High Court Division :
(Civil Appellate Jurisdiction)
Mamnoon Rahman J
Md Abu Zafor
Siddique J
Judgment
February 14th, 2012
Sonali Bank….Appellant
vs
Habib Medical Store
and another ………………
…………. Respondents*
Artha Rin Adalat Ain (IV of 1990)
Section 4
There is no bar upon the Court below in dealing with the matter relating to interest in any manner which however in the present Act is a mandatory one.
The Court of law enjoys ample authority under the previous law to impose interest but at the same time the Court of law is to apply its judicial mind on the given facts and circumstances. In the present case in hand while decreeing the suit in favour of the bank the Court below applied its judicial mind and deducted the interest and charges considering the special circumstances relating to the import and negligence on the part of the bank’s appointed shipping agent. …….(7 & 9)
ABM Bayezid, Advocate-For the Appellant.
None appears-For the Respondent.
Judgment
Md Abu Zafor Siddique J : This appeal is directed against the judgment and decree dated 3-6-1996 (decree drawn on 10-6-1996) passed by the Subordinate Judge and Artha Rin Adalat, Naogaon in Artha Rin Adalat Case No. 264 of decreeing the suit.
2. The appellant as plaintiffs instituted Money Suit No. 47 of 1987 in the Court of Subordinate Judge, Naogaon for realization of loan amount impleading the respondents as defendant.
The defendant contested the suit by filing written statement. Subsequently after enactment of Act 4 of 1990 the suit was renumbered as Artha Rin Suit No. 264 of 1990 in the Court below and proceeded with the suit. The Court below after examining the evidence both oral and documentary decreed the suit to the tune of Taka 2,25,886 only. Being aggrieved the appellant moved before this Court.
3. No one appears on behalf of the respondents to oppose the appeal.
4. Mr Bayezid, the learned Advocate appearing on behalf of the appellant bank submits that admittedly the respondent as importer opened L/C to import certain goods to the tune of Taka 2,00,000. After arrival of the goods the defendant failed to take delivery in time and, as such, the goods were sold in auction and thereafter the Bank sent a notice to the defendant to adjust the money with the accrued interest thereon. But in the case in hand the defendant failed to do so and the plaintiff appellant filed the suit but the Court below while decreeing the suit arbitrarily deducted the interest as claimed by the Bank. By referring the nature of deposit with the Bank with public money, he submits that a defaulter or loanee is liable to be repay the loan with interest as decided by the Bank time to time. He submits that in the instant case the Court below though decreed the suit in favour of the Bank but failed to assess and impose the interest as per the sanction letter as well as the normal banking practice as such, the impugned judgment and decree is liable to be set aside. Relied upon the decision reported in 37 DLR (AD) 1, he submits that it is the duty of the Court of law to assess and imposed interest at the time of passing of decree considering the facts and circumstances and the nature of contract in between the bank and the borrower. By referring the said decision, he submits that though in special circumstances, the Court can determine the bank interest but the same is not inflicted in the case in hand. In the present case in hand the defendant failed to pay the loan amount because of their fault and the Court below on mere misconception of law and fact decreed the suit not in accordance with the claim of the plaintiff bank which is liable to be set aside.
5. We have heard the learned Advocate for the appellant perused the Memorandum of appeal impugned judgment and decree, LC record, provision of law and decision as referred to.
6. Admittedly the plaintiffs appellant instituted money suit as per the provision of the Code of Civil Procedure before the Subordinate Judge, Naogaon for realization of money. Subsequently after enactment of Act 4 of 1990 the same was renumbered as Artha Rin Suit and tried and disposed of as per the provision of Act 4 of 1990. It appears that though the respondent did not appear before this Court but during trial the defendant contested the suit and raised specific objection against the Bank regarding the delay in presenting the document with the shipping agent. It has been specifically raised by the defendant that because of the lacuna and laches of the bank and its nominated agent who is responsible to release the goods who failed to do the same in time resulting which the importer sustained huge loss. However, after receiving the goods the same was sold in auction and the auction money was adjusted by the Court below while decreeing the suit in favour of the bank. It appears that admittedly the defendant as importer opened Letter of Credit to import certain goods to the tune of Tk 2 lakh for which the borrower deposited 10% margin i.e. initial loan amount of Taka 1,80,000 and admittedly in the sanction letter there is a clause for imposing interest. Accordingly the plaintiff claimed an amount to the tune of Taka 4,84,26391 with all interest and other charges accrued thereon.
(To be continued)
(Civil Appellate Jurisdiction)
Mamnoon Rahman J
Md Abu Zafor
Siddique J
Judgment
February 14th, 2012
Sonali Bank….Appellant
vs
Habib Medical Store
and another ………………
…………. Respondents*
Artha Rin Adalat Ain (IV of 1990)
Section 4
There is no bar upon the Court below in dealing with the matter relating to interest in any manner which however in the present Act is a mandatory one.
The Court of law enjoys ample authority under the previous law to impose interest but at the same time the Court of law is to apply its judicial mind on the given facts and circumstances. In the present case in hand while decreeing the suit in favour of the bank the Court below applied its judicial mind and deducted the interest and charges considering the special circumstances relating to the import and negligence on the part of the bank’s appointed shipping agent. …….(7 & 9)
ABM Bayezid, Advocate-For the Appellant.
None appears-For the Respondent.
Judgment
Md Abu Zafor Siddique J : This appeal is directed against the judgment and decree dated 3-6-1996 (decree drawn on 10-6-1996) passed by the Subordinate Judge and Artha Rin Adalat, Naogaon in Artha Rin Adalat Case No. 264 of decreeing the suit.
2. The appellant as plaintiffs instituted Money Suit No. 47 of 1987 in the Court of Subordinate Judge, Naogaon for realization of loan amount impleading the respondents as defendant.
The defendant contested the suit by filing written statement. Subsequently after enactment of Act 4 of 1990 the suit was renumbered as Artha Rin Suit No. 264 of 1990 in the Court below and proceeded with the suit. The Court below after examining the evidence both oral and documentary decreed the suit to the tune of Taka 2,25,886 only. Being aggrieved the appellant moved before this Court.
3. No one appears on behalf of the respondents to oppose the appeal.
4. Mr Bayezid, the learned Advocate appearing on behalf of the appellant bank submits that admittedly the respondent as importer opened L/C to import certain goods to the tune of Taka 2,00,000. After arrival of the goods the defendant failed to take delivery in time and, as such, the goods were sold in auction and thereafter the Bank sent a notice to the defendant to adjust the money with the accrued interest thereon. But in the case in hand the defendant failed to do so and the plaintiff appellant filed the suit but the Court below while decreeing the suit arbitrarily deducted the interest as claimed by the Bank. By referring the nature of deposit with the Bank with public money, he submits that a defaulter or loanee is liable to be repay the loan with interest as decided by the Bank time to time. He submits that in the instant case the Court below though decreed the suit in favour of the Bank but failed to assess and impose the interest as per the sanction letter as well as the normal banking practice as such, the impugned judgment and decree is liable to be set aside. Relied upon the decision reported in 37 DLR (AD) 1, he submits that it is the duty of the Court of law to assess and imposed interest at the time of passing of decree considering the facts and circumstances and the nature of contract in between the bank and the borrower. By referring the said decision, he submits that though in special circumstances, the Court can determine the bank interest but the same is not inflicted in the case in hand. In the present case in hand the defendant failed to pay the loan amount because of their fault and the Court below on mere misconception of law and fact decreed the suit not in accordance with the claim of the plaintiff bank which is liable to be set aside.
5. We have heard the learned Advocate for the appellant perused the Memorandum of appeal impugned judgment and decree, LC record, provision of law and decision as referred to.
6. Admittedly the plaintiffs appellant instituted money suit as per the provision of the Code of Civil Procedure before the Subordinate Judge, Naogaon for realization of money. Subsequently after enactment of Act 4 of 1990 the same was renumbered as Artha Rin Suit and tried and disposed of as per the provision of Act 4 of 1990. It appears that though the respondent did not appear before this Court but during trial the defendant contested the suit and raised specific objection against the Bank regarding the delay in presenting the document with the shipping agent. It has been specifically raised by the defendant that because of the lacuna and laches of the bank and its nominated agent who is responsible to release the goods who failed to do the same in time resulting which the importer sustained huge loss. However, after receiving the goods the same was sold in auction and the auction money was adjusted by the Court below while decreeing the suit in favour of the bank. It appears that admittedly the defendant as importer opened Letter of Credit to import certain goods to the tune of Tk 2 lakh for which the borrower deposited 10% margin i.e. initial loan amount of Taka 1,80,000 and admittedly in the sanction letter there is a clause for imposing interest. Accordingly the plaintiff claimed an amount to the tune of Taka 4,84,26391 with all interest and other charges accrued thereon.
(To be continued)
