Case No: Civil Appeal No. 39 of 2000
Judge: Md. Ruhul Amin ,
Court: Appellate Division ,,
Advocate: Mr. Mahmudul Islam,Mr. Mvi. Md. Wahidullah,,
Citation: 58 DLR (AD) 129
Case Year: 2006
Appellant: Agrani Bank and other
Respondent: Essential Garments Ltd. and others
Delivery Date: 2006-01-24
Supreme Court of Bangladesh
Md. Ruhul Amin, J.
MM Ruhul Amin, J.
Md. Tafazzul Islam, J.
Agrani Bank and other
Essential Garments Ltd. and others
January 24, 2006.
The Constitution of Bangladesh, 1972,
The revenue authorities were not within their jurisdiction in setting aside the auction sale at the instance of a person who has not claimed title in the property sold in auction in the certificate proceeding initiated as per provisions of the Public Demand Recovery Act after lapse of about 12 years. The impugned order of the Senior Assistant Judge setting aside the order of the Revenue authority is restored………….(20 & 21)
Cases Referred To:
Bank of Maharashtra vs. Race Shipping and Transport Co Pvt. Ltd and another, AIR 1995 SC 1368; Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd. and others, AIR 1985 SC 330.
Mahmudul Islam, Senior Advocate, instructed by Md. Aftab Hossain. Advocate-on-Record— For the Appellants.
Md. Wahidullah, Advocate-on-Record-For Respondent Nos. 1 and 2.
Not represented— Respondent Nos. 3 and 4.
Civil Appeal No. 39 of 2000
(From the Judgment and Order dated January 3, 2000 passed by the High Court Division in Writ Petition No.60 of 2000)
The appeal by leave is against the order dated January 3, 2000 of a Division Bench of the High Court Division in Writ Petition No. 60 of 2000.
2. The writ petition was filed stating, inter alia, that the petitioners are involved in manufacturing and export of ready-made garments and enjoying loan, overdraft and banking facilities from the appellant Bank, that they have filed Title Suit No. 10 of 1998 seeking declaration that they do not owe any money on any account to the Bank i.e. the appellant, Agrani Bank, and, as such, they are not defaulter borrowers, that the claim of the Bank to the extent to Taka 8,19,63,687.70 is false and without foundation, that in the suit they have prayed for injunction and also for recovery of Taka 13,77,93,429.21 on account of damage and compensation, that the Bank has filed written statement in the suit, that status of the writ petitioners as loanee defaulters as alleged by the Bank has not yet been decided by the Court, that during the pendency of the suit Bangladesh Bank at the instance of the Agrani Bank i.e. the appellant, has included the name of the petitioners in the Credit Information Bureau (CIB) report arbitrarily and without giving reasonable opportunity to clear petitioners' position. The respondent Nos. 1 and 2 i.e. petitioners in the writ petition, challenged the said report before the High Court Division under Article 102(2) of the Constitution.
3. In the writ petition amongst the reliefs the following reliefs were sought:
4. The High Court Division on January' 3, 2000 upon hearing the writ petitioners issued Rule and thereupon passed the ad interim order which reads as:
5. The appellant being aggrieved by the aforesaid ad interim order preferred the appeal.
6. Leave was granted to consider the submissions that the reliefs sought are matters within the discretion of the appellant Bank to be exercised on commercial and business consideration with which the High Court Division except under very unusual and rare circumstances can interfere and the High Court Division was wrong in granting reliefs by way of interim order which the High Court Division is competent to grant even after hearing except under very special circumstances.
7. The learned Counsel for the appellant, submitted that the High Court Division being not competent to grant the relief sought then the said Division exceeded its jurisdiction in granting the ad interim relief which in effect amounted to granting full relief as regard which the writ petitioners have no right to claim in the writ petition and consequent thereupon were not entitled to the writ of mandamus.
8. The sum total of the contention of the learned Counsel of the appellants is that the High Court Division while granting the ad interim relief has virtually granting the whole relief sought in the writ petition.
9. The writ petitioners have challenged inclusion of their names in the CIB report being defaulter in the payment of loan received from the appellant Bank. It is seen from the materials on record that the respondent Nos. 1 and 2 have filed suit challenging the claim of the Bank against the said respondent Nos.1 and 2. The contention of the said respondents is that it has not been adjudicated by a competent Court that they are defaulters in the payment of loan obtained from the appellant Bank and, as such, inclusion of their name in the CIB Report was not legal. From the averments made in the writ petition it is seen that the respondent No. 1 owes to the Bank some amount and it is contended by the respondent No.1 that claim of the Bank was not correct. It may be mentioned the respondent Nos.1 and 2 (the respondents) have filed suit seeking reliefs, one of which is that claim of the Bank from the respondents is not legal and the respondents owe no amount on any account to the Bank.
10. The respondent Nos. 1 and 2 has sought for primarily, two reliefs, i.e. declaration that inclusion of their names in the CIB Report of Bangladesh Bank under Borrowers Code No. 10061 should be declared not legal and for deletion of their names from the CIB report, and the second relief to stay operation of the CIB report and to allow the respondent Nos.1 and 2 to continue transaction with the respondent No.4, the Bank.
11. The High Court Division after issuing the Rule, by an ad interim order has stayed the operation of the CIB report as well as directed the Bank to allow the writ petitioners to continue transaction with the Bank for 3 months.
12. The appellants have taken exception to the later part of the ad interim order i.e. directing the Bank to allow the writ petitioners i.e. the respondents, to continue transaction with it.
13. It appears from the materials on record that the Bank has stopped transaction with the respondents since they defaulted in the payment of loan. The said respondents have filed title suit seeking declaration that the claim made by the Bank against them was not legal and that they have also prayed for a decree for an amount of Taka 13,77,93,000 and odd against the Bank as damage and compensation.
14. The learned Counsel for the appellant has submitted that by the ad interim order the High Court Division has granted the entire reliefs sought for in the writ petition. It has also been submitted that whether the Bank would continue transaction with the respondents is a matter of commercial consideration of the Bank and, as such, no mandamus can be issued to the Bank to continue transaction with a particular customer, herein the respondents since a customer of the Bank has no vested right to claim continuation of transaction with the Bank and that a customer upon discharge of his obligation can only continue transaction with the Bank and that if the customer fails to discharge his obligation to the Bank, he cannot have an order from the Court to compel the Bank to continue transaction with the customer of his kind and as such the High Court Division was in error in passing the ad interim order directing the Bank to continue transaction with the respondents.
15. The point for consideration in the appeal is whether the High Court Division was in error in passing the ad interim order granting the entire relief sought for in the writ petition. The High Court Division by the ad interim order stayed operation of CIB Report and has directed the appellants to continue transaction with the respondents who instead of paying outstanding loan have filed suit seeking declaration that they did not owe any amount on any account including loan to the Bank. It appears as the respondents failed to clear the amount fallen due, the Bank has stopped transaction with the respondents. In that state of the matter the High Court Division by the ad interim order is forcing the Bank to continue transaction with the respondents who are defaulters in the payment of loan received earlier. In the aforesaid state of the matter we are of the view the High Court Division was in error in passing the ad interim order directing the Bank to continue transaction with the respondents since it is for the Bank to decide whether it will continue transaction with its particular customer, herein respondents, in a particular state of the matter. In the background of the facts and circumstances as noticed hereinbefore, it appears to us that the High Court Division by the ad interim order has given the entire relief to the writ petitioner.
16. The law is now settled that if the ad interim relief amounts to granting of entire relief sought in the proceeding the ad interim relief so granted is not legally well founded and granting of such ad interim relief has been deprecated by the Court whose judgment is binding on all Courts.
17. In the case of Bank of Maharashtra vs. Race Shipping and Transport Co Pvt. Ltd and another reported in AIR 1995 (SC) 1368 it has been observed-
"Time and again this Court has deprecated the practice of granting interim orders which practically give the principle relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations".
18. In the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd and others reported in AIR 1985 (SC), 330 it has been observed "It is indeed a great pity and, we wish we did not have to say it but we are afraid we will be signally failing in our duty if we do not do so, that some courts, of late, appear to have developed an unwarranted tendency to grant interim orders with a great potential for public mischief for the mere asking. We feel greatly disturbed. We find it more distressing that such interim orders, often ex parte and non speaking are made even by the High Courts while entertaining writ petitioners under Article 226 of the Constitution…… this court was forced to point out how wrong it was to make interim orders so soon as an application was but presented, when a second thought (or a second's thought) would expose the impairment of the public interest and, often enough, the existence of a suitable alternative remedy.
19. We deprecate the practice of granting interim order which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other relevant considerations.
20. We consider that where matters of public revenue are concerned, it is of utmost importance to realise that interim orders ought not to be granted merely because a prima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest".
21. In the instant case on the respondents' statement in the writ petition it is seen Bank's claim against them stands at Taka 8,19,63,000 and odds. The said amount has become due against the respondents out of their transactions with the Bank. According to the respondents, the claim of the Bank is illegal. The amount claimed by the Bank is outstanding against the loan advanced to the respondents. The contention of the parties as to outstanding amount is highly contentious and the same, prior to filing of the writ petition, is already subject matter of adjudication before the ordinary civil Court. It appears since the respondents defaulted in the payment of amount became due against loan received from the Bank; their names were included in CIB Report. In that state of the matter the High Court Division without considering the balance of convenience and the public interest has passed the ad interim order staying operation of CIB Report so far the same relates to writ petitioners and directed the Bank to continue transaction with the respondents although the Bank because of default made by the respondents in paying outstanding amount has discontinued transaction with them. In the background of the facts stating which writ petition has been filed and the ad interim relief sought in the writ petition it is apparent that the writ petition has been filed with the end in view to continue transaction with the Bank in spite of respondents being defaulters and thereupon their names having been listed in CIB report under Borrowers Code No. 10061 and for that they were debarred to continue transaction with the appellant Bank and also with other Banks.
22. This Division on number of occasions has held that the High Court Division while passing ad interim order or granting ad interim relief is to see that the order so passed or the relief so granted does not amount to granting of the entire relief(s) sought for in the substantive petition and in granting ad interim relief or in making ad interim order the High Court Division is to consider the conduct of the party seeking ad interim relief or asking for ad interim order and also to consider whether ad interim order if passed or ad interim relief if granted would hamper public interest and would be seriously against the balance of the other side. The High Court Division except under exceptional and special circumstances without hearing the other side should not grant ad interim relief which is close to relief sought in the writ petition. The superior Courts have always deprecated granting of ad interim relief which, in fact, gives the primary relief sought in the writ petition. In the instant case the High Court Division to all intents and purposes by granting ad interim relief has granted the entire relief without hearing the other side sought in the writ petition.
23. In the background of our discussions made hereinbefore we find merit in the appeal.
Accordingly, the appeal is allowed without any order as to cost.