Case No: Writ Petition No. 3183 of 2010
Judge: Md. Akram Hossain Chowdhury,
Court: High Court Division,,
Advocate: Mr. Md. Harun-Or-Rashid,Mr. Md. Mamunor Rashid,,
Citation: 3 LNJ (2014) 612
Case Year: 2014
Appellant: A. M. Zahidul Alom
Respondent: Government of Bangladesh and others
Subject: Writ Jurisdiction,
Delivery Date: 2013-11-21
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Mohammad Bazlur Rahman, J
Md. Akram Hossain Chowdhury, J
|A. M. Zahidul Alom
Government of the People’s Republic of Bangladesh, represented by the Cabinet Secretary, Bangladesh Secretariat, Ramna, Dhaka and others
It is a clear case of disputed question of fact, as to decide, who will be liable to pay the disputed amount of interest as claimed in the suit; that dispute could not be decided in a writ jurisdiction, rather, it requires oral and documentary evidence to be taken by the appropriate court of jurisdiction for its settlement. . . . (15)
Shamsunnahar Salam and others Vs Mohammad Wahidur Rahman and others, 51 DLR(AD) 232 ref.
Mr. Md. Harunur Rashid, Advocate
Mr. Md. Mamunur Rashid, Advocate
Writ Petition No. 3183 of 2010
On an application under article 102 of the Constitution, the petitioner, a defendant in Artharin Suit, obtained this rule nisi, challenging the legality and propriety of the order dated 18.03.2010 passed by Artha Rin Adalat No. 3, Dhaka in Artha Rin Suit No. 81 of 2009. The petitioner also sought for a direction to strike out his name as defendant from the Artha Rin Suit No. 81 of 2009.
The facts relavant for disposal of the rule, in brief, are that the petitioner, carrying on a business in manufacturing cloth and fabrics, in particular kitchen towel, under the name and style of M/S. Sun Textiles, a proprietorship firm, used to export its products abroad since 1998-2002 keeping good relationship with the respondent No.5 Janata bank. The respondent No.3, Bangladesh Bank vide its F.E. circular dated 02.10.1995 and the Janata Bank vide its F.D circular dated 10.06.1997 (Annexure- A & A(1) respectively) formulated the policy for providing cash incentive to those who were engaged in exporting the hand loom fabrics and textile products to abroad. As per the aforesaid circular the petitioner was entitled to get 25% cash incentive against the custom bond or duty draw back on his export bill through the respondent Janata Bank. In compliance to that the respondent Janata Bank has disbursed an amount of Tk. 3,92,488/- as cash incentive to the petitioner’s account against its export bills. Since the export bills of the petitioner have been placed before the respondent No.3, as per requirement of its circular dated 02.10.1995 the Bangladesh Bank (respondent No.3) was bound to repay the said amount to the (respondent No.5) Janata Bank. But the respondent Bangladesh Bank made some delay in repaying the cash incentive amount as disbursed by respondent Janata Bank in favour of the petitioner. The respondent Bangladesh Bank, is dealing with the cash incentive facilities as per decision of the Government and on this regard they published the circular dated 02.10.1995; thereby the respondent Bangladesh Bank was bound to adjust the same but failed to do so.
On this back drop the respondent Janata Bank, imposing interest thereon, filed Artha Rin Suit No. 103 of 2006, before the Artharin Adalat No.1, Dhaka, impleading therein the present petitioner as defendant No.1, for realizing its outstanding dues claimed at Tk. 6,51,712/-. The petitioner by filing a written statement on 18.04.2007 contested the suit contending inter-alia that the amount as claimed in the suit is relating to an amount which has been facilitated, in favour of the defendant-petitioner as cash incentive against its export bills, by the plaintiff Bank. As per their own circular, it was the obligation of Bangladesh Bank to adjust the same infavour of the plaintiff Janata Bank and the defendant-petitioner has no liability to repay the dues incurred against cash incentive as claimed in the suit; as such, the Bangladesh Bank is liable to repay the same and thereby Bangladesh Bank is a necessary party to the suit. Subsequently vide the Court’s order dated 16.07.2007 Bangladesh Bank was made a party to the suit as defendant No.2 and ultimately the suit was transferred to the Artha Rin Adalat No. 3, Dhaka and renumbered as Artha Rin Suit No. 81 of 2009.
During pendency of the suit the added defendant No.2 Bangladesh Bank has paid a partial claim of the plaintiff on 17.09.2009 and then the plaintiff Janata Bank by filing an application dated 16.11.2009 amended its plaint claiming for a decree of an amount of Tk. 2,59,224/-, interest accrued on the principal amount, instead of its earlier claim of Tk. 6,51,712/-. Thereafter, on 31.01.2010 this defendant-petitioner by filing an application under Order 1, Rule 10(2) of the Code of Civil Procedure read with Section 57 of the Artha Rin Ain, 2003 (Annexure-D) prayed for striking out his name from the suit contending inter alia that the Bangladesh Bank by its own circular dated 02.10.1995 was in obligation to repay the cash incentive as paid in advance by the plaintiff bank against the export bills of the defendant-petitioner and subsequently they repaid the same. Accordingly in admission to the said facts the plaintiff has amended its plaint. In such a position the defendant-petitioner has had no liability on the amount as claimed in the suit. The learned Judge of the Artha Rin Adalat No. 3, Dhaka by his order dated 18.03.2010 rejected the said application holding that since it is a disputed question of fact so, is required to be decided on recording evidence.
In this back ground, the defendant No.1 being petitioner moved before this Court in writ jurisdiction and obtained the present rule.
The plaintiff-respondent Janata Bank contested the rule by filing affidavit-in-opposition contending inter-alia that the defendant-petitioner has availed cash incentive facilities in advance from the respondent bank, securing the same, by creating charge document and indemnity bond and as such there is no scope to escape himself from the liability of the claimed amount which was an outstanding dues accrued on his account.
Mr. Md. Harunur Rashid, the learned Advocate appearing for the petitioner submitted that the amount as claimed shown in the plaint is relating to an amount in respect of cash incentive facilities provided in favour of the petitioner in compliance with the Bangladesh Bank circular dated 02.10.1995 and since the Bangladesh Bank by this time has paid the principal amount the defendant-petitioner has no liability to pay the interest as calculated thereon. He further submitted that the interest, if any, accrued for making repayment of the cash incentive in delay, should be paid by the Bangladesh Bank.
On the other hand Mr. Md. Mamunur Rashid appearing with Mr. Monirul Islam the learned Advocates for the respondent No. 5, Janata Bank submitted that though the added defendant Bangladesh Bank paid the outstanding dues in part but rest of the dues shown as the interest accrued thereon for making the repayment in delay; the defendant-petitioner being a beneficiary of that facilities is liable to pay the same. He further submitted that since the defendant-petitioner has created charge document and indemnity bond, securing the repayment of the amount as paid in advance by the plaintiff Bank, he is bound to pay the claimed amount shown as outstanding dues on his account.
Perused the writ petition and affidavit-in-opposition along with the annexures annexed therewith and considered the submissions of the learned Advocate for both sides. We have also gone through the impugned order dated 18.03.2010 passed by the learned Judge of the Artha Rin Adalat No. 3, Dhaka.
The admitted position is that the defendant-petitioner on certain conditions availed the cash incentive facilities in advance from the plaintiff bank and Bangladesh Bank, the added defendant as per their circular (Annexure-A), will have to adjust the same. During pendency of the suit Bangladesh Bank though made payment of a partial amount to the claim of the suit but it was done in a belated stage; thereby, the plaintiff-respondent bank by amending its plaint prayed for a decree of the rest amount of the claim contending that since the defendant-petitioner has availed the cash incentive facilities, creating charge document and indemnity bond on this regard, he is bound to pay the interest accrued on the same.
But Mr. Md. Harunur Rashid the learned advocate for the petitioner emphasis us on the fact that since, by this time, the principal amount as to the claim has been repaid and adjusted by the added defendant Bangladesh Bank, the liability of interest goes upon the Bangladesh Bank who made the repayment in delay. As such, the defendant-petitioner has no liability to pay the accrued interest as accrued on the principle amount.
In view of the above submissions of the respective parties it appears to us that since the respondent Bank denied the petitioner’s contention, so far as, the liability of the petitioner for making payment of the interest accrued on the principle amount though the said principle amount has already been paid by the added defendant Bangladesh Bank; that question of disputed fact could not be decided without taking evidence by an appropriate Court of Jurisdiction.
It reveals from the impugned order dated 18.03.2010 that the learned Judge of the Artha Rin Adalat after hearing on the petitioner’s application filed under Order 1, Rule 10(2) of the Code of Civil Procedure read with Section 57 of the Artha Rin Ain, 2003, held that- “স্বীকৃত মতেই বিবাদীপক্ষ বাদী ব্যাংকের নিকট থেকে ঋণ গ্রহন করিয়াছেন। উক্ত ঋণের টাকার শর্ত মোতাবেক বাংলাদেশ ব্যাংক কর্তৃক পরিশোধিত হইয়াছে এবং cash incentive এর টাকা বাবদ দাবীকৃত বাংলাদেশ ব্যাংক কর্তৃক পরিশোধিত অর্থ বাদী ব্যাংক আরজি সংশোধনপূর্বক বাদ দিয়া শুধুমাত্র আদায়কালীন সুদ বাবদ অত্র মোকদ্দমাটি পরিচালনা করিতেছেন। এক্ষেত্রে উল্লেখিতঋণের টাকা কাহার নিকট হইতে আদায়যোগ্য তাহা নির্ধারনের জন্য স্বাক্ষ্য প্রমান গ্রহনের আবশ্যকতা রহিয়াছে। মোকদ্দমাটি বর্তমানে অধিকতর চুড়ান্ত শুনানীর পর্যায় রহিয়াছে। এমতাবসহায় দালিলিক ও মৌখিক স্বাক্ষ্য প্রমান গ্রহন অন্তেই তর্কিত বিষয়টি নিস্পত্তিযোগ্য বলিয়া আমি মনে করি। সেমতে বিবাদীপক্ষের ৩১-০১-১০ তারিখের দেঃ কাঃ বিঃ আইনের ১ আদেশের, ১০(২) বিধি এবং অর্থঋণ আদালত আইন, ২০০৩ এর ৫৭ ধারার দরখাস¹ নামঞ্জুর করা হইল। আগামী ০৫-৪-২০১০ইং তারিখ F.P.H.”
On careful scrutiny to the above findings of the Artha Rin Adalat No. 3, Dhaka we find that no illegality has been done by the learned Judge of the Artha Rin Adalat, as because, the matter in dispute as raised by the defendant-petitioner is a disputed question of fact. In a series of decisions amongst those the case of Shamsunnahar Salam and others –Vs- Mohammad Wahidur Rahman and others, reported in 51 DLR(AD) 232 our Appellate Division held- “A writ Court cannot and should not decide any disputed question of fact which requires evidence to be taken for settlement”.
Having considered the above we are of the view that it is a clear case of disputed question of fact, as to decide, who will be liable to pay the disputed amount of interest as claimed in the suit; that dispute could not be decided in a writ jurisdiction, rather, it requires oral and documentary evidence to be taken by the appropriate court of jurisdiction for its settlement.
In the premises, the instant rule has got no merit. Accordingly, the rule is discharged without, however, any order as to costs. The learned Judge of the Artha Rin Adalat is at liberty to proceed with the Artharin Suit in accordance with law.