Rupali Bank Vs. Md. Komoruddin @ Kamar & others, 2 LNJ (2013) 232

Case No: First Appeal No. 747 of 1991

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Citation: 2 LNJ (2013) 232

Case Year: 2013

Appellant: Rupali Bank

Respondent: Md. Komoruddin @ Kamar & others

Subject: Artha Rin,

Delivery Date: 2010-10-13

HIGH COURT DIVISION
(Civil Appellate Jurisdiction)
 
Sheikh Abdul Awal, J.
And
M. Moazzam Husain, J.

Judgment
13.10.2010
 
Rupali Bank.
..Plaintiff-appellants.
-Versus-
Md. Komoruddin alias Kamar and another.
...Defendant-respondents.
 
 
Artha Rin Adalat Ain (VIII of 2003)
Section 2 (Ga)
The High Court Division  became surprised noticing that how a Subordinate Judge dealt with some  irrelevant facts on the basis of un-corroborative  oral evidence of Dw.1 giving  a go by to the admitted documentary evidence namely, original deed of mortgage property , loan sanction  letter, mortgage deed and power of attorney. In fact, there is nothing on record to suggest that the defendant No.1 in the facts and   circumstances of the case made  a scapegoat  or he did not receive any loan amount from the bank. The reasons given by the trial court for passing the decree in favour of the defendant No.1 are not sustainable either in law or on facts. The impugned judgment and decree of the Artha Rin Adalat insofar   as it relates to defedant No.1 is set aside and  the suit is decreed. . . .(17 and 19)

Mr. Md. Golam Mostafa, Advocate
…For the appellant.
No one appears.
....For the respondents.
 
First Appeal No. 747 of 1991
 
JUDGMENT
Sheikh Abdul Awal, J:
 
This appeal is directed against the judgment and decree dated 16.5.1991 (decree signed on 26.5.1991) passed by the Subordinate Judge, and Artha Rin Adalat, Mymensingh in Mortgage Suit No.94 of 1990 decreeing the suit against the defendant No.2 while dismissing the same against the defendant No.1.
 
Material facts of the case as necessary for the disposal of the appeal are that the sole appellant-Rupali Bank Ltd. as plaintiff instituted a suit being Mortgage Suit No.75 of 1989 in the Court of Sub-Judge, 1st Court, Mymensingh which was re-numbered on transfer as Mortgage Suit No.94 of 1990. The suit was for realisation of loan amounting to Tk. 92,059/- with interest as stood on 7.6.1989 given by the plaintiff-appellant-Bank to the defendants namely, defendant No.1 Md. Komoruddin alias Kamar and defendant No.2 Sree Narayan Chandra Basak for business in which the defendant No.1 Md. Komoruddin alias Kamar mortgaged his property in favour of the plaintiff bank to secure the  loan facility; that the defendants as per terms and conditions of loan sanction letter failed to reimburse  the loan money in due time  inspite of several letters issued by the plaintiff bank and hence the suit.
 
 The defendant No. 1 appeared in the suit and filed written statement denying all the material allegations of the plaint contending,  inter-alia,  that  the Manager of the Bank inclusion with defendant No.2 created a joint account in the name of defendant No.1 and defendant No.2 and the defendant No.1 never received or  withdrawn any money  from the said account.
 
In the course of trial upon considering the pleadings of the parties the trail judge framed the following issues:-
  1. Whether the suit is maintainable in its present form?
  2. Whether the suit is barred by law?
  3. Whether the plaintiff is entitled to get a decree as prayed for?
  4. Whether the plaintiff-Bank is entitled to get any other relief?
At the trial the plaintiff-Bank examined in all 3 PWs. and the defendants also examined 3 witnesses namely DW-1, DW-2, DW-3 and both the parties exhibited a series of documents in support of their respective cases.
 
The learned judge of the trial Court below on consideration of the materials on record by his judgment and decree dated 16.5.1991 (decree signed on 26.5.1991) decreed the mortgage suit against defendant No.2 and dismissed the same against the defendant No.1 (Mortgagor).
 
Being aggrieved by the aforesaid judgment and decree dated 16.5.1991 (decree signed on 26.5.1991) the plaintiff-Bank as appellant filed the instant First Appeal before this Court.
 
Mr. Md. Golam Mostafa, the learned Advocate appearing for the plaintiff-appellant submits that the learned trial Judge under misconception of law and facts most illegally by the impugned judgment and decree dated 16.5.1991 decreeing the suit against the defendant No.2 while dismissing the suit against the defendant No.1, who admittedly mortgaged his property as security of the loan facility to the plaintiff-Bank. The learned Advocate next in the course of his argument has taken us through the impugned judgment and decree, loan sanction letter (Ext.7), written statement of defendant No.1 and deposition the of PWs. and DWs. and then submits that the impugned judgment so far it relates to dismissing the suit against the defendant No.1 is perverse being contrary to law as well as the material evidences on record.
 
Referring to the concluding portion of the written statement of defendant No.1, Mr. Mostafa, the learned Advocate points out that admittedly the defendant-respondent mortgaged his property in favour of the Bank to secure the loan facility and as such the trial Court below ought to have decreed the suit against the defendant respondent No.1 Md. Komoruddin alias Kamar along with defendant No. 2. Mr. Mostafa, finally submits that from a reading of the impugned judgment, it is apparent that the learned trial Judge in order to dismiss the suit so far it relates to the defendant No.1 mechanically dealt with some irrelevant facts and as such the impugned judgment and decree so far it relates to defendant-respondent No.1 is liable to be set-aside. The learned Advocate to fortify his argument has relied on the decision reported in 43 DLR-439.
 
No one appears on behalf of the respondents.
 
We have heard the leaned Advocate and perused the impugned judgment, deposition of witnesses, exhibits and other materials on record. It appears that both the defendant-respondents failed to reimburse the loan inspite of several letters issued by the appellant-Bank and thereupon,  the plaintiff-Bank filed the suit for realisation of Tk. 92,059/- with interest as stood on 7.6.1989. It also appears that the trial Court below on consideration of the materials on record by the impugned judgment and decree dated 16.5.1991 decreeing the suit against the defendant No.2 while dismissing the suit against the defendant No.1 stating that: ১নং বিবাদীর সরলতা ও মুর্খতার সুযোগে তৎকালিন  ম্যানেজার ঋণ মঞ্জুর হয় নাই বলিয়া তাহাকে বলে অথচ ২ নং বিবাদী টাকা  উঠাইয়া নেয়। এই অবসহায় ১ নং বিবাদী ঋণের কোন টাকা  না নেওয়ায় তাহার বিরুদ্ধে অত্র মোকদ্দমার ডিক্রী প্রদান করিলে ন্যায় বিচারের পরিপন্থী হইবে বলিয়া আমি মনে করি। ২ নং বিবাদী কোন সম্পত্তি ব্যাংকের নিকট বন্দক না রাখায় তাহার বিরুদ্ধে বাদী-ব্যাংক দাবীকৃত টাকার জন্য ব্যক্তিগত ডিক্রী পাইতে পারে।
 
Now, let us see how far the learned trial Judge was justified in dismissing the suit against the defendant-respondent No.1 Md. Komoruddin alias Kamar. The plaintiff-appellant-Bank in order to prove its case examined 3 witnesses and also exhibited a series of documents. PWs. namely, PW-1 and PW-2 in their respective testimony categori-cally stated that the defendant-1 mortgaged his property in favour of the plaintiff-Bank to secure the loan facility and both the defendants took loan money through their joint account No. 1540. It is found from the loan sanction letter (Ext.7) that both the defendants in agreeing with the terms and conditions of loan sanction letter put their signature in loan sanction letter (Ext.7) in presence of witnesses.
 
Mr. Mostafa, the learned Advocate for the appellant upon referring to the concluding portion of the written statement filed by the defendant No.1 Md. Komoruddin alias Kamar wherein, it has been stated as follows: “বাদীর মোকদ্দমা আদালতের ন্যায় বিচারে আদৌ ডিক্রী হইবে বিবেচিত হইলে যাবতীয় সুদ ও খরচাদি মওকুফ করিয়া এই বিবাদীকে শুধু মাত্র আসল ২৮,৫৬০/০০ টাকা ১০ টি মাসিক কিসিত্মতে পরিশোধ করার বিহিতাদেশ দিতে মর্জি হয়। submits that from the aforesaid pleadings of the defendant No.1, it is clear that the defendant-respondent No.1 by mortgaging his property as security to the plaintiff-Bank took loan along with defendant-respondent No.2.
 
From a reading of the above quoted written objection of the defendant No.1, we find considerable merit in the aforesaid sub-mission of Mr. Mostafa, the learned Advocate for the appellant-Bank.
 
On perusal of the impugned judgment together with the deposition of PWs. and DWs. and other tangible materials on record, we do not find any possible reason to hold that the defendant-respondent No.1 is made a scapegoat in the facts and circumstances of the case. Rather, it seems to us that the defendant-respondent No.1 mortgaged his property as security of loan facility as well as took loon along with defendant No. 2 and thereafter, deliberately on various pretext denied the same.
 
In the facts and circumstances of the case the grievance of Mr. Mostafa, the learned Advocate for the appellant that the learned trial Judge in order to dismiss the suit against the defendant No.1 dealt with some irrelevant facts does not appear to be without any substance. The   trial Court dismissed the suit so far it relates to defendant No. 1 on the observation  that  “ ১নং বিবাদীর সরলতা ও মুর্খতায় সুযোগে তৎকালিন ম্যানেজার ঋণ মনজ্ঞুর হয় নাই বলিয়া তাহাকে বলে অথচ ২নং বিবাদী টাকা উঠাইয়া নেয়। এই অবসহায় ১নং বিবাদী ঋনের  কোন টাকা না নেওয়ায় তাহার বিরুদ্ধে অত্র মোকদদমার ডিক্রি প্রদান করিলে ন্যায় বিচারের পরিপমহী হইবে বলিয়া আমি মনে করি। ২নং বিবাদী কোন সম্পত্তি ব্যাংকের নিকট বন্ধক না রাখায় তাহার বিরুদ্ধে বাদী ব্যাংক দাবীকৃত টাকার জন্য ব্যক্তিগত ডিক্রী পাইতে পারে। ” This finding of the trial court  is, in fact, contrary to the material evidence  on record.
 
On an analysis of the impugned judgment and decree dated 16.5.1991 our view is that the reasons given by the trial Court below for passing the decree in favour of the  defendant respondent No. 1 are not sustainable either in law or on facts. In this appeal, we are surprised to notice how a Subordinate Judge dealt  with some irrelevant facts on the basis of un-corroborative oral evidence of DW-1 giving a go by to the admitted documentary evidence namely, original deed of mortgaged property (Ext.6),  loan sanction letter (Ext.7), mortgage  deed (Ext.8) and power of attorney (Ext.9). In fact, there is nothing on record to suggest that the defendant-respondent in the facts and circumstance of the case made a scapegoat or he did not receive any loan amount from the appellant-bank.
 
For the reasons stated above the impu-gned judgment and decree of the Subordinate Judge and Artha Rin Adalat, Mymensingh does not deserve to be sustained.
 
In the result, the appeal is allowed. The impugned judgment and decree dated 16.5.1991 (decree signed on 26.5.1991) passed by the learned Subordinate Judge and Artha Rin Adalat, Mymensingh in Mortgage Suit No. 94 of 1990 so far it relates to defendant-respondent No.1 is set-aside and accordingly, the suit is hereby decreed against both the defendant-respondents.
 
Let a copy of this judgment along with lower Court’s record be sent down at once.
 
Ed.