Case No: Civil Petition for Leave to Appeal Nos. 540-542 of 2009
Judge: Md. Abdul Matin,
Court: Appellate Division ,,
Advocate: Syed Mahbubar Rahman,Fida M. Kamal,Mr. Shamim Khaled Ahmed,,
Citation: VII (ADC) (2010) 197
Case Year: 2010
Appellant: Tanvir Ul Islam
Respondent: Bangladesh Bank
Delivery Date: 2009-4-5
MM Ruhul Amin CJ
Md. Abdul Matin J
Md. Abdul Aziz J
Tanvir Ul Islam
……………Petitioner (In all cases)
General Manger, Credit Information Bureau, Bangladesh Bank
…………..Respondents (In Civil Petition No. 540 of 2009)
April 5, 2009.
Petition praying for amongst others, the following relief (a) “That a rule Nisi be issued upon the respondent to show cause as to why the Credit Information Bureau report in so far as it links the petitioner to the pro-forma respondent (Quasem Cotton Mills Ltd.) and its liabilities to the respondent Nos. 2, 3, 4 and 5 should not be declared to have been made without lawful authority and is a nullity.
Fida M. Kamal, Senior Advocate instructed by Zahirul Islam, Advocate-on-Record-For the Petitioner (In all cases).
Shamim Khaled, Advocate instructed by Abu Siddique, Advocate-on-Record-For Respondent Nos.4-5 (In Civil Petition No.540 of 2009).
Syed Mahbubar Ahmed, Advocate-on-Record-For Respondent Nos.2-3 (In Civil Petition No. 540 of 2009).
Not represented-Respondent Nos. 1, 6-7 (In Civil Petition No.540 of 2009).
Shamim Khaled, Advocate instructed by Abu Siddique, Advocate-on-Record-For Respondent No.6 (In Civil Petition No.541 of 2009).
Syed Mahbubar Rahman, Advocate-on-Record-For Respondent No.7 (In Civil Petition No.541 of 2009).
Not represented-Respondent Nos. 1-5, 8-9 (In Civil Petition No.541 of 2009).
Not represented- the Respondents (In Civil Petition No. 542 of 2009).
Civil Petition for Leave to Appeal Nos. 540-542 of 2009.
(From the judgment and order dated 26.01.2009 passed by the High Court Division in Writ Petition No. 12174 of 2006 analogously heard with Writ Petition Nos.6703 of 2004 and 12175 of 2006.)
Md. Abdul Matin J.
These petitions for leave to appeal are directed against the judgment and order dated 26.01.2009 passed by the High Court Division in Writ Petition No. 12174 of 2006 (analogously heard with Writ Petition Nos.6703 of 2004 and 12175 of 2006) discharging the Rule with cost of Tk.5,000/- to be paid to the Government through treasury challan.
2. The facts, in short, are that the petitioner, as writ petition filed aforesaid writ petition praying for amongst others, the following relief (a) "That a Rule Nisi be issued upon the respondent to show cause as to why the Credit Information Bureau report in so far as it links the petitioner to the pro-forma respondent (Quasem Cotton Mills Ltd.) and its liabilities to the respondent Nos.2,3,4 and 5 should not be declared to have been made without lawful authority and is a nullity."
3. The petitioner is a share-holder of respondent No.7 company (a public limited company) having 2,500 shares out of the total of 16,000 sharers which is 15.63% of the total shares. On 21.06.1998 the petitioner was appointed as director of the said company. Respondent No.7 Company enjoyed Working Capital loan from the respondent Nos.2 and 4 Bank. These loans are effective for a year and renewable. The petitioner along with other share-holder/directors executed personal guarantee in respect of the said loan.
4. Subsequently, due to certain circumstances, the petitioner did not intend to continue as the Director of the said company and accordingly by letter dated 5th October, 2000 the petitioner tendered his resignation, pursuant to which a meeting of the Board of Directors of the company was called on 10th October, 2000 in the said meeting the resignation of the petitioner was on discussion accepted by way of resolution under Article 120 of the Articles of the Association of the Company and the resignation of the petitioner was in compliance with the provision of law, duly informed to the Registrar of the Joint Stock Companies and accordingly Registrar of Joint Stock Companies on 22.10.2000 issued certified copy of Form XII showing the petitioner has resigned from the post of the Director of the respondent No.7. Subsequently the respondent No.7 company by its letter dated 18.10.2001 forwarded the list of new Board of Directors to the respondent Bank.
5. The respondent No.2 Pubali Bank Ltd. by its memo No. PBL/PB/Renewal-facilities QCMS/2148/2002 dated 11.03.2002 informed the Managing Director of the respondent No.7 company that the reconstituted Board of Directors has already been approved by the Board of respondent No.2 Bank with request to arrange to rectify the names of Directors of the reconstituted Board of Directors of the respondent No. 7 Company with the Credit Information Bureau of Bangladesh Bank.
6. Similarly the respondent No.5 Bank by its memo No.Agrim-1/CC/Quasem-Cotton/202 dated 03.10.2002 addressed to the Managing Director of the respondent No.7 company informed approval of the newly constituted Board of Directors of respondent No.7 Company.
7. Respondent No.7 is a public limited company and its shares are floated through the Dhaka Stock Exchange as per the Company Law the directors are elected in the AGM of the Company each year. The petitioner has not been elected as a Director of the company in the Annual General Meeting held in all subsequent years and hence can not be a director of the company (but due to bona fide mistake the said fact could not be placed properly).
8. Inspite of the fact that the petitioner resigned from the Board of Directors of the respondent No.7 company with the consent/approval of the respondent Nos.3 and 5 and the petitioner being no more a director of respondent No.7 company but merely a share holder having 2,500 shares out of total of 16,000 shares which is less than 25% of the total shares of the respondent No.7 company, the respondent Nos.1 and 2 has shown the petitioner as defaulter borrower which may lead to the cancellation of banking facilities as being enjoyed by the petitioner and therefore, the petitioner was compelled to file the writ petition.
9. The respondent No.1 Bangladesh Bank opposed the Rule contending, inter-alia, that from the writ petition it is evident that the resignation of the petitioner from the directorship of the companies has not been approved by the lender bank/financial institutions and as such resignation is not acceptable pursuant to the provision of Section 27Ka of the Banking Company Ain, 1991 (shortly the Act of 1991). The petitioner did not produce any documents showing that consents/approvals were obtained from the lender bank/financial institutions for his resignations or that his resignations were accepted by the lender banks/financial institutions as required under Section 27Ka of the Act, 1991 which provides that resignation of a director of a debtor company shall not be effective without the consent of the Board of Directors of the lender bank. Therefore the petitioner remained as director of the companies till now. The CIB report was prepared on the basis of information furnished by the lender bank/financial institutions in accordance with law. The petitioner is admittedly guarantor for loans taken by the companies and the said loans became over due. The petitioner, as directors of the companies has subsisting interest in the companies and the companies are admittedly defaulter borrowers and so the name of the petitioner was correctly included in the CIB report. The petitioner is not a person aggrieved under Article 102(2) of the Constitution and therefore he is not entitled to get any relief in the writ petition. The petition is totally misconceived. The petitioner being director of the companies comes within the mischief of Section 5(Ga Ga) and 27 Ka Ka of the Act, 1991. The definition of loan as provided in Section 2 of the Artha Rin Ain, 2003 (shortly, the Ain) also includes a guarantor. Thus, it is clear that the legislature included the guarantor within the definition of loanee and so the CIB report is legal. The writ petition is misconceived and the rule is liable to be discharged.
10. The respondent No.4 Janata Bank contested the Rule by filing affidavit-in-opposition stating that the petitioner has executed personal guarantee for loan given by the respondent No.4 Bank to the respondent No.7 company and mere removal of the petitioner from the Board of Director of the respondent No.7 company cannot make the petitioner free from the liabilities as a personal guarantor of the loan given by respondent No.4 and due to failure of repayment of loan by the respondent No.7 company the petitioner being a personal guarantor for repayment of the said loan is also a loan defaulter and as such the petitioner is not entitled to have his name deleted from the said CIB report and accordingly prayed for discharging of the Rule (it was stated that the High Court Division while narrating the case of respondent No.4 has stated the fact contrary to the fact stated in the affidavit-in-opposition of the respondent No.4).
11. The Rule was taken up for hearing by the High Court Division along with two other rules issued in Writ Petition Nos. 6703 of 2004 and 12175 of 2006 finding that similar question of fact and law was involved in those rules and after hearing the parties discharged the Rule by the impugned judgment and order.
12. Being aggrieved by the judgment and order of the High Court Division the petitioner has filed these petitions for leave to appeal.
13. Heard Mr. Fida M. Kamal, learned Counsel appearing for the petitioner and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
14. It appears that admittedly the petitioner was the director of the company and on his representation the bank granted the loan to the company. Loan has not been paid by the company.
15. Mr. Fida M. Kamal, learned Counsel has referred to Section 27 Ka of the Act, 1991 and submitted that he resigned from the post of directors with the consent of the bank authority.
16. Mr. Shamim Khaled, learned Advocate appearing for the respondents however submitted that only two banks gave consent but other banks have not given their consent in the matter of resignation and therefore the CIB report has been prepared accordingly.
17. We find substance in this submission. Accordingly these leave petitions are dismissed.