Failure of Repayment
Gentle Exit Of Loanee Must Be Ensured
(From previous issue) :
8. Subsequently, the names of the petitioners were classified in the lists of CIB and the petitioners challenged in Writ Petition Nos. 7161-62 of 2017 & 7973-7974 of 2017 the propriety of adverse inclusion of the their names in CIB list and misapplications of Section 27 kaka of the Bank Companies Act, 1991 and this Division issued Rule and also granted interim order of stay of the operation of the CIB report. But subsequently those writ petitions were discharged for non prosecution. It has also been stated that the petitioners have all positive intention to exit out of the loan liabilities with Janata Bank Limited and with this positive attitude petitioner No. 3, Chairman, Nassa Taipei Spinners Limited had several meetings officially and unofficially with the bank authorities as it has been further stated in paragraph 12.
9. Subsequently, the Bank authority by implications of BRPD circular stop the business of the petitioner's company because of which the project became sick resulting in the closure of business. Briefly owing to all the aforesaid reasons the petitioners moved this Division and obtained the present Rule and direction as it has been already stated. At the very outset petitioners's submitted that they are not going to press the first Part of, the Rule which relates to BRPD circulars Annexure-'A' and 'A-1'. Just to make it short the petitioners in his supplementary-affidavit dated, 19-2-2019 in paragraph 5 has categorically sought the following reliefs:-
i) That the petitioners pray to pass a direction upon the respondent Bank to adjust the original principal loan liabilities of the petitioners under the sanction letters of 2008. Since the sanction letters are the agreements which constitute full, complete and final agreements between the Bank and the petitioners and therefore, there is no scope for deviation from the terms and conditions contained in the sanction letters which continue to be binding upon the parties irrespective of BRPD circulars.
The loan was disbursed 9 (nine) months after the issuance of the sanction letter i.e, in June 2009 and, September 2009 respectively. In the middle of 2011 only after 2(two) years of disbursement of the loan, the Bank suddenly stopped all L/C privileges/facilities of the petitioners which in turn forced the shutdown of the petitioners two 100% export oriented large industries. It became absolutely impossible for the petitioners to continue its business. Till date both the industries are closed. During the two years the petitioners paid taka 66.92 crore out of the project loan of Taka 120.90 crore and Taka 7.97 crore out of cash credit hypo Taka 29 crore. That the Bank adjusted Taka 63.29 crore towards the interest and Taka 3.63 crore towards the principal.
Most importantly, it has to be considered that under the circumstances, the petitioners could not go to any other Bank to open L/C and continue its business.
ii) That the petitioners pray to pass an order (which is also part of the Rule) that the aforementioned adjustment of the loan liabilities as determined by the bank as it appears from its own Annexure-'X-4' and 'X-5' is contrary to the aforesaid sanction letters dated 7-9- 2008 and 18-12-2008 and 18-12-2008 and needs to be determined afresh by the Bank in accordance with the terms and conditions upon which the loan was disbursed.
iii) That the petitioners pray to pass a direction to consider the petitioner's case positively and allow the petitioners to pay back the remaining original principal amount within a specified period without any interest.
Any imposition of interest upon the petitioners would not be applicable in view of the facts that the Bank deliberately violated the contract and realized without adjusting the same and deprived the petitioners to do their business. Imposition of interest on the loan liabilities when the industries were forced to shutdown in 2012 would be very harsh and would make it impossible to adjust the loan liabilities and It would seriously affect the petitioners. The Bank must play a positive role in the development of the economy of the country and ought not to do anything which would canvas a negative impression among the national and international business community. It is also in the Bank's interest to allow the petitioner to do the business since Bank's own money is also involved.
The Bank has wide power to remit the interest in a suitable case. The petitioners are the victims of the Bank's whims and have been seriously prejudiced by its action. The petitioners repeatedly requested the Bank from 2012 to audit the accounts of the petitioners and allow them to continue their business so that they can restart their industries and pay their loan liabilities regularly. The Bank paid deaf ear to the said request.
10. Mrs Fatema H Chowdury, the learned Counsel appearing for the petitioners after placing the petition and other materials-on-record mainly submits that the company is admittedly a sick industry and dissuade from running the business since June 2011 and thriving through different crisis all these days and willing to have an exit by way of negotiation and undemanding developed with the passage of time with the Bank and even admittedly going through the ordeal they manage to pay off a considerable outstanding amount of Taka 66.92 crore. Now they want to have an exit by repaying the total outstanding as per of their own calculation which has been figured in paragraph 7 of the original writ petition.
11. On the other hand Mr SM Atiqur Rahman appearing on behalf respondent No. 5 and 6, the Janata Bank Ltd. By filing affidavit-in-opposition vehemently opposes the Rule and highlighted Annexure X and stated in paragraph 5 that the petitioner did not make repayment of the credit facilities as per the repayment schedule stipulated in the sanction letters dated 7-9-2008 and 28-12-2008. Therefore, the Bank could not adjust the principal and interest as per the repayment schedule as the same was not followed by the petitioners. Moreover, as per the provisions of the sanction advice, if the borrower does not make the repayment of the principal and interest in time, the borrower shall be treated as defaulter and the loan can be recalled. The breakdown given by the petitioners in paragraph Nos. 5 and 7 are their own calculation which is devoid of the real position.
12. Moreover, when the loan of the petitioner was rescheduled vide letter was dated 28-7-2011, a fresh repayment schedule was given to the petitioners allowing time for repayment till 31-12-2018 instead of 30-9-2015. Therefore, there is no violation of the sanction letters on the part of the Bank. As per the rescheduled loan amount the petitioner is liable to make payment of the installments and there is no question of only paying the principal or the interest.
13. That being the position, the only question which is left for consideration by this Court is whether under the admitted position of both the parties (that is the petitioners and the Bank) how an arrangement can be made for petitioner after adjustment of its liabilities under a given situation.
14. To begin with and also to narrow down the whole thing we can profitably quote a pertinent paragraph from the supplementary-affidavit date 26-2-2019 filed by the petitioner. In paragraph 3 it has been stated that the petitioners would pay back original principal amount within one year and in the event of their failure to pay back the same within the stipulated time, the Bank would be at liberty to take necessary steps in accordance with law.
15. Under this situation we asked the learned Counsel Mr Atiqur Rahman appearing for the Bank whether this can be allowed in a permissible of course within the normal practice and procedure of banking laws, to arrange for a smooth exit of the petitioners Mr Rahman certainly came up with a plausible reply that under the express provisions of banking laws whatever assistance may be allowed would be extended.
16. Our experience accounts several examples and instances where Bank came down very softly and accommodated admittedly a sick concern, to have a gentle exit, 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. Even we have seen in certain cases the Bank has waived total amount of interest to mitigate the situation as a whole and which invariably goes in favour of the loanee. We have been observing all these things for the reason of bringing on record that there is no denying that it is a contractual obligation between the Bank and loanee/creditors in which, contract gets primacy over everything Bank stands admittedly in a fiduciary position and that makes all the more a contractual obligation as a binding one when executed between the Bank and the loanee/creditors. Therefore, 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. What can be done by the Bank under the law remains within the domain of banking terms and conditions where we don't want to tread on but certainly we can suggest and direct the Bank to give accommodations in terms of the undertaking given by the petitioner as it transpires in the supplementary-affidavit dated 26-2-2019. Mr Rahman always candid enough to submit that within the permissible limit bank will certainly do the needful to come at a solution in the light of the observations as made above. 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 66.52 crore, certainly he deserve an effective accommodation from the Bank to have smooth exit once for all.
17. With these observations, we direct, respondent Nos. 5 and 6, Janata Bank Limited to give all possible assistance to the incumbent petitioners to have a smooth and gentle exit after clearing the dues after deducting the amount that has already been paid.