Premier Bank Ltd. Vs. F.V. Rainbow-1 and others 2016 (2) LNJ 313

Case No: Admiralty Suit No. 06 of 2013

Judge: Sheikh Hassan Arif,

Court: High Court Division,,

Advocate: Mr. M. Moksadul Islam,Mr. Muhammad Mijanur Rahman,,

Citation: 2016 (2) LNJ 313

Case Year: 2016

Appellant: Premier Bank Ltd

Respondent: F.V. Rainbow-1 and others

Subject: Artha Rin, Admiralty Law,

Delivery Date: 2015-06-22

Premier Bank Ltd. Vs. F.V. Rainbow-1 and others 2016 (2) LNJ 313
HIGH COURT DIVISION
(ADMIRALTY JURISDICTION)
Sheikh Hassan Arif, J
Judgment on
22.06.2015
  Premier Bank Limited
. . . Plaintiff
-Versus-
F.V. Rainbow-1 and others
. . . Defendant

Artha Rin Adalat Ain (VIII of 2003)
Sections 2, 3, 4, 5, and 6
Since, admittedly, the plaintiff bank is a bank established under the Bank Company Act, 1991 and by virtue of Clause (Ka) of Section 2 of the said Ain it is included in the definition of ‘financial institution’, the natural conclusion is that if it wants to realize any loan amount by filing any suit, it must go before the Artha Rin Adalat established under the said Ain. Not only that, the said suit has to be filed in accordance with the provisions under the Artha Rin Adalat Ain, 2003. Upon mere reading of the plaint as well as the deposition of the sole witness as examined by the plaintiff and the specific prayers made by the plaintiff in the plaint, it is crystal clear that this is a case for realization of loan amount against the defendant Nos. 1-6. In view of specific provisions, namely Section 5 of the Artha Rin Adalat Ain, 2003, this Court does not have any jurisdiction to entertain this suit at all, though, very peculiarly, this suit has proceeded up to the stage of even delivery of judgment. This suit is not maintainable before this Admiralty Court and is liable to be dismissed. However, if the plaintiff desires, and if the law permits, it is at liberty to approach the appropriate forum for seeking redress as sought in the instant suit. . . . (8, 9 and 10)

Mr. M. Moksadul Islam, Advocate
..... For the plaintiff
Mr. Muhammad Mijanur Rahman, Advocate
… For the defendant No. 1-6.
 
JUDGMENT

Sheikh Hassan Arif, J:
The plaintiff, Premier Bank Ltd. Khatungonj Branch, Chittagong, has filed this Suit against F.V. Rainbow-1 (Reg. No. F-8021), a fishing vessel, the Master of the said vessel and the owners of the vessel with the following prayers:
  1. a decree be passed for an amount of Tk. 8,91,71,046.76 against the defendants jointly and severely with interest @ 18% per annum till the date of realization of the said amount. 
  2. a warrant of arrest be issued against the vessel F.V. Rainbow-1 (Reg. No. F-8021) and served on her master or any one in charge of the said vessel and to be taken and held in custody of the Marshal of the Admiralty Court, as security for payment of the decretal amount.
  3. cancelation of the sailing permission of fishing in the exclusive economic zone of Bangladesh be ordered.
  4. release of the defendant no.1 vessel F.V. Rainbow-1 (Reg. No. F-8021) from attachment/warrant and detention in the event of defendants furnishing sufficient and proper security to the satisfaction of this Hon’ble Court.
  5. in the event of defendants failing to pay the decretal amount of the plaintiff an order be passed condemning the said vessel F.V. Rainbow-1 (Reg. No. F-8021) to be sold by order of this Hon’ble Court and the proceed be applied towards the payment of the decretal amount. And
  6. for such other or further order or orders as your Lordships seem fit and proper. 
  1. The case of the plaintiff, in short, is that in the course of its banking business, it entered into a loan agreement with defendant No. 4, the owner of the said defendant No. 1-vessel-F.B Rainbow-1, vide sanction advice dated 13.07.2010 enabling the defendant No. 4 to purchase the defendant No. 1-vessel. The said credit facility was subsequently amended and rescheduled on various dates vide letters including, No. Premier/Ktg/Cr./579/2010 dated July13, 2010, Premier /Ktg/Cr./623/2010 dated July 26, 2010, Premier/ Ktg/Cr./2011/ 1429 dated August 14, 2011 and Premier/Ktg/ Cr./2012/173 dated March 11, 2012.  Accordingly, the said vessel was purchased by defendant No. 4 and it got sailing permission on 24.10.2011 from the proforma defendant No. 11, Director (Marine), Marine Fishing Department, Chittagong. Subsequently, on 28.06.2012, upon executing Form 9-B of the Mercantile Marine Department, the defendant No. 1-vessel was mortgaged in favour of the plaintiff as against the said loan, thereby, the owners of the defendant No. 1-vessel assigned all the owner’s title, right and interests in the said vessel in favour of the plaintiff as security for the loan amount and interests. That the total outstanding loan together with the interests stood at Tk. 8,91,71,046.76 as on 30.12.2012. That the plaintiff tried in every possible way to recover the said outstanding loan, but it did not get any positive response from the defendants. Thereafter, the plaintiff, on 17.12.2012, also approached the Mercantile Marine Department seeking permission to sell the said mortgaged vessel (defendant No. 1), whereupon the defendant No.10 (the Principal Officer, Mercantile Marine Department, Chittagong), vide letter dated 31.12.2012, asked the plaintiff to take initiatives before the Hon’ble High Court Division for sale of the said mortgaged vessel under Section 43(1) of the Merchant Shipping Ordinance, 1983. In view of above, the plaintiff filed this suit before the Admiralty Bench of the High Court Division praying for a decree of Tk. 8,91,71,046.76 along with interests at the rate of 18% per annum till realization of the said amount providing break-down of the said claim under paragraph 7 of the plaint.
  2. The suit is contested by defendant Nos. 1-6, the said vessel and the owners of the said vessel, by filing written statements. The case of the defendants, in short, is that the suit is not maintainable under Admiralty jurisdiction in its present form. The further case of the defendants is that they never refused to settle the outstanding loan of the plaintiff and that subsequent to the filing of the said suit, the dispute between the plaintiff and the defendants was settled on 13.10.2013 extending the tenure of payment of outstanding loan by the defendants up to 31.05.2016. It is further stated in the written statement that the said vessel is now fishing in the Bay of Bengal pursuant to an ad-interim order passed by the High Court Division in Writ Petition No. 7977 of 2011 filed by the defendants and the said writ petition is still pending.
  3. Upon such contesting versions of the case, this Court, vide order dated 29.04.2014, framed following issues for adjudication:
  1. Is the suit maintainable under the Admiralty Jurisdiction?
  2. Does the plaintiff any cause of action against Defendant nos. 1-6?
  3. Is the suit bad for mis-joinder and non-joinder of parties?
  4. Is the Suit barred under the principles of estoppels, waive and acquiescence?
  5. Has the plaintiff suffered any loss and damages?
  6. Is the Plaintiff have any claim against Defendant nos. 1-6?
  7. Is the plaintiff entitled to recover their claim from the defendants by selling the defendant no.1 vessel FV Rainbow-1 (Reg. No. F-8021)?
  8. What relief, if any, the plaintiff is entitled under the law and equity? If so, to what extent?
  1. Since no initiative was taken by the parties to resolve the issue of maintainability of the suit at first in view of the provisions under Order-14, Rule-2 of the Court of Civil Procedure, the suit proceeded up to the stage of argument hearing and then delivery of judgment.
  2. At the time of argument, learned Advocate for the defendants has vehemently argued the issue of maintainability of this suit before this Court mainly on the ground that in view of the provisions of the Artha Rin Adalat Ain, 2003 making it mandatory for the financial institutions and banks to file cases for realization of loan before the Artha Rin Adalat constituted under the said Ain, the very suit filed by the plaintiff-bank before this Court mainly for realization of loan is not maintainable.
Issues No. 1:
  1. As regards the maintainability of the instant suit, Mr. Moksedul Islam, learned Advocate appearing for the plaintiff, submits that in view of the letter issued by the Marine Department (defendant No.10) to approach the High Court Division for realization of loan granted as against the mortgage of the said vessel, the plaintiff has filed the instant suit. When the attention of the learned advocate was drawn to the specific provisions of the Artha Rin Adalat Ain, 2003 (“the said Ain”), in particular the provisions under Sections 3, 4 and 5, learned Advocate has referred to the provisions under Section 12 of the said Ain. According to him, since in view of the provisions under Section 12 of the said Ain the plaintiff was not in a position to approach the Artha Rin Adalat for realization of loan without first selling the mortgaged property or hypothecated property, the plaintiff was not entitled to avail the jurisdiction of the  Artha Rin Adalat. According to him, since the defendant No. 1 is an Ocean going vessel and it has to be sold in accordance with the provisions of the Merchant Shipping Ordinance, 1983, which provides for an appropriate proceeding in the High Court Division under Section 43, the plaintiff has rightly approached the Admiralty Bench of the High Court Division for realization of the loan amount upon selling the said mortgaged vessel. In this regard, learned Advocate refers to Exhibit-15, which is letter dated 31.12.2012, issued by the Mercantile Marine Department asking the plaintiff to take appropriate steps under Section 43 of the Merchant Shipping Ordinance, 1983 and to file suit for a money decree before the Admiralty Bench of the High Court Division. Mr. Islam further argues that since in view of Section 12 of the Artha Rin Adalat Ain, the bank cannot sell the said vessel in auction without first taking the said vessel into possession, it did not take any steps to sell the said vessel under Section 12 of the said Ain.
  2. It appears from the specific provisions of the said Ain, in particular Section 3, that the provisions of the said Ain have been given overriding effect over any other provisions of law under any other Act. Under Section 4 of the said Ain, some Courts, being Artha Rin Adalats, were established and, by virtue of Section 5, the exclusive jurisdiction has been given to the said Adalats for adjudication of cases to be filed by the financial institutions relating to realization of loan. Since, admittedly, the plaintiff bank is a bank established under the Bank Company Act, 1991 and by virtue of Clause (Ka) of Section 2 of the said Ain it is included in the definition of ‘financial institution’, the natural conclusion is that if it wants to realize any loan amount by filing any suit, it must go before the Artha Rin Adalat established under the said Ain. Not only that, the said suit has to be filed in accordance with the provisions under the Artha Rin Adalat Ain, 2003. Upon mere reading of the plaint as well as the deposition of the sole witness as examined by the plaintiff and the specific prayers made by the plaintiff in the plaint, it is crystal clear that this is a case for realization of loan amount against the defendant Nos. 1-6.
  3. This being so, this Admiralty Suit is nothing but a Money Suit filed by a financial institution and, therefore, in view of specific provisions, namely Section 5 of the Artha Rin Adalat Ain, 2003, this Court does not have any jurisdiction to entertain this suit at all, though, very peculiarly, this suit has proceeded up to the stage of even delivery of judgment whereas the plaint of the suit should have been returned or rejected at the very initial stage upon appropriate applications by the defendants. Though this suit was not maintainable from the very first day, it was allowed to be continued to the stage of delivery of the judgment at the cost of the litigants and valuable time of the Court.
  4. In view of above, this Court is of the view that the issue No. 1 should be determined against the plaintiff. This means, this Suit is not maintainable before this Admiralty Court and is liable to be dismissed. However, if the plaintiff desires, and if the law permits, it is at liberty to approach the appropriate forum for seeking redress as sought in the instant suit.
Issue Nos. 2-8:
  1. Though in respect of issue no.1 this Court has decided that the instant suit is not maintainable before this Court, it is obliged to state its findings or decision with the reasons there for on issue Nos.2-8 in view of the amended provisions of Order 20 Rule 5 of the Code of Civil Procedure and the ratio in Md. Sultan Miah Vs. Sree Haradhan Shah and others, 40 DLR-236 and Inspector, Railway Nirapatta Bahini Vs. Sohrab Ali, 43 DLR-79,though the decisions on the above issues will not change the ultimate result of the suit which is liable to be dismissed as being not maintainable.
  2. To prove the case, the plaintiff examined one Md. Abdul Kaium, Executive Officer, Recovery Division of the Premier Bank Ltd. as P.W.1, who has deposed on behalf of the plaintiff on the basis of the authority given in his favour by the plaintiff-bank vide Exhibit-A. The said witness (P.W.1) proved certain documents including the Sanction Advice dated 13.07.2010 as Exhibit-B. According to the said sanction advice, the plaintiff-bank granted three categories of loans, namely: i) Specific Foreign LC (sight) for USD 12.00 Lac equivalent to Tk. 840 lac. ii) Term Loan for Tk. 756.00 Lac (As inner of L/C) and iii) Over Draft for Tk. 100 lac, in favour of M/s. Rainbow Sea Foods Limited (defendant no.4). The said witness (P.W.1) also deposed that the said credit facilities were granted in favour of the defendant No. 4 to purchase defendant no.1-vessel, F.V. Rainbow-1, a Hull Material-Steel vessel. L.O.A: 40 Meter, Breadth: 08 Meter, Depth: 4.40 Meter, Build in 2009, Country of Origin: Thailand with capacity of 300 MT, Number of Engine-1, Engine Serial No.33155198, Port of Registry: Chittagong, Registered in the year 2011. In order to secure the said loan, he deposed, the Managing Director of the defendant no.4-Company executed several charge documents, namely the Deed of Agreement of Charge by way of hypothecation (Exhibit-C), Irrevocable General Power of Attorney (Exhibit-D), Form No. 9B with the Registrar of Bangladesh Ships, Mercantile Marine Department, Chittagong (Exhibit-E). P W-1, accordingly, proved the said documents. He deposed that the borrower had mortgaged the said vessel in favour of the plaintiff-bank by executing the aforesaid Form No. 9B (Exhibit-E) with the Registrar of the Bangladesh Ships, Mercantile Marine Department, Chittagong. In support of the said mortgage, he deposed, the borrower also filed application to the Registrar of Bangladesh Ships, Mercantile Marine Department, Chittagong (Exhibit-F) and, accordingly, a confirmation of mortgage of defendant no.1 vessel was issued by the Principal Officer, Mercantile Marine Department, Chittagong (Exhibit-G). He also deposed that the said charges were also registered with the Registrar, Joint Stock Company (RJSC), Chittagong on 30.06.2011 (Exhibit-H). This witness further deposed that the said loan was rescheduled on several occasions and he, accordingly, proved the amended Sanction Advices bearing memo No. Premier/Ktg/Cr./ 623/2010, Premier/Ktg /Cr ./2011/1429, Premier/Ktg/Cr./2012/173 as Exhibit-I, J and K respectively. According to this witness, though the plaintiff issued demand notice dated 09.05.2011 (Exhibit-L), 27.06.2012 (Exhibit L1) and Legal Notice dated 12.12.2012 (Exhibit-M) for repayment of the said loan, the defendant borrowers failed to repay the said loan. According to the plaintiff-bank, vide Exhibit-M dated 17.12.2012, it wrote to the Bangladesh Ships, Mercantile Marine Department, Chittagong seeking  permission to sell the said mortgaged vessel, however, the shipping department, vide Exhibit-O, asked them to file appropriate suit before the High Court Division. Hence, the plaintiff has filed the instant suit. He also deposed that though the initial claim was for Tk. 8,91,71,046.76, the present claim against the defendants as on 16.11.2014 stands Tk. 8,63,51,981.56. In support of such claim, the plaintiff also proved the bank statement in respect of the borrower as Exhibit-P. This witness was extensively cross-examined by the borrower-defendant nos.1-6.
  3. Upon consideration of above deposition and exhibits, it appears that apart from suggesting that the suit is not maintainable and that a compromise has been reached between the parties for rescheduling the loan liability, the defendants did not examine any witness or prove any documents by such witness indicating that the said loan liability was subsequently rescheduled during pendency of the suit. Therefore, this Court cannot take into account such suggestion of the learned advocate for the defendants to the said witness, which was denied by the witness. Since the suggestions as regards subsequent compromise and re-schedulement of loan between the parties were specifically denied by P.W.1 and since no such document has been proved by the defendants before this Court to prove any such compromise between the parties, this Court cannot reach any decisions in favour of the defendants merely relying on oral submissions in the absence of any documentary evidence being presented before this Court.
  4. It appears from the above deposition of P.W.1 as well as cross-examination of the said witness and the documents as proved by the same witness that the obtaining of loan by defendant No. 4 for the purchase of the said defendant no.1 vessel is an admitted position. It is also an admitted position that at certain stage the defendants failed to repay the said loan which prompted the plaintiff to issue demand notice, legal notice etc. and finally to file this suit. Though there is a specific averment in the written statement that due to a compromise on 13.10.2013, the parties rescheduled the loan by approval dated 13.10.2013 extending the tenure for payment up to 31.05.2016, no such evidence has been adduced by the defendants to prove their such case, particularly when such a suggestion of compromise was denied by the PW-1 during cross- Examination. 
  5. In view of above deposition of the witness and upon consideration of the documents proved by the plaintiff, this Court has no option but to hold that in so far as the loan facilities as well as failure of the defendants to repay the same are concerned, the plaintiff has succeeded in proving its case, though it has chosen a wrong forum. Accordingly, the above issue No. 2-8 are decided in favour of the plaintiff.
  6. Though the issue Nos.2-8 have been decided in favour of the plaintiff, this Court does not have jurisdiction to pass any decree or even to entertain this suit in view of the legal position as discussed under issue no.1, which was decided against the plaintiff. Since the suit itself is not maintainable before this Court, the decision of this Court on issue no. 2-8 will be of no help to the plaintiff.
  7. Regard being had to the above facts and circumstances of the case and discussions of law, the instant suit is liable to be dismissed as  the same is not maintainable.
         Accordingly, the suit is dismissed. Plaintiff is allowed to take back the original exhibits and documents upon furnishing photocopies thereof duly attested by the learned advocate for the plaintiff.
Ed.
 

Admiralty Suit No.  06  of 2013