Bangladesh Bank Vs. Debendra Nath Dutta, 33 DLR (AD) (1981) 355

Case No: Civil Appeal No. 31 of 1979

Judge: F.K.M.A. Munim,

Court: Appellate Division ,,

Citation: 33 DLR (AD) (1981) 355

Case Year: 1980

Appellant: Bangladesh Bank

Respondent: Debendra Nath Dutta

Subject: Banking,

Delivery Date: 1980-04-09

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain, CJ.
Fazle Munim, J.
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
 
Bangladesh Bank
.............Appellant
Vs.
Debendra Nath Dutta
…...........Respondent
 
Judgment
April 9, 1980
 
Banking Companies Ordinance (57 of 62)
Secs. 66 (1) & 72
An order made by a Company Judge u/s 66 (1) of the Banking Companies Ordinance not appealable. Even if an appeal is possible from an order u/s 196 of the Companies Act, if it fails within the preview of 66(1) of the Banking Companies Ordinance, no appeal will lie.
 
Lawyers Involved:
Ahmed Husain, Senior Advocate instructed by Aminul Huq, Advocate-on-Record—For the Appellants.
K.A. Bakr, Attorney General, B. Hossain Advocate-on-Record.—Rule 1, Order XLV, Supreme Court (A.D.) Rules, 1973.
Ex parte—Respondent
 
Civil Appeal No. 31 of 1979.
(From the judgment and order dated March 22, 1973 passed by the High Court Division in Appeal No. 1 of 1974)
 
JUDGMENT
Fazle Munim J.
 
1.         This appeal arises from the judgment and order of a Bench of the High Court Division passed in Appeal No. 1 of 1974 on August 5, 1976 reversing those of the Company Judge passed in Matter No. 4 of 1969 on March 22, 1973.

2.         The appellant filed an application under section 66/1) of the Banking Compa­nies Ordinance, 1962 (hereinafter referred to as the 'Ordinance') for the public examina­tion of the respondent who was the former Secretary of Patuakhali Bank Limited (in liquidation), before the erstwhile High Court of East Pakistan. The allegations against him were as follows:
 
(i) That the respondent by withholding the relevant loan ledgers and loan documents allowed the loans amounting to Rs. 34,980/79 (thirty four thousand nine hun­dred eighty and paisa seventy nine only) to become time barred, with an ulterior object of making illegal gains therefore at the cost of the Bank.
 
(ii) That the respondent in collusion with the transferees, namely, Nurul Hoquue and Amulla Kumar Dutta, allowed them to take possession of the building of the Bank without receiving the ba­lance consideration money amounting to Rs. 8,700/-
 
(iii) That the respondent falsely claimed Rs. 4,495/- towards his unpaid salary upto 1964 from the Bank."
 
3.         After the emergence of Bangladesh, a Single Judge of the High Court Division who heard the application found that due to the willful negligence and misconduct of the respondent in dealing with the affairs of the Bank, it sustained loss for which he was solely responsible. It was, therefore held that the respondent was not a fit person to be a director of a company. Under section 66(9) of the Ordinance, 1962, it was ordered that "he shall not, without the leave of the court, be a Director of, or in any way, whether direct­ly or indirectly, be concerned or take part in the management of any company for five years from the date of the judgment, that is, March 22, 1973.
 
4.         On appeal against this judgment pro­nounced by the Company Judge, a Bench of the High Court Division reversed his findings and set aside his order as to the preliminary objections of the appellant regarding the non-maintainability of the appeal on the ground of limitation and in view of the provisions of section 72 of the Ordinance. The learned Judged who heard the appeal found it competent under section 202 of the Companies Act read with clause 15 of the Letters Patent. The appellant moved the court and obtained leave to consider these two following grounds:—
 
"1) That the appeal before the High Court Division was incompetent, as it is barred under section 72(3) of the Banking Com­panies Ordinance, and the learned Judges of the High Court Division were in error in applying the provisions of Companies Act and Clause 15 of the Letter Patent, when those laws are by necessary implication excluded by the provisions of the Banking Companies Ordinance.
 
(2) That the judgment of the High Court Division is not the proper judgment, of reversal, inasmuch as the findings of the Company Judge have been reversed on non-consideration of important pieces of the evidence on record the sub­missions of the learned Counsel Merit consideration."
 
5.         Dr. Ahmed Hussain, Counsel for the appellant, submitted that excepting the orders mentioned in sub-sections (1) and (2) of sec­tion 72 of the Ordinance, all appeals are barred under sub-section (3) of this section. Question raised by the learned counsel requir­ed the consideration of the provisions of sec­tion 66 (1) of the Ordinance and also of sec­tion 196 of the Companies Act (which I will call 'the Act'). According to him, the appeal decided by the High Court Division did not fall within the purview of any of these two sub-sections of section 72 and, therefore, the appeal was not maintainable. His next con­tention was that since the examination of the respondent was made under the provisions of sections 66 of the Ordinance and the order of the Company Judge was made under that section no appeal was maintainable under any of the provisions of the Act. Since it appears that no appeal from any order of the High Court Division is maintainable excepting in those cases mentioned in sub-sections (1) and (2) of section 72, it cannot be said that the appeal would lie if the same application is treated as one under section 196 of the Com­panies Act. Reference may be made to the relevant section of the Ordinance as well as the Act which were referred to by the learned Counsel to show that the appeal before the High Court Division was not maintainable.
Section 72 of the Ordinance is as follows:—
 
"72. (1) an appeal shall lie from any order or decision of the High Court in a civil proceeding under this Ordinance when the amount, or value of the subject-matter of the claim exceeds five thousand rupees.
 
(1) The High Court may by rules pro­vide for an appeal against any order made under section 69 and the con­ditions subject to which any such appeal would lie.
 
(3) Subject to the provisions of sub-sec­tion (1) and sub-section (2) and notwithstanding any thing contain­ed in any other law for the time being in force every order or deci­sion of the High Court shall be final and binding for all purposes as be­tween the banking company on the one hand, and all persons who are parties thereto and all persons claim­ing through or under them or any of them, on the other hand."
 
6.         From the wording of sub-section (3) of this section it appears that the order and decision of the High Court Division shall be final and binding between the Banking Companies and persons who are parties in the proceeding, only exceptions made are in such cases as mentioned in sub-sections (1) and (2) of the same section. Apart from these exceptions, no order or decision of the High Court is appealable and the expression "and notwithstanding anything contained in any other law for the time being in force as occur in sub-section (3) of this section" would show unmistakably where an order or decision of the High Court Division has been passed under any provisions of the Ordinance, the provisions of the Companies Act cannot be invoked to file an appeal from such order.

7.        If the order which was appealed against before the High Court Division came under the provisions of section 66 of the Ordinance, such order would be final and binding as mentioned in sub-section (3) of this section. In order to determine whether the order of the Company Judge against which the appeal was preferred came under section 66 of the Ordinance it is required to consider section 66 which provides as follows :—
 
“66. (1) Where an order has been made for the winding up a banking company, the official liquidator shall submit a report whether in his opinion any loss has been caused to the banking company since its formation by any act or omission (whether or not a fraud has been commi­tted by such act or omission) of any person in the promotion or formation of the banking company or of any di­rector or auditor of the banking com­pany."
 
8.         As appears from clause (1), section 66 of the Ordinance, if any loss has been caused to the Banking Company by an act or omission of a person in-charge of the promotion or formation of the company or any director or auditor of the company the official liquidator shall submit a report to the Company  Judge. This loss may have been caused either as a result of any fraud or even without any fraud. The other clauses of this section relate to the procedure for hearing the report by the High Court.
 
9.         Similarly, sub-section (1) of section 196 of the Companies Act also empowers the official liquidator to make an application to the Company Judge stating that a fraud has been committed by a person responsible for the promotion or formation of the company concerned or by director or other officers of the company in relation to the company itself. Section 196(1) of the Act reads as follows:
 
196. (1) When an order has been made for winding up a company by the Court, and the official liquidator has applied to the Court stating that in his opinion a fraud has been committed by any person in the promotion or formation of the com­pany or by director or other officer of the company, in relation to the company since its formation, the court may, after consideration of the application, direct that any person who has taken any part in the promotion or formation of the company, or has been a director, mana­ger or other officer of the company shall attend before the court on a day appointed by the court for that pur­pose, and be publicly examined as to the promotion or formation or the conduct of the business of the company, or as to his conduct and dealings as director, manager or other officer thereof."
 
10.       The other sub-section of section 196 of the Act regulates the procedure for hearing of such an application. It would appear that so far as the contents of the report which may be submitted under sub-section (1) of section 66 of the Ordinance and sub-section (1) of section 196 of the Companies Act is con­cerned, the substantial difference between the two appears to result from the expression "whether in his opinion any loss has been caused to the banking company' and also the expression "whether or not a fraud has been committed by such act or omission' which have been employed in sub-section (1) of section 66 of the Ordinance.
           It would, therefore, appear that the provi­sions of sub-section (1) of section 66 of the Ordinance are wider than section 196 (1) of the Act.
 
11.       We fail to see how if an application has, therefore, been filed under section 66(1) and an order has been made under sub­section (9) of this section, it cannot be held that such application was not maintainable or that it should be held to have been filed under section 196 (1). The application app­ears to have been made for the purpose of having an order from the Company Judge and as such when it appears that section 72 of the Ordinance has prohibited an appeal otherwise than what has been mentioned in that section no appeal would lie from an order which is not covered by the exception. Accordingly, the order made by the Company Judge in deciding the application under sec­tion 66 (1) of the Ordinance being outside the exceptions mentioned in section 72 is not appealable. It has already been observed that sub-section (3) of section 72 of the Ordi­nance debars any appeal from any decision of the High Court made under any of the provisions of the Ordinance. Section 72 (3) expressly mentions "notwithstanding anything contained in any other law for the time being in force". This expression includes the Com­panies Act as well. So, even if an appeal is possible from an order under section 196 of the Act, as soon as the order falls within the purview of section 66 (1) of the Ordi­nance no appeal is permissible.
 
          In view of the above, the appeal is allo­wed, the decision of the Appellate Beach is set aside and that of the company Judge restored. However, there will be no order as to costs.
 
Ed.