the alleged employment mastan to harass the petitioners are totally baseless and concocted. Giving reply to legal notice by the recipient was not mandatory. Moreover, no legal notice was ever served upon the respondent No. 1. The legal notice was served upon respondent Nos.2 and 3 only. The application was fictitious vexatious litigation and as such, the same was liable to be rejected in lime; that alleged transaction of Tk.400,22,000.00 (Taka Four crores tweny two thousand) only have been effected at personal level for which no share of the Bank could be sought and given. Respondent No.l did not receive the said amount and is not its beneficiary in any way and it cannot assume any responsibility for any amount it did not receive. The petitioners did not deposit the money in any scheduled Bank for shares of the respondent No.l as per instruction of Bangladesh Bank as contained in letter No. BRPD(P)74(Ka) 200-4168 dated 29.11.2000.

9. The respondent No.2 Alhaj M.A. Khaleque the petitioner in Civil Petition No.6 of 2004 stating, inter alia, that the petitioner No.l Md. Nur Hussain was not a sponsor contributor in the share capital of respondent No.l Bank. Petitioner No.2 has taken 100.000 shares of Tk. 100/- each of respondent No.l Bank and kept the share money in the Motijheel Branch of Export Import Bank of Bangladesh Limited (Exim Bank) in the form of FDR. As per requirement of item No. TA in the letter of intent of Bangladesh Bank and kept the share money in the vide letter No. BRPD(P)744(Ka) 200-4168 dated 29.11.2000 issued for establishment of the proposed Jamuna Bank, petitioner No.2 produced a certificate from her banker to the effect that her share money would not be allowed to be withdrawn without the permission of Bangladesh Bank. Accordingly the company incorporated the’name of the petitioner No.2 in the Articles of Association as a subscriber member and submitted the same to Bangladesh Bank for approval and after getting approval of Bangladesh Bank the company was registered with the Registrar of Joint Stock Companies and Firms showing the concerned person as share holder and director of the Bank. The respondent No.l Bank obtained no objection from Bangladesh Bank vide letter No.BRPD(P)744(81)2001-195 dated 14.10.2001 for transfer of the share capital of Mrs. Ayesha Hussain, the petitioner No.2 in the account of the respondent No.l Bank and on the strength of the said ho objection of the respondent No.l Bank requested the Motijheel Branch of Export Import Bank of Bangladesh Limited vide letter No.JBLK/F-T/2001/131 and 133 both dated 17.06.2001 for transfer of the fund in the account of respondent No.l Bank. The Exim Bank without Making Payment of the share money under cover of their letter No.EXIM/MJ/FDRVO 129/2001 dated 19.06.2001 forwarded a letter of the petitioner No.2 wherein she instructed her banker to stop encashment of the FDR No.003783/4100577-2 dated 17.01.2001 and FDR No.003826/4100919-1 dated 26.02.2001 for Tk.1.00 crore, the name of the petitioner No.2 is appearing in the Memorandum and Articles of Association as a sponsor director of the respondent No.l Bank but the petitioner No.2 did not pay her share money and so failed to acquire qualification shares required under Article 93 of the Articles of Association and thus office of Mrs. Ayesha Hussain, the petitioner No.2 as Director of the respondent No. 1 Bank ipso facto stood vacant and shec eased to be the director by operation of law (section 108(4) of Companies Act, 1994 and as per Article 100 (i) of Articles of Association of the respondent No. 1 Bank). The respondent No. 1 also called the share money from the petitioner No.2 by issuing 2 (two) call notices. (1 st call on 30.9.2001 and”2nd call on 11.11.2001) as per Articles of Association of respondent No. 1

Bank. Petitioner No.2 has not yet paid the share money inspite of the said notices to her respondent No.2 did not delegate wide range of power and authority to the respondent No.3. It was simply a request to collect good people for becoming sponsor-directors of the Bank through strict fulfillment of the terms and conditions set by Bangladesh Bank vide their letter No.BRPD(P)744(Ka) 200-4168 dated 29.11.2000 and other regulatory authorities only; that respondent No.3 was not given any authority to make any monetary transaction with anybody in connection of the share capital and it is to be taken into consideration that the paper dated 06.06.2000 is not a legally constituted paper and obviously it has no evidential value. The respondent No.3 is director and currently the Vice-Chairman of the Bank the transactions referred to have nothing to do with the Bank because for taking share of the Bank, the share money was inevitably required to be produced to the effect that the amount of share would not be allowed to be withdrawn without the permission of Bangladesh Bank as it appears from the letter of intent No.BRPD(P)744(Ka) 200-4168 dated 29.11.2000 issued by Bangladesh Bank; that the transactions enumerated in the petition were not at all of that nature and those transactions might have been personal transaction of the petitioner and for that other respondents including the respondent No.l Bank are not related in anyway and this respondent had no knowledge of the issuance of the aforesaid cheques or about the characteristics of the aforesaid cheques or about the characteristics of those cheques. Since those impugned transactions appear to be of personal nature and the proceed of those cheques did not come into the account of the respondent No.l and this respondent No.l.assume no responsibilities for those transactions of made by the petitioners with the respective parties in personal level; that there were not any official transfer of photocopy

of the letter of intent along with any other papers to the petitioner and as per the versions of the petitioners, they received copy of the letter of intent No.BRPD(P)744(Ka) 2004168

dated 29.11.2000 issued by the Bangladesh Bank. It may be mentioned that one can easily understand form the contents of the Bangladesh Bank’s letter of intent (especially

item No.TA) the way of subscribing to the share capital of the Bank. It is clearly stated

in item that: ‘

10. It is clear from the above position of law that the share capital of a sponsor would be deposited in a scheduled Bank and a certificate form the concerned Bank was to be produced to the effect that the cmount of the share capital would not be allowed to be withdrawn without the permission of Bangladesh Bank. Hence the petitioner knowingly might have transacted some personal transactions which were neither intended for taking the shares of Bank nor those had any relation with the respondent No.l Bank; that the letter of the intent No.BRPD(P)744(Ka) 200-4168 dated 29.11.2000 issued by the Bangladesh Bank for establishment of the Bank clearly provided in” item No.Gha that the members of a family either personally, jointly or in both can not purchase more than 10% shares of the respondent No.l. But the petitioners have claimed contribution exceeding 10% of the total share capital of the respondent No. 1 which is in contravention of section 14(A) of the Bank Companies Act, 1991. It is to be mentioned here that the petitioner knowing fully well about the clear terms and conditions acts in contravention of clear provision and rules of Bangladesh Bank. The Petitioners were required to deposit the share money against purchase of respondent No.2’s shares with a schedule bank as per terms of letter of intent dated 29.11.2000 issued by Bangladesh Bank and the concerned bank was required to issue a certificate to the effect that the amount deposited with them for share of respondent No.l Bank would not be allowed to be withdrawn without the pennission of Bangladesh Bank. The monetary transaction which is stated to have been made by the petitioner were not of that nature and those might have been the personal transaction centering personal consideration and those transactions were in no way meant for the purchase of share of the respondent No.l Bank and for membership or directorships of the respondent No.l Bank. It may further bestated that the certificate of incorporation and certificate of commencement of business of the respondent No. 1 Bank were received .on 02.04.2001 and the petitioner No.2 as a director of the said Bank knew their receipt from the Registrar of Joint Stock Companies instantly. If the petitioners had any further claim for directorships or share in the respondent No.l they would have rsised the matter then and there in the month of April 2001; that he has not bought any share in benami and before discussion had no legal implication and was fruitless on the ground that it exceeded 10% of the total share capital of the Bank in a family. Any illegal act cannot be legalized by discussion and basing on unlawful claim, no assurance of giving share or directorship can be legally given by anybody; that with regard to the statements made in paragraph No. 11 of the petition, it is stated that the claim of the petitioners for share of the respondent No. 1 Bank exceeding 10% in a family is unlawful as per section 14A of the Bank Companies Act. 1991 and it is to be taken into consideration that the petitioners did not keep any money for share of the respondent No.l Bank in any schedule Bank; that no request was ever made by anybody to the petitioners for withdrawal of their legal notice. The reason for the service of the legal notice and its withdrawal are entirely the business of the petitioners to suit their own ulterior motives. It is further stated that there had not been any sort of assurance of providing further share and directorships of the respondent No.l Bank to the petitioners for which they had withdrawn their legal notice at one stage. In view of the fact and circumstances, one can easily draw an inference that the petitioners transaction of money were not in any way linked with purchase of share of the respondent No. 1 Bank or for its directorship: that the claim of petitioners for extra shares and directorships in respondent No.l Bank is not legitimate. No director of the Bank in his/her official capacity or the Bank itself was benefited from the personal transaction of the petitioners because the proceeds of the cheque did not come into the account of the respondent No. 1. Hence the allegation of instigating anybody and employing any mastan to harass the petitioners are totally baseless and concocted, and giving reply of legal notice by the recipient was not mandatory. Morecouer no legal notice was ever served upon the respondent No.I. The legal notice was served upon respondent Nos.2 and 3 only; that the petitioner NO.2 deposited Tk. 100.00.000.00 (taka One crore) only in the Motijheel Branch of Export Import Bank Bangladesh Limited as her contribution in the share capital of the respondent No. 1 Bank. Her name was included as the sponsor share holder and dirctor of the Bank in the Memorandum and Articles of Association subject to payment of share value of Tk. 1.00 crore. The prescribed procedure was known to her and also to her transaction of Tk. 400,22.000.00 (Taka Four crores twenty two thousand) only might have been effected at personal level for which no share of the Bank could be sought and given. The Bank did not receive the said amount and is not its beneficiary in any way. It cannot assume any responsibility for any amount it did not receive. The petitiones did not deposit the money in any scheduled Bank for shares of the respondent No. 1 Bank as contained in letter No. BRPD(P)744(Ka) 200-4168 dated 29.11.2000.

11. The respondent No.3-petitioner in Civil Petition No. 163 of 2004 contested the suit stating . inter alia, that petitioner No.l Md. Nur Hussain was not a sponsor contributor in the share capital of respondent No.l Bank and that the petitioner No.2 has taken 100.00 shares of Tk: 100/- each of the respondent No. 1 Bank and kept the share money in the Motijheel Branch of Export Import Bank of  Bangladesh Limited (Exim Bank) in the form of FDR. As per requirement of item No. TA in the letter of intent of Bangladesh Bank Vide letter No.BRPD(P)744(Ka)200-4168 dated 29.11.2000 issued for establishment of the proposed Jamuna Bank, the petitioner No.2 produced a certificate from her banker to the effect that her share money would not be allowed to be withdrawn without the permission of Bangladesh Bank and accordingly the company incorporated the name of the petitioner No.2 in the Articles of Association as a subscriber member and submitted the same to Bangladesh Bank for approval and after getting approval of Bangladesh the company was registered with the Registrar of Joint Stock Companies and Firms showing the concerned person as share holder and director of the Bank. The respondent No.l Bank obtained no objection from Bangladesh Bank Vide letter No. BRPD(P)744(Ka) 2001-195 dated 14.10.2001 for transfer of the share capital of petitioner No.2 in the account of the respondent No.l Bank and on the strength of the said no objection, the respondent No.l Bank requested the Motijheel Branch of Export Import Bank of Bangladesh Limited vide letters No. JBL/FT/2001/131 and 133 botb dated 17.06.2001 for transfer of the fund in the account submitted the same to Bangladesh Bank for approval and after getting approval of Bangladesh the company was registered with the Registrar of Joint Stock Companies and Firms showing the concerned person as share holder and director of the Bank. The respondent No. 1 Bank obtained no objection from Bangladesh Bank vide letter No.BRPD(P)744(Ka) 2001-195 dated 14.10.2001 for transfer of the share capital of petitioner No.2 in the account if the respondent No.l Bank and on the strength of the said no objection, the respondent No. 1 Bank requested the Motijheel Branch of Export Import Bank of Bangladesh Limited vide letters No.JBL/F-T/2001/131 and 133 both dated 17.06.2001 for transfer of the fund in the account of respondent No.l Bank. The Exim Bank without making payment of the share money under cover of their letter No. EX1M/MJ/FDR/0219/2001 dated 19.6.2001 forwarded a letter of the petitioner No.2 wherein she instructed her banker to stop encashment of the FDR; that the respondent No.2 did not delegate wide range of powers and authority to the respondent No.3. It was simply a request to collect good people for becoming sponsor-directors of the Bank through strict fulfillment of the terms and conditions set by Bangladesh Bank vide their letter No.BRPD(P)744(Ka)200-4168 dated 29.11.2000 and other regulatory authorities only and respondent No.3 was not given any authority to make any monetary transaction with anybody in connection of the share capital and it.is to be taken into consideration that the paper dated 6.6.2000 is not a legally contituted paper and obviously it has no evidential value; that the respondent No.2 is a director and currently the Vice-Chairman of the Bank; that the letter of intent No.BRPD(P)744(Ka) 200-4168 dated 29.11.2000 issued by the Bangladesh Bank for establishment of the Bank clearly provided term No. Gha that the members of a family either personally, jointly or in both can not purchase more than i()% shares of the respondent No.l Bank. But in the instant application that the petitioners have claimed contribution exceeding 10% of the total share capital of the respondent No.l prohibited by section 14(A) of the Bank Companies Act. 1991. It is to be mentioned here that the petitioner knowing fully well about the clear terms and conditions imposed by Bangladesh Bank could not engage themselves in irregular acts in contravention of the clear provision and rules of Bangladesh Bank. The petitioners were required to deposit the share money against purchase of respondent No.2’s shares with a schedule Bank as per terms of letter of intent

dated 29.11.2001 issued by Bangladesh Bank and the concerned Bank was required to issue a certificate to the effect that the amount deposited with for share of respondent No.lwould not be allowed to be withdrawn without the permission of Bangladesh Bank. The monetary transaction which is stated to have been made by the petitioners were not of that nature and were in no way meant for the purchase of share of the respondent No. 1 Bank and for Memberships of Directorship of the respondent No.l Bank; that since there was no such deposit with any schedule Bank for taking shares of the respondent No.l Bank otherthan the amount deposit by petitioner No. 2 the petitioner claimed amount are not in any way was the contribution to the share of the respondent No.l Bank. Hence the question of giving share of directorships of the respondent No.l Bank to the nominated persons of the petitioner he. members of their family does not arse. The petitioner No.2 who obtained and produced the certificate never raise any objection as to the alleged transactions in relation to herself and for her husband and never demanded any share or directorship of the respondent No. 1 at the time of her sbscibing the Memorandum and Articles of Association and at the time of her attending the meeting of the Board of Directors. These respondents have no concern for such alleged personal transaction. It may further be stated that the certificate of incorporation and certificate of commencement of business of the respondent No.l Bank were received on 02.04.2001 and the petitioner No.2 as a director of the said Bank knew their receipt from tiie Registrar of Joint Stock Companies instantly. If the petitioners had any further claim for directorships or share in the respondent No.l they would have raised the matter then and there in the month of April 2001; that it is denied hereby and it is stated that in reply of the legal notice, the deponent categorically denied the claim of the petitioner No. 1 rather gave emphasis about the ill motive of the petitioner in addition reemphasised on the claim of the deponent against the petitioner. It is relevant to mention that the petitioner collect more than 7 crore of Taka from different share holder-directors known to him to hand over the same to this deponent against their intent for purchase of share in the proposed Banking company, petitioner of the instant case received above mentioned money from the following persons which, however, not the strict figure may be higher then the mentioned below: Petitioner received from the persons amount

1. Shaheen Mahmud Tk. 80 lac

2. Rezaul Karim Tk. 57 lac

3.Abu Sakhawat Tk. 80 lac

4. Tajul Islam Tk. 10 lac

5. Fazlur Rahman Tk. 80 lac

6. Hossan Ara Bulu Tk. 65 lac

7. Ismail Hossain Siraji Tk. 673 lac

And others through different cheques to the respondent No.3 about the contribution as sponsor share holders but the petitioner most illegally with a malafide intention by misrepresenting with a false suit took huge amount of money from the above mentioned sponsors directors and contributed but out of which total realization from the different share holders directors transferred 5,81,00,000.00 only by different cheques to this respondent No.3 shareholders who ultimately deposit in the.Bank in their own names as per requirement of the Banking law and took their share accordingly but due to the false suit-of the petitioner No.l the Director herein above from whom the petitioner in fraudulent manner took excess money filed individual case to realize the excess amount from the petitioner No.l which are still pending in the concern Court.

11. The original petitioner, however, changed assertion made in the affidavit-in-opposition stating, inter alia, that the respondent No.3 took several contradictory facts, figure and plea in his affidavit-in-opposition dated 25.4.2002. Supplementary affidavit dated 19.7.2003 and 29.7.2003 as under ; that the respondent stated in paragraph No. 14 of the affidavit-in opposition that petitioner No. 1 received Tk.7 crore from 7 promoters directors stating thair name and figure of the respondent No.l Bank amounting to 80+57+80+10+80+65+64 lacs of which total stand at Tk.436 crore but at paragraph 5 and series-2 in supplementary affidavits dated 17.7.2003 stated names of different 7 persons with separate figures of Tk. 180+15+80+80+10 lacs total stand at Tk. 3.79 crores only. The fact and figure are contradictory of each other and name of the persons are also different; that the respondent No.3 stated in paragraph 14 of the affidavit-in-opposition and in the supplementary affidavit dated 19.7.2003 at paragraph 5 that Ismail Hossain Sraji paid Tk.64 lacs vide three cheques on 27.11.2000, 17.12.2000. 28.03.2001 to the petitioner No.l to pay onward to the respondent No.3 for purchasing sponsors shares of the Jaruuna Bank Limited and filed supplementary affidavit before the Court on 29.7.2003 and stated at paragraph 2(e) that deponent No.5 issued cheques vide No. 1795117 dated 27.11.2000 amounting to Tk .30 lacs to the petitioner No.l to pay onward to the respondent No.3 which is contray, false misleading and malafidc and the petitioner rejected the same; that the respondent Nos. 1-4 took some contradictory plea as to the contribution of the petitioner in their affidavit-in-opposition and in the three supplementary affidavits they could not deny the fact as stated in the affidavit-in reply on behalf of the petitioner on 12.05.2003 regarding the fund flow and utilization of the contribution of the petitioner as stated in the affidavit-in-reply dated 12.5.2003 at paragraph 4 and 13; that it is relevant to be mentioned that under section 43 of the Companies Act, it is necessary to follow the contribution and ma)1 grant relief as to the rectification if share register of the respondent No.l Bank from the share of the respondent Nos. 2-3 of 2,00,000 shares @ Tk. 100/-each amounting to Tk. 200,00,000.00

(Taka two crores) and from the other existing shareholders holding 33,00.000 shares in their name and also an order to the respondent Nos.l4 to refund Tk. 100,22,000.00 to the petitioners along with interest and costs which was estimated and calculated over 10% of the share capital of the respondent No.l Bank; that the respondent No.3 shifted his own position in the paragraph 14 of the affidavit-in-opposition and in supplementary affidavit that he received fund from the petitioner but took some concocted plea as stated above which was not supported by his Bank account transaction as contained in the record of the petition “C” and “E” series as well as in the affidavit of compliance of the Exirn Bank Limited; that the respondent Nos. 1-4 also initiated all further proceedings with formal call of share money to forfeit the shares of the petitioner No.2 which was subsequently turned down by the Bangladesh Bank vide letter dated 20.6.2002. That respondent No.2 also filed an affidavit-in-reply filed by the petitioners of the affidavit-in opposition of respondent No.3 stated, inter alia, that respondent No.3 did not make any FDR collaboration with respondent No.2. Respondent No.2 as per direction of Bangladesh Bank’s letter of intent and at the request respondent No.3 paid him Tk. 100,00,000.00 (Taka one crore) which was kept in the account of respondent No.3. But subsequently the said money was returned to respondent No.2 by respondent No.3 this respondent kept the said money as FDR in his name in Arab Bangladesh Bank Ltd., Kawran Bazar Branch, Dhaka as per requirement of Bangladesh Bank and in due course the said money was paid to the respondent No.l Bank by this respondent. And accordingly respondent No.l Bank issued shares of Tk. 1 crore to respondent No.2.

12. The aforesaid respondent, however, filed a supplementary affidavit stating, inter alia, that the petitioner No.2 issued two certificates from Export Import bank Ltd., Motijheel Branch, Dhaka about the payment of Tk. 100 crore for the shares in the Bank as one of the sponsors; that since the petitioner No.2 stopped payment of the said amount, the Bank as per advise of the lawyer served with a notice on the petitioner No.2 for first call on 30th September, 2001 and requested for payment of the money as per Article 20 of the Articles of Association of the company. There was no positive respondent from the side of the petitioner No.2. Accordingly on 1 lth November 2001 the second call notice was issued but no payment was received as per the calls made; that in such situation, the shares of the petitioner No.2 was forfeited by the Bank; that the Bank vide letter dated 3rd June 2002 sought permission from Bangladesh Bank to dispose of the forfeited share of the petitioner No.2 in response to which Bangladesh Bank for necessary direction after

disposal of the Matter No. 71 of 2001; that the petitioner No.2 was allotted 1 lac shares of the Bank as per her application and deposit of money as per Bangladesh Bank letter of intent but when she refused payment her shares have been forfeited after complying with necessary formalities; that the petitioner No.l neither applied nor paid any money to the Bank for any  shares. He also cannot be a director of the Bank because on his own showing he is a director in another Bank. On the application of parents shares cannot be allotted to their children. It any person has taken any money from them, it may be sorted amongst them but not in a proceeding under section 43 of the Companies Act, Bank has nothing to do with any such transaction.

13. That the respondent No.3 also filed supplementary affidavit stating, inter alia, that the petitioner No. 1 actually working as a middle man to find out suitable and interested persons who would like to be a share holder of the respondent Bank as because he was an experienced person as he already promoted one Bank and is one of the sponsor director of the Export Import Bank Ltd and since he agreed to work for collecting the interested persons known to him and help in promoting the Bank eventually convinced the persons already mentioned in paragraph 14 of the affidavit-in-opposition filed earlier on behalf of the respondent No.3 to become shareholder and sponsor directors of the respondent No.l

Bank and he also received the amount mentioned from those interested persons to become shareholders and sponsor directors of the respondent Bank and thus the received money from the interested persons as a bearer only to deposit with the respondent No.3 as security of their agreement to be the shareholders of the proposed Bank company. But petitioner No.l with a malafide intention did not deposit the full amount collected by him to the respondent No.3 but he however collected money from the interested persons of which full particulars of the cheques numbers and the amount mentioned herein, first deposit in his own bank account and subsequently transferred some of the said money into the account of the respondent No.3, and in response to that the respondent No.3 has arranged to issue shares in their names from the Company after fulfilling the terms and conditions as laid down by the Bangladesh Bank and the persons so paid also became sponsor directors respondent No.l company; that petitioner No.l never deposited any money as claimed but he paid the money of others i.e. the existing share holder directors who ultimately got their respective shares and they have no claim against the respondent No.3 but have, claim against the petitioner and they have also filed civil and criminal suit against him which are presenly pending before the lower Court. That the petitioner No.l took money from the following persons in the following manner: SI Name Cheque Name of the Dated Total No No. Bank 1 Engineer Atiqur Rahman CAMNO Uttara Bank Ltd 15.01.01 50 lac 4465004 Engineer Atiqur Rahman CAMNO Uttara Bank Ltd 15.01,01 50 lac 4465004 Engineer Aliqur Rahman CAMNO 4465004 30.0Uttara Bank Ltd 1.01 5 lac

Engineer Moshraff SAM NO lndosuez 29.01.01 10 lac HossainEngineer 336713 Bank Ltd Moshraff Hossain SAMNO State Bank of 29.01.01 5 lac 1216936 India Abu Shawkat SAMNO Janata Bank 24.01,0i 20 lac Abu Shawkat Abu Shawkat Abu Shawkat

3897480 4193420 4193440 419345 Janata Bank Janata Bank Janata Bank 12.12,01 12,12.01 28.01,02 20 lac 20 lac 20 lac 4 Hosne Ara Bulu 0413946 28.11.00 Hosne Ara Bulu 3913450 30.11.00 66 lac Hosne Ara Bulu 89403 30.1.01 5 Tajul Islam CAB 03.10,01 10 lac 3735981 6 Fazlur Rahman CD 100 Jamuna Bank Ltd 11.01.01 80 lac 1241320 7 Ismail Hossain Siraji 1795117 27.11.00 30 lac Ismail Hossain Siraji 1795181 07.12,00 30 lac Ismail Hossain Siraji 0090452 28.03.01 04 lac 8 Shaheen Mahmud 80 lac

9 Rezaul Laro. Amsaro 57 lac.

14. That from the above noted payment with dates, it would be crystal clear that the petitioner No. 1 has issued his alleged cheques after receiving the same but the amount, he paid to respondent No. 3 is not in equal but some is higher and some is less then the amount so received by him; that respondent No.3 after receiving the money of the sponsor share holders through petitioner No. 1 and upon completion of the company met with the sponsor shareholder and hold a private meeting where it came into light that the petitioner No.l received much more money then he deposited with the respondent No.3 and he misappropriated some, and accordingly it was decided that the petitioner shall return the excess amount to the respective persons and the shareholder shall issue a certificate of no claim towards this respondent stating the facts and figures they paid to the petitioner No.l and received by respondent No.3 accordingly they have issued certificate of no claim to the respondent No.3; that all the shareholders including the petitioner No.2 have deposited their own share money by themselves through FDR, applied by them to their respective banks and depostiting the same to the Bangladesh Bank as required procedure; that some other persons not being the respondents of the application also filed affidavit under the reply affidavit-inopposition in support of the case of the respondent No. 3.

15. That the petitioner filed supplementary affidavit stating, inter alia, that the legal notice dated 17.1(12001 served on behalf of the petitioners challenging the notice of First Call datedl 30.09.2001 issued by respondent No.l Bank upon petitioner No.2 and the reply of the said legal notice on behalf of the respondent No.l bank on 8.11.2001; that the legal notice dated 6.11.2001 served on behalf of the petitioners challenging the Minutes of the 6th Meeting of the Board of Directors held on 30.8.2001 of the respondent No.l Bank and the reply of the said legal notice dated 3.1.2001 on behalf of the respondent No.l Bank; that the respondent Nos. 1 and 4 in paragraph 8 of their affidavit-in-opposition committed that after disposal of the instant Company Matter No.71 of 2001 the Board of Directors of the respondent No.l Bank shall decide with those shares of the petitioner No.2 and contrary to their own oath and commitment as it was in the case of undrawal of legal notice upon their verbal assurance to the allotment of shares, the respondent No.l Bank and respondent Nos.2-4 initiated illegal steps to forfeit tie shares and ceasation of the directorship of the petitioner No.2 as contained in the minuters; that the petitioners also filed another supplemcntaiy affidavits in suport of their case staling, inter alia, that the petitioner No.2 has given a letter to the executive Vice-President of Export Import Bank of Bangladesh Ltd, Motijhcel Branch, Dhaka on 12.7.2003 requesting him to release the FDR Nos. 003783/4100577-2 dated 17.1.2001 and 003 826/4100619-1 dated 26.2.2001 for Tk. 50.00 lac each total Tk. 1 rore purchased against share capital of Jamuna Bank Ltd. It is relevant to be mentioned that this deponent worte a letter to the said Exim Bank Branch to stop encashment of the said FDRs some unsettled issues pending with the Jamuna Bank but it is revealed that as per letter of intent dated 29.11.2000 was issued by Bangladesh Bank in favour of Mr. M.A. Khair, Chairman of the Jumana Bank Ltd, that the sid FDRs is under strict control of Bangladesh Bank and the fact of the said FDRs shall be decided by Bangladesh Bank only. That the petitioner filed affidavit-in reply to the affidavit-in-opposition filedby respondent No.3 it was stated, inter alia, that with regard to the statements made in paragraph 3 and also repeated the same in the subsequent paragraphs 6-11 of the affidavit-in-opposition on misinterpreted the clause ‘Gha’ and Ta’ of the 29. fl.2000 and section J4(A) of the Bank Companies Act, 1991 in connection with the contributions of the petitioners to the paid up capital of the respondent No. 1 Bank and such interpretation as false, misleading, contradictory and not reflecting real picture of the matter and are denied by the petitioners. That it is relevant to be stated that clause 2 Gha and Ta of the letter of intent have on contradiction with the directions of the Bagladesh Bank’s letter of intent and the relevant provisions of the Bank Companies Act, 1991. Respondent No.3 admitted that he received the fund from the petitioners in the paragraph No. 14 of his affidavit-in-opposition and he duly admitted that he followed the procedure for other directors to deposit money as FDR in the schedule Bank. That following records of the affidavit of compliance of the Exim Bank Ltd in respect of account statement along with cheques shows that the respondent No.3 received contributions from the petitioners but instead of following the instruction of the letter of intent in favour o,r the petitioners the

respondent No.3 with collaboration of respondent Nos.2 and 4 deposited money as FDR in the scheduled bank in his own name, in the name of petitioner No.2, transferred fund for FDR to the account of the respondent No.2 and also transferred fund to the respondent No.l Bank inciuding drafting printing Memorandum and Articles of Association, publishing prospectus and in lieu of prospector hiring office, made payment of staff salary, fee’s charges, registration cost, lawyers’ fees and other necessary expenses in the following way: Date Cheque No. | Account Amount a) Respondent No.3 Mr. Arifur Rahman 7.1.20001 TFRFDR ISTD 031000852 jTk. 100.00.000 00 b) Prtitioner No.2 Mr. Ayesha Hussain’s FDR 17.1.2001 [Cash Arrangement forlTk. 50,00,000.00 FDR Vide Cheque No. 085884 dt. 17.1.2001 TK. 100.00,000.00 26.2.2001 STD 100987 cash Md. Nur Hussainfor FDR STD 031000852 Total Tk. 100,00,000.00 c) Respondent No.3 Alhaj M.A. Khair 17.2.2001 100982 STD31000852 Tk. 100.00.000.00 12.4.2001 102992 Do Tk. 10,000.00 18.6.2001 149489 Do Tk. 30,000.00 Total Tk. 100.40.000.00 d) Respondent Nos. 1 and 4; Jamuna Bank Limited and its Managing Director Mr. Saiiman Khan Majlish. 29.1.2001 085373 STD The Muslim Ltd Tk. (Landlord oi’JBL) 4.55.00000<