Md. Abu Sufian and others Vs. Ferdoshi Begum and others, VI ADC (2009) 698

Case No: Civil Petition for Leave to Appeal No. 261 of 2006

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Syed Mahbubar Rahman,Md. Nawab Ali,,

Citation: VI ADC (2009) 698

Case Year: 2009

Appellant: Md. Abu Sufian

Respondent: Ferdoshi Begum

Subject: Company Matter,

Delivery Date: 2009-3-5

 
Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin, CJ.
Mohammad Fazlul Karim, J.
Md. Tafazzul Islam, J.
Md. Joynul Abedin, J.
Md. Abdul Matin, J.
 
Md. Abu Sufian and others
................Petitioners
Vs.
Ferdoshi Begum and others
............... Respondents
 
Judgment
March 5, 2009
 
The High Court Division should not in any way interfere with the day to day operation of the Company and payments which are required to be made to the creditors. The High Court Division held that the creditors should be paid certain amounts so that the pressure upon the company is temporarily eased and the company is allowed to carry on its business without any disturbance or interference.
 
Lawyers Involved:
Md. Nawab Ali, Advocate-on-Record-For the Petitioners.
Syed Mahbubar Rahman, Advocate-on-Record-For Respondent No. 1.
Not represented- Respondent Nos. 2-36.
 
Civil Petition for Leave to Appeal No. 261 of 2006
(From an order dated the 14th day of February, 2006 passed by the High Court Division in Matter No.14 of 2006).
 
JUDGMENT

Mohammad Fazlul Karim J.
 
1.         This peti­tion for Leave to Appeal is directed against an order dated 14.02.2006 passed by the High Court Division in Matter No. 14 of 2006 allowing an application dated 13.02.2006 filed by the respondent com­pany for permission to pay day to day operation expenses through its bank account maintained with Dutch Bangla Bank Limited, Dhanmondi, Branch, by issuing cheques under the lone signature of the respondent No. 32, Managing Director of the respondent No. 31, Company.
 
2.         The facts of the application, in short, are that the Company is required to make pay­ment of the following printing firms for printing and publication of Wall Calendar, Desk Calendar, Diary and Telephone Index for the year of 2006 which are urgently required for definition to the val­ued plot purchasers and the well wishers of the company as was done last year  through, M/S. Joynab Printing and Packages for TK.10,00,000.00, M/S. Mamun Leather Complex for TK.13,65,000.00 and M/S. Great Sign and Ad. For TK. 54, 20,000.00. The Company is required to make payment for the bills of contractors for earth filling in the housing project 'Modhumoti Model Town' Saver, Dhaka under agreement with M/S. D- Track (sand filling bill) for TK.100,00,000.00 (one crore) only. The contractors and their workforce have been suffering a lot for non-payment of their dues and therefore, the respondent No. Company decided to clear the bills through the Court accordingly; that some plot purchasers are very ill, therefore, and are to go abroad for treatment. Some have fallen under serious financial crises and few of them are women who are facing family trouble from their husbands and their family members are threatening them to leave them for investing money in purchasing plots which is relevant to be stated that as per terms of the Indenture  Clause No.12 when a plot purchaser surrender his plot for his/her inability, the company shall refund his deposit amount after deducting booking money and the company, therefore, intends to pay back  their deposited money after due deduction on the humanitarian grounds as per Clause No.12; that the Company duly received an amount of TK. 91,25,239.00 (ninety one lac twenty five thousand two hundred  thirty nine) only from the plots purchasers client and deposited the same to the Dutch Bangla Bank Limited, Dhanmondi Branch, Dhaka, Shahjalal Islami Bank Limited, Dhanmondi Branch, Dhaka, HSBC Bank, Gulshan Branch, Dhaka and Janata Bank, Janata Bhaban Corp, Branch, Dhaka during the month of January, 2006; that the company maintained bank account in Dhanmondi Branch of the Dutch Bangla Bank Limited being STD A/C# 110120000000333. Having fund to meet the payment Managing Director A.F.M. Jahangir will put his signature in the cheque to be issued being No. 7678035 to 76788046 on Dutch Bangla Bank Limited, Dhanmondi Branch, Dhaka to draw the aforesaid amount and shall maintain accounts of records and neces­sary vouchers in the office of the compa­ny. On 14.07.2005 a notice of an Extraordinary General Meeting under the signature of the Managing Director, respondent No.3, was circulated among all the Directors/shareholders notifying that an Extra ordinary General Meeting would be held on 16.08.2005 at 10:00 A.M. at the registered office of the Company. The item 6 on the agenda was about the con­ferring of power for the operation of the bank accounts of the respondent company. The Extraordinary General Meeting was duly held on 16.08.2005 under the chair­man of the respondent No. 2 and attended by all the Directors/shareholders of the respondent company. At the said meeting dated 16.08.2005 the said item No.6 on the agenda was taken up for discussions and decision. It was unanimously resolved that all the bank accounts of the respon­dent company were to be operated under the joint signatures of the Managing Director, respondent No.32 and either of the petitioner Nos.1 or 3. Another notice dated 17.08.2005 under the signature of the Managing Director, respondent No.32, was circulated among all the Directors of the respondents company notifying a meeting of the Board of Directors of the respondent company on 18.08.2005 at 3:00 P.M. On the agenda of the said notice item No.3 was with regard to a review of the proceedings of the Extraordinary General Meeting held on 16.08.2005. The said meeting of the Board of Directors of the respondent company was duly held and attended by the all directors of the respondent company. In the said meeting  of the Board of Directors of the respondent company held on 18.08.2005 it was decided that the resolution passed and adopted at the extraordinary general meeting of the respondent company dated 16.08.2005 would be immediately implemented and acted upon. Thereafter, the resolution regarding the operation of the bank accounts of the respondent company under the joint signatures was acted upon and fully implemented. It has become the practice of the respondent company to operate its bank accounts under joint signatures. This practice regarding the internal management of the respondent company is firmly established and it is indispensable for the smooth running of the day to day management of the respondent company and any departure from this established practice would gravely prejudice the interests of the respondent company and of the plot purchasers.
 
3.         Mr. Md. Nawab Ali, learned Advocate-on-Record, appearing for the petitioners submitted that it is apprehended by these  petitioners who holds 68% share of the company that the present Managing  Directors and Deputy Managing Director concerned did not utilize the amounts withdrawn from the bank with permission from the Court in appropriate places rather they misappropriated the said amounts; that the Company vide its extraordinary resolution dated 16.08.2005 resolved that in future all the bank operation would be done with joint signature of respondent No.32 and either petitioner Nos.1 or 3. The High Court Division while passing orders on 15.12.2005 and 05.01.2006 in Matter No.165 of 2006 allowed the company to withdraw a huge amount of money under the lone signature of Managing Director, respondent No.32.  It is in the best interest of the company and its plot purchasers that the accounts are required to be operat­ed by joint signature as directed by the High Court Division's direction and under its supervision. There are serious allega­tions against the respondent Nos. 32 and 33 for misappropriation of money from the company's account and various cases are pending against them. So, in order to maintain transparency and to protect the interest of the third party-plot purchasers and to uphold the direction of this Court it is absolutely necessary that the bank account be operated under joint signatures rather than only single signature. If such a direction is passed then no one will be prejudiced rather the petitioners' interest will be better maintained. The learned Advocate further submitted that on a cur­sory glance, its transpires that huge sums of money have been sought to be with­drawn from the bank account of respon­dent 31, company under different heads. Some of these appeared to be fictitious, inflated, not payable and not even known to the company. Statements of accounts relating to money withdrawn earlier from the bank neither supplied to the respon­dents nor submitted to the Court.
 
4.         The High Court Division held that the High Court Division should not in any was interfere with the day to day operation of the Company and with payments which are required to be made to the creditors. Further, if payments to the creditors are stopped it would create a situation which may adversely affect the business of the Company. On the face of conflicting claims of the various parties the High Court Division held that the creditors should be paid certain amounts so that the pressure upon the company is temporarily eased and the company is allowed to carry on its business without any disturbance or interference.
 
5.         The High Court Division further directed the respondents therein to produce the statement of assets and liabilities of the Company, the statement of the Bank Accounts maintained by the Company and the Annual Financial Statements of the proceeding years within three weeks from date.
 
6.         Thus, in our considered view the sub­missions on behalf of the petitioner before us merit no consideration.
 
7.         In view of the above, we find no sub­stance in the submissions of the learned Advocate for the petitioner.
 
8.         Accordingly, the petition is dismissed.
 
Ed.