Sonali Bank Vs. Quaderia Publications and Products Limited and others

Sonali Bank (Petitioner)

Vs.

Quaderia Publications and Products Limited and others (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Mahmudul Amin Chowdhury CJ

Md. Ruhul Amin J

K.M. Hasan J

Judgment

May 5, 2002.

Lawyers Involved:

Rokon Uddin Mahmud, Senior Advocate, instructed by Sharif Uddin Chaklader, Advocate-on-Record- For the Petitioner.

Rafiqul Huq, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For Respondent No.1 

Mrs. Tania Amir, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record- Respondent No. 3.                                     

Not represented- Respondent Nos. 2 & 4.

Civil Petition for leave to Appeal No. 511 of 2000.

Judgment K.M. Hasan J .- The petitioner seeks leave to appeal against the judgment and order dated 27.1.2000 passed by a Division Bench of the High Court Division in Writ Petition No.1370 of 1999 making the rule absolute.

2. The fact leading to the leave petition are that the respondent No.1 company opened a letter of credit on 7.10.1987 for importing machineries which were released by trust receipt. On 23.9.1989 it requested for conversion of trust receipt into a project loan. The petitioner, Sonali Bank by sanction letter dated 30.1.1990 granted the project loan by conversion of the Trust receipt facility for total outstanding of Tk. 2,16,55,000.00 of which Tk. 1,57,77,308.00 was principal and Tk. 58,77,692.00 was interest with a condition that the loan should be repaid in five years in two equal-half yearly installments. Against the loan securities were given by mortgaged land and building, hypothecation of machineries and the personal guarantees of directors.

3. In the meantime, Bangladesh Bank issued a memo dated 7.10.1991 directing all the banks to allow waiver of 75% of general interest and 100% penal interest where no suit has been filed. Accordingly, the petitioner, Sonali Bank published notice in the newspaper inviting application for availing waiver upon deposit of 10% of the outstanding.

4.  The respondent company filed necessary application for waiver and deposited more than 10% of the outstanding dues. It paid the interest amount before making the claim but the management credit committee of the Bank refused to allow the 75% waiver. On 11.4.1994 the respondent company prayed to Sonali Bank for extension of time for repayment as it defaulted in paying installments because of loss cause Cyclone in 1991. Accordingly, Sonali Bank on 2.10.1994 allowed new repayment schedule of 27 installments every two months. In 1995 the respondent company found itself in serious difficulties due to political unrest. Yet it adjusted the entire principal sum of Tk. 2, 28, 11,977.00 including interest of Tk.6, 77,326.00 up to 31.12.1994. It then requested for waiver of 100% balance interest. But there was no reply. It wrote on 5.12.1995 for 100% waiver of interest. On 16.1.1996 the petitioner, Sonali Bank prepared waiver of interest of Tk.36.34 lakh, which was not even 20%. On condition of payment of the balance dues within 102 days. The respondent company could not accept it.

5. The respondent  No.1 claim to have acquired  a  vested  right  on  the  basis  of aforesaid Bangladesh Bank memo. It also claims that Sonali Bank is stopped from denying 75% waiver. Therefore, the writ petitioner filed another petition on 26.11.1998 praying for waiver of 75% interest as granted to other borrowers but to-not effect. Under the  circumstances the respondents filed the aforesaid writ petition in the High Court Division challenging the impugned letter dated 24.3.1999 threatening the respondent company with legal action. The High Court Division of hearing both sides made the rule absolute on the ground that the respondents had acquired a vested right on the basis of the Bangladesh Bank memo and the petitioner was estopped from denying the exemption of waiver of interest as proposed in the said memo. The High Court Division further directed the petitioner to allow the respondents waiver of 75% interest. It further came to the conclusion that allowing 40% exemption ignoring the recommendation of waiver of 75% by Bangladesh Bank, the controlling authority was unreasonable and arbitrary. It also came to the finding that the impugned order was discriminatory as other companies standing on the same footing with the petitioner had been allowed waiver from 70% to 96% whereas the petitioner was victimized on political ground.

6. The learned Advocate for the petitioner submits that the waiver of interest to a client is dependant on the performance of the client and therefore, the petitioner is not entitled to claim the same waiver as granted to others and in that view of the matter the High Court Division was wrong in directing the petitioner to grant waiver of 75% interest to the writ petition.

7. We have considered the submission of the learned Advocate and gone through the judgment of the High Court Division. We do not find any illegality in the judgment of the High Court Division.

8. The learned Advocate failed to show any infirmity and illegality in the judgment of the High Court Division calling for our interference.

The leave petition is dismissed.

Ed.

Source: 17 BLT (AD) (2009) 148.

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