Failure of Repayment
Gentle Exit Of Loanee Must Be Ensured
High Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Mohammad Ali J
Nassa Tipei Spinners Limited
and others .............Petitioners
Judgment February 26th, 2019
Bangladesh Bank and
Constitution of Bangladesh, 1972
In many a decisions as we have found that the bank extended and showed its magnanimity and in the instant case since the petitioner had already paid Taka 66.92 crore, certainly he deserves an effective accommodation from the bank to have smooth exit once for all.
Constitution of Bangladesh, 1972
The commercial laws are always governed in a manner to ensure that the relationship between the Bank and its clients always remains at par, so to say 'good'. It would be expected that bank should give a positive accommodation to the petitioner to ensure a smooth exit after repayment of the outstanding liabilities which .the petitioner tries to impress upon us would be the principal amount only... ..... (16)
Fatema H Chowdhury with Mizanur Rahman Meah
Mohammed Kausar Alam and Majedul Quader, Advocates-For the Petitioners.
SM Atikur Rahman, Advocate-For the Respondent No.6.
Md Ashfaqul Islam J : This Rule Nisi at the instance of the petitioners, issued on 12-8-2018, was in the following terms:-
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why BRPD Circular No. 15 dated 23-9-2012 and BRPD Circular No. 6 dated 29-5-2013 (Annexure-A & A-1) issued by respondent No. 3 imposing pre-condition for cash down payment and fixing maximum time limit for rescheduling of loan and asking down payment to the petitioners by the respondent No. 6 for considering the proposal for rescheduling the loan following the above BRPD Circular No. 15 dated 23-9-2012 and the adjustment of Taka 63.92 crore against interests out of payment of Taka 66.92 crore against project loans of the petitioners in violation of Sanction letter dated 7-9-2008 and 18-12-2008 (Annexure-A & B) should not be declared to have been made without lawful authority and also show cause as to why respondents should not be directed to reverse all interest adjustment including Taka 63.29 crore to principal loan adjustment and allow the petitioners to pay residual principal loan amount after adjustment of all paid money with principal loans as aforesaid on account of Project and CC loans of the Petitioners, as described in paragraph 7, without any interest within 12 years by monthly installments and/or such other or further order or orders passed as to this court may seem fit and proper.
Pending disposal of the Rule, the respondents are directed to allow the petitioners to adjust outstanding the principal loan liabilities as paragraph 7 of writ petition for a period of 3 (three) months from date in accordance with law. "
2. Ad interim order that was passed at the time of issuance of the Rule was stayed by the Hon'ble Appellate Division.
3. Subsequently, by supplementary affidavit dated 19-2-2019, the petitioners in paragraph 3 stated that for proper adjudication they would not press the first part of the Rule which relates to challenging of the BRPD Circular No. 15 dated 23-9-2012 and BRPD Circular No.6 dated 29-5-2013 (Annexure-A & A-1).
4. Let us now see what the background is leading to the Rule. It has been averred in the petition that the petitioner No. 1 firstly obtained credit facilities from the respondent No.5, Janata Bank Ltd, Head Office, Dhaka through respondent No.6, Janata Bank Ltd, Local Office, 1, Dilkusha Commercial Area, Dhaka as it has been narrated in sanction advice issued back in the year of 2008 which includes (i) taking over liabilities amounting to Taka 509 crore from Southeast Bank Ltd. (ii) Cash Credit Hype limit of Taka 140 Million (iii) ECC (Hypo) limit of Taka 100 Millon and (iv) L/C (Cash) limit of Taka 300 Million (Annexure- A).
5. The petitioner No.1, Nassa Taipei Spinners Limited availed of the said loan and first of all paid an amount of Taka 30.19 crore which the bank adjusted with interest though sanction letter dated 7-9-2008 conditioned to adjust principal amount proportionately, initially 50:50 and gradually maximum of principal loan money adjustment. In a short chart, as it appears in paragraph 5, the payment and arbitrary adjustment of interest by the Bank has been featured. Further in paragraph 6 it has been asserted that the petitioners had already paid an amount of Taka 66.92 crore against the project loan out of which the Bank has only adjusted an amount of Taka 3.63 crore as principal loan and the entire balance payment has been taken as adjustment of interest, which is a gross violation of the sanction advice (Annexure-'A').
6. In paragraph 7 the petitioners thereafter in their own way figured out the calculation. Further in paragraph 8 it has been stated that, since political turmoil during the period of 2010-2014 caused have in the business of the petitioners, they failed to repay installments, and as such requested for a interest free block account for a period of one year and refixed payment schedule on quarterly rest basis along with to avail LIC opening and LTR facilities vide letter dated 28-4-2013, which since remained unattended, the petitioners filed two separate writ petitions being Nos. 5101 of 2013 and 5102 of 2013 and accordingly this Division on 16-5-2013 issued Rule Nisi along with direction to dispose of petitioner's representation and also to allow the petitioners to open L/C on previous terms and conditions in both the cases. In the meantime, the petitioners applied for rescheduling of the loan for the second time upon deposit of Taka 2.92 crore and Taka 2.03 crore respectively, and as the Bank did not turn up with the order of direction, the petitioners moved contempt petitions upon which Rule Nisi was issued and personal appearance was directed. This time, the respondent Bank moved to the Appellate Division against the interim orders passed in Writ Petition Nos. 5101-02 of 2013 and obtained orders of stay in Civil Petition for Leave to Appeals Nos. 2463-64 of 2013 so far relates to allowing opening of Letter of Credit, ultimately same orders continued while both the CPs were disposed of by the Hon'ble Appellate Division. Pursuant to the orders of the Appellate Division both the writ petitions have become in fractious. The petitioners thereafter filed two more writ petitions being Nos. 8442 of 2014 and 8443 of 2014 separately seeking directions to Bangladesh Bank for disposal of petitioner's applications (made for auditing the accounts) being for determining liabilities upon audit and initially obtained Rule which upon hearing, this Division directed to dispose of petitioner's said applications within thirty days.
7. Further it has been stated in paragraph 9 that the respondent bank ignoring the orders of this Division while was going to classify the loan accounts, on 6-12-2015 the petitioners requested Bangladesh Bank to hold an enquiry for determining outstanding liabilities to avail an exit policy based on remission of interest, which since not geared up resulted in Writ Petition Nos. 13314-15 of 2015 filed by the petitioners; this Division upon hearing the parties on 8-8-2016 directed Bangladesh Bank to dispose of the said applications within 04 (four) months. Following the said orders in both the cases, Bangladesh Bank informed vide letter dated 23-10-2016 that Janata Bank could take decision by itself on the basis of guidelines as set out by Bangladesh Bank. Upon receipt of this information, petitioners further on 15-2-2017 requested Bangladesh Bank to figure out the actual outstanding after remission of interest, by invoking section 49(1)(Cha) of the Banking Companies Act, 1991, which still remains unattended by Bangladesh Bank, and as such the petitioners filed two Writ Petitions Nos. 2472 of 2017 and 2473 of 2017 before this Division wherein on 27-2-2017 Rule Nisi was issued with order of injunction restraining Bangladesh Bank and Janata Bank Limited from classifying petitioner's status as defaulter borrower in respect of the project loan account. Petitioners with utter surprise came to learn that despite the above orders of injunction a negative report has been maintained in the list of CIB of Bangladesh Bank against the petitioners by the respondents and after further analysis the petitioners realized that the injunction was imposed only against the project loan but the fact that the petitioners have more loans with the respondent Banks which in the meantime reported as classified by the Janata Bank.
(To be continued)