Md. Shahid Ullah Vs. M.B.I. Munshi, Ex-Chairman, Jubilee Bank, (Md. Rezaul Hasan, J.)

Case No: Contempt Rule No. 7 of 2017

Judge: Md. Rezaul Hasan, J

Court: High Court Division,

Citation: 2019(1) LNJ

Case Year: 2017

Appellant: Md. Shahid Ullah

Respondent: M.B.I. Munshi, Ex-Chairman, Jubilee Bank Limited and others

Subject: Constitution of Bangladesh

Delivery Date: 2019-11-26

 

 HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Rezaul Hasan, J

 

Judgment on

07.12.2017

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Md. Shahid Ullah

. . .Contempt-Petitioner

-Versus-

M.B.I. Munshi, Ex-Chairman, Jubilee Bank Limited and others

. . .Respondents

Constitution of Bangladesh, 1972

Article 108

A proceeding for contempt of Court can be drawn by this Court from a petition placed before it or suo-motu with reference to contemptuous utterance, report any conduct that may come to the notice of this Court from any other person or source. Once, the prima-facie facts and circumstances constituting the offence of the contempt of Court has been brought to or come to this Court’s notice, this Court, being a Court of record under Article 108 of the Constitution, and as has been done by its predecessors in this sub-continent, as well as other jurisdictions, can always initiate a contempt proceeding, as a court of record, in exercise of its constitutional jurisdiction conferred under Article 108 of the Constitution.           . . .(14)

Constitution of Bangladesh, 1972

Article 102

If delay in filing contempt petition or issuing a suo-motu contempt rule will, in any way, impair the merit of the petition. From the trend of decisions in this respect, it is obvious that, a contempt matter, being quasi criminal in nature, there is no period of limitation for filing a contempt petition or to issue a suo-motu Rule, although it rests within the sole discretion of this Court if the Court should or should not entertain a delayed application or issue a suo-motu Rule, depending on the facts and circumstances of each case. However, the cause of delay should either be explained or be apparent from the facts and circumstances of the case. If a petition is found to be a vexatious, frivolous or infractuous one, then the Court should be loathe to accept such petition. On the contrary, if it is found that the petitioner or this Court was deterred by any situation that had patently or latently threatened or might have threaten the independent exercise of the Court’s contempt jurisdiction even in a fit case, or if issuing a contempt Rule, even in a patently appropriate case, may lead the Court  to face uncalled for resistance or confrontation with any other organ or may lead the Court to a situation that the Court alone is left to handle, then this Court may be reluctant to initiate a contempt proceeding or to issue a contempt Rule immediately. But that will not amount to abridgement or entailment the contempt jurisdiction, rather an abeyance for the time being or an exercise of self-restraint.                . . .(20)

Constitution of Bangladesh, 1972

Article 102

The constitutional duty to impose legal sanction upon the arrogants and the defiants and those considering them above the law shall be clone, ultimately. Otherwise the civilization, security of person and properties of the individuals, their constitutional and statutory rights, democracy, accountability nothing can be ensured. The people, if ever, entertain and doubt about the powers and authority of the Superior Courts in the protection, preservation and enforcement of law, then that might lead to the state of  lawlessness to the prejudice of all including the state. Accordingly, the contemner-respondent Nos. (1) M.B.I Munshi, Ex-Chairman, Jubliee Bank Limited and (2) Md. Moniruzzaman, Ex-Vice Chairman, Jubilee Bank Limited, are found guilty of the charges for committing the offence of contempt of Court and they are convicted accordingly and are sentenced to suffer simple imprisonment of 1(one) day from the time of pronouncing this judgment and order. The other contemnor-respondents were also convicted and sentenced accordingly and some of them were exonerated.          ...(21 to 26)

Mr. Kamrul Alam, Advocate.

. . .For the Contempt-petitioner.

Mr. Imam Hossain with

Mr. Tushar Kanti Roy, Advocates.

. . .For the contemner-respondent Nos. 1,2,6,7 &8.

Mr. M. Sayed Ahmed, Advocate.

...For contemner-respondent Nos. 3 & 4.

Mr. A.K.M. Badrudduza, Advocate.

. . .For the contemner-respondent No.9.

Ms. Nahid Mahtab, Advocate.

. . .For the contemner-respondent No.10.

JUDGMENT

Md. Rezaul Hasan, J. The petitioner has filed supplementary affidavit and affidavit in reply and the same shall form part of the main petition.

2.            This Rule has been issued on 15.05.2017, based on the allegations that that the contemner No. 1 M.B.I Munshi, as petitioner, had filed Company Matter No. 61 of 2012 before this Court, praying for condonation of delay in holding 96th to 101st AGMs, due for the calendar years 2009 to 2014, of Jubilee Bank Limited, wherein the petitioner had been added as respondent No. 2 and the said Company Matter No. 61 of 2012 was allowed, vide the judgment and order dated 16.11.2014, subject to compliance of certain directions having become final and conclusive, but the contemners did neither comply with the said judgment and order, nor with those directions and, thereby, they have committed the offence of contempt of court and are liable to be punished for, accordingly.

3.            Therefore, a Rule was issued calling upon the Contemner-Respondent Nos. 1 to 8 to show cause as to why they should not be found guilty for their conduct and acts in violating the judgment and orders dated 16.11.2014 passed by this Court, in the situation and in the manner as stated in the rule issuing order dated 15.05.2017, and as to why they should not be convicted for committing contempt of this Court and be sentenced to suffer such term of imprisonment and/or to pay such amount of fine as to this Court may deem fit and proper according to the nature and gravity of the offence alleged to have been committed by the contemnors and as to why such other or further order or orders, as to this Court may seem fit and proper, shall not be passed.

4.            The contemner-respondent No. 1 has filed an affidavit-in-reply and a supplementary affidavit, denying all material allegations and further stating that, the dispute between the petitioner and   respondents 1,2 and 8 has arisen owing to the attempt by the petitioner and the dismissed Managing Director Jahangir Alam to induct several non-shareholders into the board, in the AGM of the company for the year 2009, but which could not be held in scheduled time because of the disturbance created by Jahangir Alam and the present petitioner. The contemner-respondent Nos. 2, 7 and 8 have also filed separate affidavits-in-opposition in which they have also denied the allegations brought against them, mainly by adopting similar contentions as made by the contemner-respondent No. 1.

5.            The contemner-respondent No. 6 was exonerated from her personal appearance.

6.            Contemner-Respondent Nos. 1, 2 and 8 were present before this Court. The contemner-respondent No. 5 did not appear before this Court and was not found at his address pursuant to the warrant of arrest issued by this Court, vide order dated 10.10.2017 and re-issued on 22.10.2017.

7.            The contemner-respondent No. 10 has filed affidavit-in-compliance pursuant to order dated 10.10.2017, annexing the report of an inspection team of Bangladesh Bank.

8.            Similarly, the RJSC, contemner-respondent 9, has filed affidavit of facts pursuant to the order of this Court and also offered unconditional apology, which has been accepted.

9.            The contemner-respondent Nos. 9 and 10 were exonerated from the charges and their personal appearance were also dispensed with.

10.        Learned Advocate Mr. Md. Kamrul Alam has appeared on behalf of the contempt-petitioner. He submits that the contemner-respondent No. 1 was the then Chairman and contemner-respondent No. 2 was the then Vice-Chairman and that these contemners and other directors did not comply with the judgment and order dated 16.11.2014 passed in Company Matter No. 61 of 2012, in not holding any AGM in accordance with the provisions of law, and in not sending CV of 3 persons to Bangladesh Bank for appointment to the vacant position of the Managing Director of the Jubilee Bank Limited (JBL), as ordered by this Court. He also submits that the contemner-respondents have created a lot of fake and fabricated documents and presented a reply before this Court showing that they have held 96th to 101st AGMs, but these are only mere paper transactions and are fake minutes of 96th to 101st AGM, since, no AGM was held and no notice has been served upon any shareholders, including the petitioner. As regards the letter of the Bangladesh Bank seeking clarification regarding appointment of the Managing Director, the learned Advocate submits that, these are discrete conduct of the contemner-respondents to avoid compliance of this Court’s direction to appoint a Managing Director for the Bank (JBL) and that this order of the Court is very clear and it does not require any clarification from the Bangladesh Bank. He asserted that, once this Court has passed an order, Bangladesh Bank cannot arrogate to itself the task to interpret or clarify the order of this Court. He, therefore, concludes that, by their aforesaid conducts, the contemner-respondents have committed contempt of this Court as well as practiced fraud with the Court by creating and submitting fabricated minutes and other documents. Hence, the petitioner had to file another petition seeking condonation of delay for holding those outstanding AGM afresh, which has been registered as Company Mater No. 315 of 2017. He submits that unless these contemner-respondents are punished for such deliberate violation of the Court’s order and the deception made, then these types of practices will be continued by other unscrupulous persons by abusing their power and position and this will invite disasters, particularly in banking sector, and that will wholly frustrate the rules of law and shall render the judgments and orders a total nullity, which is a clear case of disrespect to the authority, dignity and majesty of this Court.

11.        Learned Advocate Mr. Imam Hossain has appeared on behalf of the contemner-respondent Nos. 1,2,6,7 and 8. He submits that, the petitioner has no locus-standi to file this petition, since he is not a shareholder of the bank. He next submits that the bank has complied with the direction of this Court and has submitted the minutes (photo copy) of the 96th to 101st AGMs. He then, referring to the supplementary affidavit of contemner-respondent No. 1, submits that it was the petitioner who was trying to prevent holding of these AGMs by filing a Civil Petition for Leave to Appeal No. 1233 of 2014 against the judgment and order dated 16.11.2016, passed in Company Matter No. 61 of 2012. The learned Advocate further submits that, because of a clique of the petitioner and his associates, the bank could not run smoothly since he and others had created a fake board of directors and there are lot of anomalies in respect of shareholding position of the bank. The learned Advocate also submits that, the petitioner, with intent to grab the control of the bank, has addressed several letters to various departments like Ministries, Bangladesh Bank, RJSC and the law enforcing agencies, but all these allegations (made by the petitioner and others) were found false and baseless. He then submits that, as regards the direction to send CV of 3 persons, as given in the judgment and order dated 16.11.2014 for appointment of Managing Director in JBL, the contemner-respondent No. 1 had sent a letter to the Bangladesh Bank for clarification, but the contemner-respondents did not receive any clarification. Hence, they could not comply with the said direction and that non-compliance was unintentional. He concludes that all these contemner-respondents have prayed for unconditional apology leaving them to the mercy of this Court.

12.        Learned Advocate Mr. A.K.M. Badrudduza has appeared on behalf of the respondent No. 9, RJSC. He submits that the contempt rule was issued in the name of former Registrar who has gone to PRL on 17.10.2015 and was exonerated from the charges by this Court. He also submits that, since incorporation of the company (JBL) till 1989, no information has been found in the record of this company. He also submits that, subsequently the company filed its returns for the years 1990 to 2014, but the function of RJSC is to accept the same for keeping in the record, that does not amount to validation or non-validation of these returns and filings.

13.        Learned Advocate for Bangladesh Bank Ms. Nahid Mahtab submits that, they have filed a special inspection report with their affidavit of compliance and that the then Governor, Bangladesh Bank, has been exempted from the charges. They have stated their position in their affidavit.

14.        I have heard the learned Advocate for the petitioner and the respondents and other parties and noted their submissions.

15.        At the very outset, I have delayed the question of jurisdiction of this Court. I am of the view that, a proceeding for contempt of Court can be drawn by this Court from a petition placed before it or suo-motu with reference to contemptuous utterance, report any conduct that may come to the notice of this Court from any other person or source. Once, the prima-facie facts and circumstances constituting the offence of the contempt of Court has been brought to or come to this Court’s notice, this Court, being a Court of record under Article 108 of the Constitution, and as has been done by its predecessors in this sub-continent, as well as other jurisdictions, can always initiate a contempt proceeding, as a court of record, in exercise of its constitutional jurisdiction, conferred under Article 108 of the Constitution of the People’s Republic of Bangladesh, Article 108 reads as follows:-“108. The Supreme Court shall be a court of record and shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself.”

16.        Here, the term “law” shall include the law declared by this Court, as specifically mentioned in Article 111 of the Constitution and need not necessarily be an Act of Parliament. In a case ( referred to by me in another judgment), the Supreme Court of India has held that, the Supreme Court can punish for contempt, as a Court of record, even in the absence of any Act of Parliament.

17.        As regard the claim about holding the 96th to 101st AGMs, I find that proceedings of three AGMs i.e. 96th, 97th and 98th AGMs have been recorded in a single minutes, while the proceedings of the 99th to 101st meetings have also been recorded in another single minutes. Therefore, admittedly, these AGMs were not held separately and the agendas were not placed before each AGM for consideration by the shareholders in each AGM, to be held one after another. These are not mere formalities, rather the provisions of section 81 read with the provisions of section 184 and 183 requires the contemner Chairman and the Directors of the JBL that they must prepare a “board report” and shall place, before each AGM to be held separately, the “audited balance sheet” and the auditors’ report, the proposal for appoint of auditor and consideration of their fees, the agenda relating to retirement and election of director etc. Moreover, confirmation of the correct recording of the previous minutes could not be done, since the meetings were not held separately.

18.        Besides, the balance sheet shall be signed by 3 directors which have not been done in this case. The balance sheet has been signed only by the Chairman and the Vice-Chairman i.e. contemer-respondent Nos. 1 and 2 respectively. There is no board report. Therefore, as required by law, this balance sheet or the profit and loss account cannot be placed before any of the said AGMs in the absence of the director’s report. On the other hand, the AGM should consider each agendas separately in separate AGM, which was not done in this case. Hence, any one of these AGMs cannot be treated as AGM in the eye of law, nor these shall amount to compliance of the Court’s order, but mere paper exercise and act of deception. All these prove clear violation of the Court’s order and practicing fraud on the Court.

19.        Secondly, as regards sending the CV to Bangladesh Bank, I am of the opinion that if any clarifications were at all required then they ought to have come before this Court, by filing an application in Company Matter No. 317 of 2017, seeking this Courts direction, not to Bangladesh Bank or any other authority has no jurisdiction to sit in appeal or to interpret the Court’s order which is within the exclusive domain of this Court. Besides, the order was very much clear and the contemner-respondents ought to have sent 3 CV to Bangladesh Bank, but they did not do so. This is also violation of this Court’s order on this count as well, for which primarily, the contemner-respondent Nos. (1) Mr. M.B.I. Munshi, (2) Mr. Md. Moniruzzaman and contemner-respondent No. 5 Mr. Munshi Md. Nazmul Huda are responsible.

20.        This Court is entrusted with the constitutional responsibility to ensure prevalence of the rule of law”, which is a matter of public interest as well as the primary concern of the peoples and also to ensure that the judgments and orders passed by this Court are being respected to the hilt, so that these should be no state of lawlessness and so that people at large will have no confusion that the violator of law must be compelled to obey and oblige by law.

21.        Besides, this Court has also taken for consideration the issue, if delay in filing contempt petition or issuing a suo-motu contempt rule will, in any way, impair the merit of the petition. From the trend of decisions in this respect, it is obvious that, a contempt matter, being quasi criminal in nature, there is no period of limitation for filing a contempt petition or to issue a suo-motu Rule, although it rests within the sole discretion of this Court if the Court should or should not entertain a delayed application or issue a suo-motu Rule, depending on the facts and circumstances of each case. However, the cause of delay should either be explained or be apparent from the facts and circumstances of the case. If a petition is found to be a vexatious, frivolous or infractuous one, then the Court should be loathe to accept such petition. On the contrary, if it is found that the petitioner or this Court was deterred by any situation that had patently or latently threatened or might have threaten the independent exercise of the Court’s contempt jurisdiction even in a fit case, or if issuing a contempt Rule, even in a patently appropriate case, may lead the Court  to face uncalled for resistance or confrontation with any other organ or may lead the Court to a situation that the Court alone is left to handle, then this Court may be reluctant to initiate a contempt proceeding or to issue a contempt Rule immediately. But that will not amount to abridgement or entailment the contempt jurisdiction, rather an abeyance for the time being or an exercise of self-restraint.

22.        Therefore, it is held that, this contempt petition is not bared by any law of limitation or otherwise and the Court’s authority to accept a contempt petition or to issue a suo-motu Rule in a fit case (for instance in a case of criminal contempt or contempt on the face of the Court) at a later stage will remain unimpaired, so that the constitutional duty to impose legal sanction upon the arrogants and the defiants and those considering them above the law shall be clone, ultimately. Otherwise the civilization, security of person and properties of the individuals, their constitutional and statutory rights, democracy, accountability nothing can be ensured. The people, if ever, entertain and doubt about the powers and authority of the Superior Courts in the protection, preservation and enforcement of law, then that might lead to the state of  lawlessness to the prejudice of all including the state.

23.        Accordingly, the contemner-respondent Nos. (1) M.B.I Munshi, Ex-Chairman, Jubliee Bank Limited, Son of Dr. N. Islam Munshi of House No. F86, Road No. 5, Banani, Dhaka, and (2) Md. Moniruzzaman, Ex-Vice Chairman, Jubilee Bank Limited, Son of Moulavi Abdul Khaleque of House No. 195/1, Shantibag, Dhaka are found guilty of the charges for committing the offence of contempt of Court and they are convicted accordingly and are sentenced to suffer simple imprisonment of 1(one) day from the time of pronouncing this judgment and order. The contemner-respondent No. (5) Munshi Md. Nazmul Huda, Ex-Director, Jubilee Bank Limited, son of late Samsul Huda of 89/2, Haque Chamber, 2nd Floor, West Panthopath, Dhaka (absconding) is found guilty for committing the offence and he is convicted accordingly and is sentenced to suffer simple imprisonment for a period of 2(two) days to be counted from the date of his arrest or surrender.

24.        The contemnor-respondent Nos. 1 and 2 are present before this Court and the order of committal be executed immediately in respect of said 2 convicts in Form No. 2 (Contempt), Appendix III of the Supreme Court of Bangladesh (High Court Division) Rules, 1973 , for doing the needful.

25.        The concerned authority is directed to execute the order of committal and to arrest the contemner respondent No. (5) Munshi Md. Nazmul Huda, Ex-Director, Jubilee Bank Limited, son of late Samsul Huda of 89/2, Haque Chamber, 2nd Floor, West Panthopath, Dhaka, in order to serve out his sentence.

26.        Other contemner-respondent Nos. (8) Abu Hasan, Ex-Director, Jubilee Bank Limited, of House No. 46, Road No. 1, Block-C, Sector-12, Mirpur Dhaka is also found guilty. However, he is convicted for a period of half an hour and be deemed to have served out same, considering his physical presence in and without any freedom to leave from this Court. The accused No. (4) Mohammad Khairul Hassan, Ex-Director, Jubilee Bank Limited, son of late Khabir Uddin Miah of House No. 8/H/5, Road No. 14(New), Dhanmondi, Dhaka (7) Sheikh Md. Faruk Hussain, Ex-Director, Jubilee Bank Limited, son of late Sheikh Md. Abdul Wahab of village: Deayua, Post Office-Daulatpur, Khulna, (3) Md. Babul Hosain, Ex-Director, Jubilee Bank Limited, son of late Shahor Ali of Zinzira Bazar, (katpottey) Police Station Keranigonj, Dhaka are nor present before this Court. However, allegation against them are not proved. So, they are exonerated from the charges.

27.        The contemner-respondent No. (6) Mrs. Nurjahan Islam Munshi, Ex-Director, Jubilee Bank Limited, being a woman, is hereby exonerated from the charge, since she is silent partner or a director by name only. She is discharged from the charge brought against her.

28.        Contemner-respondent Nos. 9 Mr. Bijon Kumar Boishaw, Ex- Registrar, RJSC and (1) Mr. Dr. Atiur Rahman, Ex-Governor being officials and having no involvement were exonerated earlier and shall stand discharged from the charges.

29.        Verbal order has been pronounced in the open Court.

30.        The order for committal be sent to the learned Registrar of the Supreme Court of Bangladesh, High Court Division, for doing the needful.

31.        Sent down the record of the company at once.

Ed.