Rupali Bank Ltd Vs. Tobacco Industries Ltd

Rupali Bank Ltd (Petitioner)

Vs.

Tobacco Industries Ltd. and others (Respondents)

 

Supreme Court

Appellate Division

(Civil)

JUSTICES

Shahabuddin Ahmed CJ

MH Rahman J

ATM Afzal J and

Latifur Rahman J.

Judgment : July 20th, 1993.

Lawyers :

Shaheed Alam, Advocate, Supreme Court, instructed by Md. Sajjadul Huq, Advocate-on -Record – For the Petitioner.

Not represented -For the Respondents.

Civil Petition for Leave to Appeal No. 200 of 1992.

JUDGEMENT

 Shahabuddin Ahmed CJ.- Petition Rupali Bank, filed Money Suit No. 94 of 1989, re?numbered as Money Suit No. 187 of 1991, in the Court of Subordinate Judge-cum- Commercial Court No. 1, Dhaka, against defendant No. 1, a Private Ltd. Company and its directors, defendants Nos. 2-6 for realisation of Taka 89 lac and some odd. But, on an application by the said directors-defendants, their names were struck off by the Subordinate Judge, by an order dated 12 June, 1990, and in their place some other persons, namely opposite parties Nos. 7-11, were impleaded as defendants. This order was sought to be reviewed by the petitioner, but the review petition was dismissed. Thereupon, the petitioner (plaintiff filed a revisional application (Civil Order No. No. 348 of 1992), but it was summarily rejected by the High Court Division, by an order dated 26 January, 1992, on the ground of limitation. Petitioner is now seeking leave to appeal from this order.

2. Mr. Shaheed Alam, learned Advocate for the Petitioner, has submitted that exclusion of the Directors who had given guarantee “both collectively and severally” for the Bank’s loan, seriously prejudiced the petitioner-bank’s Suit and that to do “complete Justice” to the petitioner, leave may be granted for considering the glare impropriety of the Shahabuddin Ahmed CJ trial Court’s order striking off the names of the defendants guarantors. The High Court Division found that the order dated 12 June, 1990, striking these defendant’s names was passed in presence of the petitioner’s lawyer, but no action was taken within 10 months after which the review Petition was filed and further that in the review petition, the petitioner did not give any explanation for the delay in seeking the remedy. The learned Advocate has pointed out that it is the defendants-directors who had given surety, but their names were struck off merely on their application that they had sold away their interests to other persons, namely opposite parties Nos. 7-11; no paper was also shown for the alleged transfer. It was further found that the transferees, namely opposite parties Nos. 7-11, had given no surety to the Bank, and as such, the suit against them will be useless, learned advocate has argued.

3. There is, of course, some substance in the argument that the order of the trial Court striking off the names of the defendants-guarantors is improper, but it was passed in presence of the Bank’s representative; no action was taken in time to seek remedy from the superior Court within die period of about ten months. It appears that the impugned order of trial Court was obtained and the application for correction of the order was delayed, at the connivance of the Bank’s officials concerned. The High Court Division, therefore, did not do any wrong in rejecting the application for revision on the ground of limitation.

4. As to the prayer for complete justice under Article 104 of the Constitution, this provision should not be resorted to in the case of laches on the part of a financial institution like the petitioner bank, which should better take action against its own wrong doers, if any.

The Petition is dismissed.

Ed.

Source : 46 DLR (AD) (1994) 190

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