IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Syed Mahmud Hossain
Chief Justice Mr. Justice Hasan Foez Siddique
Mr. Justice Md. Nuruzzaman
CIVIL PETITION FOR LEAVE TO APPEAL NOS.4348 & 4617 OF 2018.
(From the judgment and order dated 05.11.2018 passed by the High Court division in Writ Petition No.9979 of 2013)
Hosneara Begum, Advocate
A.K.M. Bahauddin alias Bahar
=Versus=
A.K.M. Bahauddin alias Bahar and others.
--Petitioner. (In C.P.No.4348/18)
-- Petitioner (In C.P.No.4617/18)
--- Respondent. (in C.P.No.4348/18)
Government of Bangladesh, --- Respondents. represented by the Secretary, (In C.P. No.4617/18) Ministry of Finance and others.
For the Petitioner : (In C.P. 4348/18)
For the Petitioner : (In C.P. 4617/18)
For the Respondent No.1 :
(In C.P. 4348/18)
RespondentNos.2-7: (In C.P. 4348/18)
For Respondent No.4 : (In C.P. 4617/18)
Mr. Qumrul Huq Siddique, Advocate, instructed by Mrs. Madhumalati Chowhdury Barua, Advocate-on- Record.
Mr. Sayed Ahmed, Advocate, instructed by Mr.Nurul Islam Chowdhury, Advocate-on-Record.
Mr. Sayed Ahmed, Advocate, instructed by Mr.Nurul Islam Chowdhury, Advocate-on-Record.
Not represented
Mrs. Madhumalati Chowhdury Barua, Advocate-on-Record.
Respondent Nos:1-3, 5-6: Not represented (In C.P. No.4617/18)
Date of hearing and judgment : 20-01-2019
JUDGMENT
1
Hasan Foez Siddique, J: Petitioner Hosneara Begum, an Advocate of this Court, has filed Civil Petition No. 4348 of 2018 for expunction of some observations made in the order dated 05.11.2018 by the High Court Division in Writ Petition No.9979 of 2013.
On the other hand, A.K.M. Bahauddin alias Bahar, petitioner of Civil Petition No. 4617 of 2018, filed his leave petition against the observation made in the aforesaid writ petition.
The petitioner of Civil Petition No.4348 of 2018 has prayed for expunction of the following portions of the observations made by the High
Court Division,
“------- Even an advocate having elementary knowledge of Banking law understands this impact of a decree passed by the Artho Rin Adalat. Therefore, this kind of explanation from the learned Advocate Ms. Hosneara Begum, who has been practicing for long time as an advocate of different banks, particularly of Sonali Bank Limited which is the largest bank in this country, is totally unbecoming and unexpected -----“ “---- Therefore, it cannot be ruled out that somehow this petitioner has been given undue advantages by the said learned advocate for the bank, though we do not have any evidence that such advantages were given deliberately in exchange for any
undue benefit. However, circumstances suggest that something wrong has happened in the concerned First Appeal as a result of which this petitioner will now enjoy various undue benefits. This professional failure and negligence on the part of the learned advocate for the Sonali Bank cannot be ignored as because such conduct will encourage some other learned advocates to commit same wrong or mistake. Though we are not saying that Ms. Hosneara Begum, learned advocate, has committed such wrong or mistake deliberately to get any undue benefits, we cannot ignore the fact that she was highly negligent in her professional duty in particular when her client was the largest bank in this country.
With the above note of frustration, we ask upon the learned advocate Ms. Hosneara Begum, to be very careful in future whenever she will be dealing with any case on behalf for any banks given that public money is involved in those cases. The high officials of Sonali Bank, including the Managing Director and the Branch Manager, are also directed to be very careful in future. They must monitor the activities of the learned advocates of the bank carefully, if necessary by counter-checking such activities with a Senior advocate of the Supreme Court.
With the above strictures on the said learned advocate of Sonali Bank as well as the direction on the high officials of the said Bank, we hope that we will not have to face any such embarrassing situation in future because of such conduct of any learned advocate---“
The learned Advocate of the Civil Petition
No.4617 of 2018 submits that the petitioner of the said petition has sought for expunction of the following portion of the observation of the High Court Division which runs as follows:
“Sonali Bank should now try its best to obtain an order of stay in the said First Appeal staying operation of the said decree in so far as dismissal of the said suit against defendant No.2 is concerned.”
The short facts, for disposal of these two petitions, are that petitioner A.K.M. Bahauddin alias Bahar of Civil Petition No. 4617 of 2018 filed Writ Petition No.9979 of 2013 impugning the publication of his name in the CIB report of the Bangladesh Bank against the liability of Darts Fashion Wear Limited and obtained Rule on 30.09.2013. In the said Rule, he obtained an
ad-interim order to the effect,
“ Pending hearing of the Rule, let the operation of the instruction to restrict / prohibit further credit facilities to associate companies / firm wherein the petitioner have interest and the operation of the purported CIB report regarding the petitioner A.K.M. Bahauddin alias Bahar in connection with the credit facilities of the Darts Fashion Wear Ltd. and Financial institution to the companies / firm wherein the petitioner have (has) interest be stayed for a period of 6(six) months from date”.
The aforesaid order of stay was extended time to time and, lastly, on 12.08.2018, the same was extended till disposal of the Rule.
On 12.04.2012, Sonali Bank Limited filed Artha Rin Suit No.52 of 2012 against the Darts Fashion Wear Limited and others, in which, A.K.M. Bahauddin alias Bahar was impleaded as defendant No.2. Said suit was dismissed against A.K.M. Bahauddin alias Bahar and decreed against the other defendants for a sum of taka 4,13,16059/-. The Artha Rin Adalat dismissed the said Artha Rin Suit against A.K.M. Bahauddin @ Bahar with the following findings and observations:
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nq bvB| AZtci e¨vsK †Kv¤úvwb AvB‡bi 1991 Gi 27(K) aviv D‡j−L Kwiqv‡Qb hvnv wbg¥i“ct-
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AwaKš— weev`x c¶ KZ…©K `vwLjxq Annexure-D ch©v‡jvPbvq †`Lv hvq †h, †mvbvjx e¨vsK wjwU‡UW, wkí feb K‡cv©‡iU kvLv, XvKvi MZ 20-4-2010 Bs Zvwi‡L AbywôZ †gmvm© WvU©m d¨vkb Iqvi wjwU‡UW Gi wnmv‡e AwbqwgZ FY mgb¡q/wbqwgZKib mn we`¨gvb e¨e¯nvcbv cwieZ©b m¤úwKZ © RwUjZv wbimbK‡í AbywôZ Av‡jvPbv mfvi †h, me wm×vš— M„nxZ nq ZØv‡a© 1bs wbg¥i“ct
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ÒThis is to certify that a cheque for Tk.46,27,065.50 was deposited by A.K.M. Bahauddin Bahar through the letter dated 27.7.2011 and the proceeds credited to demand loan account of darts fashion wear Ltd. on 28.7.2011 ( against writ petition no.2905 of
2011) quoted hereunder” . The respondent No.4
is directed to implement the decision of the
Sonali Bank vide Annexure-D so that the petitioner can deposit his dues as per share
to the Bank as on 15.11.2007 within 2(two)
months from the date of receipt of the order”.
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µwgK bs | bvg | c`ex | ‡kqvi | 22-4-07 †_ 15-11-07 Bs ZvwiL ch e‡Kqv | ‡K 16-11-07Bs ZvwiL †_ ©š— 15-3-08 Bs ZvwiL ch e‡Kqv | 16/3/08 Bs ‡K †_‡K 20/4/10 ©š— ZvwiL ch e‡Kqv | 20-4-10 ZvwiL wf †gvU e‡ ©š— (nvjbvMv` e¨wZZ) |
01 | Av,K,g, evnvDwÏ evnvi | ‡Pqvig¨v b | b -- | 46,27,057/ |
|
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02 | ‡g‡ni“‡b | œQv cwi | PvjK | --- 9,25,4 | 10 13,4 | 2,491/ | 22,67,901/- |
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nB‡Z Ae¨vwnZ cª`v‡bi wm×vš— M„nxZ Ó
Against the said judgment and decree dated 28.09.2016 passed in Artha Suit No.52 of 2012, Sonali Bank Limited preferred First Appeal No.21 of 2017 in the High Court Division which is pending. Meanwhile, on 01.11.2018, the High Court Division took up Writ Petition No.9979 of 2013
for hearing and passed the following order:
“In the midst of hearing of this matter, it appears that the petitioner has banked his argument on the fact that though the respondent Sonali Bank has filed an appeal against the judgment and decree dated 28.09.2016 (decree signed on 30.10.2016) passed by the Artha Rin Adalat concerned before the High Court Division, being First Appeal No.21 of 2017, there is no order of stay from the High Court Division as against operation of the said judgment and decree. This issue has become important given that the Artha Rin Adalat has exonerated the petitioner in the said judgment from any liability towards Sonali Bank.
Mr. Nikhil Kumar Biswas, learned advocate appearing for Sonali Bank ( respondent No.4) , has confirmed this Court that no such stay has been sought by Sonali Bank from the High Court Division upon filing any application. This non-filing of application seeking stay by the Appellant Sonali Bank therein raises various questions about seriousness of Sonali Bank to pursue its claim or whether high officials of Sonali Bank have been co- operating with the petitioner in this writ petition so that the petitioner can get a favourable order from this Court in this writ petition as regards publication of his name in the CIB report of Bangladesh Bank.
This conduct of Sonali Bank high officials and this attitude of Sonali Bank playing with the public money is not only deplorable but it should be checked by this Court whenever such incident comes before us. Therefore, we are of the view that, the Managing Director of Sonali Bank should personally appear before this Court to explain such conduct as regards non- filing of any application seeking stay against the concerned judgment and decree of the Artha Rin Adalat.
Accordingly, Managing Director of Sonali Bank is directed to appear personally before this Court on 05.11.2018 at 10.30 A.M., along with the Manager of the concerned Branch of Sonali Bank, to explain such conduct and attitude of Sonali Bank. On the basis of such explanation , necessary orders will be passed by this Court.
The learned advocate for Sonali Bank is directed to communicate this order to the Managing Director and the Manager of the
concerned branch of Sonali Bank.” Thereafter, on 05.11.2018, the High Court
Division passed the impugned observations quoted above.
Mr. Qumrul Haque Siddique, learned Counsel appearing for petitioner in Civil Petition No. 4348 of 2018, submits that the Artha Rin Suit has been dismissed against the defendant No.2 A.K.M. Bahauddin alias Bahar with the specific reasonings and the bank instructed the petitioner Lawyer to prefer first appeal against A.K.M. Bahauddin alias Bahar and, accordingly, she preferred first appeal which is pending. In the meantime, in order to realise the decreetal dues from the rest defendants of the Artha Rin Suit, the Bank itself filed execution case for executing the decree against them and did not instruct the leave petitioner Lawyer to make prayer for staying further proceeding of its execution case. In view such facts and circumstances, the High Court Division committed an error in passing the impugned observations making adverse remarks against the leave petitioner Lawyer.
Mr. Sayed Ahmed, learned Advocate appearing for the petitioner in C.P. No.4617 of 2018, submits that the High Court Division improperly advised the Sonali Bank to obtain order of stay of the proceeding of the execution case inasmuch as realization of decreetal dues is the prime issue of the bank and the same shall be stopped for a indefinite period if the execution case is stayed.
From the materials on record it appears that Sonali Bank filed Artha Rin Suit No.52 of 2012 before the Artha Rin Adalat No.1, Dhaka against (1) Darts Fashion Wears Ltd., (2) A.K.M. Bahauddin alias Bahar, (3) A.S.M. Hannan Dider, (4) Mrs. Meherunnessa wife of A.K.M. Bahauddin Bahar and (5) Mrs. Pervin Begum. The Adalot decreed the suit against the defendants No.1, 3, 4 and 5 and dismissed the same against the defendant No.2 A.K.M. Baharuddin @ Bahar with the observation as quoted above. The Adalot observed that as per direction of the High Court Division given in Writ Petition No.2905 of 2011 said Bahauddin alias Bahar deposited tk.46,27,065.50 by executing a cheque. It appears from the order dated 12.05.2011 passed by the High Court Division in Writ Petition No.2905 of 2011, filed by A.K.M. Bahauddin @ Bahar, that the High Court Division directed the Sonali Bank to implement the decision of the Bank so that the petitioner (A.K.M. Bahauddin) could deposit his dues as per his share of loan to the Bank as on 15.11.2007 within two months. While disposing of the said writ petition finally, the High Court Division further observed that the petitioner is a guarantor for the loan obtained by Darts from Sonali Bank. Therefore, it is the Bank who is to decide the final loan liability of the petitioner and to release the petitioner from his personal guarantee for obtaining loan of ensuring the loan recovery of the Bank in accordance with law. Considering all those facts, the Artha Rin Adalot observed that A.K.M. Bahauddin @ Bahar had left the company upon paying the share of loan which was accepted by the Company, Bank and the same was registered before the Registrar, Joint Stock Companies. However, the High Court Division, in First Appeal No.21 of 2017 preferred against judgment and decree passed in Artha Rin Suit No.52 of 2012, will decide as to whether said A.K.M. Bahauddin @ Bahar is still liable for unpaid amount of loan or not. It is not proper time to make any comment as to the
legality and propriety of the observations made by the Artha Rin Adalat dismissing the suit against Bahar. But Bank shall execute the decree against the other defendants against whom it obtained decree or wait till disposal of the First Appeal is its own domain. In view of the situation, which decision is wise, it is the Sonali Bank to take decision what it will do.
The courts should avoid the temptation to become authoritarian. We have been coming across several instances, where in their anxiety to do justice, the courts have gone overboard, which results injustice, rather than justice. It is said that all power is trust and with greater power comes greater responsibility. Judicial restraint is a virtue. A virtue which shall be concomitant of every judicial disposition. In the context of dealing with strictures passed by the High Court Division against a Lawyer, who is an officer of the Court as well, stressed the need to adopt utmost judicial restraint against using strong language and imputation of orupt motives against him/ her because the Lawyer against whom imputations are made had no remedy and he/ she would act pursuant to the decision of his/ her client. Making observations in the judgment or order, unless the person in respect of whom
comments and criticisms are being made is party to the proceeding and is granted an opportunity of having his /her say in the matter, unmindful of the serious repercussion it may entail on such person is most uncalled for. Judicial domain requires dispassionate approach and the importance of issues involved for consideration is no justification to throw to winds basic judicial norms. Observation should not be made by the Court against any person unless it is essential for decision of the case.
Considering the facts and circumstances, the observations quoted above in Civil Petition No.4348 of 2018 as well as the observation quoted in Civil Petition No.4617 of 2018 so far the same relates to getting an order of stay by the Sonali Bank in the first appeal mentioned above are expunged.
Accordingly, the both the petitions are disposed of.
C.J. J. J.
The 20th January, 2019
/words-3516/
halim