Ziauddin Ahmed and others Vs. Arab Bangladesh Bank and others

Appellate Division Cases

(Civil)

PARTIES

Ziauddin Ahmed and others ………………………………Appellants

-VS-

Arab Bangladesh  Bank and others………….. Respondents

JUDGES

Latifur Rahman CJ

Mainur Reza Chowdhury J

Mohammad Golam Rabbani J

Md. Ruhul Amin J

Date of Judgment

18th February 2001

Order 39 Rule 1 and section 151 of the Civil Procedure Code

Section 103 of The Bank Companies Act, 1991

The relationship between the Bank and the customer is a contractual relationship of the debtor and creditor, wherein the money is kept in deposit in the Bank on condition that any of the account-holder or the survivor may operate the accounts. As a matter of fact in the modern banking system this practice is prevalent all over the world and the same is based on the principle that the deposit is made and the terms of operation is embodied in the form of contract of deposit at the time of opening of the bank account. The account being opened with a specific condition setting the act of operation of payment, the Bank is bound to comply with the condition on which it was accepted the deposit. In that view of the matter the learned Judges of the High Court Division were perfectly correct in holding that prima facie the Bank where the money is deposited on the basis of a contract the bank cannot be injuncted (7)

The question of nomination comes as per sub-section (1) of Section 103 of the Act in the event of death of depositor or depositors. The nominee shall be titled to the payment to the exclusion of any other person. It therefore appears that the Bank shall be discharged of his obligation by making payment to such nominee (8)

ADVOCATES

Rokanuddin Mahmud, Senior Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-Record. For the Appellants. Rafiqul Huq, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-RecordFor the Respondent No. 1 Ozair Farooq, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate -on-Record.For the Respondent No.2. Ex- parte Respondent Nos. 3-4.

JUDGMENT

1. Latifur Rahman CJ : This appeal by the plaintiff appellants is against the judgment and order dated 7.12.1998 passed by a Division Bench of the High Court Division in First Miscellaneous Appeal No. 221 of 1995 reversing the judgment and order dated 8.7.1995 passed by the Subordinate Judge, First Court, Comilla in Title Suit No. 4 of 1995 arising out of an application for temporary injunction.

2. The appellants as plaintiffs filed Title Suit No.4 of 1995 against the respondent defendants contending, inter alia, that deceased Nuruddin Ahmed @ N. Ahmed was the elder brother of the plaintiff and the husband of defendant No. 1 who suddenly died on

3.11.1994 leaving behind many properties and that the deceased Nuruddin Ahmed @ N.

Ahmed had no children and as such his brother and sisters will obtain the shares of his

money and properties and his wife will obtain l/4th anna share of the deceased properties

and that late Nuruddin Ahmed was ill before his death and for his convenience he opened

joint fixed deposit accounts in the Bank with his wife Latifa Akter and that for the sake of

joint account defendant No. 1 Latifa Akter did not own the money alone after the death of

her husband and that defendant No.l Latifa Akter wanted to withdraw the money from the

Bank with an ill motive to deprive the plaintiffs and that if defendant Nos. 2 and 3 paid

the money to defendant No. 1 then the plaintiff will be deprived of their shares and it will

be difficult to realize the money from defendant No. 1 and as such the plaintiffs filed the

suit for declaration that the F.D.R. and saving accounts opened in the name of deceased N. Ahmed and Latifa Akhtar in the Banks of defendant respondent and invested a sum of

Tk. 3,00,000/- to one Mr. Babu Amar Krishna Saha by the deceased N. Ahmed with a contract of monthly return of Tk. 9,000/- which are owned by the plaintiffs in 3/4th share.

3. Defendant No. 1 contested the suit by filing written statement, her case in brief is that the deceased Noor Uddin Ahmed @ N. Ahmed earned a lot during his stay in U. K. He returned home with his first wife in 1985 along with his earned money and for the sake of transaction or operation of the accounts in time of illness or his unwillingness to go to Bank, he opened Joint F.D.R. accounts with his 2nd wife Latifa Akhter, Defendant No. 1

with arrangements of operation by either one of them. After the death of his first wife late

Nuruddin Ahmed willingly married defendant No. 1 and gifted her orally all his own earned money, moveable and immoveable properties in presence of the elite’s of the society.  Plaintiffs have been misbehaving with the defendant No.l and they did the same in the life time of late Nuruddin Ahmed, while thinking over the future security of defendant No.l late Nuruddin Ahmed opened Joint F.D.R. accounts and saving accounts and gave clear instructions that the accounts would be operated by either or survivor and therefore plaintiffs are not legally entitled to any share and their petition for injunction will be rejected.

4. Defendant No. 2 Arab Bangladesh Bank after filing the written objection did not contest the petition under order 39 Rule 1 and section 151 of the Civil Procedure Code, their Case in brief is that the application for injunction against defendant No. 2 is not maintainable and as such no injunction as prayed for by the plaintiffs can be granted in connection with the F. D. R. as stated in the First Schedule of the application for injunction. The fixed deposit of Tk. 13 lacs as stated in the first schedule legally belongs to Latifa Akhtar as survivor and in accordance with the special instructions contained in the account opening form. This sum of Tk.13 lacs do not belong to the estate of the deceased Nuruddin Ahmed @ N. Ahmed. As such the defendant cannot be legally restrained by an order of injunction to pay the said amount to defendant No. 1. After filing the aforesaid suit the plaintiffs filed a petition under Order 39 Rule 1 and section 151 of the Code of Civil Procedure. The trial Court granted ad interim injunction and after hearing the parties restrained the defendant- banks by an ad interim order of injunction not to pay 3/4th share to defendant No. 1 and directed the banks to pay 1/4 th to defendant No. 1.

5. Defendant No. 2 Arab Bangladesh Bank preferred F.M.A. No.221 of 1995 before the Hon’ble High Court Division and a Division Bench of the High Court Division and a Division upon hearing the parties allowed the appeal and reversed the judgment and order of the trial Court and refused the prayer for

injunction.

6. On the submission of Mr. Rokanuddin Mahmud, learned Advocate for the plaintiff-appellant leave was granted on the following two grounds: (1) The High Court was wrong in holding that the provision of section 103 of the Bank Companies Act, 1991 is applicable in the facts and circumstances of the case when the said provision has no manner of application in the present case as there was no nomination by the depositors in favour of anyone. (2) The High Court was wrong in its view that under the terms of the deposit that either account holder or survivor could operate the account the Bank could not be restrained from allowing withdrawal.

7. In the present case the account number in the Bank was opened in the name of late Nuruddin Ahmed and his wife defendant No. 1 and admittedly there was a direction in the account opening form that any of them may operate the accounts in the Bank or survivor. Strictly speaking, the relationship between the Bank and the customer is a contractual relationship of the debtor and creditor, wherein the money is kept in deposit in the Bank on condition that any of the account-holder or the survivor may operate the accounts. As a matter of fact in the modern banking system this practice is prevalent all over the world and the same is based on the principle that the deposit is made and the terms of operation is embodied in the form of contract of deposit at the time of opening of the bank account. The account being opened with a specific condition setting the act of operation of payment, the Bank is bound to comply with the condition on which it was accepted the deposit. In that view of the matter the learned Judges of the High Court Division were perfectly correct in holding that prima facie the Bank where the money is deposited on the basis of a contract the bank cannot be injuncted.

8. It may be mentioned that Mr. Rokanuddin Mahmud, the learned Advocate appearing for the appellants, cited certain decisions which are not relevant for our purpose in disposing the injunction matter. Before parting with this case it may be mentioned that the interpretation given by the learned Judges of the High Court Division in respect of sub-section (1) of Section 103 of the Banking Companies Act, 1991 has got no relevant in the facts of the present case. Although the learned Judges of the High Court Division considered sub section (1) of section 103 of the Act and gave the interpretation. Both Mr. Rokanuddin Mahmud and Mr. Rafique-Ul- Huq appearing for the parties submit that the question of nomination comes as per sub-section (1) of Section 103 of the Act in the event of death of depositor or depositors. The nominee shall be titled to the payment to the exclusion of any other person. t therefore appears that the Bank shall be discharged  of his obligation by making payment to such nominee. As a matter of fact, this provision

has no application in the facts of the present case.

9. Thus on a careful consideration we are of the view that the learned Judges of the High

Court Division correctly refused the prayer of injunction in the present case.

10. Consequently, the appeal is dismissed without any order as to cost.

Source: III ADC (2006) 885

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