Case No: Writ Petition No. 1712 of 2011
Judge: Md. Ashfaqul Islam,
Court: High Court Division,,
Advocate: Mr. Faysal Hasan Arif,Mr. Qumrul Haque Siddique,Mr. S.M. Moniruzzaman,Mr. Protikar Chakma,Mr. K.M. Masud Rumy,,
Citation: 4 LNJ (2015) 252
Case Year: 2015
Appellant: Mrs. Mohsina Rahman
Respondent: Bangladesh and others
Delivery Date: 2011-03-15
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Md. Ashfaqul Islam, J,
S. M. Emdadul Hoque, J.
Mrs. Mohsina Rahman
. . . Petitioner
Bangladesh, represented by the Secretary, Ministry of Finance.
. . .Respondents
Bank Companies Act (XIV of 1991)
Sections 5(Ga Ga), (Chha) and 27
Bangladesh Bank Order (PO 127 1972)
Article 42(a) & (b)
The word ‘guarantor’ cannot be tagged with the definition of ‘borrower’, and particularly having regard to the definition of “defaulter-borrower” (‡Ljvcx FY MÖnxZv) as per section 5 Ga Ga of the Act, and that the requirement for sending the information of “defaulter-borrowers” to the Bangladesh Bank has been detailed in section 27 Ka Ka of the Act, on the basis of which the CIB list is prepared. The impugned inclusion of name of the petitioner, not being a “defaulting borrower”, as per the definition of section-5 Ga Ga of the Act, in the CIB report in reference is illegal and arbitrary and an act of negligence and non-application of mind and has caused loss and injury to the petitioner. . . .(16)
Major Manjur Kader Vs. Bangladesh, 59 DLR 451; Mahmudur Rahman Vs. Bangladesh Bank, 13 MLR 353; Md. Mahbub Alam Vs. Bangladesh Bank and other, Quazi Naibul Hasan Vs. Bangladesh Bank 61 DLR 96, IFIC Bank Vs. Beximco Holdings Ltd. 57 DLR 154 ref.
Mr. Faysal Hasan Arif with
Mr. Qumrul Haque Siddique, Advocates.
... For the petitioner.
Mr. S.M. Moniruzzaman with
Mr. Protikar Chakma
Mr. K.M. Masud Rumy,
Assistant Attorney Generals
Writ Petition No. 1712 of 2011
Md. Ashfaqul Islam, J:
At the instance of the petitioner Mrs. Mohsina Rahman, Chairman, Meghna Insurance Co. Ltd. this Rule was issued calling upon the respondents to show cause as to why the impugned C.I.B. (Credit Information Bureau) report maintained by the Office of the respondent Nos. 2-6 illegally treating the petitioner as a loan defaulter under Borroweer Code No. 161447 should not be declared to have been made without lawful authority and is of no legal effect.
The back ground leading to the issuance of the Rule, in short, is that the petitioner is the chairman, Meghna Insurance Co. Ltd. and operating her business for a long time with wide reputation. On 21.05.2003, the respondent No. 7, Industrial Promotion and Development company Limited (IPDC), vide its letter No. IPDC/BHL/2003/393 offered a lease finance facility of Tk. 5.00 crore to the respondent No. 9, Brighton Hospital & Diagnostic Center (Pvt.) Ltd. for procurement of MRI machine for its diagnostic centre. According to the aforesaid offer of the respondent No.7, the respondent No. 9 need to have personal guarantee from the petitioner to obtain the aforesaid loan facility, and the Managing Director of the respondent No.9 Company being a close relative of the petitioner took the signature of the petitioner on the form of a personal guarantee dated 23.07.2003 by misrepresenting facts and accordingly the respondent No. 9 availed of the loan facility for Tk. 5.00 crore from the respondent No.7.
Subsequently when the petitioner came to know the real picture, she raised objection to the Managing Director of the respondent No.9 and the respondent No. 7. Mr. Sabir Ahmed chowdhury, father of the petitioner came forward to settle the matter with the respondent No.7 and the respondent No.9 and following negotiation between them, he offered a fresh personal guarantee to secure the loan of the respondent No.9 on condition that the respondent No.7 shall cancel, return and release the personal guarantee obtained from the petitioner. Accordingly, the respondent No.7 received the fresh personal guarantee given by Mr. Sabir Ahmed Chowdhury but unfortunately, the respondent No. 7 did not as yet release the personal guarantee obtained from the petitioner inspite of repeated request.
Thereafter on 01.04.2004 the respondent No.7 offered another lease finance facility to the respondent No.9 for an additional amount of Tk. 4.00 crore vide its letter under memo No. IPDC/BHL/2004/319 dated 01.04.2004. By completing all formalities the respondent No.9 availed of the aforesaid loan facility from the respondent No.7. Thereafter vide a letter dated 24.06.2004, the respondent No.7 confirmed an arrangement of funding of Tk. 11.00 crore in addition to previous loan amount of Tk. 9.00 crore to the respondent No. 9, the respondent No.7 also confirmed that the collateral securities mentioned in the said letter will cover the total financial facilities of Tk. 20.00 crore including Tk. 9.00 crore which has already been disbursed in favour of the respondent No.9 who agreed to mortgage some properties in favour of Shahjalal Islami Bank Limited and on 17.08.2005 vide a letter respondent No.7, confirm the respondent No.9, to consider releasing the personal guarantee of the petitioner. On 05.04.2006 the petitioner served a legal notice upon the respondent No.7 to cancel the personal guarantee of the petitioner which the respondent No.7 regretted.
The petitioner thereafter prayed for loan to a financial institution namely Prime Finance & Investment Ltd. and Bangladesh Commerce Bank Limited but they regretted the prayer of the petitioner on the ground that, the name of the petitioner has been enlisted as Ò‡Ljvcx FY MÖnxZvÓ in the list of the Credit Information Bureau (CIB). The information is surprising for the petitioner. To the best of the petitioner’s knowledge she is not a defaulter borrower of any bank or financial institution. Having known about the aforesaid information the petitioner on 15.02.2011 served a Legal Notice to the respondent Nos. 2-6 with a demand to supply an authenticated copy of CIB list of defaulters showing the petitioner as a Ò‡Ljvcx FY MÖnxZvÓ along with the name of the reporter and all particulars of the report by 10.00 a.m. Sunday, 20.02.2011either to the petitioner or to her learned advocate, but the respondents did not yet responded against the said Legal Notice.
The petitioner thereafter obtained authentic information regarding the inclusion of her name in the CIB report, where she found that under Borrower Code No. 161447 her name has been listed as defaulter against loan taken by the respondent No. 9. Then on 22.02.2011 the petitioner served a Notice demanding Justice upon the respondent Nos. 2-6 to delete her name from the said report as she was not a loan defaulter. After receiving the aforesaid notice the respondent No. 2-6 not yet informed the petitioner or her lawyer that they have deleted the name of the petitioner from the said report (Annexure-J).
By annexure-K a letter dated 22.02.2011 the Bangladesh Commerce Bank Limited also informed the petitioner that her name has been enlisted as loan defaulter Ò‡Ljvcx FY MÖnxZvÓ as against the personal guarantee of the respondent No.9 BHDCL. At this stage the petitioner moved this Division and obtained the present Rule.
Mr. Qumrul Haque Siddique the learned advocate appearing on behalf of the petitioner after placing the petition and the relevant laws on the issue mainly submits that the impugned CIB list maintained by the office of the respondent Nos. 2-6 showing the petitioner as a loan defaulter is absolutely wrong since the same has been done upon misinterpretation and misconception of section 5(GaGa) of the Bank Companies Act, 1991. He submits that the definition of Ò‡Ljvcx FY MÖnxZvÓ as envisaged in section 5 (GAGA) if read with section 27 (KA KA) of the Act contemplates that a guarantor is not included in that definition. Then he brought to our notice section 5 (GAGA) of the Bank Companies Act, 1991 which reads as follows:
“5(MM) Ò‡Ljvcx Fb MÖnZxÓ A_© †Kvb e¨w³ ev cÖwZôvb, hvnvi wb‡Ri ev ¯^v_© mswkøó cÖwZôv‡bi AbyK~‡j cÖ`Ë AMÖxg, FY ev Dnvi Ask ev Dnvi Dci AwR©Z my` evsjv‡`k e¨vsK KZ©„K RvixK…Z msÁv Abyhvqx †gqv‡`vËxY© †nvqvi 6 (Qq) gvm AwZevwnZ nBqv‡Q|Ó
“5(Q) †`bv`vi A_© jvf-¶wZi fvMvfvwM, Lwi` ev BRviv “wfwË‡Z ev Ab¨ †Kvbfv‡e Avw_©K my‡hvM myweav MÖnYKix e¨w³ †Kv¤úvbx ev cÖwZôvb Ges Rvwgb`vi Bnvi Aš—fy©³ nB‡e|
Next he places section 27 KA KA of the Act, which is quoted below:-
27 KK| †Ljvcx FY MÖnxZvi ZvwjKv, BZ¨vw` (1) cÖ‡Z¨K e¨vsK-†Kv¤úvbx ev Avw_©K cÖwZôvb, mgq, Dnvi †Ljvcx FY MÖnxZv‡`I ZvwjKv evsjv‡`k e¨vs‡K †cÖiY Kwi‡e|
2| Dc-aviv (1) Gi Aaxb cÖvß ZvwjKv evsjv‡`k e¨vsK †`‡ki mKj e¨vsK-†Kv¤úvbx I Avw_©K cÖwZôv‡b †Kvbiƒc FY myweav cÖ`vb Kwi‡e bv|
4| AvcvZZt ejer Ab¨ †Kvb AvB‡b hvnv wKQyB _vKzK bv †Kb, †Ljvcx FY MÖnxZvi wei“‡× FY cª`vbKvix e¨vsK-†Kv¤úvbx ev †¶ÎgZ, Avw_©K cÖwZôvb cÖPwjZ AvBb Abymv‡i gvgjv `v‡qi Kwi‡e|”
By referring to all these provisions he submits that Ò‡Ljvcx FY MÖnxZvÓ means such person who has taken loan either in his own name or in the name of the Company but does not include a guarantor. Therefore, the impugned CIB list showing the petitioner as a loan defaulter is without any lawful authority and is of no legal effect.
He also submits that the exercise of statutory power by the public functionaries must be just, fair, reasonable, transparent and bonafide, as such the impugned CIB list maintained by the office of the respondent Nos. 2-6, showing the petitioner as a loan defaulter is not tenable in law.
This Rule is not opposed by filing any affidavit in opposition by the respondent.
We have heard the Learned Advocate for the petitioner and considered his submissions. The moot question that falls for consideration in this writ petition is whether the enlistment of the petitioners name in the CIB list has been illegally done since the definition of Ò‡Ljvcx FY MÖnxZvÓ under section 5 (GAGA) of the Bank Companies Act, does not include a guarantor.
Mr. Kumrul Hoque Siddique, the learned Advocate for the petitioner on the point has cited several decisions. Those are, Major Manjur Kader Vs. Bangladesh 59DLR 451, Mahmudur Rahman Vs. Bangladesh Bank 13 MLR 353, Md. Mahbub Alam Vs. Bangladesh Bank and other 1 law guardian 343 and a decision of full a Court Quazi Naibul Hasan Vs. Bangladesh Bank 61 DLR 96 and all these decisions unequivocally held that the definition of defaulter in section 5 (GAGA) of the Act, does not include a guarantor. He has also brought to our notice a contra decision on the point held in the case of IFIC Bank Vs. Beximco Holdings Ltd. 57 DLR 154 and submitted that against that decision leave has been granted by the Appellate Division staying the operation of the said Judgment and Order.
The settled principle that a guarantor is not a defaulter within the meaning of section 5(GaGa) of the Bank Companies Act, 1991 has been consistently upheld by all the decisions as referred to above and finally a Larger Bench of this Division presided over by Justice SAN Mominur Rahman in 61 DLR 96 after considering the contra decision of IFIC Bank Vs. Beximco Holdings Ltd. 57 DLR 154 and the ratio of the decisions held in of Mazor Monjor Kader case, Mahmodur Rahman case, Md. Mamodul Alam case as cited above finally held that the guarantor is not included in the definition of Ò‡Ljvcx FY MÖnxZvÓ (loan defaulter) under section 5 (GA GA) read with section 27 (ka ka) of the Bank Companies Act, 1991.
In the said decision the larger Bench of this Division in Paragraph 20 observed:
“Considering the aforesaid provisions of sections 5 Ga Ga, 5 (Chha) and 27 Ka Ka of the Bank Company Act, 1991, quoted hereinbefore, and Article 42 (a) and (b) of the Bangladesh Bank Order, 1972, quoted herein above, we are of the view that the word ‘guarantor’ cannot be tagged with the definition of ‘borrower’, and particularly having regard to the definition of “defaulter- borrower” Ò‡Ljvcx FY MÖnxZvÓ as per section 5 Ga Ga of the Act, and that the requirement for sending the information of “defaulter-borrowers” to the Bangladesh Bank has been detailed in section 27 Ka Ka of the Act, on the basis of which the CIB list is prepared. The impugned inclusion of name of the petitioner, not being a “defaulting borrower”, as per the definition of section-5 Ga Ga of the Act, in the CIB report in reference is illegal and arbitrary and an act of negligence and non-application of mind and has caused loss and injury to the petitioner.”
This proposition of law is no longer a resintegra. We are also in respectful agreement with those decisions on the point. It is not required to give any further deliberations on the same issue.
In that view of the matter, we are of the view that this Rule should be made absolute.
In the result, this Rule is made absolute without any order as to cost. The enlistment of the petitioners name in the CIB report by the office of the respondent Nos. 2-6 treating the petitioner as a loan defaulter under Borrower Code No. 161447 is declared to have been passed without any lawful authority and is of no legal effect.
Communicate it at once.