Pubali Bank Ltd. Vs. M/S. Amin Iqbal Corporation and others, 1 LNJ (2012) 455

Case No: First Appeal No. 219 of 1996

Judge: Khondker Musa Khaled,

Court: High Court Division,,

Advocate: Mr. Zakir Hossain Mazumder,,

Citation: 1 LNJ (2012) 455

Case Year: 2012

Appellant: Pubali Bank Ltd.

Respondent: M/S. Amin Iqbal Corporation and others

Subject: Artha Rin,

Delivery Date: 2012-05-22

HIGH COURT DIVISION
(Civil Appellate Jurisdiction)
 
Khondker Musa Khaled, J.
And
S.H. Md. Nurul Huda Jaigirdar, J.

Judgment
22.5.2012
 
Pubali Bank Ltd, Agarabad, Chittagong
...Appellants.
Vs.
M/S. Amin Iqbal Corporation and others
...Opposite parties
 
Artha Rin Adalat Ain (VII of 2003)
Sections 18(2), 47 and 50(2)
Code of Civil Procedure (V of 1908)
Section 9
In view of the overwhelming evidence regarding the arrival of the goods and after releasing the same kept in the Bank’s godown for 9 years had to sell the same in public auction and Bank informed his client regularly in each stage, it can not be accepted the contention that the defendants were not aware of all these things. The plaint of other Suit No. 2 of 1994 shows that the defendants set up a counter claim of more than Taka Fifty Lac and some odds. Apparently nature of claims were baseless and there is hardly any foundation in the evidence as well. The defendants’ suit of compensation and damages as set up in other Suit No. 2 of 94 has got no merit. The learned Judge of the Artha Rin Adalat has no jurisdiction to entertain other Suit No. 2 of 1994 under general law along with the Money Suit filed by the financial institution under the Special law. Under the Artha Rin Adalat Ain, 2003, Section 18 (2) also stands as a clear bar to entertain any suit or counter claim against the claim of the financial institution. The learned Judge of the Artha Rin Adalat assumed illegal jurisdiction over the said other suit and held the trial of the civil suit without having any jurisdiction. Keeping consistency with the section 50(2) of the Artha Rin Adalat, 2003 simple interest was awarded at the rate of 12% per annum on the principal amount from the date of filing the suit till realization subject to maximum payable under section 47 of the Artha Rin Adalat Ain, 2003 meaning thereby the simple interest payable shall not exceed 200% of the original claim.
 
The plaint of the Other Suit no. 2 of 1994 shows that the   defendants set up a counter claim of Tk. 57,08,529.17 due to their loss in the  business and damages for a period of 15 years. Apparently the nature of claims were baseless and there is hardly any foundation in the evidence as well.   But unfortunately, the learned Judge of the trial court accepted the contentions of the defendants in an arbitrary manner and decreed their suit in part awarding compensation for on amount of Tk. 15,00,000/-,>0ur considered view is that the defendants' suit for compensation and damages as set up in Other Suit no. 2 of 94 has no merit to succeed.… (15).
 
Apart from the merit of the suit,   the learned Judge of the Artha Rin Adalat has no jurisdiction to entertain Other Suit no. 2 of 94 and give hearing of the said suit under general law alongwith the Money Suit filed by the financial institution under the special law. It is legally barred and he cannot hold trial of any other suit of the Civil Court unless it is filed by any financial institution for recovery of loan under the Artha Rin Addalat Ain. ... (16)
 
Under the existing Artha Rin Addalat Ain 2003 section 18 (2) also stands as a clear bar to entertain any suit Or counter cliam against the claim of the financial institution. .... (16)
 
It transpires from the L.C.Rs. that the other suit No. 25 of 1992 was filed before the 2nd  court subordinate judge, Chittagong under the general law and it was not even filed before the Artha Rin Addalat or commercial court. Therefore, the learned Judge of the Artha Rin Adalat, appears to have assumed illegal jurisdiction over the said other suit and held the trial of the said civil suit without having any jurisdiction.    .... (17)
 
Keeping consistency with the section 50(2) of the Artha Rin Adalat Ain, 2003, we are inclined to award simple interest at the rate of 12% per annum on the principal amount from the date of filing the suit till realisation subject to maximum payable under section 47 of the Artha Rin Adalat Ain, 2003. It means that the simple interest payable shall not exceed 200% of the original claim.... (20)
 
Sultana Jute Mills Ltd. and others -Vs- Agrani Bank and others 14 BLD(AD)- 196, 22 BLD(HCD)-127, ref.  
 
Mr. Zakir Hossain Mazumder, Advocate. 
... For the appellant
None appears
... For Respondent 
 
First Appeal No. 219 of 1996
 
Judgment
Khondker Musa Khaled, J:
 
           This First Appeal is directed against a common judgment and decree dated 18.5.96 passed by the learned Subordinate Judge (now Joint District Judge) Artha Rin Adalat, and Commercial Court No. l, Chittagong, in Money Suit no. 181 of 1988 filed by   Pubali Bank Ltd. against the M/S. Amin Iqbal Corporation and others for realization of Tk. 15,77,113.50 and Other Suit no. 2 of 1994 filed by M/S Amin Iqbal Corporation against the Pubali Bank Ltd. for a counter claim of Tk. 57,08,529.17 over the same dispute, which were heard analogous.
 
2.         Precisely, the relevant facts are that the Pubali Bank Ltd. instituted the Money Suit no.  181 of 1988 alleging in the plaint that the defendant No. 1/S. Amin   Iqbal Corporation was Proprietary firm dealing with Sewing Machine and the defendants 2-3 used to carry on business through it, and they maintained a current account in the name of defendant No. l with the plaintiff-Bank. The defendant No. 3 being operator of the account, approached the Bank for opening Letters of Credit (L.C.) to import 457 packages of household Sewing Machine from Taiwan. Accordingly, the plaintiff-Bank, opened two Letters of Credit on 16.4.75 and 1.12.75 in the name of the defendant No. l M/S. Amin Iqbal Corporation    for the amounts of #3,672.30 and #2,849.25 British Pound respectively. The documents were executed by the defendant no.3 in the name of defendant No. l. The   imported   goods covered   by the Letters of Credit duly arrived at the Chittagong Port.  On receipt of the shipping documents,   the  plaintiff-Bank requested the defendant  to retire the same on payment of the plaintiffs dues. But they did not respond. Subsequently, the defendants requested the plaintiff-Bank to retire the documents and clear the imported goods through its own clearing and forwarding agent. Thereafter, the plaintiff-Bank had to clear those goods on payment of necessary custom duty and other charges, and stored those imported items in the godown of the plaintiffs Bank. Against the expenditure on account of sales, tax, duties and other charges for clearance of the goods, the plaintiff opened two merchandise accounts namely, L.A.M account no. 21 of 1976 and 28 of 1976. Then it became obligatory on the part of the defendants to take delivery of the goods on payment of the outstanding dues in the said L.A.M. accounts. But inspite of repeated requests by personal approach and in writing, they failed to take delivery of those goods from the godown and adjust their liabilities. Since the value of the goods was  deteriorate-ing  due  to  prolonged  storage,  the plaintiff Bank had to sell out those goods by public auction after observing necessary formalities for a total sum of Tk. 2,80,000,/ and credited the same in the respective L.A.M. accounts towards partial adjustment of the defendants' liabilities in accordance with Rules. Thereafter, the plaintiff-Bank started demanding the balance amount from the defendants and issued lawyer's notice demanding payment. On receipt of the notice, although the defendants made promise from time to time to adjust the liabilities, ultimately they did not pay any amount of money to the Bank. The defendants' total liabilities stood at Tk. 15,77,113.50 as calculated on 30.11.88 together with interest and incidental charges. At last on 16.8.87, the defendants were served with legal notice for payment, and on 5.12.88 an F.D.R. of the Defendant No. 2 available in the Bank was adjusted in the L.A.M. account no. 21 of 1976. The plaintiff -Bank thereafter, filed the suit for the realisation of  remain-ing balance amounting to Tk. 15,77,113.50 and also prayed for penal interest thereon   at the rate of 20%  per annum from the date of filing the suit till realisation along with the cost of the suit.
 
3.         The defendants 1-3 contested the suit by filing a written statement admitting that the defendant No. l was a Small industrial enterprise   while the defendants 2-3 were its owner and Managing Director respectively. It is contented interalia that the defendant No. 2 being entrusted to operate the business of the defendant No. l, opened a current account bearing no. 2683 and subsequently opened two Letter of Credits   for 3,672.30 and 2,849.25 British pound for the purpose of importing goods from Taiwan and that the shipping documents and though the imported goods duly reached, the defendants were not informed anything about the same. That the defendant No. 3 went to the Pubali Bank to get information about the consignment under the L.Cs, but the Bank maintained silence. The defendant No. 3 came to know that the two ships carrying those imported goods had already left the Chittagong Port and as such., he wrote letters including the letters dated 15.3.76 and 28.6.76 to the Bank to get the goods released, but the Bank did not make any reply. It is contended further that Mr. Bose an employee of the Bank misbehaved with him when he approached to the Bank personally.  Subsequently, the defendants approached to the Bank to open another Letter of Credit for the years 1976-1977 to run the business, but the Bank refused and did not even return the import license of the defendants preventing them from operating their business by opening Letter of Credit in another Bank. The plaintiff at first sent a letter dated 6.11.86 to the defendants informing about the import consignment, auction sale of the goods and claimed an amount of Tk. 4,71,156.60. The defendants came to know that the imported goods were sold by the Bank on auction on 18.9.84. As the plaintiff-Bank failed to  make any amicable settlement of the dispute on 22.7.91, the defendants instituted the Other Suit No. 25 of  1992(subsequently renumbered as Other Suit no. 2 of 1994) for a declaratory decree and compensation of  Tk. 5,08,529.17 on different counts. So the suit of the plaintiff- Bank is liable to be dismissed.
 
4.         The defendants 1-3 of the previously filed Money Suit also instituted Other Suit no. 25 of 1992 subsequently renumbered as Other Suit No. 2 of 1994 against the Pubali Bank for getting compensation of Tk. 57, 8,529.17 as a counter claimed as evident from the written statement filed in Money Suit no. 181 of 1988. The defendants being plaintiffs in the Money Suit also filed written statement in that Other Suit denying the plaint case and narrating the same facts of their plaint as stated above. So, we do not feel it necessary to state elaborate same facts   of the written Statement and plaint of the subsequent suit to avoid repetition.
 
5.         The trial Court appears to have framed the following issues for adjudication of both the suits:-

(1)        Are the suits of the plaintiffs maintainable in the represent form?
(2)        Whether the plaintiffs have cause of action for filing the suits?
(3)        Are the plaintiffs of the respective suits entitled to get decree?
(4)        To what the relief are the plaintiffs entitled?
 
6.         At the trial, the plaintiff -Bank examined 2 P.Ws. and the defendants M/S. Amin Iqbal Corporation and others examined 1 D.W., and series of documents submitted by the both the parties were admitted in evidence with exhibit marks.
 
7.         Considering the facts, circumstances and evidence on the record, the learned Subordinate Judge, First Court, Artha Rin Adalat, Chittagong passed the impugned analogous judgment and decree dated 18.5.96 dismissing the Money Suit no. 181 of 1988 without cost and decreed Other Suit no. 2 of 92 with costs directing the defendant Pubali Bank to pay Tk. 15,00,000(fifteen lac) to the plaintiff M/S. Amin Iqbal Corporation and others as compensation within 6 months.
 
8.         Being aggrieved, the Pubali Bank (plaintiff in the Money Suit and the defendant in the Other Suit) preferred this appeal.
 
9.         Mr. Zakir Hossain Mazumdar, learned Advocate appearing on behalf of the appellant-Bank, submits that the trial Court being Artha Rin Adalat had no jurisdiction to entertain Other Suit no. 2 of 1994 filed in the Court of Subordinate Judge and hold trial of the same together with the suit filed by the financial institution. Because a case pending in the Artha Rin Adalat under the special law cannot be heard analogous with a suit pending in any Court created by the general law. In support of his submission , the learned Advocate has relied upon the case of Sultana Jute Mills Ltd. and others -Vs- Agrani Bank and others reported in 14 BLD(AD)- 196 and another case decision reported in 22 BLD(HCD)-127. He submits that both the cited cases are related to Artha Rin Adalat Ain, 1990 under which the instant case of the Bank was dealt with at the earlier stage. It is further submitted that there is also specific bar under section 18(2) of the existing Artha Rin Adalat Ain, 2003 to try a suit instituted under the general law by the Artha Rin Adalat. So, the trial Judge, according to him, exercised jurisdiction not vested on it by the law and the impugned judgment and decree so far it relates to Other Suit no. 2 of 94 is illegal, void and without jurisdiction and as such, it is liable to be set aside.
 
10.       As regards the judgment and decree dismissing Money Suit no. 181 of 1988, the learned Advocate submits that the trial Court did not consider series of exhibited documents submitted by the Bank and as such, erroneously found that the defendants were not informed about the consignment and that the suit was barred by limitation. That the plaint has clearly disclosed cause of action for filing of the suit from which limitation should run. The learned Advocate has referred to the Exhibit-l(Ga) to show that on 6.11.86 an elaborate letter was issued by the Bank to the plaintiff about the consignment asking to clear dues of L.A.M. accounts with reference to the defendants’ letter dated 26.1.86 (Exhibit-5(Gha). It is submitted   that so many correspondences were made with the defendants regarding the matter and as such, it is down right falsehood to say that the defendants were totally in the dark about the release of imported goods by the Bank. Rather on the request of the defendants, the Bank had to clear the goods on payment of custom duty, tax and other charges, and store the same in the godown for a long time. But the defendants, having full knowledge, did not come to release the goods on payment of dues payable to the Bank. As a result, those goods were sold in public auction to the highest bidder and after partial adjustment of the dues by the sale proceeds and F.D.R. money of the defendant No. 2; the Bank lawfully filed the suit for realisation of the remaining balance. It is submitted that there is no earthly reason to refuse the genuine claim of the Bank and dismiss the Money Suit. The learned Advocate has relied on the Bank statement (Exhibit-4) to prove the outstay-nding dues and preyed for decree in Money Suit on setting aside the judgment of dismissal. He has also prayed for setting aside the judgment and decree so far it relates to Other Suit no. 2 of 1994.
 
11.       None appeared on behalf of the respondents on several dates when hearing was going on.
 
12.       We have gone through the impugned judgment, oral and   documentary   evidence      available   on   record   and considered other attending; facts and circumstances of this case.
 
13.       Admittedly, the defendants opened two Letter of Credits (L.C.) in the Pubali Bank on 16.4.75 and 1.12.75 in the name of the defendant No. l for importing 457 packages of household Sewing Machine components from Taiwan, and those goods arrived at the Chittagong port in due time by two different ships. It appears that the plaintiff –Bank thereafter issued series of letters of addressing the defendants on various dates ranging from 1976 to 1987, which are in Exhibits-1,2 and 5 series. Those documents show that the Pubali Bank requested the defendants to retire the L.C. documents on payment of the dues and receive the imported goods, but the defendants did not. Exhibit- l(Kha), a letter dated 11.9.85 and Exhibit-l(Cha), a letter dated 18.12.76 along with so many other letters in the exhibits show that the Bank requested the defendants time and again to take delivery of the consignment on payment of the bills.It transpires from the Exhibit- l(Ga), a letter dated 6.11.86 that the defendants also made a reply to the some letters of the Bank requesting it to clear the consignment by a letter dated 3.2.77 and keep the goods in the Bank's godown. It appears that they also assured the Bank to receive the goods on payment of the dues positively by 30.6.80, but ultimately they did not. A letter dated 26.1.1986 (Exhibit-S(Gha) page 57 of the P.B.) shows that the defendants also sent reply to the letter of the Bank regarding the subject matter in , disputes. So, it is not an acceptable contention that the defendants were not aware of the arrival of goods and subsequent release of the same by the Bank and after keeping in godown for about 9 years sold the same in public auction without their knowledge. In fact, after keeping the goods in the Bank's godown for a long time, the Bank was ultimately compelled to sell the same on auction.
 
14.       Exhibit-3 series are tender notices published in the daily Ittefaque on 1.6.82 and the particulars of the imported goods for auction sale were also made known to all concern and those were sold to the highest bidder in accordance with law, as the importer did not turn up to receive the goods from the Bank's godown. It is evident that the imported goods arrived in Chittagong Port in the year 1975 and it was disposed of by open public auction in the year 1984 i.e. after about 9 years. It also transpires that the sale proceed of the goods .were duly adjusted in the L.A.M. accounts no. 21 of 1976 and 28 of 1976. Exhibit-4 is the Bank statement of those L.A.M. accounts and it shows that on 30.11.88, the balance in the L.A.M. account no. 21 of 1976 and 28 of 1976 stood at Tk. 8,90,542.50 and 6,86,571/- respectively in total balance amount was Tk. 15,77,113.50 and accordingly, the plaintiff-Bank appears to have instituted the suit for realization. of the said amount along with interest thereon till realisation.
 
15.       The learned Judge of the Court below could not detect any mistake in calculating the balance as shown in statement of the Bank (Exhibit-4). The defendants contested the Money Suit in the Court below, but could not specifically identify any mistake in calculating the balance payable amount, for which, the suit was filed by the Bank. The learned Judge of the Court below appears to have avoided in taking consideration of the pleadings and evidence available in favour of the plaintiff-Bank. If those are considered properly, there is no reason to dismiss the suit. In case, the Money Suit succeeds, the defendants cannot get any compensation in the Other Suit tiled by them. The plaint of the Other Suit no. 2 of 1994 shows that the defendants set up a counter claim of Tk. 57,08,529.17 due to their loss in the  business and damages for a period of 15 years. Apparently the nature of claims were baseless and there is hardly any foundation in the evidence as well. But unfortunately, the learned Judge of the trial court accepted the contentions of the defendants in an arbitrary manner and decreed their suit in part awarding compensation for on amount of Tk. 15,00,000/-, our considered view is that the defendants' suit for compensation and damages as set up in Other Suit no. 2 of 94 has no merit to succeed.
 
16.       Apart from the merit of the suit,   the learned Judge of the Artha Rin Adalat has no jurisdiction to entertain Other Suit no. 2 of 94 and give hearing of the said suit under general law alongwith the Money Suit filed by the financial institution under the special law. It is legally barred and he cannot hold trial of any other suit of the Civil Court unless it is filed by any financial institution for recovery of loan under the Artha Rin Addalat Ain. In this respect we rely upon the case of Sultana Jute Mills Ltd. and others-Vs- Agrani Bank and others reported in 14 BLD(AD)-196 wherein it was decided that the Artha Rin Adalat Ain 1990 does not give Artha Rin Adalat any jurisdiction to adjudicate  upon any matter other than that provided in  section 5(l) of the said Ain. It has been well settled that the defendants cannot also claim a set-off and make out a case of counter claim in a suit filed under the Artha Rin Adalat Ain, 1990. Under the existing Artha Rin Addalat Ain 2003  section 18 (2) also stands as a clear bar to entertain any suit Or counter cliam against the claim of the financial institution.  The relevant  subsection 2 section 18 runs as follows:
 
কোন ঋণগ্রহীতা, কোন আর্থিক প্রতিষ্ঠানের বিরুদ্ধে, এই আইনের অধীন আদালতে, সংশ্লিষ্ট ঋণ হইতে উদ্ভূত কোন বিষয়, কোন প্রতিকার দাবী করিয়া মামলা দায়ের করিতে পারিবেন না, এবং ঋণগ্রহীতা-বিবাদী, বাদী- আর্থিক প্রতিষ্ঠান কর্তৃক দায়েরকৃত মামলা লিখিত জবাব দাখিল করিয়া, উক্ত লিখিত জবাবে প্রতিগণন (Set-Off) বা পাল্টাদাবী (counter claim) অন্তর্ভুক্ত করিতে পারিবেন না

17.       It transpires from the L.C.Rs. that the other suit No. 25 of 1992 was filed before the 2nd court subordinate judge, Chittagong under the general law and it was not even filed before the Artha Rin Addalat or commercial court. Therefore, the learned Judge of the Artha Rin Adalat, appears to have assumed illegal jurisdiction over the said other suit and held the trial of the said civil suit without having any jurisdiction.        
 
18.       Generally if a suit is tried by a Court without having jurisdiction, the same is required to be sent to a competent Court having jurisdiction to hold trial and make disposal of   the suit afresh. But in the instant Other Suit no. 2 of 94, we have already considered merit of the suit and seen that when the Money Suit no. 181 of 1988 succeeds, the Other Suit no. 2 of 1994 must fail having no other third course. Since we have reached to such a finding, sending back Other Suit no. 2 of 1994 to the appropriate Civil Court for retrial would be useless and unnecessary time consuming and a mere futile exercise. So, the Other Suit no. 2 of 94 is also going to be dismissed in the appeal.
 
19.       The learned trial Judge appears to have dismissed the  Money Suit of the Bank on another ground that it was berred by law of limitation, though no such issue was  raised by the parties  and framed before trial. However, it is true that the Money Suit was not filed within three years from the date of auction sale of the imported goods in the month of September, 1984. But it appears that subsequently FDR. -money of the defendant 2 was adjusted with the balance and several correspondences were going on to settle up the dispute amicably. Paragraph -11 of the plaint has clearly disclosed cause of action for the Money Suit. It appears that on 5.12.88, the F.D.R.-money belonging to the defendant 2 was at last adjusted with the balance amount. So the matter was not closed before that date. Moreover, last correspondence with the defendant was made on 6.11.88 and   as the defendant did not comply with the request to pay the balance amount of money, the plaintiff-Bank had to file the Money Suit on 24.12.88. Therefore, the question of barring the suit by article 57 of the Limitation Act, as found by the trial Court does not arise. It is a wrong finding of the trial Court. As such, we are inclined to hold that the money suit was not barred by the law of limitation.
 
20.       It appears that in money suit No. 181 of 88 the plaintiff-bank also has prayed for interest at the rate of 20% per annum on the principal amount from the date of filing of the suit till realisation. But we are not inclined to impose such an exorbitant rate of interest as claimed by the plaintiff. Keeping consistency with the section 50(2) of the Artha Rin Adalat Ain, 2003, we are inclined to award simple interest at the rate of 12% per annum on the principal amount from the date of filing the suit till realisation subject to maximum payable under section 47 of the Artha Rin Adalat Ain, 2003. It means that the simple interest payable shall not exceed 200% of the original claim.
 
21.       Having due regard to the aforesaid observations and findings, we are inclined to hold that the impugned judgment and decree suffers from gross mistake and legal infirmity, and as such, the same is liable to be set aside. Consequently, the impugned analogous judgment passed in the two suits may be reversed.
 
22.       Consequently, the First Appeal succeeds.
 
23.       Court fees paid on the memorandum of the appeal is sufficient.
 
24.       In the result, the First Appeal no. 219 of 1996 is allowed without any order as to costs. The impugned judgment and decree dated 18.5.96 passed analogous in Money Suit no. 181 of 1988 and Other Suit no. 2 of 1994 are set aside. The Money Suit no. 181 of 1988 is decreed on contest with cost. The plaintiff-Pubali Bank  is entitled to get Tk. 15,77,1 13.50 from the defendants alongwith simple interest thereon at the rate of 12% per annum from the date of filing the suit till realisation subject to the restriction          imposed   under section 47 of the Artha Rin Adalat Ain, 2003. The interest   amount shall not exceed 200% of the Principal amount in any case. Accordingly, the defendants Are directed to pay the said amount to the plaintiff- Bank within 60(sixty) days from this date, failing which The plaintiff shall be entitled to get the same the same through the court in accordance with law.
 
25.       The Other Suit No. 2 of 1994 is dismissed without any order as to costs. The analogous judgment and decree so far it relates to that suit are hereby set aside.

Send down the L.C.Rs. along with a copy of the judgment to the Court below immediately.

Ed.