Case No: Civil Appeal No. 323 of 2002
Judge: Md. Tafazzul Islam ,
Court: Appellate Division ,,
Advocate: Mr. M. G. Bhuiyan,,
Citation: 58 DLR (AD) (2006) 143
Case Year: 2006
Appellant: Agrani Bank
Respondent: Ansarul Hoque and others
Subject: Writ Jurisdiction,
Delivery Date: 2004-04-17
Md. Ruhul Amin, J.
MM Ruhul Amin, J.
Md. Tafazzul Islam, J.
Ansarul Hoque and others
April 17, 2004
The Code of Civil Procedure, 1908 (V of 1908),
Order XXXVII, Rule 2
During pendency of Summary Suit No. 6 of 1996 in the Court of the District Judge, Dhaka under the provisions of Order XXXVII rule 2 of the Code of Civil Procedure respondent no. 1 brought the Writ Petition on the same subject-matter suppressing the pendency of the former suit. Such suppression disentitles respondent no. 1 to claim any relief in the Writ Jurisdiction as there could be conflicting decisions. Moreover the order passed by the High Court Division being not a speaking order, it cannot be sustained… .. (8)
MG Bhuiyan, Advocate-on-Record—For the Appellant.
Ansarul Hague (in person)—For the Respondents.
Civil Appeal No. 323 of 2002
(From the judgment and order dated 9th January 2001 passed by the High Court Division in Writ Petition No. 5543 of 2000).
1. This appeal by leave is directed against the judgment and order dated 9-1-2001 of the High Court Division passed in Writ Petition No. 5543 of 2000 making the Rule absolute.
2. The respondent No. 1 filed the above writ petition impleading therein the appellant Bank and the Attorney-General as respondent Nos. 1 and 2 stating as follows:
"That the petitioner is a trader by occupation. That the respondent No.1 is a Banker, as defined under section 3(b) of the Negotiable Instruments Act, 1881, owned by the Government.
That the petitioner deposited Taka 3,45,000 under deposit receipt FDR No. 000552-2344 dated 27-8-87 issued by the respondent No.2 Bank.
That the petitioner presented order directing the respondent No. 1 to pay the certain sum of money under the Deposit Receipt above said, which the respondent Banker dishonoured by non-payment. Copy of the order are annexed herewith and marked A-1 and A-2."
3. The petitioner prayed for issuing a Rule on the following terms:
"Wherefore, it is humbly prayed that your Lordships will be pleased to direct the Respondent No. 1 Banker to show cause as 1o why the money under the Fixed Deposit receipt No. FDR No.000552/2344 dated 27-8-1987 for Taka 3,45,000 issued by the respondent Banker and held by the Respondent No.1 Banker, duly endorsed, shall not be paid."
Annexure A(1) as referred in the above writ petition contained as follows:
Bengal Techno Consult Ltd.
14/1, Abhoy Das Lane, Bangladesh.
Sub: FDR No. 331800/2292 and No. 0003552/2344
Since validity of the Guarantees issued against the above said FDR have now expired you are requested to cancel the FDR above said and credit my Account No. 205 with the FDR above amounts together with the interest accrued thereon up to date.
Annexure A(2) to the above writ petition contained as follows:
14/1 Murad Sharak,
Bill of Exchange For Taka 16,48,758
At sight of this bill of exchange pay 16,48,758 by transfer to International Finance investment and Commerce Bank Ltd Motijheel Branch, A/C No.013406634, on account of proceeds of Fixed Deposit Receipt No.0003552/2344 dated 27-8-87 for Taka 3,45,000 held in trust and interest thereon, as follows:
Fixed Deposit Receipt No. 0003552/2344 dated 27-8-1987 Taka 3,45,000
Interest from 27-8-87 to 26-8-99 @ 13.23% quarterly Taka 13,03,758
Total: Taka 16,48,758
4. As it appears on 20-11-2000 the High Court Division issued Rule and then on 9-1-2001, just within a span of 40 days, made the Rule absolute holding as follows:
"This Rule was issued directing the respondent No.1, Agrani Bank, Hatkhola Branch. Dhaka, to show cause as to why the said Bank should not be directed to pay an amount due to fixed deposit receipt hearing FDR No. 0003552/2344 dated 27-8-87.
From the record it is found that the notice of the Rule was served upon the respondent on 9-12-2000 but the respondent did not appear to answer the Rule Nisi till today.
Heard the petitioner in person, perused the writ petition and the Annexures thereto.
We hold that this Rule should succeed.
In the result, this Rule is made absolute without costs. Respondent Bank is directed to pay an amount due to fixed deposit bearing FDR No. 0003552/2344 dated 27-8-87, to the petitioner forthwith."
Leave was granted on the following terms:
"The learned Advocate appearing for the petitioner submits that over the selfsame matter Summary Suit No. 6 of 1996 is ready for hearing before the learned District Judge, Dhaka and, as such, the writ petition is not maintainable.
He further submits that there being no disclosure of material on record nor any statement in the writ petition by which it could be understood, the High Court Division erred in law in passing the judgment and awarding the writ petitioner his claim."
5. The learned Counsel appearing for the appellant, submits that though the above Rule was issued on 20-11-2000, the petitioner received the notice only on 9-12-2000 just before winter vacation and forwarded the same to the Legal Adviser of the appellant bank who on 14-1-2000 i.e. immediately after re-opening appeared but found that the Rule has already been made absolute on 9-1-2001, just within a span of 40 days; the writ petition was filed suppressing the fact that the respondent No.1 filed Summary Suit No. 6 of 1996 before the Court of District Judge, Dhaka under Order XXXVII, rule 2 of the Code of Civil Procedure making similar claim against the appellant in respect of this very FDR No.0003552/2344 dated 27-8-87 stating that in spite of the order dated 21-7-1992, which is Annexure A(l) to the writ petition, the appellant bank did not pay him the proceeds of the above FDR and so he is entitled to get from the appellant Bank Taka 3-45-000 against the principal amount and Taka 7,66,637 against interest, in total Taka 11,11,637 and the above suit is still pending for hearing; in the writ petition, the respondent No.1 claimed payment of Taka 16,48,758 on the basis of the above Annexure A(1) and the alleged Bill of Exchange dated 16-6-99, which is Annexure A(2) of the writ petition, made on the basis of the same very FDR No.0003552/2344 dated 27-8-87 stating that Taka 3,45,000 was the principal amount and the balance amount of Taka 13,03,758 became due as interest and compensation; so unless and until the remedy sought in the above suit is exhausted the petitioner was not entitled to invoke writ jurisdiction; since the disputes involved are questions of fact the writ petition is not maintainable; after the above judgment and order dated 9-1-2001 passed by the High Court Division the respondent No.1 referring to the above judgment and order sent to the appellant Bank a Bill of Exchange dated 6-2-2001, Annexure A5 to the leave petition, claiming Taka 1,80,33,394 as on 26-11-2000 out of which Taka 3,45,000 is the principal amount as contained in the same very FDR and balance Taka 1,76,88,394 is against interest and compensation which shows that the petitioner by abusing the process of the court claimed exorbitant amount from the appellant.
6. The respondent No.1, who appeared in person, submits that on maturity of the above FDR No. 0003552/2344 on 29-8-1990 he delivered the same, to the appellant bank and it was accepted and so in accordance with the provisions of sections 46 and 63 of the Negotiable Instruments Act, 1881 after receipt of the order of the respondent dated 21-7-1992, Annexure A(1) the appellant bank was bound to credit the proceeds of the said FDR upto the quarter ending on 20-7-92 to his Account and since the appellant bank did not honour the said order he had to file the above Summary Suit No. 6 of 1996 but since the Court of District Judge did not dispose of the above suit and kept the same pending; he had no other alternative but to file writ petition claiming Taka 16,48,758 from the appellant Bank as he in the meantime issued Bill of Exchange dated 16-9-99. Annexure A(2), ordering the appellant bank to pay Taka 16,48,758 out of which Taka 3,45,000 was against principal amount of the above FDR and Taka 13,03,758 against interest and compensation accrued upto 16-8-99, but the same was dishonoured; in terms of section 3(b) of the Negotiable Instruments Act, 1881, the appellant Bank is a trustee and the relationship existing between him and the appellant bank is that of a debtor and creditor; the appellant bank, being a schedule bank and owned by the Government is a "person" within the meaning of Article 102 of the Constitution and was duty bound to pay the proceeds of the FDR to the respondent No. 1 but it having failed the respondent No.1, being denied of the right to property guaranteed under Article 42 of the Constitution, was entitled to invoke writ jurisdiction seeking necessary relief for a direction upon the appellant bank; the word "Order" mentioned under section 3(b) of the Negotiable Instruments Act, 1881, is a Bill of Exchange payable on demand and that a deposit receipt given by a Bank is not a negotiable instrument which passes either by delivery or by endorsement but where the money mentioned in the receipt is immediately payable and the receipt is presented duly endorsed together with an order to pay to a given individual, the individual becomes the owner of the money upon payment by the Banker or his promise to hold it at disposal of the payee and moreover within the meaning of section 5 of the Negotiable Instruments Act, 1881 an order in writing to a Bank to transfer a sum of money from one account to another, is a Bill of Exchange payable on demand and that the Drawer and Drawee need not be necessarily be different person.
7. As it appears the respondent No. 1 filed Summary Suit No. 6 of 1996 in the Court of District Judge, Dhaka, under Order XXXVII, rule 2 of the Code of Civil Procedure claiming Taka 11,11,637 on the ground that the above FDR matured on 29-8-1990 and in spite of his direction given on 21-7-92 the appellant Bank failed to pay him the proceeds of the above FDR and so the appellant Bank is liable to pay the respondent No.1 Taka 11,11,637 on account of the aforesaid FDR and the interest accrued thereon. But, as it appears, during the pendency of the above summary suit the respondent No. 1 filed the above Writ Petition No. 5543 of 2000.
8. As it appears Order XXXVII, rule 2 provides remedy for the claim made by the respondent No.1 against the appellant Bank in respect of FDR in question, which is an efficacious remedy. Further, in the writ petition the respondent No.1 suppressed the fact that he already filed Summary Suit No.6 of 1996 in the Court of the District Judge Dhaka under the Provisions of Order XXXVII, rule 2 of the Code of Civil Procedure which was very much pending at the time of filing of the writ petition. This suppression disentitled the respondent No.1 to claim any relief in writ jurisdiction as there could be conflicting decisions. Further, the High Court Division should not have entertained the dispute in question, not to speak of disposing the writ petition in such an hasty manner. The order passed by the High Court Division is not a speaking order. So the judgment and order of the High Court Division cannot be sustained.
Accordingly, the appeal is allowed without any order as to costs and the judgment and order passed by the High Court Division is set aside.