IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 15674 OF 2023

IN THE MATTER OF:

An application under Article 102 of the Constitution of the People’s Republic of Bangladesh

And

IN THE MATTER OF:

Janata Bank PLC.

- Petitioner

       -vs-

Government of Bangladesh and others.

-        Respondents.

And

Mr. M. Mohiuddin Yousuf, Advocate                   ......... for the Petitioner.

Mr. Samarendra Nath Biswas, DAG with

Mr. Md. Abul Kalam Khan Daud, A.A.G and  Mr. Md. Modersher Ali Khan (Dipu), A.A.G

........ For the Respondent-government.

Heard on 29.02.2024, 14.03.2024 and Judgment on 21.03.2024

           Present:

Mrs. Justice Farah Mahbub.

              and

Mr. Justice Muhammad Mahbub Ul Islam

Farah Mahbub, J:

 In this Rule, issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, the respondents have been called upon to show cause as to why the impugned Order No. 43 dated 23.11.2023 passed by the Artha Rin Adalat, Chattogram in Artha Rin Suit No. 691 of 2016 (Annexure-F) directing the petitioner bank to remove the name of the respondent No. 9 from the list of Credit

Information Bureau (CIB) maintained with Bangladesh Bank, should not be declared to have been passed without lawful authority and hence, of no legal effect.

At the time of issuance of the Rule operation of the impugned Order No. 43 dated 23.11.2023 passed by the Artha Rin Adalat, Chattogram in Artha Rin Suit No. 691 of 2016 (Annexure-F), was stayed by this Court for a prescribed period.

Facts relevant for disposal of the Rule, in short, are as follows:

The petitioner is a state owned bank operating its banking business throughout the country for a long time with utmost reputation in the financial sector.

In response to the application filed by the respondent No. 4 represented by the respondent No. 9, the petitioner bank sanctioned Tk.20,86,80,000/- in his favor on 04.10.2009 with notice. Respondent No. 9 accepting all terms and conditions as mentioned in the sanction letter executed the respective charge documents namely Deed of Mortgage No. 18971 dated 17.12.2009 and Power of Attorney dated 17.12.2009 in favour of the petitioner including DP note and letter of personal guarantee. Moreover, the respondent No. 9 also created charge with the Registrar of Joint Stock Companies on 17.12.2009 in respect of fixed and floating assets of the respondent No. 4 (Annexure-A).

After disbursement of the loan amount on 15.12.2010 respondent No. 9 applied to the petitioner bank for approval to transfer of his entire shares of the respondent No. 4. The petitioner bank duly approved the

said prayer vide office letter dated 21.09.2011 (Annexure-B) subject to continuation of the personal guarantees of the respective directors of the said respondent in connection with the said loan, ʻʻc`Z¨vMKvix cwiPvjbv cl©‡`i cwiPvjK‡`i e¨w³MZ M¨vivw›U ejer/Ae¨vnZ _vK‡e| bZyb cwiPvjK‡`i e¨w³MZ M¨vivw›U MÖnb Ki‡Z n‡e| ÕÕ

On 15.01.2015 and 10.12.2015 respectively the respondent No. 9 requested the petitioner bank for exemption from the respective personal guarantee so was executed by him against the said loan. Said prayer was refused by the petitioner bank on 05.05.2016 with notice to the respondent No. 9. Hence, personal guarantee of the said respondent No. 9 regarding the loan in question is still in force.

Meanwhile, the respondent company having failed to pay off the loan amount within time it became defaulter. Accordingly, the petitioner bank instituted Artha Rin Suit No. 691 of 2016 before the Artha Rin Adalat, Chattogram for recovery of the defaulted loan amount to the tune

of Tk. 44,96,17,695.40 including interest as on 19.11.2006. Respondent No. 9 contested the suit by filing written statement. Pending disposal of Artha Rin Suit respondent No. 9 filed an application on 22.11.2023 (Annexure-E) under Section 57 of the Artha Rin Adalat Ain, 2003 before the Artha Rin Adalat, Chattogram for removal of his name from the list

of Credit Information Bureau (CIB) maintained by Bangladesh Bank on the contention, inter-alia;

“ev`x e¨vs‡Ki g~j FY NËnxZv 1bs weev`x †Kv¤úvbx Ges AÎ 6bs weev`x D³ weev`x †Kv¤úvbxi GKRb cwiPvjK wQ‡jb | ¯^xK…Z g‡Z AÎ 6bs weev`x †Kv¤úvbxi cwiPvjK‡`i c` †_‡K c`Z¨vM K‡iwQ‡jb, hvnv †Kv¤úvbxi

†evW© mfvq Ges RJSC †Z h_vh_ M„nxZ| GgZve¯’vq †Kv¤úvbxi †Kvb F‡Yi

Rb¨ AÎ 6bs weev`x‡K AvBbZ: `vqx Kiv hvq bv| wK¿º¤ ev`x e¨vsK

†eAvBbxfv‡e †Rvic~e©K AÎ weev`x‡K FY †Ljvcx evwb‡q †i‡L‡Q| hvi Kvi‡Y

AÎ weev`xi †`‡k Ges evsjv‡`‡ki evwn‡i mg¯— e¨emv-evwYR¨ eÜ| D‡j−L¨

†h, AÎ weev`x KZ„©K K·evRvi †Rjvq GKwU †emiKvix wek¦we`¨vjq cÖwZôv

Kiv n‡q‡Q hvnv‡Z (UGC) wek¦we`¨vjq gÄyix Kwgk‡bi wb‡`©k wQj Db¥y³

Ges Dchy³ GjvKv wb‡q ¯’vqx K¨v¤úvm cÖwZôv Kiv; wKš‘ weev`xi (C.I.B.Report) Lvivc _vKvq †Kv‡bv Avw_©K cÖwZôvb †_‡K FY mn‡hvwMZv cvIqv hv‡”Q bv weavq GKwU wek¦we`¨vjq cÖwZôv Kiv m‡Ë¡I Dc‡iv³ gvgjv

_vKvi Kvi‡Y AÎ weev`xi RbwnZKi Kvh©µg m¤ú~Y© eÜ| Bnvi d‡j D³

wek¦we`¨vj‡qi eZ©gvb QvÎ-QvÎx‡`i fwel¨Z AwbwðZ n‡q c‡o‡Q| GgZve¯’vq

wm.AvB.we -†Z FY †Ljvcxi ZvwjKv nB‡Z AÎ weev`xi bvg ev` †`Iqvi Rb¨

ev`x e¨vsK‡K wb‡`©n  †`Iqv GKvš—  Avek¨K|  Ab¨_vq  AÎ  6bs weev`xi

Ac~iYxq ¶wZ nB‡e| ”

Upon hearing the applicant defendant respondent No. 9 the Adalat allowed the prayer with direction upon the petitioner bank to remove the name of the respondent No. 9 from the list of Credit Information Bureau (CIB) maintained by Bangladesh Bank vide impugned Order No. 43

dated 23.11.2023 with the following findings:

“bw_ ch©v‡jvPbvq †`Lv hvq ev`x e¨vs‡Ki Aby‡gv`bµ‡g 1bs weev`x cÖwZôv‡b 6bs weev`xi †kqvi mg~n Ges cwiPvjbv c il` 2-5 bs weev`x eive‡i n¯—vš—wiZ n‡q‡Q| 2-5 bs weev`x 1 bs weev`xi mKj `vq †`bvi wecix‡Z AvbymvswMK PvR© `wjjvw` ev`x e¨vsK eive‡i m¤úv`b K‡i w`‡q‡Qb|

1bs weev`xi bvgxq cÖKí m¤úwË ev`x e¨vsK eive‡i `vqe× A‡Q| ev`x e¨vs‡Ki cvIbv cwi‡kv‡ai Rb¨ 1-5 bs weev`x AvBbZ `vqe×| ev`xi Aby‡gv`bµ‡g 1bs weev`xi cwiPvjbv cl©` cwiewZ©Z nIqvq I †iwRó«vi Ae R‡q›U ÷K GÛ †Kv¤úvbxR G wbewÜZ nIqvq Ges eZ©gv‡b 6bs weev`xi bvg

1bs weev`x †Kv¤úvbxi cwiPvjbv cl©‡` bv _vKvq 6 bs weev`xi bvg 1bs weev`xi F‡Yi Rb¨ evsjv‡`k e¨vs‡Ki Credit Information Bureau (wmAvBwe) †Z FY †Ljvcx wnmv‡e Aš—©fy³ Ki b¨vq msMZ bq| ZvB evsjv‡`k e¨vs‡Ki Credit Information Bureau (wmAvBwe) †_‡K FY †Ljvcx wnmv‡e 6 bs weev`xi bvg cÖZ¨vnvi K‡i †bIqvi Rb¨ ev`x e¨vsK‡K wb‡`©k

cÖ`vb Kiv nj|”

Being aggrieved by and dissatisfied with the petitioner bank has filed the instant writ petition and obtained the present Rule Nisi.

M. Mohiuddin Yousuf, the learned Advocate appearing for the petitioner submits that mere transfer of shares of the borrowing company does not invalidate the personal guarantee, for, the redemption of the personal guarantee has not been approved by the petitioner bank. As such, he submits that in view of Section 27Ka of the Bank Companies Act, 1991 personal guarantee of the respondent No. 9 so has been executed in connection with the outstanding liabilities of the respondent No. 4 is still in force.

 He also submits that in the sanction letter dated 04.10.2009 it has been clearly mentioned that even though the shares of the borrowing company owned by the personal guarantors were transferred but personal guarantee of the respondent No. 9 shall remain in force in favour of the petitioner bank. The Adalat while allowing the prayer of the respondent No. 9 has miserably failed to consider the said legal position.

Moreover, he submits, inclusion of the name of the respondent No. 9 in the CIB report is maintained by Bangladesh Bank, who is not a party to the suit; on that score as well the impugned order must be struck down for having no legal basis in the eye of law. Hence, the impugned Order No. 43 dated 23.11.2023 passed by the Artha Rin Adalat, Chattogram in Artha Rin Suit No. 691 of 2016 is not tenable in the eye of law.

No one appears on behalf of the respondent concerned in order to contest the Rule.

Admittedly, allowing the prayer of the respondent No. 9, as being the Managing Director of the respondent No. 4 company the petitioner bank sanctioned loan for an amount of Tk. 20,86,80,000/- vide sanction letter dated 04.10.2009. However, on accepting all terms and conditions of the said sanction letter the respondent No. 9 executed respective charge documents including personal guarantee. After disbursement of loan respondent No.9 vide letter dated 15.12.2010 applied to the petitioner bank for transfer of his respective shares of the respondent No. 4. Said prayer was duly approved by the petitioner bank on 21.09.2011 (Annexure-B) subject to fulfillment of

the following conditions:

““01| c`Z¨vMKvix cwiPvjbv cl©‡`i cwiPvjK‡`i e¨w³MZ M¨vivw›U ejer/Ae¨vnZ _vK‡e| bZyb cwiPvjK‡`i e¨w³MZ M¨vivw›U MÖnb Ki‡Z n‡e|

02| mn RvgvbZ m¤úwË gvwj‡Ki `L‡j Av‡Q, †PBb Ae WKz‡g›U mwVK, g~j¨vqb

mwVK Ges mnRvgvbZ m¤úwË `wjj/KvMRcÎ mg~n kvLvq h_vh_fv‡e msiw¶Z Av‡Q g‡g© wbwðZ n‡Z n‡e|

03|  MÖvnK/mn‡hvMx cÖwZôv‡bi †gqv‡`vËxb© `vq Av`vq/mgš^qmg~n mKj `vq

wbqwgZ _vK‡Z n‡e|

04|  nvj bvMv` m‡š—vlRbK wmAvBwe cÖwZ‡e`b msMÖn Ki‡Z n‡e|

05|  kvLvi wbweo Z`viwK _vK‡Z n‡e Ges Due Diligence Apply Ki‡Z n‡e|

06|  Av‡jvP¨ MÖvnK I mn‡hvMx cÖwZôv‡bi v‡g †gqv‡`vËxb© `vq 220.000 wgwjqb

UvKv wbqwgZKib mv‡c‡¶ AÎ Aby‡gv`b Kvh©Ki n‡e|

07|  wmwm (nv:)) I wmwm(wc) wjwg‡Ui wecix‡Z my`mn `vq cwi‡kva mv‡c‡¶ D³

Aby‡gv`b Kvh©Ki n‡e|

08|  GZ`msµvš— mKj wbqgvPvi h_vh_fv‡e cwicvjb Ki‡Z n‡e|”

Meanwhile, respondent No. 4, the company became defaulter and in view of clause No. 1 of the office letter dated 21.09.2011 issued by the petitioner bank the name of the respondent No. 9 along with other directors of the respondent No. 4 company were enlisted in the Credit Information Bureau of Bangladesh Bank. Accordingly, respondent No. 9 vide letter dated 15.01.2015 (Annexure-C) made a prayer to the petitioner bank to exclude his name from the CIB report and to return his respective

personal bank guarantee. Said prayer of the respondent No.9 was declined by the authority concerned of the petitioner bank in its 10/2016th meeting dated 20.04.2016 (Annexure-C2). In other words, the personal guarantee of the respondent No. 9 in connection with the defaulted loan amount of the respondent No. 4 company is still in force. Resultantly, the name of the respondent No. 9 along with others had been enlisted in the CIB report of Bangladesh Bank.

However, the process of collection and furnishing of Credit Information is being dealt with by the Bangladesh Bank vide Chapter IV of the Bangladesh Bank Order, 1972. In  Stadmax Ltd. Vs. General Manager, Credit Information Bureau, Bangladesh and others reported

in 50 DLR 594 it has been observed, inter alia:

“....The expression “Credit Information ” as defined in Article 42 of the Bangladesh Bank order, 1972 means any information relating to the amount and the nature of loans or advances and other credit facilities granted by a banking company to any borrower or class of borrowers and the nature of security taken from any borrower for credit facilities granted to him and the guarantee furnished by a banking company for any of its customers. The information of defaulting borrowers with their names and addresses can be said to be “Credit Information” within the meaning of Article 42(c) of the Bangladesh Bank Order, 1972 inasmuch as disclosure of list of defaulting borrowers does not connote information relating to the amount of loan and its nature nor credit facilities, security or guarantee as has been stated in Article 42(c) of the Bangladesh Bank Order, 1972 ”

The purpose of mentioning the names of the defaulting borrowers in the CIB of Bangladesh Bank is to inform the financial institutions and the bank companies about the defaulting borrowers so that the financial institutions and bank do not make any loan or financial accommodation to them as envisaged under Section 27KaKa(3) of the Bank Companies Act,1991.

Since till date the petitioner bank did not release the personal guarantee of the respondent No. 9, as is apparent from office letter dated 05.05.2016 (Annexure-C2) and pursuant thereto the name of the respondent No. 9 has been enlisted in the CIB report of Bangladesh Bank hence, upon allowing the prayer of the respondent No. 9 giving direction upon the petitioner bank to exclude the name of the said respondent from the list of CIB of Bangladesh Bank, is not tenable in the eye of law.

As has been observed earlier, matter of CIB is in the absolute domain of Bangladesh Bank; when Bangladesh Bank is not a party to the Artha Rin Suit as such, giving direction upon the petitioner Bank, a financial institution being supervised and regulated by Bangladesh Bank, to exclude the name of the respondent No. 9 from the list of CIB is a glaring instance of non application of judicial mind of the Adalat in question.

Last but not the least, Artha Rin Suit No. 691 of 2016 is still at trial stage; as such, without taking evidence in support of the pleadings of the respective parties passing the impugned order dated 23.11.2023 by the Adalat has the effect of relieving the respondent No. 9, the defendant No. 9, prior to passing the judgment and decree. Hence, there can be no doubt to find that the order dated 23.11.2023 passed by the Adalat has no mandate of law. Accordingly, it is liable to be struck down for having been issued without lawful authority.  

In the result, the Rule is made absolute.

The impugned Order No. 43 dated 23.11.2023 passed by the respondent No. 3, Artha Rin Adalat, Chattogram in Artha Rin Suit No. 691 of 2016 (Annexure-F) directing the petitioner to remove the name of the respondent No. 9 from the list of Credit information Bureau (CIB) maintained with Bangladesh Bank, is hereby declared to have been passed without lawful authority and hence, of no legal effect.

In view of the above observations and findings the Artha Rin Adalat, Chattogram is hereby directed to proceed with the proceedings in connection with Artha Rin Suit No. 691 of 2016 in due compliance of law.

There will be no order as to costs.

Communicate the judgment and order to the respondents concerned

at once.

Muhammad Mahbub Ul Islam, J:

I agree.

Tofaye.A. B.O