State Bank of India Vs. Saudi-Bangladesh Industrial and Investment Co. Ltd. and another, VI ADC (2009) 37

Case No: Civil Appeal No. 203 of 2000

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Dr. Kamal Hossain,Mr. Habibul Islam Bhuyan,,

Citation: VI ADC (2009) 37

Case Year: 2009

Appellant: State Bank of India

Respondent: Saudi-Bangladesh Industrial and Investment Co. Ltd. and another

Subject: Artha Rin,

Delivery Date: 1990-06-02

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim, J.
Md. Joynul Abedin, J.
Md. Hassan Ameen, J.
 
State Bank of India
….......Appellant
Vs.
Saudi-Bangladesh Industrial and Investment Co. Ltd. and another
………Respondents
 
Judgment
June 2, 2008
 
The Artha Rin Adalat Ain, 1990
Section 7 (2), 6, 6 (2)
“Section 7 (1) of the Artha Rin Adalat Ain, 1990 provides that within 30 days from making of the decree the appeal is to be filed before the High Court Division and sub- section (2) of Section 7 provides that no appeal shall be entertained unless half of the decretal amount is deposited in the Court making the decree in the Suit. Thus, Section 7 prescribes two conditions to be satisfied by an appellant, one, the appeal must be preferred within 30 days from making all of the decree and the other, no appeal shall be entertained unless half of the decretal amount is deposited making the decree. Section 7 of the Artha Rin Adalat Ain, 1990 does not speak about bank guarantee but the expression ‘জমাকৃত অর্থ’ used in sub-section of Section 7 cannot be construed to be bank guarantee.
 
Cases Referred To-
Habib Bank Limited vs. Eastern Bank Limited 19 BLD (HCD) 553; Abdus Sattar and others vs. International Finance and Investment Commerce Limited 21 BLD (AD) 77.
 
Lawyers Involved:
Habibul Islam Bhuiyan, Senior Advocate instructed by Feroz Shah, Advocate-on-Record-For the Appellant.
Dr. Kamal Hossain, Senior Advocate, instructed by A.S.M. Khalequzzaman, Advocate-on-Record-For the Respondents.
 
Civil Appeal No. 203 of 2000.
(From the judgment and order dated the 11th day of July, 1999 passed by the High Court Division in F.A.T. No. 511 of 1999).
 
JUDGMENT
Mohammad Fazlul Karim, J.
 
1.         This Appeal, by leave, is directed against the judgment and order dated 11.07.1999 passed by the High Court Division in F.A.T. No. 511 of 1999 permitting defen­dant respondents to file Memorandum of Appeal with bank guarantee.
 
2.         The facts of the case, in short, are that the petitioner filed Money Suit No.77 of 1994 in the Artha Rin Adalat against the respondents and others for recovery of Tk. 32,31,99,460.38. After contest the suit was decreed by judgment and order dated 26.04.1999 for the claimed amount with interest @ 15% thereon and cost. Being aggrieved by the same respondents pre­ferred F.A.T. No.511 of 1999 before the High Court Division without depositing 50% of the decretal 'Money' and by fur­nishing bank guarantee for the said amount in the trial Court. The petitioner opposed the registration of the said appeal on furnishing bank guarantee as the same has not been presented depositing 50% of the decretal 'Money' in the trial as required under Section 7(2) of the Artha Rin Ain, 1990. But the learned Judges of the High Court Division relying on their judgment and order dated 24.06.1999 passed in F.M.A.T. No.358 of 1999 permitted the respondents to file the Memorandum of Appeal with the bank guarantee furnished before the trial Court for 50% of the dec­retal dues. In the order dated 24.06.1999 passed in F.M.A.T. No.358 of 1999 learned Judges of the High Court Division held that since there is a provision in Section 6 of the said Ain for furnishing bank guarantee for filing an application under Order 9 Rule 13 of the Code of Civil Procedure against the ex-parte decree and since it is impracticable to deposit huge cash money by chalan and since there is an indication in the law itself that the dec­retal amount can be deposited either in cash or by bank guarantee, furnishing bank guarantee will be sufficient compli­ance of the requirement of Section 7 of the said Ain. Being aggrieved by impugned order the petitioners have filed this peti­tion for leave to appeal.
 
3.         Leave was granted to consider the sub­mission of the learned Counsel for the appellant that Section 7(2) of the Artha Rin Ain clearly provided for deposit of 50% of the decretal money in the trial Court as a mandatory condition precedent of filing an appeal against the judgment and decree of the Artha Rin Adalat and the learned Judges of the High Court Division fell into a serious error of law in directing registration of the appeal without such 'Money' deposit; that the question involved in this petition as to whether fur­nishing of bank guarantee, in lieu of deposit of decretal 'Money', can be con­strued as sufficient compliance of the pro­visions of Section 7(2) of the said Ain and the same is a question of great public importance, particularly, in view of the conflicting decisions given by two Divisions Benches of the High Court Division on the same question.
 
4.         Mr. Habibul Islam Bhuiyan, learned Counsel, appearing for the appellant sub­mitted that the two conditions, one fur­nishing bank guarantee in a case for set­ting aside an ex- parte decree in Section 6 of the Artha Rin Adalat and another of depositing money in an appeal against the decree in Section 7 of that Act clearly indicate the Act's clear and different inten­tion regarding the two clauses, the provi­sion in question should have been strictly construed by the High Court Division and there was no scope for giving any other meaning as was given by the High Court Division; that the primary duty of the High Court Division was to find out the expressed words  of the statue and the High Court Division as wrong to find a different intention upon certain exhaustive consideration; that the question before the High Court Division was not even what the Legislature meant, but what its lan­guage meant or in other words what the Ain said that it meant. The learned Counsel further submitted that an order passed by a Division Bench having writ jurisdiction cannot have any effect what­soever on a Division Bench having civil appellate jurisdiction.
 
5.         Dr. Kamal Hossain, learned Counsel, appearing for the respondents submitted that the respondents SABINCO and its Managing Director filed F.A.T.No.511 of 1999 against the decree of the Artha Rin Adalat impleading as many as 6 respon­dents including plaintiff-SBI, borrower-Tulip and the guarantors of the loan but the present appeal has been filed only impleading SABINCO and Managing Director which is a case of non-joinder of the necessary and proper parties; that SABINCO is not a borrower nor it stood as a guarantor for any loan availed by Tulip and having regard to the provisions of Section 6(2) of the Artha Rin Adalat Ain, 1990 which empowers an aggrieved party to file an application for setting aside an ex-parte decree by depositing bank guarantee for an amount equivalent to 50% of the decretal amount and thus, it is abundantly clear that the legislature has intended to accept bank guarantee as deposit equivalent to 50% of the decretal amount in preferring an appeal. The plain­tiff-appellant, SIB impleaded the SABINCO and its Managing Director and cate­gorically stated, inter-alia, that the SABINCO assumed the management of the borrower, Tulip. But it is not the case of the plaintiff-appellant that the SABIN­CO and its Managing Director are borrow­ers/debtors. Under the law a plaintiff-appellant bank can seek a money decree only against the borrower/debtor and guarantors and not against any one else. The High Court Division considering this aspect of law allowed SABINCO to fur­nish a bank guarantee for an amount equivalent to 50% of the decretal amount since there is a special circumstances and nor an ordinary relationship with the plaintiff as borrower and credit; that SABINCO is not a borrower rather it is one of the creditors of borrower Tulip and therefore, impleading the SABINCO and its managing as defendants and decreeing the suit by the learned trial Court against SABINCO and its Managing Director, who are not debtors, are palpable misconceived. Pursuant to the above decree of the learned trial Court, a huge liability has been thrust upon SABINCO for which redress has been sought for by making a deposit of an amount equivalent to 50% of the decretal amount by way of Bank Guarantee.
 
6.         It appears from the record that Section 6 was amended in the manner that if an ex parte decree is passed by the Artha Rin Adalat and if an application under Order 9 Rule 13 of the Code of Civil Procedure is filed for setting aside the ex-parte decree than the aggrieved party shall deposit 50% of the decretal amount by cash or by the bank security for the said amount and thereafter their application under Order 9 Rule 13 will be accepted. Originally this provision was not in the Act. By amend­ment dated 17.07.1992 this provision namely, Section 6(2) had been incorporat­ed in the Ain. It is submitted by the appel­lant that the principle as provided in Section 6(2) and Section 7(2) are not applicable in a similar circumstance in view of the fact that by an application under Order 9 Rule 13 of the Code of Civil Procedure the judgment debtor prays to set aside an ex-parte decree making a difference under Section 6(2) which was incorporated by amendment as the legisla­tors thought that the 50% of the decretal amount may be deposited either by cash or by bank security considering the practical difficulty in depositing the 50% of the decretal amount by cash money on an ex-parte decree where the decree was passed without guarantorship that merit of the case of the parties. Had the intention of the legislators would have been the same a similar provision like Section 6(2) would be that in Section 7(2) or the legislation clearly manifested the case of regular appeal against a decree in Section 6(2) instead of maintaining a separate Section i.e. 7(2) applicable in cases of appeal from the decree i.e. similar provision ought to have been made in Section 7 also for depositing the 50% of the decretal amount at the time of preferring appeal before the High Court Division.
 
7.         It also appears that Section 7, sub-sec­tion (3) of the aforesaid Act wherein clause (R) it is provided that if half of the decretal amount is deposited in Court by bank security when an application under Order 9 of Rule 13 of the Code of Civil Procedure is made an when again the self­same judgment-debtor is required to pre­fer appeal before the High Court Division than the money already deposited earlier will be there and over and above 50% of the remaining half will have to be deposit­ed.
 
8.         Dr. Kamal Hossain, learned Counsel, however, submitted that considering the position of SABINCO which is neither a borrower nor a guarantor for any loan availed by Tulip the High Court Division following the provision under Section 6(2) of the Artha Rin Adalat Ain, 1990 allow­ing an aggrieved party to file an applica­tion for setting aside an ex-parte decree could deposit bank guarantee for an amount equivalent to 50% of decretal money.
 
9.         In view of the appellant's position as narrated before the Court as well filing an appeal on deposit of bank guarantee equivalent to 50% of decretal money in preferring an appeal which is sufficient compliance of the provision of said view was supported in the case of the Habib Bank Limited vs. Eastern Bank Limited reported in 19 BLD (HCD) 553 as under the circumstances and the position of SABINCO in relation to the borrower of the loan availed by Tulip. The bank guar­antee in lieu of depositing of 50% of dec­retal amount is equivalent to deposit in cash which the bank is obliged to encash the same on remand and is usually preva­lent in the business world where the amount is colossal and accordingly, in the said decision it was held that under Section 7 of the aforesaid Act against a decree of the Artha Rin Adalat the appel­lant may deposit 50% of the decretal amount before the trial Court either by cash or by bank guarantee.
 
10.       The said decision was descended to in a decision reported in 4 MLR (1990) 53 in the case of Abdus Sattar of Messers Advance Electronic vs. International Finance Investment and Commerce Limited wherein it was held that the deposit of 50% of decretal money is the condition precedent to file an appeal as the section contains a mandatory provision for depositing of 50% of decretal money as the condition precedent of filing an appeal against the judgment and decree of the Artha Rin Adalat. Bank guarantee in lieu of such deposit cannot be construed as compliance with the requirement of law. The Court can interpret the law as it is, but could not import anything which is not within the Act itself.
 
11.       The case of Abdus Sattar and others vs. International Finance and Investment Commerce Limited reported in 21 BLD (AD) 77 has been affirmed wherein it was held that
      "Section 7(1) of the Artha Rin Adalat Ain, 1990 provides that within 30 days from making of the decree the appeal is to be filed before the High Court Division and sub-section (2) of Section 7 provides that no appeal shall be entertained unless half of the decretal amount is deposited in the Court making the decree in the suit. Thus, Section 7 prescribes two conditions to be satisfied by an appellant, one, the appeal must be preferred within 30 days from making of the decree and the other, no appeal shall be entertained unless half of the dec­retal amount is deposited making the decree. Section 7 of the Artha Rin Adalat Ain, 1990 does not speak about bank guarantee but the expres­sion ‘জমাকৃত অর্থ’ used in sub-section (2) of Section 7 cannot be construed to be bank guarantee. The expression ‘জমাকৃত অর্থ’ means money which is used in this sub-section as equivalent to English cash money and not the bank guarantee."
 
12.       We have considered the aforesaid decision and have no reason to differ or take a view otherwise than in the case reported in 21 BLD (AD) 77. The respon­dent, herein, has sought to make a distinc­tion by submitting that SABINCO, the appellant is neither a borrower nor stood as a bank guarantor for any loan availed by Tulip and as such, while preferring an appeal against the impugned judgment and decree and later has not made any dif­ferent in this regard as to whether the appellant/a borrower or guarantor or a debtor and defendant-respondent could follow the provision of 6(2) of the Artha Rin Adalat Ain, could file an appeal by depositing  bank guarantee  for amount equivalent to 50% of the decretal amount against an ex-parte decree.
 
13.       On perusal of 6(1) and Section 7(2) it appears that the intent and purpose of the aforesaid sections are different and sepa­rate. Section 6 is meant to challenge in appeal under Section 6(2) of the Ain against ex-parte decree for setting aside the same but Section 7(2) provides for an appeal against the decree on merit and in case of appeal preferred by the appellant against the said judgment and decree it did not make distinctions or difference between a borrower or guarantor or the persons actually availed of the loan or any other person/persons while preferring an appeal against the impugned judgment and decree.
 
14.       Accordingly, this appeal is allowed without any order as to costs setting aside the impugned judgment and decree pass­ing in F.A.T. No.358 of 1999 dated 14.06.1999 by the High Court Division.
 
Ed.