K.K.K. GARMENTS LIMITED Vs. ISLAMIC BANK BANGLADESH LIMITED

JUDGEMENT

(1.) This is application under Article 103 of the Constitution of the People's Republic of Bangladesh is directed against the judgment and order dated 27.03.2005 passed by the High Court Division in First Appeal No. 121 of 2000 allowing the appeal.

(2.) The plaintiff-respondents instituted Title Suit No. 239 of 1997 in the Court of Subordinate Judge, Artha Rin Adalat No.4, Dhaka alleging, inter alia, that the plaintiff is a public limited banking company incorporated in Bangladesh under the Companies Act, 1913 and carrying on banking business under Islamic Shariah Law with its registered head office at Motijheel, Dhaka, Defendant No.1 is a limited company and defendant No. 2 is managing Director and defendant Nos. 3 and 4 acre directors of the said company. The defendant Company opened current account No. 1418 with the plaintiff bank and the plaintiff bank sanctioned loan to defendant No.1 on Murabha investment basis for a sum of Tk. 20,14,087.00 for machinery and the defendants accepted the sanction letter which is fixed for repayment of the loan money together with profits thereof by 28.04.1988. Defendant Nos. 2 and 3 deposited the deed of the schedule property as collateral security in favour of the plaintiff bank and also executed and registered separate power of attorney. Over and above, the defendants deposited the memorandum, title deed, affidavit, power of attorney, deed of agreement and other connected documents together with original documents as collateral security. Defendants also executed promissory note, demand promissory note, letter of disbursement, letter of guarantee and other charged documents along with hire purchase agreement. The defendant deposited Tk. 10,00,000.00 (ten lac) only T.D.R. to the plaintiff bank, but the defendants did not repay the Murabha investment amount which stood at Tk.28,19,149.00 on 28.04.1988 and on the prayer of the defendants the said amounts were turned into hire purchase grant on 13.08.1990. The defendants failed and neglected to pay the bank dues in time and subsequently the hire purchase grant was re-scheduled by the plaintiff bank several times, the project loan again was turned into hire purchase sirkatul mulk at the request of the defendants, the defendants executed the agreement accordingly but the defendants did not pay the said amount till 31.01.1997. The plaintiff bank would get Tk. 73, 51,363.00 as against hire purchase investment. The plaintiff bank granted composite investment to the defendant for Tk. 2,50,00,000.00 out of which Tk. 2,00,000,00.00 (two crores) were earmarked for L/C and Tk. 50,00,000.00 for pre-shipment investment and the loan in question was re-schedule as per prayer of the defendants. The defendants did not manufacture any garment but sold away the fabrics so imported and misappropriated the money. The date of repayment was fixed on 28.04.1988, but the defendants failed to repay the bank's dues, inspite of request of the defendants the business of the defendants was turned into hire purchase on 13.08.1990 and availed all the facility of composite investment with re-scheduling, but the defendants failed to pay inspite of written notice on series of dates. Defendant No.1 is the beneficiary and the other defendants are the guarantors. So, all the defendants are individually and collectively liable to pay the bank due the profits of the principal amount and other expenses amounting to Tk. 2,56, 38,277.00. The plaintiff bank exhausted all process to realize the bank dues from the defendant respondents, but the defendant-respondents did not repay the amount due to the plaintiff bank. The cause of action for the suit arose lastly on 24.04.1997 and as such, the plaintiff bank has been forced to take the shelter of law for recovery of its good money amounting to Tk. 2,56,28,277.00 together with up-to-date interest @ 18% till realization of the decreetal amount.

(3.) The petitioners as defendants contested the suit filing a written statement alleging, inter-alia, that the suit is not maintainable, false, fraudulent, frivolous, fictitious, malafide and concocted one and as such, the present suit is liable to be dismissed summarily. Defendants case is that the plaintiff bank sanctioned loan to the defendant No.1 on 25.07.1984 for a sum of Tk.20,14,087.00 and the defendants accepted the grant by admitting all the terms and conditions, the time was fixed on 28.04.1988 for repayment of the loan money together with the profits thereon, defendant Nos. 2 and 3 deposited title deeds, affidavit, deed of agreement and other connected documents together with the original documents in usual course of banking system. In course of whole transaction the defendants demanded for a number of time the statement of account of the principal amount so far paid by the defendants to the plaintiff bank but until now the same was not supplied by the plaintiff bank for which the defendant could not make out his case with distinctive ratio and with the passing of time the machinery lost the workable capacity, the defendants requested the plaintiff bank for further importation of machinery under BMRE but the plaintiff refused the proposal. It is a contractual obligation in the part of the plaintiff bank to extend financial assistance as and when the defendants factory and business is required and in the meantime the defendants mortgaged all their properties up to the last inch to the plaintiff bank. The most important aspect in the whole episode is that the plaintiff bank deliberately kept all the documents of the defendants in custody and the properties mortgaged. So, all avenues for the defendants were closed to tide over the situation by giving further mortgage to any other bank and thereby to keep the factory running. The suffocating situation was created by the plaintiff bank resulting at tremendous loss for which the plaintiff bank is exclusively responsible.