Ebrahim Steel Re-Rolling Industries (Pvt.) Limited Vs. Bangladesh and others, VII ADC (2010) 495

Case No: Civil Petition for Leave to Appeal No. 62 of 2009

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. B. Hossain,,

Citation: VII ADC (2010) 495

Case Year: 2010

Appellant: Ebrahim Steel Re-Rolling Industries (Pvt.) Limited

Respondent: Government of Bangladesh and others

Subject: Artha Rin, Banking,

Delivery Date: 2010-02-11

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim, CJ.
Md. Abdul Matin, J.
Bijan Kumar Das, J.
ABM Khairul Haque, J.
Md. Muzammel Hossain, J.
Surendra Kumar Sinha, J.
 
Ebrahim Steel Re-Rolling Industries (Pvt.) Limited
……………........Petitioner
Vs.
Bangladesh and others
……………......Respondents
 
Judgment
February 11, 2010.
 
Writ Petitioner cannot claim any advantages dues if the writ petition against the petitioner and others in the Artha Rin Adalat No. 1, Dhaka for realization of that loan money. ….. (2)
 
Lawyers Involved:
B. Hossain, Advocate-on-Record-For the Petitioner.
Not represented-the Respondents.
 
Civil Petition for Leave to Appeal No.62 of 2009.
(From the judgment and order dated the 20th day of August, 2008 passed by the High Court Division in Writ Petition No.2936 of 2006).
 
JUDGMENT
Mohammad Fazlul Karim CJ.
 
           This Petition for Leave to Appeal is directed against the judgment and order dated the 20th day of August, 2008 passed by the High Court Division in Writ Petition No.2936 of 2006 discharging the Rule arising out of ex-parte judgment and decree dated 25.05.1999 passed by the Subordinate Judge and Artha Rin Adalat No.1, Dhaka in Title Suit No.169 of 1999 decreeing the suit for the sum of TK.2,42, 28,435.80 and foreclosing the mortgage.

2.         The facts involved in the case, in short, are that the respondent No.4-Sonali Bank sanctioned loan of total amount of TK.80,00,000.00 to this writ-petitioner company in the year 1988 on condition amongst others that the writ petitioner would be liable to pay penal interest in addition to the normal interest chargeable on the loan obtained by it if it would fail to repay the loan in due time. Since the writ-petitioner could not repay the loan in due time the respondent No.4 instituted Title Suit No. 28 of 1996 against the peti­tioner and others in the Artha Rin Adalat No.1, Dhaka for realization of that loan money. That Title Suit was subsequently renumbered as Title Suit No. 169 of 1999. The then Chairman of the petitioner com­pany appeared in that suit and filed written statement but that suit was ultimately decreed ex-parte on 25.05.1999 for an amount of TK. 2,42,28,435.80. That on 28.10.1999 the respondent No.4 by a letter informed the petitioner that they had waived 100% applied and non-applied interest amounting to TK. 2,97,50,238.00 on condition that the petitioner would repay the outstanding amount of TK. 21,24,733.08 in two years in 8 quar­terly installment and also an additional sum of TK. 25,000.00 as legal expenditure. Subsequently, on 01.12.1999 the respon­dent No.4 wrote another letter to the peti­tioner demanding payment of outstanding amount by 30.12.1999 telling that they would institute execution case against the petitioner if he failed to pay the outstand­ing dues within that period. That on 26.12.1999 the petitioner in compliance with the demand of the respondent No.4 as contained in his letter dated 02.12.1999 paid the respondent No.4 a sum of TK. 18,59,145.00. That earlier on 14.12.1999 also the petitioner had paid a sum of TK. 2,65,593.00 towards the out­standing principal amount and also a sum of TK. 25,000.00 on account of the respon­dent's legal expenses. That on receipt of the said payment the respondent No.4 pre­pared an application to be submitted in the Court praying for dismissal of the suit on the ground that the petitioner paid off the entire outstanding dues. But the respon­dent No.4 instead of filing that application to the Court instituted Artha Jari Case No.53 of 2004 most fraudulently. The petitioner's contention is that since the petitioner in compliance with the demand of the respondent No.4 as contained in the letter dated 02.12.1999 paid off the entire outstanding dues of the respondent No.4 its debt with the respondent No.4 stood cleared and as such, the Artha Rin Case No.53 of 2004 is not maintainable.
 
3.         The respondent No.4 contested the case contending that since the petitioner failed to repay the loan as per stipulation the loan granting bank filed Title Suit No.169 of 1999 in the Artha Rin Adalat No.1, Dhaka. That suit was decreed ex-parte on 25.05.1999 for an amount of TK.2,42, 28,435.80 with interest till real­ization. The Ministry of Finance by its letter dated 11.03.1999 recommended waiv­er of 100% penal interest and 100% unpaid simple interest. That the said rec­ommendation though has got no force of law the Sonali Bank resolved to allow remission of unpaid simple interest and penal interest accrued on the loan granted to the petitioner. But the concerned officer of the bank wrongly interpreted the words "অনাদায়ী সাধারন সুদ ১০০% মওকুফ" in calculat­ing out the amount of interest and erro­neously allowed remission of the entire amount of simple interest including the amount which had already been paid. Subsequently, the Head Officer of Sonali Bank detected this wrong in calculation of the outstanding dues of the petitioner and directed the respondent No.4 to realize the remaining outstanding dues amounting to TK. 46,34,455.92 from the petitioner. The respondent No.4 himself also then calcu­lated the outstanding loan due to the peti­tioner and found that an amount of out­standing dues. Since the petitioner failed to pay the said amount within the stipulat­ed date the decree-holder bank instituted the Execution Case No.74 of 2001 which was subsequently renumbered as Execution Case No. 53 of 2004 for realiza­tion of the decrial amount.
 
4.         Mr. B. Hossain, learned Advocate-on-Record, appearing for the petitioner sub­mitted that the High Court Division com­mitted an error of law in not holding that the letters written by the writ-respondent Bank to the writ-petitioner constituted a promise on the part of the Bank to remit the entire interest paid and unpaid and as such, the amount which the writ petitioner paid earlier must be adjusted against the principal loan amount and the bank is estopped from claiming further amount from the writ-petitioner on account of loan in that Annexures- D and E1 to the writ petition categorically stated that the Board of Directors of Sonali Bank decided the remission of 100% paid and unpaid inter­est amounting TK. 2,97,50,238.00 on con­dition that the writ-petitioner would pay the remaining amount of TK. 21,26,736.08 due to the bank within specified time and the writ-petitioner having paid the entire amount as determined by the Bank within the time fixed by the bank, the bank is bound by its promise which was acted upon by the writ petitioner in view of the principle of law. The learned Advocate further submitted that the writ-petitioner having paid the entire amount and a peti­tion for satisfaction of the entire debt hav­ing been drafted by the Advocate of Bank and the same was executed by the Assistant General Manager DIT Branch but the said compromise petition not hav­ing been filed deceitfully the Bank illegal­ly proceeding with the execution case.
 
5.         Admittedly the writ-petitioner earlier paid a considerable amount towards repayment of his loan. The amount was adjusted against interest as per bank "নীতিমালা”. It appears that the writ-petition­er earlier paid certain portion of interest accrued on his loan amount. It has been proved that the bank allowed remission of 100% of the penal interest and 100% of the unpaid simple interest of the writ-peti­tioner. But the concerned Bank official mistakenly allowed remission of paid up simple interest also and consequently, made an error in calculating out the out­standing dues of the writ-petitioner. But this mistake committed by a bank official in calculating out the outstanding dues of the writ-petitioner does not entitle the writ-petitioner to get remission of paid up interest also. It appears that the letters written by the respondent bank to the writ-petitioner the annexures- D and E1 consti­tute a promise on the part of the loan granting bank to remit the entire interest paid and unpaid and as such, the amount which the writ-petitioner paid earlier must be adjusted against the principal loan amount and in that circumstances the loan granting bank is now estopped to claim further amount from the writ-petitioner on account of loan. These letters were mere letter conveying the decision of the bank authority to remit interest accrued on the loan granted to the writ-petitioner. The writ-petitioner cannot claim any advan­tage of the wrong committed by a bank official in calculating of the outstanding dues of the writ-petitioner.
 
6.         In view of the above, we find no sub­stance in the submissions of the learned Advocate-on-Record for the petitioner.
 
Accordingly, the petition is dismissed.
 
Ed.