(From previous issue)
14. Admittedly the petitioner himself on behalf of the company has taken loan from respondent Pubali Bank by executing all the charge documents of the bank. The petitioner does not also dispute the fact of taking loan and other issues which are long standing unsettled matters mainly related to the payment of loan taken by him of course on behalf of the company. There is no denying that the elementary principle of company law is that the company is a legal entity distinct from of its members. We distinctly observe that though the Company Law governs its field with all the trappings of its own but at the same time the Banking Companies Act is also an independent Special law that rules with authority altogether the different aspect related with the banking matter and stands absolutely on a different footing. By inducting the above elementary principle of company law the cause of action which has arisen under the Banking law cannot be given a go by. This sort of exercise should not be approved in any manner being beyond the scope of jurisprudence. Therefore, we hold that the inference since the petitioner is the Chairman and Managing Director of the Company which is an artificial person and for that reason he is absolved from the clutches of taking loan from the respondent bank has no backup of law and no legs to stand.
15. Banking Companies Act has an epitome of its own. When the provisions of the banking Companies Act will be in derogation to other provisions of other laws. then the provisions specifically provided in the Act shall have to be followed only. In the case of Belal Hossain vs Kazi Jane Alam and others, 13 MLR (AD) 74 our Appellate Division have held that section 2 of the Act, 1991 provides that provision of said Act shall not affect the provisions of any other law for the time being in force and also not in addition to the provision of any other existing law. (All underlings are mine)
16. Under the backdrop of the discussion as made above let us now go through the laws in the amended Bank Companies Act 1991 since it is the next approach to appreciate the cardinal issue before us. Firstly let us glean the law that governs the method of enlistment of the names of the defaulter persons and also ¯^v_© mswkøó cÖwZôvb in the CIB list. Law is very much clear and unambiguous. An elaboration and expansion of the law has been perfected by the amendment in the year 2013 (By Act No.27). The life line of the law in the context of the case in hand is section 5 GaGa which has categorized a defaulter borrower or so to say has given the definition of defaulter borrower. Amended section 5 GaGa runs as follows:-
5(MM) †Ljvcx FY MÖnxZv A_© †Kvb †`bv`vi e¨vw³ ev cÖwZôvb hvnvi wb‡Ri ev ¯^v_© mswkøó cÖwZôv‡bi AbyKz‡j cÖ`Ë AMÖxg FY, ev Dnvi Ask ev Dnvi Dci AwR©Z my` evsjv‡`k e¨vsK KZ©„K RvixK…Z msoNv Abyhvqx †gqv‡`vËxY© nIqvi 6(Qq) gvm AwZevwnZ nBqv‡Q:
Z‡e kZ© _v‡K †h, †Ljvcx MÖnxZv †Kvb cvewjK wjwg‡UW †Kv¤úvbxi cwiPvjK bv nB‡j A_ev D³ †Kv¤úvbx‡Z Zvnvi ev Dnvi †kqv‡ii Ask 25% Gi AwaK bv nB‡j, D³ cvewjK wjwg‡UW †Kv¤úvbx ¯^v_© mswkøó cÖwZôvb ewjqv MY¨ nB‡e bv|
17. The legislature in the said amended law inserted the word †`bv`vi and cleared the ambiguity whatsoever or at all in respect of definition and scope of defaulter borrower. Further in section (Chha) of the Banking Companies Act definition of “†`bv`vi” has been given in the following manner :-
Ò5(Q) †`bv`vi A_© jvf ÿwZi fvMvfvwM, Lwi` ev BRvivi wfwˇZ ev Ab¨ †Kvb fv‡e Avw_©K my‡hvM myweav MÖnYKvix e¨vw³ †Kv¤úvbx ev cÖwZôvb Ges †Kvb Rvwgb`viI Bnvi AšÍf~©³ nB‡e|Ó
Section 27 KaKa stands as it is:
27KK| †Ljvcx FY MÖnxZvi ZvwjKv-BZ¨vw`| (1) cÖ‡Z¨K e¨vsK †Kv¤úvbx ev Avw_©K cÖwZôvb, mgq mgq, Dnvi †Ljvcx FY MÖnxZvi ZvwjKv evsjv‡`k e¨vs‡K †cÖiY Kwi‡e|
(2) Dc-aviv (1) Gi Aaxb cÖvß ZvwjKv evsjv‡`k e¨vsK †`‡ki mKj e¨vsK †Kv¤úvbx I Avw_©K cÖwZôv‡b ‡cÖiY Kwi‡e|
(3) †Kvb †Ljvcx FY MÖnxZvi AbyKz‡j †Kvb e¨vsK †Kv¤úvbx ev Avw_©K cÖwZôvb ‡Kvbiƒc FY myweav cÖ`vb Kwi‡e bv|
(4) AvcvZZt ejer Ab¨ †Kvb AvB‡b hvnv wKQzB _vKzK bv †Kb †Ljvcx FY MönxZvi weiæ‡× FY cÖ`vbKvix e¨vsK †Kv¤úvbx ev †ÿÎ Avw_©KK cÖwZôvb cÖPwjZ AvBb Abymv‡i gvgjv `v‡qi Kwi‡e|
18. If we evaluate all these the laws having bearing on the issue together with the factual aspect of the case it becomes clear that the agreement that was executed in the year 1984 clearly speaks that the petitioner bought the incumbent company (“AS IS Where Is Basis”) assuming all the liabilities of the same. Further we have already stated that there is no dispute that the petitioner in his individual capacity obtained the loan from the respondent-Pubali Bank after furnishing charge documents and complying with the other boundened formalities. And Banking Companies Act has pinpointed the situation that leads to enlistment of the name of any defaulter borrower (†`bv`vi) in the CIB list. In many a decision the Appellate Division and this Division finally set at rest that the process of enlistment of any defaulter name in the CIB list is a continuing process within the meaning of section 5 GaGa read with section 27 KaKa of Banking Companies Act 1991 and also read with Article 42 of Bangladesh Bank Order 1972. If all these provisions are read together one and only inference that could be made is that if any person or a company is indebted to in any manner with any Financial institution and the debt remains unpaid, it is the duty of the respondent Bangladesh Bank in its turn to enlist the name of the incumbent in the CIB list nothing more nothing less. With the amendment of section 5 GaGa the definition as it could be found now contains a wider version of the category of persons to be included as defaulter borrower.
19. That being the situation we hold that the main argument of Mr Rafique-ul-Hoque is a fallacious one under the facts and circumstances of the present case. By bringing the elementary principle of company law as it has been stated the settled provision of Banking Companines Act cannot be given a go by. The petitioner herein is indeed a defaulter borrower within section 5 GaGa read with section 27 KaKa of the Bank Company Act and Article 42 of Bangladesh Bank Order 1972.
20. On the conspectus, the irresistible result that follows that this Rule should be discharged with cost.
21. In the result, the Rule is discharged with cost. The order of stay granted earlier by this Court is hereby recalled and vacated.
Communicate this order at once.
(Concluded)
