(Civil Appellate Jurisdiction)
AKM Asaduzzaman J } AB Bank Limited
Md Iqbal Kabir J } …….Plaintiff Appellant
vs
Judgment } Khan Enterprise and
June 22nd, 2015 } others……Defendants Respondents.
Artha Rin Adalat Ain (VIII of 2003)
Section 12(1) (2) (3)
The Bank need/exhaust the procedure laid down under Section 12(1)(2)(3) of the Ain before filing the suit. If plaintiff Bank does not follow the procedure then the procedure laid down in the Section 12(6) and (7) of the Ain will come into operation. ……………………… (16)
”Artha Rin Adalat Ain (VllI of 2003)
Section 57
Due to the State Emergency the damage has been taken place and the defendant suffered a huge loss but in such a situation there is no provision in the Ain to remit any interest….. (17)
Artha Rin Adalat Ain (VIII of 2003)
Section 50
The legislature has given clear mandate enabling the Bank to claim interest forming part of the principal amount as per the agreed contract of loan. The court has exercised his inherent power, though this court has no jurisdiction to do so or entrusted any power to waive any interest accrued. There is a specific provision to recover the default loan and interest. The court has to follow the procedure laid down therein; it cannot overlook the provision laid down there. .. …. (19)
Najmul Karim, Advocate-For’ the Plaintiff-Appellant.
Afroza Nazneen Akhiter, Advocate-For the Defendant-Respondent No.1.
Judgment
Md Iqbal Kabir J : This appeal has been presented at the instance of the Plaintiff/ Appellant against the judgment and decree dated 31-3-2011 passed by the Judge of the Artha Rin Adalat, Chittagong in Artha Rin Suit No. 33 of 2010.
2. The facts relevant for disposal of the appeal are that the plaintiff is a Bank and it has Banking business. On the other hand defendant-respondent No. 1 is a business Enterprise and the defendant No.2 is the owner of the said business and defendant No.3 is the guarantor who deposited the mortgage property as collateral security against the loan.
3. The plaintiff sanctioned Taka 14,10,00,000 in favour of the defendants’ respondents against L/C and TR facilities as per the application dated 20-2-2006. The plaintiff after considering the application allowed the same on 6-3-6. Defendant No.2 and 3 understood the condition laid down in the sanction letter issued by the Bank and which along with interest charges at agreed rate stood the claim of the suit. Against the aforesaid loan the defendant No.2 executed various charge documents and deposited the same to the Bank. The land described in the schedule-1 and title deed described in schedule-2 deposited as collateral security by the defendant No.3. In support of the mortgage the defendant No.3 on 21-3-6 executed a registered mortgage deed being No.966 and a Power of Attorney. Thereafter, on 12-3-08 the defendant applied to adjust the liability against the loan and the plaintiff Bank also agreed the same and on 2- 4-8 issued a consent letter. However, the defendant failed to adjust the liability as a result the plaintiff Bank cancelled installment facility vide letter dated 2-7-09. The plaintiff issued several remainder letters to pay the loan amount against which on 24-12-09 defendant No. 2 issued a cheque being No. 0245076 amount of Taka 15,75,36,960 in favour of the plaintiff that is AB Bank Limited, Export Processing Zone Branch, Chittagong. The said defendant also assured that if the cheque be placed for encashment the money would be paid. Subsequently, the cheque was deposited but was dishonored as a result the plaintiff through his lawyer issued legal notice and finally filed a Case under Section 138 of the Negotiable Instrument Act. As per the regular assessment against the account under L/C and TR facilities defendant failed to adjust the liability and the plaintiff is entitled to recover loan through legal process and hence this suit.
4. The suit was contested by the defendants by filing written statement, deny.ing all material assertion as set out in the plaint contending, inter alia, that the defendants with good reputation doing their business and they have good relation with the Bank and others. Under L/C and TR facilities defendant No.2 imported 3000 Mt sugar on behalf of the defendant No. 1. They have already made a payment of Taka 1,41,00,000 as 10% margin and after selling 800 MT sugar paid Taka 4,04,04,400 but remaining amount of Taka 8,64,56,000 was unpaid. During Emergency period on 1-11-2007 a criminal case was .lodged against the defendant No.2 under Section 25(1) of the Special Powers Act 1974 as a result the said sugar has been damaged causing huge loss to the defendant and thereby he was not in a position to repay the loan. However, to recover the said loss the defendant has taken initiative against the government. As such the defendant prays to remit the interest and for an adjustment of the loan amount vide three monthly installments spread over 20 years.
5. The learned Judge of the trial court framed 8 issues including 4 additional issues and examined one witness on behalf of the plaintiff and one witness on behalf of the defendants and by the impugned judgment decreed the suit in part.
6. Being aggrieved by the impugned judgment and decree the plaintiff appellant preferred the instant Appeal.
7. Mr Najmul Karim, the learned advocate appearing on behalf of the appellant submits that trial Court erred in law in passing the impugned judgment and decree. He submits that the Artha Rin Adalat Ain does not allow the Court to remit the interest upon invoking jurisdiction under section 57 of this Act. He submits that Section 18 of this Act do not allow the defendant to claim set-off or counter claim. Accordingly the borrower defendant is barred to include set-off or counter claim in the written statement. As a result the Court has no scope and jurisdiction to entertain any counter claim and thereby set-off any amount from the claim of any suit. He further submits that Artha Rin Adalat Ain has been created by special enactment only for recovery of defaulted loan. It has no power to adjudicate any other matters. Since defendant has taken the loan and in his testimony acknowledged the entire loan facilities and as such the trial Court has no scope to pass a partial decree.
8. He further submits that in view of Section 50 of this Act, Court has no jurisdiction to reduce or remit any interest which has lawfully imposed against any loan. He submits that appellant is entitled, to recover the loan through legal process. And as such, the judgment and decree is liable to be modified and a decree may be passed in full for the entire claim of the plaintiff.
9. Ms. Afroza Najneen Akhter, learned Advocate appearing for the defendants submits that the suit is premature as because without complying the provision laid down under Section 12 of the Artha Rin Adalat Ain, the Bank cannot file the suit, if filed it ‘would be premature and the trial court has rightly held that the suit is premature. She further submits that since the imported goods were .under the custody of the plaintiff and it was retained as pledge therefore, the plaintiff had to comply the procedure as laid down under Section 12 of the Artha Rin Adalat Ain before filing a suit. She further submits that the imported sugar was in the custody of the Bank as a result the Bank is responsible to sell it out before filing the suit. She further submits the plaintiff without disclosing the entire fact filed this suit which is also a violation of the provision of Section 8(Ga) of the said Act. Trial Court committed gross illegality in decreeing the suit without considering the above provision of law.
10. In reply the learned Advocate for the appellant has taken us to the plaint where it has clearly been stated that ”????? ????????? ????????? ???????? ???????? ???? ???? ???? ?? ???? ??? ?????? ???????? ???????? ????? ?????????? ??????? ?????? ?? ????? ?????? ??????? ????? ????? ????? ??? ? ???????? ????? ????? ????? ???? ????? ???? ??” apart from that in reply to the contention of the plaint, the defendant in their written statement admitted that they took loan and some portion of loan amount has been repaid but due to the criminal case the alleged goods were damaged and they suffered huge loss. For which the government is responsible, and they have taken initiative against the government.
11. Plaintiff clearly speak, that the plaintiff has complied the provision and procedure laid down under Section 12 of the said Act before filing of the suit. The document (Ext-1010/a) that is a letter of Agreement wherein the defendant acknowledged plaintiff’s right to cancel any or all the loan(s} of credit at anytime with or without prior notice to the defendant and defendant also undertakes to pay you on demand all outstanding balances together with accrued interest and charges, clearly speaks about the position of the defendant in the loan proceedings.
. 12. General Letter of Trust Receipt dated 6-3-6 (Ext 3/d) shows that the defendant also agreed by saying that “It is also expressly agreed that so long as any goods of which you have allowed us to take delivery, but for which we have not paid, remain in our possession or under our control, you hold a lien on the same and are at liberty, at our expense, if you think fit to do so to re-take possession of the same without any notice or reference to our consent, from us, and to remove the same or any part thereof from the place where they have been stored to any other place you may choose and place the same under the care of anyone you may select and to dispose of them by sale or otherwise as you may think necessary.” and further said “We quite understand and agree that the handing to us of any shipping Document or Documents as above mentioned is entirely at your option and does not in any way alter or affect our personal liability or your rights under any other security or documents (s) you may hold.” From the above documents defendant has acknowledged his rights and responsibilities in the loan proceedings.
13. He further submits that the plaintiff is not responsible to sell out the goods and the document further shows that the goods were not in possession of the plaintiff and as per the procedure of hypothetical mortgage the bank will keep the documents not the goods. In fact the goods were under the custody of the defendant. The letter written by M/s Khan Enterprise dated 20-7-2008 (Ext-A) to the plaintiff will affirm the said contention.
14. He further submits that the defendant also prayed to re-schedule the loan amount and accordingly it was made. Even after that the defendant failed to do so. The above submission and document shows that the plaintiff has complied the provision of law and defendant is a defaulter and responsible to pay the entire amount of loan including the interest.
15. We have gone through the evidences on record, heard the learned Advocate for the parties and examined the relevant law, facts and circumstances.
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(?) ??-???? (?) ?? ????? ???????, ??? ?????? ?????????? ??? ??? ?? ?????????? ???? ?? ?? ?????? ???????? ?????? ?? ????? ????? ????? ????? ??????????? ???? ???????? ?????-?????? ??? ?????? ????? ?????????? ???? ???? ???? ?????? ????? ??? ?????? ??????? ????????? ????? ?????
(?) ??? ?????? ??????????, ??????? ???? ???? ??? ???????? (????????? ???????? ) ????? (????????) ?????? ???? ?¯’??? ???????? (??????? ????????) ??????? ?????? (????????????) ?? ?????? ????? ??? ????? ?????? ?? ??????? ???????? ???????? ?????? ? ?[***?] ?????? ???????????? ?????? ??? ???? ??????, ??? ?????? ?? ????? ??? ?????????? ???? ?? ?????? ???? ?????? ?? ?????, ???? ?????? ?????? ????? ??????-?? ????, ???? ?? ?????? ??? ????? ????? ??????? ?
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………………………………………………………
(?) ??? ?????? ?????????? ??-???? (?) ? (?) ?? ????? ???? ?? ?????, ????? ???-??????? ???? ??????? ????? ??????????, ?????? ?????? ?????? ??? ???? ?????? ?????????? ????”? ???? ????????? ????????? ??????????, ??? ????, ???????? ???? ?????? ???? ???? ??? ???? ?????? ?????? ????? ??? ????????? ????? ?? ??????, ??????, ????????? ¯’???? ???????????? ???-????????????? ????????? ????? ?????, ????? ???????? ????? ??? ????????? ???? ??????? ???????? ???? ?????? ???? ???? ??? ???? ?????? ?????? ????? ?
(?) ??-???? (?) ?? ???? ?? ????????? ????????? ????? ?????? ???? ???? ??? ???? ?????? ?????? ??? ????, ???? ????????? ???????? ???? ?? ?? ??-???? (?) ?? ????? ?????? ???????? ?????? ???????????? ??????? ?????? ???? ?
16. The relevant provisions of the aforesaid Act shows that the Bank need/exhaust the procedure laid down under Section 12(1)(2)(3) of the aforesaid Act before filing the suit. If plaintiff Bank does not follow the above procedure then the procedure also laid down in the sections 12(6) and (7) of the said Ain will come into operation.
17. We have gone through the provision of Artha Rin Adalat Ain specially the Sections 8(a) 12, 18, 47 and 50 of the said Act and found that no violation is made by the plaintiff appellant. On our careful scrutiny and in view of the above submission, examination of evidence as well as the legal position we are of the view that after fulfilling the entire legal requirement the plaintiff has filed the suit. The defendant acknowledged the entire loan facilities and they have adjusted only a small portion of the said loan and at the time of State Emergency a case was lodged against the defendant No.2 under Section 25(1) of the Special Powers Act 1974 as a result he suffered huge damage to the storage sugar and it went out dated of sell causing huge loss in his business and thus his financial capability to repay or adjust the loan with interest came to an end. Although it has proved that due to the State Emergency the damage has been taken place and the defendant suffered a huge loss but in such a situation there is no provision in the Artha Rin Adalat Ain to remit any interest. Anyway to ensure justice the court exercised the inherent power as per Section 57 of the Artha Rin Adalat Ain and decreed the suit in part in favour of the plaintiff and decreeing only to recover the remaining loan amount without interest.
18. Section 50 of the Artha Rin Adalat Ain runs as follows:
“ ??? ?????? ????????? ?????? (?) ???? ?? ?? ????? ????????, ?? ????? ???? ??? ?????, ?? ???????? ???? ???? ????? ?????? ???? ??????? ??????? ??? ???? ??? ?????? ?????????? ????”? ??????????? ???????? ???, ?? ?????????, ?????? ?? ????-?”??, ??? ?? ???????? ????? ?????? ?? ?
(?) ?????? ?????? ????”? ????? ??????? ???????? ??????-????? ???? ??? ????, ??????, ???? ?????? ???? ?? ???? ?????? ??????? ??? ?”??? ??????? ????? ?? ?????, ????? ??????? ???? ???? ??????? ???? ???? ?????
???? ??????? ????? ???? ??????? ??? ????? ??? ?[??% (??? ?????) ?] ??????? ??? ????, ??? ????, ?????? ?? ???? ??? ??????? ??? ?”??? ?????? ????? ????? ?????????? ???????? ???? ??% (??? ?????) ??????? ??? ????, ??? ???? ?? ?”??? ??????? ?????? ?? ?????? ???????? ???? ?????? ???? ?????, ?????????? ???????? ???? ??% (???? ?????) ??????? ??? ????, ??-???? (?) ?? ????? ???????? ?”??? ??????? ????, ??????, ???? ?????? ???? ?? ???? ??? ???????? ??????? ?? ???????? ?????? ?? ?????? ????? ???????? ????? ??? ???? ?? ?????? ?????? ?????, ???? ?????, ????-???????? ????????? ?????? ??? ?? ??????? ??? ???? ?? ???????????? ???????? ???????? ???? ?? ????? ???? ?????? ????? ?????? ?”
19. In pursuance to the above section of the Artha Rin Adalat Ain the legislature has given clear mandate enabling the plaintiff Bank to claim interest forming part of the principal amount as per the agreed contract of loan. In this case we found that the court has exercised his inherent power, though this court has no jurisdiction to do so or entrusted any Power to waive any interest accrued. In this enactment there is a specific provision to recover the default loan and interest. The court has to follow the procedure laid down therein; it cannot overlook the provision laid down there.
20. We have perused the impugned judgment and decree passed by the learned Judge Artha Rin Adalat, Chittagong in Artha Rin Suit No. 33 of 2010 and upon overall consideration of the entire matter we find that the trial court committed illegality in decreeing the suit in part. We find substance in the appeal.
21. In the result, the appeal is allowed.
22. The impugned judgment and decree dated 31-3-2011 passed by the Judge, Artha Rin Adalat, Chittagong in Artha Rin Suit No. 33 of 2010 is set aside and the suit is decreed as per the claim of the plaintiff.
Let the lower Court record along with the copy of this judgment be transmitted down and the order also be communicated to the authority concerned at once.