Oriental Bank Ltd. former Al-Baraka Bank Bangladesh Ltd. Vs. A B Siddiq (Ludu)

Oriental Bank Ltd. former Al-Baraka Bank Bangladesh Ltd. (Petitioner)

Vs.

A B Siddiq (Ludu) (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Md. Ruhul Amin CJ

MM Ruhul Amin J    

Md. Joynul Abedin J 

Md. Abdul Matin J

Judgment

November 4, 2007.

Cases Referred to-

Secretary Ministry of Works vs. Hasner Jahan Ahad 6 BLC (AD) 111; Chittagong Engineering and Electric Supply Co Ltd vs. Income Tax Officer 22 DLR (SC) 443; Bangladesh, Ministry of Works vs. Md Jalil 49 DLR (AD) 26.

Lawyers Involved:

Sayyid Shahid Hussain, Advocate instructed by Habibur Rahman Miah, Advocate-on-Record—For the Petitioner.

Abdus Samed, Senior Advocate instructed by Firoz Shah, Advocate-on-Record—For Respondent No. 1.

Not Represented—Respondent Nos. 2-3.

Civil Petition for Leave to Appeal No. 817 of 2005.

(From the judgment and order dated 27-4-2004 and 2-4-2005 passed by the High Court Division in Writ Petition No. 2235 of 2000).

Judgment

                 Md. Abdul Matin J. – This petition for leave to appeal is directed against the judgment and order dated 27-4-2004 and 2-4-2005 passed by the High Court Division in Writ Petition No. 2235 of 2000 discharging the Rule by majority decision and refusing to interfere with decree of Artha Rin Adalat No. 4, Dhaka dismissing the suit as against guarantor respondent No.1.

2. The facts, in short, are that the petitio­ner “The Oriental Bank Ltd.’’ (previously Al-Baraka Bank, Bangladesh Limited) is a Bank­ing Company incorporated in Bangladesh and carries on baking business, among other places, at the aforesaid address.

3. The respondent No. 2 is the owner of a business firm MS Salmon Trading who opened Current A/C No.100874 with the petitioner Bank. The said account was operated by res­pondent No. 1 AB Siddiq (Ludu) under a power of attorney (Letter of Mandate) on behalf of respondent No. 2.

4. In 1988 respondent Nos.1 and 2 applied to the petitioner Bank for granting LC opening facilities for importing fax machines from Singapore at 10% margin. The petitioner vide letter dated 14-7-1988 granted the faci­lity on the terms and conditions that the facility must be secured by personal guarantee of res­pondent No. 1 AB Siddiq and on the basis there of respondent Nos. 1 and 2 opened LG dated 21-7-1988 and 23-7-1988 for US$ 78,000 and US$ 14,950 totaling US$ 92,950 for importing the said fax machines. To secure the entire faci­lities respondent No.1 executed Letter of Gua­rantee, Demand Promissory Note, which were exhibited in the trial Court. Besides those, res­pondent No.1 executed all charge documents/ BM agreement.

5. Although two LCs were opened for 143 fax machines, only 120 machines were shipped and arrived at Chittagong Port. To avoid demurrage and pilferage in the port the petitioner requested respondent Nos.1 and 2 to release the goods on urgent basis upon pay­ment of all dues of customs and other autho­rities. But respondent No. 1 by letter dated 19-9-1988 requested the petitioner to release the said 120 fax machines on payment of customs duty, sales tax and other charges against faci­lity like Murabaha. Respondent No. 1 also undertook to release the said goods within 90 days from the petitioner’s custody. The peti­tioner accordingly released the goods by pay­ing all dues and also 90% of the LC money to the supplier.

6. The respondent No.1 having failed to release the goods on payment of the petitioner’s dues applied to the petitioner to release 34 machines against trust receipt dated 22-10-1988, 28-104988 and 20-10-1988. Respondent No.1 released total 10+20 machines at the record price of Taka 4, 06,743 and Taka 8, 13,485 against trust receipts on the conditions that the respondent No.1 shall pay the sale price with­in 30 days or return the goods. But the respon­dent No. 1 in violation of the terms of trust receipt did not deposit the same price except Taka 8, 77,500. Respondent No.1 having thus committed criminal breach of trust the Bank instituted criminal case against him which is still pending for disposal. The respondent Nos. 1 and 2 thus having failed to release the goods from the godown of the petitioner’s Bank and failed to pay the balance price of the goods received under Letter of Trust the peti­tioner filed Money Suit No. 53 of 1995 in 4th Artha Rin Adalat, Dhaka for recovery of Taka 93,63,623.50 as on 30-7-1995.

7. The respondent No. 2, proprietor of Salmon Trading, who was defendant No. 1 in the suit, filed written statement and denied the liability saying that respondent No. 1 AB. Siddiq i.e. defendant No. 2 requested him to allow respondent No. 1 to import fax machine through the aforesaid account of respondent No. 2. It is respondent No. 1 who requested the bank to release the goods on payment of all duties against Murabaha Commercial facility, 30 fax machines were also taken delivery by respondent No.1 from the bank under trust receipts. So, the entire liability goes to res­pondent No.1.

8. The respondent No.1 the guarantor of the liability filed separate written statement. The respondent did not deny the assertion of the petitioner bank that he (respondent No. 1) executed letter of Guarantee, Demand Promissory Note and other documents jointly secur­ing the liability to the Bank. He also did not deny that on his request the LG was opened, goods were released on payment of duties and some machines were handed over to him against trust receipts.

9. The Artha Rin Adalat decreed the suit only against the respondent No. 2 and dismis­sed the suit against the respondent No.1 the guarantor. As against the judgment and decree though an appeal was the alternative remedy but instead the writ petition was filed before the High Court Division and Mr. Justice Shamim Hasnain made the Rule absolute holding that the Court ought to have decreed the suit against the guarantor and the writ petition is maintainable and, on the other hand, the other Judge/Mr. Justice Imman Ali discharged the Rule holding that the writ petition is not main­tainable and the petitioner did not come to the High Court Division with clean hands as the letter dated 26-1-2000 is a manufactured one. The matter was referred to the 3rd Judge and Mr. Justice Ali Asgar Khan by his judgment and order dated 2-4-2005 discharged the Rule on the ground that the petitioner bank did not come to the Court with clean hands.

10. The learned Counsel appearing for the petitioner submits that the High Court Divi­sion acted illegally in discharging the Rule and not decreeing the suit against respondent No.1 who admittedly secured the liability by exe­cuting letter of guarantee Annexure-‘D’ (Exhi­bit 3) DP Note Annexure-D(1)(Exhibit 4)(Gha) and all other charge documents as found by the majority Judges.

11. The learned Counsel further submits that the discharge of Rule by the High Court Division is illegal in view of the fact that majo­rity Judges of the High Court Division had found that “the writ petition filed by the petitioner Bank under Article 102 (2) (a) is quite maintainable in the facts and circumstances of the case and also in view of the principles as enunciated in 6 BLC (AD) 221, 22 DLR (SC) 443, 49 DLR (AD) 26 and having further found that the learned Subordinate Judge/ Artha Rin Adalat acted against law in not decreeing the Suit against respondent No. 1 (the guarantor) who admittedly signed the Letter of Guarantee, DP Note, charge documents, etc.

12. The learned Counsel lastly submits that the facts stated in the writ petition that the Bank could not file appeal in time due to wrong information of the conducting lawyer vide Annexure-“K” and the statement of the Bank having not been disputed/denied by res­pondent No. 1, the findings of the majority Judges of the High Court Division that the letter Annexure-K is manufactured or the Bank has not come in writ jurisdiction with clean hands are erroneous.

13. Heard the learned Counsel and per­used the judgment of the High Court Division and other papers on record.

14. It appears that the judgment of the Artha Rin Adalat was appealable under the Artha Rin Adalat Ain, 2003 and instead of fil­ing the appeal in time the petitioner manufac­tured letter dated 26-1-2000 in order to justify their failure to file appeal in time. The remedy in the writ jurisdiction is an equitable one and to seek the same one must come with clean hands and since two Judges of the High Court Division held that the petitioner did not come to the High Court Division with clean hands have rightly found the writ petition as not maintainable.

15. This finding of the High Court Divi­sion does not suffer from any infirmity calling for interference by this Division.

In such view of the matter we find no merit in this petition which is accordingly dismissed.

Ed.

Source: 13 BLC (AD) (2008) 144

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