Bangladesh Shilpa Rin Sangstha Vs. Haque Brothers (Carbide) Ltd., 46 DLR (AD) 39

Case No: Civil Review Petition Nos. 14 and 15 of 1984

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Syed Ishtiaq Ahmed,,

Citation: 46 DLR (AD) 39

Case Year: 1994

Appellant: Bangladesh Shilpa Rin Sangstha

Respondent: Haque Brothers (Carbide) Ltd.

Subject: Banking,

Delivery Date: 1993-08-05

Supreme Court of Bangladesh
Appellate Division
(Civil)

 
Present:
Shahabuddin Ahmed, CJ.
ATM Afzal, J.
Mustafa Kamal, J.
Latifur Rahman, J.
 
Bangladesh Shilpa Rin Sangstha
……………..Petitioner [In both the cases]
Vs.
Haque Brothers (Carbide) Ltd.
…………..Respondent [In both the cases]
 
Judgment
August 5, 1993.
 
Code of Civil Procedure (V of 1908)
Order XLVII, Rule 1
The matter of rate of conversion of US dollar into Bangladesh currency was not argued at the time of hearing of the appeals. The matter cannot be decided without hearing the parties afresh. This court’s judgment is therefore not amenable to review on this score. It will be an appeal in disguise if a fresh argument is entertained.
 
Lawyers Involved:
Rafique-ul-Huq, Senior Advocate (Tofazzal Islam, Advocate with him) instructed by Sharifuddin Chaklader, Advocate-on-Record- For the Petitioner in both the petitions.

Asrarul Hossain and Syed Ishtiaq Ahmed, Senior Advocates instructed by Md. Aftab Hossain, Advocate-on-Record-For the Respondents in both the Petitions.
 
Civil Review Petition Nos. 14 & 15 of 1984
 
JUDGMENT
Mustafa Kamal, J.
 
             These two petitions were admitted for review of the judgment of this Court dated 28.3.84 passed in Civil Appeal Nos. 31 and 32 of 1993.
 
2.         Bangladesh Shilpa Rin Sangstha, the petitioner in these two petitions, filed an application under Article 33 of the Bangladesh Shilpa Rin Sangstha Order, 1972 (President's Order No. 128 of 1972) against the respondents in the Court of the District Judge, Dhaka, being Miscellaneous Case No. 140 of 1977 for sale of the schedule properties for realisation of the petitioner's dues, fallen due owing to default in payment of two foreign exchange loans from erstwhile PICIC, amounting to Taka 29,72, 910.29 equivalent to US $ 1,90,609.05 only as on 1.7.77 with interest at the rate of 7½% and liquidated damages at the rate of 2% on the defaulted amount till final payment of the entire dues, also for directing the respondents to pay the said amount with aforesaid interest, liquidated damages and other charges and further for directing them to pay higher amount "if the exchanged (sic) during the pendency of this application", i.e., if the exchange rate was higher during the pendency of this application.
 
3.         Before the close of the argument during the trial of the miscellaneous case before the learned Additional District Judge, 5th Court, Dhaka the petitioner by an amendment of the petition under Order VI, rule 17 CPC reduced the claim to Tk. 26,01,027.33 equivalent to US $ 1,66,765.66 on the ground that during pendency of the case the account was re-examined and it was found necessary to reduce the claim as some payments were made earlier. The learned Additional District Judge found, vide his judgment and decree dated 21.9.79, that there was no cogent evidence as to the amount that was due from the respondents. He rejected the documents produced by the petitioner as inadmissible. Relying on Ext. 7(d), a letter written by respondent No. 2, the learned Additional District Judge found that the petitioner was entitled to a sum of US $ 1,42,583.46 "convertible on the basis of rate of exchange prevalent on the date of repayment".
 
4.         The petitioner‑ Sangstha preferred FMA No. 474 of 1980 and the respondents preferred FMA No. 490 of 1979 against the judgment and decree of the trial Court dated 21.9.79. A Division Bench of the High Court Division by a common judgment and decree dated 22.9.82 dismissed FMA No. 490 of 1979 and allowed FMA No. 474 of 1980. The documents relied upon by the petitioner‑ Sangstha were found to be admissible in evidence and the suit was decreed "for the amount that has been detailed in the amended plaint with interest as prayed for". No argument seems to have been advanced before the High Court Division, as was done in the trial Court, with regard to the rate of conversion of US dollar into Bangladesh currency and the High Court Division also did not specifically direct the respondents to pay the claim, as decreed, at the rate of exchange prevalent on the date of payment.
 
5.         The respondents preferred two appeals in this Court, CA Nos. 31 and 32 of 1982, against the aforesaid judgment and decree of the High Court Division. The petitioner-Sangstha did not file any appeal therefrom. It appears from the judgment of this Court in these appeals, passed on 28.3.84, that the respondents' arguments on the admissibility of the petitioner's documents, on which leave was granted, were noted but no decision thereon was given and it was held by this Court that the respondents' letter Ext. 7(d) cannot be used to determine the extent of the respondents' liability and was thus to be left out of consideration.
 
6.         In allowing the respondents' appeals in part this Court found however from the facts and circumstances that "in spite of frantic efforts the appellant (respondent herein) has not succeeded in totally denying the liability". In reply to the queries made by this Court the learned Counsel for the petitioner- Sangstha produced a Table showing the break-up of the reduced amount claimed in the amended plaint, namely, a break-up of US $ 1,66,765.66 equivalent to Tk. 26,01,027.33, the rate of conversion being US $ 1=Tk. 15.5969. This Court found that the amended claim upto 1.1.72 was US $ 1,35,055.75. US $ 44,376.39 having been paid by the respondents between 1.1.72 and 1.1.76, this Court deducted the said sum of US $ 44,376.39 from US $ 1,35,055.75 and came to the finding that "the amount of principal stands at US $ 90,679.36 and is payable by the appellant company" (respondent therein). This Court reiterated in its judgment that the respondents are under an obligation to pay this amount i.e. US $ 90,679.39 and added, "It is also required to pay interest on this amount which has accrued thereon from the dates on which the loans were obtained till the date of the institution of the suit".
 
7.         In the operative portion of this Court's order however only an amount of US $ 90,679.39 excluding interest and penal interest was ordered to be paid by the respondents and no interest on this amount from the date of contract fill the date of the institution of the miscellaneous case was ordered to be paid.
 
8.         This, the petitioner‑Sangstha now says, is an error apparent on the face of the record and it is its submission that the operative portion of our order needs be corrected, so as to incorporate interest accrued prior to the institution of the miscellaneous case, which, in the submission of Mr. Rafique-­ul‑Huq, learned Counsel for the petitioner‑ Sangstha, would actually include interest and penal interest accrued between 1.1.72 and 1.7.77, the last date being the date of institution of the miscellaneous case.
 
9.         We have carefully perused our judgment and have heard the submissions of the learned Counsel for the petitioner and Mr. Asrarul Hossain and Mr. Syed Ishtiaq Ahmed, learned Counsel for the respondents at length. Reading the concluding parts of our judgment very closely we find that we are no doubt on record to have expressed the view that "It (respondent herein) is required to pay interest on this amount (i.e. US $ 90,679.39) which has accrued thereon from the dates on which the loans were obtained till the date of the institution of the suit" but at the time of drawing up the final order we have deliberately allowed the petitioner a sum of US $ 90,679.39 "excluding interest and penal interest". We do not think that the award of interest and penal interest fill the institution of the miscellaneous case escaped our notice because the omission seems to be deliberate, especially in view of the fact that we specifically awarded interest at the rate of 7 ½ % pendente lite plus 15% interest on the aforesaid amount and interest, calculating from the date of judgment till realisation. The learned Counsel for the respondents were emphatic in their assertion that this Court did not pronounce itself on the admissibility of the petitioner‑ Sangstha's documents on which leave was granted and on which elaborate submissions were made and noted but only passed a consent order on the basis of some calculations based on a table furnished by the petitioner‑ Sangstha at the time of hearing and without proving the same. Without going into the question whether the order of this Court was a consent order or not, it stares us in the ‑face that interest and penal interest till the institution of the miscellaneous case were not allowed although it was our view that the respondents were required to pay the same. If not a consent order, it was certainly a deliberate concession made to the respondents in the interest of an early payment of the Sangstha's loan. And, as a matter of fact, this Court passed a short order on 2.4.84 asking the respondents to pay US $ 90,679.39 with interest pendente lite plus 15% interest till realisation and the respondents almost immediately paid the entire sum in full compliance with this Court's order on 18.4.84 and 12.5.84.
 
10.       We therefore do not think that our judgment needs a review on the question of award of interest and penal interest in favour of the petitioner‑ Sangstha from 1.1.72 to 1.7.77.
 
11.       The next ground on which review of our judgment has been sought for, arises from the fact that this Court had taken the rate of conversion of US dollar into Bangladesh currency to be the one prevailing on the date of determination of the contract i.e. on 1.7.77, the date of institution of the miscellaneous case, which is Taka 15.5969 to a dollar. Applying this rate of conversion to the amount of US $ 90,679.36 we calculated. this sum to be Tk. 14,14,316.91 which sum we directed the respondents to pay to the petitioner. It is now argued by the learned Counsel for the petitioner that the rate of conversion has been arrived at by this Court in violation of Article 3 and Article 28 of President's Order No. 128 of 1972, as also in violation of the contracts of loan between the petitioner's predecessor PICIC and the respondents. As such it is an error apparent on the face of the record and needs to be corrected.
 
12.       Article 3 of President's Order No. 128 of 1972 provides that the provisions of this Order and any rule made thereunder shall have effect notwithstanding inconsistency therewith with any other law for the time being in force. Article 28 originally stood as follows:
           "28. All loans granted to an industrial concern in foreign currency shall be repaid in accordance with such terms and conditions as may be determined by the Board either—
         (i) in the currency in which they were granted; or(ii) in Bangladesh currency at die rate of exchange prevailing on the date of re‑ payment"
Clause (ii) of Article 28 was substituted by Ordinance No. L of 1983 thus:
       "(ii) in Bangladesh currency at the rate of exchange prevailing on the date of payment or at such other rate as the Government may, by order, determine from time to time in this behalf".
 
13.       It is argued that Article 33 of President's Order No. 128 of 1972, under which Miscellaneous Case No."140 of 1977 was filed by the petitioner enables the petitioner to apply for relief (d) as follows:
          "(d). An order for payment of the loan or any other sum relating thereto"
        which the petitioner prayed for in prayer (b) of the plaint and the petitioner also prayed for payment of a higher amount if the exchange rate had gone up during the pendency of the application, vide prayer (c) of the plaint. It is submitted that. in directing payment of any sum, all Courts have to abide by the specific provisions of Article 28 of President's Order No. 128 of 1972 and the agreement between the parties and cannot in their discretion arbitrarily arrive at a rate of conversion prevalent on the date of determination of the contract.
 
14.       Opposing the submission it has been argued that the mandate of the legislature in Article 28 is upon the Board of Directors of Bangladesh Shilpa Rin Sangstha and not upon any Court. Also it is argued that the matter of rate of conversion has not been argued by any side before the High Court Division which did not specifically grant the petitioner the prayer in terms of prayer (c) of the plaint, although the trial Court had specifically so granted. The petitioner did not take any appeal to this Court claiming rate of conversion on the date of payment, a relief which was not specifically granted to it by the High Court Division. This Court was disposing of two appeals filed by the respondents and in the respondents' appeals the petitioner as respondent cannot succeed in increasing the decretal amount. If the petitioner's review petitions are allowed, then this Court's judgment and decree allowing in part the respondents' appeals will be meaningless and, in fact, the respondents will be saddled with even more liabilities than what was decreed by the High Court Division. Also the matter of rate of conversion was not argued at the time of the hearing of these appeals. The matter cannot be decided without hearing the parties afresh as to the implication of Article 28. This Court's judgment is therefore not amenable to review on this score. It will be an appeal in disguise, if a fresh argument on Article 28 is entertained.
 
15.       Having gone through our judgment very closely we find that we had not laid down any general proposition of law that a Court can vary the rate of conversion provided in clause (ii) of Article 28 at any time and at will. It seems to be fit and proper that while directing payment a Court should take note of Article 28 and follow its provisions along with the agreement between the parties in that behalf in view of the fact that a contract of loan is a commercial transaction and the rate of conversion is an important factor from the standpoint of the creditor, except in exceptional circumstances which the court is to explain.
 
16.       In the present appeals however our omission to allow rate of conversion on the date of payment seems to be partly circumstantial and partly deliberate. We cannot fail to notice that the High Court Division did not grant the petitioner's prayer No. (c) is specific terms. The petitioner did not appeal against this omission. An appeal before this Court on the specific point of rate of conversion would have brought the issue into sharp focus and we could have given our thoughts to it. This is the circumstantial part. The deliberate part is that even in the table produced by the learned Counsel for the petitioner at the hearing of the two appeals it was not indicated that the rate of conversion as on 1.7.77, shown in the table, was only tentative and that a further amount in Bangladesh currency would be due if the rate of conversion on the date of payment was ordered. When the petitioner is unmindful of Article 28, a court of law no independent duty to enforce Article 28, like section 3 person of the Limitation Act. If an applicant wants enforcement of Article 28 and any contract in that behalf it has to ask for it.
 
17.       In the facts and circumstances of the cases especially in view of the fact that the petitioner's documents of claim were under serious challenge, we seem to have deliberately omitted to take into consideration the rate of conversion on the date of payment. The exercise was confined to the facts and circumstances of the present appeals only and should not be taken as laying down any general proposition of law.
18.       Mr. Rafique-ul-Huq has referred to a large number of decisions on error apparent on the face of the record and on the scope of review, but in view of what we stated above we do not think that a consideration of those cases is necessary.
 
         Hence we find that our judgment does not need a review. The review petitions are accordingly dismissed. No costs.
 
Ed.