Case No: Appeal from Original Decree No. 589 of 1991
Judge: Md. Abdul Aziz,
Court: High Court Division,,
Advocate: Mohammad Ali,Abdul Awal,,
Citation: 52 DLR (HCD) (2000) 130
Case Year: 2000
Appellant: Sonali Bank
Respondent: Rana Oil Mill and others
Subject: Property Law,
Delivery Date: 1999-05-24
52 DLR (HCD) (2000) 130
High Court Division
(Civil Appellate Jurisdiction)
MA Choudhury J
Md. Abdul Aziz J
Rana Oil Mill and ors …………………..Respondents
May 24, 1999.
Code of Civil Procedure (V of 1908)
Order XLI rule 33
Cases Referred To-
Kohinoor Chemical Co. Ltd. Vs. Royal Exchange Assurance 25 DLR 155; Kutubuddin Jaigirdar Vs. Nurjahan Begum 25 DLR (SC) 21; Md. Osman Gani Vs. Kulsum Bibi 37 DLR (AD) 63.
Mohammad Ali, Advocate—For the Appellant.
Abdul Awal, Advocate—For the Respondents.
Appeal from Original Decree No. 589 of 1991.
2. The plaintiff, Sonali Bank, brought this suit for recovery of Taka 22, 85,314.30 against the defendants for the amount of loan granted to them with interest accrued thereon as on 26-5-90 on the facts, in short, that, the defendant No. 2 made an application for loan for setting up Rana Oil Mills, defendant No.1, under 3rd International Development Agency (IDA) Credit. The Bank made feasibility report by their expert committee of the proposed project on the application of the defendant No. 2 and found the project, the defendant No.1, viable and eligible and sanctioned the project for loan under 3rd IDA credit. The Bank advanced a sum of Taka 7,00,000.00 as capital finance and another sum of Taka 2,70,000.00 as working capital to the defendant No.1 vide their sanction letter dated 31-1-1984, Exhibit 1. The defendant No. 2 accepted the sanction letter containing various terms and conditions by signing the same and took the loan placing his and his wife’s (defendant No.3) immovable properties under equitable mortgage and hypothecation against project machinery and equipment, stock of raw materials. etc. as security of the loan. In the sanction letter the rate of interest or capital finance was mentioned as @ 13% per annum at half yearly rest. The period of capital loan was given for a period of 7 years including 12 months grace period and the period of working capital loan was mentioned as 4.5 years including 6 months grace period. The sanction letter further contained the mode of repayment of capital finance by 12 (twelve) half yearly installments at the rate of Taka 97,314 each payable in June and December year. Repayment will start from 18 months of the date of 1st disbursement of loan. Any residue to be repaid along with last instalment. The schedule of repayments of working capital loan was by 8 half-yearly instalments @ 47,226 each payable in June and December each year, which will start from the 12 month of the date of first disbursement of Any residue to be repaid with the last instalment. The plaintiff also sanctioned a cash credit limit of Taka 3,00,000 payable from Bank’s own fund, against hypothecation of raw materials, stocks, etc. and equitable mortgage of immovable properties vide letter dated 1-9-1984 vide Exhibit 2, stipulating the rate of interest @ 16% per annum with penal interest upto 20%. The Exhibit 2 further binds the defendants that, the defendants will route his business through the plaintiff bank and that he will not borrow from any other bank without its prior permission. The amount of said limit of CC credit of Taka 3 lac was however renewed and enhanced to Taka 4 lac by the plaintiff vide its letter dated 1-2- 87 on the terms and conditions mentioned therein and also subject to recovery of the overdue amount of Taka 1,44,540 fallen in arrear in the unit’s loan amount under IDA credit.
3. The defendant No. 2 after accepting and signing the sanction letter and mortgaging his own properties and those of his wife and executing several bonds. DP notes and other documents in favour of the bank, set up the mill in the building already constructed by the defendant at his own cost, and put the mill into operation on one shift basis. The further case of the plaintiff is that, though the cash credit limit was enhanced to Taka 4 lac and the amount was disbursed to the defendants, there were no raw materials in the mill against the said money. The plaintiff alleged that the defendant removed the loan money to different sector illegally and thereby cheated the plaintiff. It is further alleged that the defendants have defaulted in paying the instalment of both the capital finance under IDA loan as well as cash credit limit from June, 1985. The plaintiff requested the defendant to make payment. But the defendant instead of paying gave undertaking, but of no effect. The defendants asked the plaintiff to give them fresh loan of Taka 25,00,000.00 on hypothecation and pledge but as the defendants could not furnish fresh security to the bank, as such, the plaintiff could not grant the loan. The bank asked the defendants to take loan of Taka 10 lac by way of pledge but the defendants did not take it. The defendants ultimately closed down the mill. The plaintiff served legal notices on them for recovery of their money and ultimately filed the suit for an amount of Taka 22,85,314.30 including capital finance, working capital, cash credit loan and interest as on 26-5-90.
The defendant Nos.1 and 2 appeared and contested the suit by filing a joint written statement admitting taking the loan but contending that, there was no cause of action for filing the suit, the suit is barred by limitation and by estoppel, waiver and acquiescence and has been filed with bad motive. The further case of the defendants is that, as per circular of the 3rd IDA credit, the defendant No.2 submitted a project profile to the Sonali Bank, Feni in the prescribed form of the Bank for 3rd IDA credit which was ultimately accepted by the plaintiff bank as an eligible and viable one. The plaintiff-bank sanctioned a loan of Taka 9.70 lac being Taka 7 lac for capital finance and Taka 2, 70,000.00 for working capital. The defendants spent Taka 10 lac from his own fund for land, land development, construction of factory building, etc, in anticipation of reimbursement from the loan. In the circular it was mentioned, amongst others, that, the credit will be admissible to cover 70% of the cost of the eligible project to be newly set up, the period of loan for capital finance was up to 12 years including grace period of 2 to 3 years, the maturity period for working capital was up to 5 years including grace period. The further case of the defendants is that, although the IDA circular clearly mentioned that it would cover 70% of the cost of new project under the IDA credit, the bank disbursed only Taka 7 lac as capital finance and Taka 27 lac as working capital in total Taka 9, 70,000.00 only being 35% of the estimated project cost and the defendants having already spent Taka 10 lac from his own capital, he had to accept the same under compulsion. Hence he faced scarcity of fund to run the mill in three shifts from one shift, to make it more profitable. The defendant therefore having faced acute crisis of running capital, requested the bank to pay a fresh loan of Taka 25, 00,000.00 but the bank asked the defendant to furnish fresh security and the defendant having failed to furnish fresh security, the bank did not grant the loan. The amount advanced against cash credit limit of Taka 3,00,000.00 sanctioned on 1-9-84 was illegally adjusted on 13-9-86. The said cash credit Accounts balance sheet came at nil balance as on 13-9-86. The defendant requested for fresh Joan on cash credit Account but the plaintiff-bank did not sanction it even on the nil balance of the said cash credit limit. The cash credit limit of Taka 3,00,000 was however ultimately increased to Taka 4,00,000.00 on 1-2-87 and out of the aforesaid amount of Taka 4, lac, the bank regularised their cash credit account and applied the same to recovery of the overdue amount of Taka 1,44,540.00 fallen in arrear in the unit loans under IDA credit, etc, and after their deductions and other payments the defendant had only Taka 25,000 from the said account to run the mill. It is further stated by the defendant No. 2 that he had already furnished security by mortgaging his own and his wife’s properties worth Taka 42 lac at the time of taking the original loan and, as such, they had no further properties to furnish additional security for their requested loan of Taka 25,00,000.00. At that time the financial possession of the defendant was very bad/and the plaintiff-bank having refused to grant him any fresh loan, and served him legal notice for full payment of all the loans including the loans made under IDA credit, he had no option but to shut down the mill in September, 1986. The defendants further contend that, the bank has no right or legal authority to adjust the IDA arrear instalment from cash credit loan and that the defendants have not defaulted in paying the instalments. Rather the defendant has paid instalments even after closing down the mill. The defendant has to close the Mill by retrenching the employees on paying their wages for which he has incurred serious loss. The defendants have so far paid Taka 5, 08,000.00 up to December 1987 from 1985 as instalments towards IDA loan and cash credit loan. The defendants contend that, the plaintiff has brought the suit premature only to take revenge against the defendant No.2 who has already filed a suit being Money Suit No. 1 of 1990 against the plaintiff bank for compensation for compelling them to close down the Mill. The defendants-respondents firmly added that, the plaintiff bank has grossly violated the terms and conditions of 3rd IDA credit circular by not giving loan to cover 70% of the estimated project cost for which the defendants respondent acutely suffered in working capital to run the mill viably. The defendants further alleged that, instead of co-operation, that plaintiff brought the suit before the maturity of the IDA loans. Plaintiff compelled them to close down the mill in spite of their bonafide and good repayment schedule, the defendants alleged further adding that the plaintiff has also violated the terms of their own sanction letter and the suit is liable to be dismissed with costs.
4. The parties have examined one witness each and produced some documents and marked exhibits admitting those into evidence. The learned trial Court on consideration of the facts, materials and evidence of the case, decreed the suit in part for an amount of Taka 5, 67,540.00 against the defendants out of Taka 22, 85,314.30 as claimed by the plaintiff. The plaintiff thus being aggrieved by the aforesaid judgment and decree has brought this appeal. The defendants- respondents preferred no appeal and/or any cross-objection.
5. We have gone through the impugned judgment and decree, the pleadings of the parties, evidence and materials on the record of the case and examined the documents marked exhibits. We have also heard the learned Advocates of both the parties at length.
6. The learned Advocate, Mr Mohammed Ali, appearing on behalf of the appellant, submits that, the plaintiff-bank has an agreement signed between them and the Bangladesh Bank in respect of disbursement of 3rd IDA credit as one of the designated banks and the terms and conditions of that agreement have been reflected in the sanction letter, Exhibit 1, The respondent No. 2 proprietor of the defendant No.1 has accepted and signed the same and received the loan money as per terms and conditions of Exhibit 1 and, as such, he is bound by those terms and conditions of Exhibit 1 i.e. sanction letter, by his own acts and deeds and is estopped from challenging the same now, that the plaintiff claimed interest as per term in Exhibit 1, that the bank sanctioned a sum of Taka 3,00,000,00 as working capital in cash credit account and paid the amount to the respondents from bank’s own fund fixing interest @ 16% per annum, with penal interest @ 20% in case of default, that the plaintiff bank enhanced the said cash credit limit subsequently to Taka 4 lac at same rate of interest and paid the same to the respondents after adjusting and regularising the arrears of the respondents. The learned Counsel further submits that, the respondents having failed to furnish fresh security against their requested loan of Taka 15 lac against mortgage plus Taka 10 lac against pledge, the bank could not sanction the said loan of Taka 15 lac, but the bank agreed to pay Taka 10 lac against pledge but the defendant did not accept. It is further contended that, the respondent was not entitled to get 70% as loan of the project value under IDA and they were rightly paid 35%. The appellant further contended that, the mill was not closed down due to any lapse of the bank but due to removing the loan money to different sectors illegally with dishonest motive and due to inefficiency of the defendant No.2 to run the mill and that the defendant having failed to pay instalments of both IDA loan and cash credit account the plaintiff-bank was compelled to bring this suit for Taka 22,85,314.30 and this suit has not been filed as a retaliation or revenge against the defendants for filing their money suit against the bank. The learned Advocate submitted that the trial Court has illegally passed the decree in part of Taka 5, 67,540.00 only disallowing the amount as prayed in the plaint including interests erroneously and that the plaintiff-bank is entitled to get a decree of the full amount as prayed for.
7. The respondents, on the other hand, submits that as the application for loan submitted by the defendants was under 3rd IDA credit and the same having been accepted by the plaintiff-bank as eligible for loan, the plaintiff ought to have paid loan at the rate of 70% of the project value, that as the defendant had already spent Taka 10 lac on land development construction and building, etc, in anticipation of the said loan @ 70% to cover the project cost as per circular, he had no option to back out but to sign and accept the sanction letter Exhibit 1 only 35% loan with other rigid, unfair and unequal terms, that the bank did not advance fresh loan of Taka 15 lac against mortgage and 10 lac on hypothecation as requested and applied for by him. He had to close down the mill for paucity of fund to run the mill as he already spent Taka 10 lac from his own towards the project on the assurance of the plaintiff before the loan was sanctioned. That had he been paid the loan at the rate of 70% to cover the cost of the project as per IDA circular and as assured by the plaintiff, and if he was granted a fresh loan as running capital, the mill would not have been shut down. The learned Advocate for the respondents further submits that the respondents having already mortgaged his own and his wife’s properties worth Taka 42 lac to the plaintiff against obtaining IDA loan, they had no additional properties and assets for mortgage as fresh security to the plaintiff, but the appellant-bank could easily sanction a loan of Taka 15 lac afresh against the said mortgaged properties but the bank refused and demanded fresh security. It is further contended by the respondents that the cash credit account of Taka 3 lac was fully adjusted and came to nil balance on 13-9-86. The appellant-bank could have sanctioned fresh loan against the said cash credit account as running capital then and there to keep the Mill running, but did not, that the bank renewed and enhanced the said limit of Taka 3 lac to Taka 4 lac six months after the closure of the mill and regularised the arrears and left only a sum of Taka 25,000.00 for the respondents. That the bank imposed a transformer valued Taka 1,50,000.00 on them unnecessarily and without any use and demand by them and adjusted the said amount from the capital finance loan, that there was no condition of imposing penal and compound interest in respect of IDA Credit, that the respondent No.2 was bound to accept the sanctioned letter prepared by the Bank on their dictated terms as he already spent a good amount from their own fund, that they did not default in making payment of instalment of loan, rather they paid instalment even after closing the mill, that the respondent paid a total amount of Taka 5,08,620.00 against the capital finance as well as working capital up to December, 1987. The respondent further submits that the suit is premature as the plaintiff has brought the suit much earlier than and long before the expiry of the loan period maturity, and loan recovery period and as such the suit is liable to be dismissed on this count alone. It is further submitted that if the bank had not brought the suit the respondents could have repaid the entire amount by running the mill. The respondents further contended that they had to close down the mill because of non-cooperation of the appellant bank and due to bringing the suit before the maturity of the loan in violation of the terms of the IDA circular Vide SID circular No.7 dated 23-2-1981, etc.
8. The plaintiff has examined one Abul Kasem Chowdhury, Senior Officer, Sonali Bank, Feni, as P.W. 1 to prove their case and the defendant No.2 Md. Haroon, the proprietor of the defendant No. 1 Rana Oil Mill, has examined himself as a lone defence witness to prove the defence case. The appellant bank has also produced some documents and admitted those into evidence and marked exhibits.
9. We have perused the pleadings and the evidence of the case and examined the exhibits. The fact admitted as appeared from the evidence of both the plaintiff and the defendants as well as from the exhibits are that, pursuant to a development credit agreement signed between the Government of Bangladesh and the IDA on 17th October, 1980 on 3rd IDA credit for an amount of US$ 35 million for the development of Small Scale and Cottage Industries in Bangladesh a circular being SID Circular No.7 dated 23-2-1981 was issued for public notification. The plaintiff-appellant bank was one of the designated disbursing banks of the said IDA credit along with Janata Bank, Agrani Bank and Bangladesh Shilpa Bank. Bangladesh Bank, acted as a guarantee organisation as well as refinancer. In the circular it was mentioned that;
‘The credit will be admissible to cover 70% of the cost of the eligible project to be newly set up—Finance may be admissible to cover up to 80% of the cost in exceptional cases for loans not exceeding Taka 5,00,000.00. The project sponsor must have their own resources adequate to subscribe to the required equity.”
In paragraph 8 of the circular the period of loan has been laid down;
“8. (a) Maximum maturity for the loan under capital finance may be upto 12 years including grace period of 2 to 3 years.
(b) Maturity period for working capital and transport loans will be up to 5 years including grace period”.
In paragraph 9 of the circular the rate of interest on the loan has been fixed at 13% per annum to be applied semi annually in June and December each year.
10. On this notification and in terms of discussion with the plaintiff-bank and on their hope and assurance, the defendants had filed the loan application/project profile for their project under the aforesaid IDA credit, in the prescribed form to the Sonali Bank, made for IDA finance project. The appellant-Bank after preparing a feasibility report by their own committee found the application eligible for advancing the loan under the credit and ultimately advanced Taka 7 lac as capital finance and Taka 2, 70,000.00 as working capital from IDA credit fund. It is also admitted that the defendant had already spent Taka 10 lac for land development, construction of building, etc. The bank disbursed Taka 4,50,000.00 on 14th February, 1984, Taka 1,49,000.00 (as price for transformer) on 12th March, 1984 and the balance of Taka 1 lac on 4th April, 1984 totaling about Taka 7,00,000.00 of the aforesaid capital finance, and disbursed Taka 2,00,000.00 on 9th August, 1984, and Taka 70,000.00 on 13th August, 1984 totaling Taka 2,70,000.00 of the aforesaid working capital from IDA fund. The respondent No. 2 admittedly received the aforesaid amount and set up the mill and put the mill into operation in August, 1984. It may be mentioned here that, the approved cost of the project as sanctioned by the appellant Bank was Taka 24,57, 920.00 out of which the bank admittedly paid only 35% half of the amount (70%) stipulated in the aforesaid circular. It is further admitted by both the parties that cash credit limit of Taka 3 lac came to nil balance and fully adjusted on 13-9-86. The mill was close down on September, 1986, a legal notice was issued by the bank on the respondents on 8-12-86 and the suit was brought on 3-6-90. This is also admitted that on account of Capital Finance and working Capital the defendabt already paid Taka 5, 08,620.00. This is further evidence that the plaintiff-bank has brought the suit within six years of disbursement of the loan instead of 12 years as mentioned in the IDA circular as quoted above and even before the expiry of the own period of loan of 7 years as mentioned in the sanction letter Exhibit 1 of the plaintiff-appellant itself.
11. This is a clear deviation and violation of both IDA circular as well as own terms of contract (Sanction letter Exhibit 1) of the plaintiff, distinctly resulting in breach of contract by the plaintiff.
12. It appears from the deposition of D.W.1 that he was facing financial crisis in running the mill and so he asked the bank for fresh loan of Taka 15 lac against his previous mortgaged properties and Taka 10 lac against hypothecation. He claimed that the properties worth Taka 42 lac was already mortgaged by him and his wife to the bank at the time of accepting the sanction letter for a loan of Taka 9,70,000.00 only. Hence the bank could easily pay them further loan as requested against the said mortgaged security but the bank did not do it. D.W.1 further stated that which is admitted by the bank as well as by Exhibit 7 Gha i.e. the Bank statement that the cash credit limit of Taka 3 lac came to nil, balance on 13-9-86. The D.W.1 asserts that the bank could have immediately advanced a fresh running capital loan against the same cash credit but the bank did not do it, instead enhanced the limit to Taka 4 lac 6(six) months after. As a result he had closed down the mill. It appears from the records of the case that though the defendants have defaulted in making the payment of instalment in and did not block any amount or defaulted to pay any time but he paid instalment deliberately. The learned Advocate for the respondents submits that as per normal banking and commercial practice such a departure in paying the instalments on due time is a normal matter, more so, in case of industrial loan, and for that reason a specific period for recovery of loan is stipulated in the agreement/sanction letter of the bank executed with the respondents. The maturity of the loan for recovery in the present case was 12 years of the disbursement of 1st instalment of the loan as per terms of the IDA credit and as per terms of the sanction letter Exhibit 1 it was 7 years. But the plaintiff has brought the suit only after six years after the disbursement of first instalment of the loan which is long before the maturity of the loan in both the cases as aforesaid. In view of the facts, evidence and materials on record of the case, we are inclined to accept the aforesaid submissions of the learned Advocate for the respondents that due to non-cooperation of the plaintiff (Bank) the defendants had to shut down the mill for which they suffered huge capital loss, as contended by him.
13. We also find substance in the submission of the learned Advocate for the respondents that the suit was premature and was filed long before the maturity/expiry of the loan period. In the circular in paragraph 8 under the heading, ‘Period Of The Loan’ we find the words. ‘Maximum maturity for the loan under capital finance may be up to 12 years including grace period, Maturity period for working capital and transport loans will be upto 5 years including grace period. In the sanction letter Exhibit 1 itself, the appellant-bank has reduced the said period unilaterally and in breach of IDA circular, to 7 years including 12 months as grace period for capital finance and 4.5 years including 6 months as grace period for working capital. Although this reduced period as mentioned in the sanction letter Exhibit 1 is contrary to and in breach of the circular, this period of 7 years binds the bank for the plaintiff itself is the matter of the contract, Exhibit 1 for taking action for recovery of loan. But we find that the 1st instalment of the IDA loan of the capital loan was disbursed in February 1984 and this suit for recovery of the loan has been filed in June, 1990 which is clearly only after about 6 years of disbursement and long before the expiry of the period for which the loan was granted even as per terms of the bank’s own sanction letter.
14. The learned Advocate for the appellant-bank contends that the instalments of repayment of the capital finance was to start from the 18th month of the date of first disbursement of the loan and the defendant having failed to pay the instalment in time they became a defaulter. The learned Advocate further contends that the defendant failed to pay their instalments both of IDA loan as well as against the cash credit loan and as they could not furnish any fresh mortgage, the bank could not rely on them to grant them additional fresh loan of Taka 15 lac, as the bank is not a philanthropic organisation but a public commercial unit having deposits from the public at large. But we find from the own condition of the bank as contained in the sanction letter, as mentioned above, that the period of loan was 7 years for capital finance and 4.5 years for working capital and that the repayment will start from 18 months of the date of first disbursement of the loan. We therefore, hold that the suit filed by the appellant bank is premature and against their own terms of contract, vis-a-vis against the term of IDA circular No. 7 dated 23-2-8 1, as aforesaid, hence the suit is not maintainable and is liable to be dismissed.
15. We are also not unmindful to the default terms contained in the sanction letter which says that if the (a) Borrower failed to make interest payment as required. (b) Borrower fails to make payment of principal as required, the bank may call back the loan with all accrued interest thereon, immediately due and payable. It reveals that, the bank ‘may’ call back the loan, as aforesaid. It is to be noted that the word ‘may’ has been used in the default term making the step to be taken in such situation as discretionary and not to be followed rigidly except in extreme cases. If we examine the facts in juxtaposition, we find that the respondents have had already made a payment of Taka 5,08,620.00 to the plaintiff towards repayments of overdue instalments of IDA loan of both capital finance and working capital. The respondents paid a sum of Taka 3,41,942.00 against capital finance and Taka 1,66,678,00.00 against working capital by December, 30, 1987. The cash credit limit of Taka 3 lac was also fully adjusted and the balance sheet of the account came at nil balance on 13-9-87. This cash credit limit was, however, enhanced to Taka 4 lac but the bank took away Taka 1,44,000.00 from this account to adjust overdue arrear of the IDA credit which they cannot do, but did it illegally. The cash credit limit account is completely a different loan account from IDA loan account. Cash credit limit loan has been advanced by the bank from its own fund under separate contracts with much higher rate of interest @16% with penal interest up to 20%. So having deducted this good amount of Taka 1, 44,000.00 from cash credit limit to adjust IDA instalment illegally, the plaintiff pushed the respondent to further hardship in running the mill. However, in view of aforesaid payment we cannot term the respondents a defaulter in the strict sense of the term. On the other hand, the above bears the testimony of bona fide, sincerity and honesty of the respondents, who by then, have had already paid about half of the loan money of both the IDA credit and of the bank. The facts further show that, in anticipation of receiving IDA loan up to 70% to cover the cost of the new project and on the assurance of the plaintiff, the respondent No. 2 admittedly has had already spent a sum of Taka 10 lac towards the project, but he was paid only 35%, the half, which drastically put him to acute financial crisis. He requested for additional loans to bank, but for this reason or that, the plaintiff refused it. The bona fide and sincerity of the respondents further reveals from the facts that, they got the IDA loan in February, 1984 and they put the mill into operation in August, 1984 promptly, which shows that the respondents could run the mill hardly for about 2 years having closed it in September, 1986 for running capital constraint. The plaintiff-appellant, instead of helping running the mill in spite of having all their properties worth Taka 42 lac mortgaged with them vis-a-vis the building, machineries, spares, equipment, stores, etc, hypothecated to the bank, as well as audit report of the bank favourable to the mill and the recommendation of the higher officers of the plaintiff to grant loan to the mill, the plaintiff served legal notice on 8-12-86 to the respondents calling back the entire amount of both IDA and cash credit loans with interest and ultimately filed the Suit of 3-6-90, before the stipulated maturity and expiry of the loan period. The respondents thus got no breathing time in either running the mill or to repay the instalments in time in spite of their best and sincere efforts evidenced from the materials on record. We also do not find that the appellant produced any evidence to prove that the respondents transferred the loan money to different head as alleged by them. The plaintiff has submitted that, had the respondent No.2 not filed the Money suit for compensation against the plaintiff, the bank would not have filed this suit. This submission of the appellant cannot be accepted since it reflects the malafide motive of the plaintiff as well. This is contrary to the terms of the IDA credit and to the terms of the plaintiffs one. This submission of the appellant also supports the stout assertion of the respondents that, this suit was filed to take revenge and to retaliate against them for their filing the Money Suit for compensation against the bank.
16. We have already found that the suit is instituted by the plaintiff appellant is premature and is liable to be dismissed. But the question arose whether we can dismiss the suit when no appeal or objection has been filed by the defendant respondents. It appears that under Order 41 rule 33 of the Code of Civil Procedure this Court has ample power to pass any decree or order even where the respondent has not, filed any appeal or cross-objection.
17. We have examined the provision of Order 41 rule 33 which is quoted below:
“Order 41 rule 33: The appellate Court shall have power to pass any decree and make any order which ought to has been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the court not-withstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection:
Provided that the Appellate Court shall not make any order under section 65A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.”
18. It appears from rule 33 as quoted above, this court can pass a decree or order which ought to have been passed or made as the case may require and this power may be exercised by the court not withstanding the fact that the defendant-respondent before us has not filed any appeal or objection. This is supported by the judgment in the case between Kohinoor Chemical Co. Ltd. Vs. Royal Exchange Assurance reported in 25 DLR 155, in the case between Kutubuddin Jaigirdar Vs. Nurjahan Begum reported in 25 DLR (SC) 21 and in the case between Md. Osman Gani Vs. Kulsum Bibi reported in 37 DLR (AD) 63:
19. In the case between Kohinoor Chemical Co. Ltd. Vs. Royal Exchange Assurance it has been held that:
‘Whoever having regard to the provision of Order 41 rule 33 of the Code of Civil Procedure, the appellate Court has enough power to alter the decree in order to do complete justice.”
In the case between Md. Kutubuddin Jaigirdar Vs. Noor Jahan Begum it has been held that-
“Omission of the learned Additional District Judge to pass a declaratory decree in accordance with the main prayer of the plaintiff was an error in the nature of an accidental slip and there is no difficulty in rectifying this error by passing an appropriate decree under the provisions of Order XLI rule 33 of the Code of Civil Procedure.
The appellate Court is not to be hamstrung by the technicalities of procedure and very wide powers have been given to it by these provisions in order to enable it to get over the procedural difficulties for doing complete justice to the parties.
The failure of the plaintiff to file an appeal or cross-objection will not stand in the way of the High Court & exercise of the aforesaid powers for passing the proper decree in the case."
In the case between Md. Osman Gani vs. Kulsum Bibi referred to above the Appellate Division has held that:
“The wording of the Rule shows that the appellate Court may pass any order to do complete justice in disposing of the appeal. This power must be exercised in the interest of and to further ends of justice.
If a party who could file a cross-objection under Order 41, rule 22 has not done so it cannot be said that the appellate-Court can under no circumstances give him relief under the provisions of Order 41 rule 33.
The Rule comes into play when the question of doing complete justice between the parties arises. A litigant cannot claim undue advantage on a technicality of procedural law”.
20. As stated above we have already found that the suit is premature and it is liable to be dismissed. In view of the decisions noted above and in view of our above findings, we are inclined to exercise our power conferred under Order 41 rule 33 of the Code of Civil Procedure and set aside the judgment and decree passed by the learned Subordinate Judge and Artha Rin Adalat and dismiss the suit.
21. Court fees paid are correct. The appeal is hereby allowed.
The impugned judgment and decree passed by the learned Subordinate Judge and Artha Rin Adalat, Feni in the aforesaid Artha Rin Money Suit No.1 of 1990 is hereby set aside and the suit is also dismissed with costs of appeal and the suit.
Send down the lower court records at once.