The City Bank Limited Versus X Food Products Limited

DISTRICT: KHULNA

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. OF________

IN THE MATTER OF:

An application under Section 115 of the Code of Civil Procedure.

AND

IN THE MATTER OF:

The City Bank Limited

Head Office

Jiban Bima Tower

10, Dilkusha Commercial Area

Dhaka-1000

And

Khulna Branch

7 Sir Iqbal Road

Khulna

Defendant/Petitioner

Versus

X Food Products Limited

27 Sher-e-Bangla Road

Khulna

Plaintiff/Opposite-party

AND

IN THE MATTER OF:

Order No. 1 dated 20.03.2006 and Order No. 2 dated 21.03.2006 passed by Mr. Md. Shafiqur Rahman, Joint District Judge, 1st Court at Khulna in Title Execution Case No. 2 of 2006 registering the Execution Case and passing an order of attachment under Order XXI, Rule 51 and 52 of the Code of Civil Procedure attaching the Cheques in the custody of the petitioner and in Petition Case No. 319C of 2006 pending before the Chief Metropolitan Magistrate, Khulna.

PETITION VALUED AT TK. 5,00,00,000.00 ONLY

BEING SUIT VALUED AT TK. 5,00,00,000.00 ONLY

To:

Mr. Justice Syed J. R. Muddasir Husain, the Chief Justice of Bangladesh and his companion justices of the Hon’ble Supreme Court.

The humble petition of the petitioner above named most respectfully

SHEWETH:

01. That this revisional petition is filed against Order No. 1 dated 20.03.2006 and Order No. 2 dated 21.03.2006 passed by Mr. Md. Shafiqur Rahman, Joint District Judge, 1st Court at Khulna in Title Execution Case No. 2 of 2006 registering the Execution Case and passing an order of attachment under Order XXI, Rule 51 and 52 of the Code of Civil Procedure attaching the Cheques in the custody of the petitioner and in Petition Case No. 319C of 2006 pending before the Chief Metropolitan Magistrate, Khulna. The impugned orders are ex-facie illegal in that the decree dated 12.03.2006 which has been sought to be executed in the said Title Execution Case No. 2 of 2006 is a decree by which plaint of the opposite-party in Title Suit No. 2 of 2006 was rejected under Order VII, Rule 11(d) of the Code of Civil Procedure and the order of attachment has been passed in violation of various provisions of Order XXI of the Code of Civil Procedure. As such by the impugned orders the learned Court below has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned orders are liable to be set aside.

02. That the petitioner is a banking company incorporated under the Companies Act having its Head Office at the address given in the cause title. It carries on banking business within the territory of Bangladesh through its various branches including its Khulna Branch at the address given in the cause title (hereinafter referred to as the petitioner Bank).

03. That the opposite-party is a company incorporated under the Companies Act, 1913 having registered office at the address given in the cause title. It carries on the business of importing, manufacturing and distribution of different kinds of edible oils.

04. That the opposite-party is a borrower of the petitioner Bank. In the course of its business the opposite-party along with its tow sister concerns – Makkah Poultry Feeds Limited and M/S X Sons availed the following credit facilities from the petitioner Bank vide Head Office Sanction Letter dated 10.05.2003:

Sl Nature of Credit Limit
1. Letter of Credit Tk. 21,50,00,000.00
2. LIM (inner facility) Tk. 6,00,00,000.00
3. LTR (inner facility) Tk. 4,00,00,000.00

Copy of the Head Office Sanction Letter dated 10.05.2003 is annexed herewith and marked as ANNEXURE-“A”.

05. That as security for repayment of the loan the opposite-party mortgaged its property in favour of the petitioner Bank. At the request of the opposite-party the aforesaid credit facilities were subsequently renewed vide Head Office Sanction Letters dated 28.12.2004 and 31.03.2005 till 30.09.2005.

Copies of the Head Office Sanction Letters dated 28.12.2004 and 31.03.2005 are annexed herewith and marked as ANNEXURES-“A(1)” and “A(2)”.

06. That although huge liabilities were stuck up, the opposite-party did not make any attempt to adjust the said liabilities. However, on 22.09.2005 the opposite-party submitted Cheque No. 1795373 dated 16.10.2005 for Tk. 2,00,00,000.00 only drawn on Standard Chartered Bank towards partial adjustment of its liabilities and made commitment to adjust the entire liabilities expeditiously. However, subsequently the opposite-party vide letter dated 16.10.2005 requested the petitioner Bank not to present the aforesaid Cheque for payment at the moment and sought for two months time to adjust the liabilities.

Copies of the letters dated 22.09.2005 and 16.10.205 are is annexed herewith and marked as ANNEXURES-“B” and “B(1)”.

07. That despite expiry of the said two month, the opposite-party did not adjust its huge outstanding liabilities with the petitioner Bank, rather on 01.01.2006 surreptitiously filed Title Suit No. 02 of 2006 in the Court of Joint District Judge, 1st Court, Khulna against the petitioner Bank for the following relief:

“A_©FY Av`vjZ AvBb 2003 mv†ji 46 aviv Abyhvqx gÄyixK„Z UvKvi 25% UvKv weev`x e¨vs†K Rgv nIqvq AvMvgx Bs 12/5/2007 ZvwiL ch©šZ Aewkó UvKv cwi†kv†ai †¶†Î mgq cvB†Z ev`x †Kv¤cvbx AwaKvix g†g© ev`x †Kv¤cvbxi AbyKy†j Ges weev`x e¨vs†Ki weiy†× †Nvlbv cªPvi eve` wWµx nq”

Copy of the plaint is annexed herewith and marked as ANNEXURE-“C”.

08. That the petitioner Bank appeared in the suit and on 22.01.2006 filed an application under Order VII, Rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground that the same is barred by the provisions of Artha Rin Adalat Ain, 2003.

Copy of the application is annexed herewith and marked as ANNEXURE-“D”.

09. That after hearing, the learned Court below vide judgement dated 05.03.2006 and decree dated 12.03.2006 allowed the application filed by the petitioner Bank and accordingly rejected the plaint. However, the learned Court directed the petitioner Bank to file suit in the Artha Rin Adalat under the relevant provisions of the Artha Rin Adalat Ain, 2003 for recovery of loan, if any and not to file any malicious prosecution in any other Court. In this connection it is submitted that the petitioner Bank had no intention to file any malicious prosecution.

Certified copy of the judgement dated 05.03.2006 and decree dated 12.03.2006 are annexed herewith and marked as ANNEXURES-“E” and “E(1)”.

10. That in the meantime since the opposite-party did not adjust its outstanding liabilities, the aforesaid Cheque No. 1795373 dated 16.10.2005 for Tk. 2,00,00,000.00 only was presented by the petitioner Bank on 07.02.2006 for payment. But the said Cheque was returned unpaid with remark “Insufficient Fund”. Consequently, Notice dated 08.02.2006 under section 138 of the Negotiable Instrument Act, 1881 and was served upon the Managing Director and three other Directors on 16.02.2006. Since the said persons failed to pay the Cheque amount within 15 days from the date of receipt of the Notice, i.e. within 03.03.2006, the petitioner Bank was compelled to file Complaint Petition No. 319C of 2006 before the Chief Metropolitan Magistrate, Khulna under section 138, 140 and 141 of the Negotiable Instrument Act, 1881 on 14.03.2006 against the Managing Director and three other Directors of the opposite-party whereupon warrant of arrest was issued by the learned Magistrate.

Copies of the Notice dated 08.02.206 and Complaint Petition No. 319C of 2006 are annexed herewith and marked as ANNEXURES-“F” and “F(1)”.

11. That upon receipt of the information of issuance of warrant, the opposite-party filed Title Execution Case No. 2 of 2006 in the Court of Joint District Judge, 1st Court at Khulna on 20.03.2006 along with application for attachment whereupon the learned Court passed the impugned orders registering the Execution Case and attaching all the Cheques in the custody of the petitioner Bank and the aforesaid Cheque No. 1795373 dated 16.10.2005 for Tk. 2,00,00,000.00 only in Petition Case No. 319C of 2006 pending before the Chief Metropolitan Magistrate, Khulna against the Managing Director and other Directors of the opposite-party.

Certified copy of the Execution Application is annexed herewith and marked as ANNEXURE-“G”.

12. That it is stated that the present total outstanding liabilities of the opposite-party along with its sister concerns with the petitioner Bank is Tk. 18,51,52,213.27 only as on 06.04.2006 out of which the liabilities of the opposite-party is Tk. 2,03,49,358.26 (Taka two crore three lac forty nine thousand three hundred fifty eight and Paisa twenty six) only.

13. That it is submitted that the learned Court below failed to consider that by the judgement dated 05.03.2006 and decree dated 12.03.2006 the learned Court rejected the plaint. As such it is a decree of dismissal, which cannot be executed. Further, since there was no executable decree, no Execution Case can be registered for execution of the decree. As such by the impugned orders the learned Court below has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned orders are liable to be set aside.

14. That it is further submitted that the learned Court failed to construe the provisions regarding attachment as laid down in the Code of Civil Procedure. Pursuant to the provision of Order XXI, Rule 10 of the Code of Civil Procedure the “decree holder” shall apply to the Court for execution of the decree. But in the instant case no decree having been passed and no order capable of execution having been made in favour of the opposite-party, the opposite-party is not a “decree-holder” within the meaning of section 2(3) of the Code of Civil Procedure. As such by the impugned orders the learned Court below has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned orders are liable to be set aside.

15. That it is also submitted that the learned Court has failed to understand that pursuant to the provision of Order XXI, Rule 30 of the Code of Civil Procedure a decree can be executed, inter alia, by the attachment and sale of the property of the “judgement-debtor”. In the instant case no decree having been passed and no order capable of execution having been made against the petitioner Bank, the petitioner Bank is not a “judgement-debtor” within the meaning of section 2(10) of the Code of Civil Procedure. As such by the impugned orders the learned Court below has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned orders are liable to be set aside.

16. That being aggrieved by and dissatisfied with the Order No. 1 dated 20.03.2006 and Order No. 2 dated 21.03.2006 passed by Mr. Md. Shafiqur Rahman, Joint District Judge, 1st Court at Khulna in Title Execution Case No. 2 of 2006 registering the Execution Case and passing an order of attachment under Order XXI, Rule 51 and 52 of the Code of Civil Procedure attaching the Cheques in the custody of the petitioner and in Petition Case No. 319C of 2006 pending before the Chief Metropolitan Magistrate, Khulna, the petitioner Bank above named beg to file this revisional petition on the following amongst other –

GROUNDS

I. For that the learned Court below failed to consider that by the judgement dated 05.03.2006 and decree dated 12.03.2006 the learned Court having rejected the plaint, it is a decree of dismissal, which cannot be executed and since there was no executable decree, no Execution Case can be registered for execution of the decree. As such by the impugned orders the learned Court below has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned orders are liable to be set aside.

II. For that the learned Court failed to construe the provisions regarding attachment as laid down in the Code of Civil Procedure. As such by the impugned orders the learned Court below has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned orders are liable to be set aside.

III. For that pursuant to the provision of Order XXI, Rule 10 of the Code of Civil Procedure the “decree holder” shall apply to the Court for execution of the decree, but in the instant case no decree having been passed and no order capable of execution having been made in favour of the opposite-party, the opposite-party is not a “decree-holder” within the meaning of section 2(3) of the Code of Civil Procedure and as such by the impugned orders the learned Court below has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned orders are liable to be set aside.

IV. For that the learned Court has failed to understand that pursuant to the provision of Order XXI, Rule 30 of the Code of Civil Procedure a decree can be executed, inter alia, by the attachment and sale of the property of the “judgement-debtor”, but in the instant case no decree having been passed and no order capable of execution having been made against the petitioner Bank, the petitioner Bank is not a “judgement-debtor” within the meaning of section 2(10) of the Code of Civil Procedure and as such by the impugned orders the learned Court below has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned orders are liable to be set aside.

V. For that the impugned order is otherwise illegal and liable to be set aside.

Wherefore, it is humbly prayed that the Hon’ble Court may be pleased to issue Rule calling upon the plaintiff/opposite party to show cause as to why the Order No. 1 dated 20.03.2006 and Order No. 2 dated 21.03.2006 passed by Mr. Md. Shafiqur Rahman, Joint District Judge, 1st Court at Khulna in Title Execution Case No. 2 of 2006 registering the Execution Case and passing an order of attachment under Order XXI, Rule 51 and 52 of the Code of Civil Procedure attaching the Cheques in the custody of the petitioner and in Petition Case No. 319C of 2006 pending before the Chief Metropolitan Magistrate, Khulna shall not be set aside and after hearing the parties and cause shown, if any, make the Rule absolute;

AND

Pending hearing of the Rule, stay all further proceedings of Title Execution Case No. 2 of 2006 pending before the Joint District Judge, 1st Court, Khulna.

AND

Cost of the proceeding be awarded in favour of the petitioner; and/or pass such other or further order or orders as may be deemed fit and proper.

And for this act of kindness the petitioner as in duty bound will ever pray.

AFFIDAVIT

I, __________________, son of ____________________, Executive Officer, The City Bank Limited, Khulna Branch, 7 Sir Iqbal Road, P.S. Kotwali, Khulna, aged about 42 years, by faith __________, profession service, nationality Bangladeshi, do hereby solemnly affirm and say as follows:

01. That I am the Tadbirkar of the petitioner in this case and acquainted with the facts and circumstances of the present case and competent and authorised to swear this Affidavit.

02. That the statements of facts made in this petition are true to my knowledge based on documents and matters of records, which I verily believe to be true and the rests are submission before this Hon’ble Court.

Prepared in my office:
DEPONENT
Advocate The deponent is known to me and identified by me.
Solemnly affirmed before me by the said deponent on this the _________ day of ________ at _______ a.m. Advocate
Commissioner of Affidavits

Supreme Court of Bangladesh

High Court Division