Case No: Civil Petition for Leave to Appeal No. 1073 of 2005
Judge: Syed JR Mudassir Husain ,
Court: Appellate Division ,,
Advocate: Mr. Abdus Salam Khan,Mr. Ahsanullah Patwary,,
Citation: IV ADC (2007) 785
Case Year: 2007
Appellant: Mr. Abul Hossain and Brothers
Respondent: Rupali Bank Limited
Delivery Date: 2006-12-10
Syed J.R. Mudassir Husain, CJ.
Md. Ruhul Amin, J.
Mohammad Fazlul Karim, J.
MM Ruhul Amin, J.
Md. Tafazzul Islam, J.
Amirul Kabir Chowdhury, J.
Md. Joynul Abedin, J.
Mr. Abul Hossain and Brothers, 16/E, Chota Katara (Near Chawk Bazar) Dhaka
Rupali Bank Limited, Johnson Road, Dhaka and others
December 10, 2006.
It appears that the defendant-petitioners paid only Tk. 15,00,000/00 out of the claim of the plaintiff amounting to Tk. 18,25,000/- and ultimately failed to repay the balance amount with interest and as such we are of the view that the learned Judges of the High Court Division having meticulously considered the evidence on record and facts and circumstances of the case rightly allowed the appeal in part and we are fully in agreement with the findings and decisions arrived at by the High Court Division. …….. (8)
Abdus Salam Khan, Senior Advocate, instructed by Md. Wahidullah, Advocate-on-Record-For the Petitioners.
Ahsanullah Patwary, Advocate-on-Record- For Respondent No. 1.
Not represented-Respondent Nos. 2-5.
Civil Petition for Leave to Appeal No. 1073 of 2005.
(From the Judgement and order dated 13.04.2005 passed by the High Court Division in First Appeal No. 552 of 2000).
1. Defendant is seeking leave against the judgment and order dated 13th April, 2005 passed by a Division Bench of the High Court Division in First Appeal No. 552 of 2000 allowing the same in part which arose out of judgment and decree dated 17-08-2000 passed by the learned Subordinate Judge (now Joint District Judge), Artha Rin Adalat No. 3, Dhaka in Title Suit No. 120 of 1997 dismissing the suit.
2. The principal-respondent No.1 Pubali Bank Ltd. as plaintiff instituted the above Title Suit No. 120 of 1997 in the Court of Subordinate Judge, Artha Rin Adatal No.3, Dhaka for realization of Tk. 9,30,826/- together with 20% interest, stating inter alia, that the defendant-petitioner-firm, M/s. Abul Hossain and Brothers approached the plaintiff-Bank on 09-06-1993 for financial assistance and accordingly the said Bank sanctioned Tk. 15,00,000/- on 22-09-1993.The period of payment(sanction period) was up to 31-08-1994; and for which the petitioner executed necessary charge documents in favour of the plaintiff-Bank and the defendant-respondent Nos. 3-5 stood as guarantors of the said loan and they also mortgaged the schedule property to the plaintiff- Bank. The defendant-respondents by their negligence failed to repay the loan money to the plaintiff-Bank with agreed interest for the period of 22-09-1993 to 31-08-1994.The plaintiff-Bank made several requests for the payment of loan but the petitioner and other defendants failed to repay the loan with interest. The plaintiff-Bank exhausted all processes for realization of Bank dues from the defendants. At last on 06-04-1996 the plaintiff-Bank issued a final demand notice to the defendants for repayment of the Bank loan; that on receipt of the said notice of demand the defendants filed an application on 24-03-1997 praying for amicable settlement and by which the defendants deposited Tk.15,00,000/-to the plaintiff-Bank and thereafter defendants also gave an undertaking to pay the balance amount of Tk.9,30,826/-to get release of the suit property. The plaintiff-Bank further alleged that for the default of the defendants, the plaintiff-Bank served legal notice to the defendants for repayment of the aforesaid balance amount. But for the default of the defendants the plaintiff brought aforesaid Title Suit for recovery of money together with 20% interest.
3. The defendant-respondent Nos. 3-5 contested the suit by filing written statement and having denied all the material allegations made in the plaint, they contended, inter alia, that the suit is not maintainable and the same is barred by limitation. They further contended that the defendants by amicable settlement with the plaintiff-Bank agreed to pay Tk.15,00,000/- against the dues of the plaintiff-Bank at Tk. 18,25,000/- and the defendants with full understanding with the Bank authority paid Tk. 15,00,000/-and Tk. 3,25,000/-to the plaintiff-Bank and thereafter got the release of the part of mortgage property of 32/A/2, Free School Street, Panthapath, free from the mortgage and free from all encumbrances. In view of the amicable settlement the defendants also filed an application before the plaintiff- Bank for consideration of rest dues arising out of interest. But the plaintiff-Bank without considering the application of the defendants instituted the said Title Suit No. 120 of 1997 by suppressing the actual fact.
4. The trial Court upon hearing the parties dismissed the suit by judgment and decree dated 17-08-2004 and against which, the petitioner took an appeal before the High Court Division. The learned Judges of the High Court Division allowed the appeal in part. Hence, this leave-petition.
5. Mr. Abdus Salam Khan, the learned Senior Advocate appearing for the petitioner, placed before us the Judgement of the trial Court as well as the impugned judgment of the High Court Division and thereafter contended that the defendants by amicable settlement with the plaintiff-Bank settled the plaintiff’s dues at Tk. 18,25,000/- and the defendants on good faith paid Tk. 15,00,000/- and the balance amount of Tk. 3,25,000/- would be considered as per application of the defendants and accordingly got the release of the part of mortgage property of 32/A/2, Free School Street, Panthapath free from the mortgage and free from all encumbrances. It is argued that in view of the aforesaid understanding the filing of the suit by the plaintiff-Bank is a kind of practice of fraud and which has vitiated the claim of the Bank. The learned Judges of the High Court Division having failed to appreciate the petitioner's prayer for consideration committed an error of law in passing the impugned judgment, which is liable to set aside.
6. It was further contended that the plaintiff-Bank having agreed to consider the payment of balance amount with interest and for release the part of mortgage property free from mortgage and from all encumbrances but the Bank authority having failed to consider the application of the petitioner, fraudulently instituted the Title Suit against the defendants and as such the trial Court was justified in dismissing the suit.
7. Mr. Ahsanullah Patwary, the learned Advocated-on-Record appearing for the respondents, supported the impugned judgment of the High Court Division and urged before us for dismissed of the leave-petition.
8. We have perused the impugned judgment of the High Court Division as well as the judgment of the trial Court. It appears that the defendant-petitioners paid only Tk.15,00,000/00-out of the claim of the plaintiff amounting to Tk.18,25,000/-and ultimately failed to repay the balance amount with interest and as such we are of the view that the learned Judges of the High Court Division having meticulously considered the evidence on record and facts and circumstances of the case rightly allowed the appeal in part and we are fully in agreement with the findings and decisions arrived at by the High Court Division.
9. In the aforesaid premises, we find no legal infirmity for our interference.