IN THE SUPREME COURT OF BANGLADESH
(HIGH COURT DIVISION)
Writ Petition No. 2019 of 1998
Decided On: 29.04.2007
Appellants: Nawabgonj Central Co-operative Bank Ltd.
Vs.
Respondent: The Government of Bangladesh and others
**Hon’ble Judges:**A.B.M. Khairul Haque and Syed Md. Ziaul Karim, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: M.A. Jalil, Advocate
For Respondents/Defendant: M.A. Sobhan, Advocate with S.M. Bazlur Rashid, Advocate, For the respondent no. 2, M.A. Baqui, Advocate, For the respondent no. 3
Subject: Banking
Catch Words
Mentioned IN
**Acts/Rules/Orders:**Constitution Of The People’s Republic Of Bangladesh - Article 102
Case Note:
Constitution of People’s Republic of Bangladesh**
Article - 102****
Circular relating to waiver of Agricultural Land****
The object of the Government’s exemption of agricultural loan upto Tk. 5,000/- was to give benefit only to the direct loanees of the Banks. The Co-operative Society members get loan through Co-operative Societies /groups. Since, Co-operative society members are not direct borrowers of agricultural loan from lending Banks, they have been excluded from the exemption. The Co-operative societies are not the end users of the Bank loans. After getting fund from Banks, they use the fund for their members re-lending on commercial basis. After considering the aforesaid Circulars, we hold that the Circular dated 16-06-1991 will not give the facilities of waiver of payment of loans to the petitioner, moreover its effect was superseded by the circular dated 07-04-1994**
Industry: Banks
JUDGMENT
Syed Md. Ziaul Karim, J.
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This Rule Nisi was issued, on an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, calling upon the respondents to show cause as to why the appellate Order (Annexure-B), as contained in Memo No. 3291(3) dated 02-10-1989, passed by the respondent No.4 and subsequently making it Rule/decree of the Court and the proceedings of Money Execution Case No. 4 of 1998, now pending in the first Court of Artha Rin Adalat, Nawabganj (Annexure-H), should not be declared to have been made without any lawful authority and is of no legal effect. Short facts leading to this Rule are that the petitioner took agricultural loans for distribution to it’s members from 1972-1989 and it was actually distributed to them. Although the members of the petitioner re paid the loans to a great extent but still there were some outstanding. The respondent No. 5 being an arbitrator, made Arbitration on 12-05-1989 and made no specific award but he ordered that the entire amount due would be repayable within 5 years in 10 installments, commencing from 01-07-1989 and there would be no penal interest on the loan(Annexure-A). The Bangladesh Co-operative Bank Ltd. respondent no. 3, preferred an appeal before the respondent No. 4, who, after hearing modified the award made by respondent No.5 (Annexure-B). Meanwhile, the Government upon consideration of hardships of the agricultural loanees all over the country decided 40 exempt the agricultural loans along with interest/penal interest etc. upto a sum of Taka 5,000/- vide Circular No.6 of 1991 dated 16-06-1991(Annexure-C). In the said circular, in paragraph No. 3, it has been mentioned that this facilities would be applicable to all agricultural co-operative societies loanees who took loan upto taka 5,000/- till 01-03-1991. Consequently the Petitioner furnished all particulars to the respondent No. 3 to get the said facilities announced by the Government. Thereafter, the respondent no. 1 vide it’s office memo. no.
(Annexure-F) issued a circular with directions that agricultural loans taken by the members of co-operative societies upto principal amount of Taka 5,000/- would not be exempted. Consequently Money Execution Case No. 4 of 1998 was commenced before the first Court of Artha Rin Adalat, Nawabgonj, against the petitioner. -
Being aggrieved by the aforesaid proceedings, the petitioner preferred this writ petition and obtained the present Rule.
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Although, the Rules were served upon the respondents but only respondent Nos.2 and 3 appeared by filing affidavit-in-oppositions denying all the material allegations made in the writ petition.
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The case of the respondent No. 2. Bangladesh Bank, are that the Circular No.6 of 1991 dated 16-06-1991 (Annexure-C) provides that the facilities of waiver of repayment of agricultural loans upto Tk.5,000/- would be applicable for loanees of Co-operative Bank Ltd. Here the loanees are Co-operative Societies/groups but not cooperative society members. No Circular was issued at any time to the effect that agricultural loans taken by the members of co-operative societies upto principal amount of Tk.5,000/- would be exempted- Therefore, the writ petition is misconceived and not maintainable.
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The case of the respondent No. 3, are that the petitioner defaulted to repay the loan dues, thereby the respondent no. 3 filed Dispute Case No.45 of 1988 for recovery of its dues of Tk.2,69,92,415.43/-. The respondent No. 5 as Arbitrator, decreed the amount by award dated 12-05-1989 minus the amount already paid by the petitioner and directed for repayment of dues by 10(ten) installments in 5(five) years, beginning from first July, 1989 with interest but disallowed the prayer for awarding penal interest. Against the said award this respondent no. 3. preferred an appeal being Appeal No. 45 of 1989, claiming penal interest. The appellate authority i.e. respondent No.4 by the judgment and Order dated 02-10-1989, modified the award dated 12-05-1989 to the effect the that the amount of Tk. 1,12,14,557.43 with interest and penal interest to be paid in 5(five) years by 10(ten) installments. The aforesaid orders were passed before Circular no.6 of 1991 came into effect. The petitioner neither paid the installments nor preferred any application before the District Judge as required under Section 134(5) of the Co-operative Societies Ordinance, 1984. Thereafter, the respondent no. 3 filed execution case, for realisation of it’s dues. The members of the petitioner repaid the loans to a great extent but it failed to pay the same to this respondent No. 3. This activities of the petitioner is nothing but fraudulent and malafide Act. Therefore, the Rule is liable to be discharged as not being maintainable.
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Mr. M. A. Jalil, the learned Advocate appearing for the petitioner supports the Rule and submits that the impugned Order are illegal inasmuch as the same have been passed by violating the Provisions laid down in circular dated 16-06-1991, exempting the agricultural loans upto principal amount of Taka 5,000/- along with interest/penal interests thereof. He adds that the exemption once given, has created a vested right, which cannot be taken away by subsequent Order, and as such the impugned Order is illegal and without any lawful authority.
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No one appears for the respondent Nos.1,4-G.
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Mr. M. A. Sobhan, the learned Advocate appearing with Mr. S.M. (Bazlur Rashid, Advocate for the respondent NO. 2, opposes the Rule and submits that the petitioner misconstrued the circulars (Annexures-C and F), thereby came to an erroneous view that the loans taken by the members have been exempted. He adds that in view of the aforesaid circulars, the writ petition itself is not maintainable in the eye of Law.
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Mr. M. A. Baqui, the learned Advocate appearing for the respondent No. 3. also opposes the Rule and submits that the writ petition is totally misconceived and malafide just to delay the payment. He adds that the petitioner without complying the provisions of Law prescribed in Section 134(5) of the Co-operative Societies Ordinance, 1984 preferred this writ petition and as such the same is not tenable in the eye of Law. He adds that the petitioner is the Central Bank, which disbursed loans to it’s member societies by borrowing the same from the respondent No. 3, who borrows from respondent No. 2, with undertaking to repay with interest in time, but the petitioner miserably failed to comply it’s part and as such the impugned Order was rightly passed by the respondent No.4.
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In Order to appreciate the submissions advanced by the learned Counsels, we have gone through the writ petition, as well as the circular no. 6 of 1991 dated 16-06-1991 (Annexure-C), Circular dated 07-04-1994 (Annexure-F) and other materials on record and given our anxious consideration to their submission.
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Admittedly, the petitioner defaulted to repay the loan dues for Tk.2,69,92,415.43, thereby the respondent no. 3 filed Dispute Case No. 45 of 1988 for it’s recovery. The respondent No. 5, as Arbitrator decreed the amount by award dated 12-05-1989 minus the amount already paid by the petitioner, but disallowed the prayer for awarding penal interest. On appeal, by the respondent No. 3, the appellate authority (respondent No.4) by the judgment and Order dated 02-10-1989, modified the award dated 12-05-1989 and decreed the amount for Tk. 1,12,14,557.43 with interest and penal interest.
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We find from the record that the impugned Order dated 02-10-1989(Annexure-B), was passed long before the Circular dated 16-06-1991 (Annexure-C). The said Circular was issued only to give some benefit to the poor cultivators and not to give benefits to the loanees like the petitioner, who claimed benefit under the said Circular, thereby the respondent Nos. 1 and 2 further issued Circulars dated 09-09-1991 and dated 07-04-1994(Annexure-D and F respectively) explaining the position stating that circular dated 16-06-1991 was not purported to give any benefit to the Co-operatives. We also find that in Circular No.6 of 1991 dated 16-06-1991 (Annexure-C), it has been laid down that the facilities of waiver of payment of agricultural loans upto Tk.5,000/- would be applicable for loanees of Co-operative Bank Ltd. Here the loanees are Co-operative Societies/Groups but not Co-operative Society members. No instructions were issued in that Circular that individual borrowers of Co-operative Societies/groups shall get waiver of agricultural loan or the loan amount received by the individual borrowers of co-operative societies/groups. Moreover, Circular dated 07-04-1994 (Annexure -F) was issued in continuation of Circular No. 6 of 1991 dated 16-06-1991(Annexure-C), which superseded the effect of Circular No.6 of 1991.
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The object of the Government’s exemption of agricultural loan upto Tk.5, 000/- was to give benefit only to the direct loanees of the Banks. The Co-operative Society members get loan through Co-operative Societies/groups. Since, Co-operative society members are not direct borrowers of agricultural loan from lending Banks, they have been excluded from the exemption. The Co-operative societies are not the end users of the Bank loans. After getting fund from Banks, they use the fund for their members re-lending on commercial basis.
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After considering the aforesaid Circulars, we hold that the Circular dated 16-06-1991(Annexure -C) will not give the facilities of waiver of payment of loans to the petitioner, moreover it’s effect was superseded by the circular dated 07-04-1994 (Annexure-F).
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Having regard to the facts, we are unable to accept the submissions advanced by the learned Counsel for the petitioner, however the submissions advanced by learned Counsels for the respondents Nos. 2-3 prevail and appear to have a good deal of force.
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In the facts and circumstances of the case and foregoing narrative, we are of the view that the impugned Order suffers from no illegality or infirmity, which calls for no interference by this Court Thus the Rule having no merit fails.
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In the result the Rule is discharged without any Order as to cost. The Order of stay granted earlier by this court stands vacated. Send down the record of Money Execution Case No. 4 of 1998 to the concerned court at once, and the same will proceed in accordance with Law.