IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 13075 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:

Abu Noor Muhammad Bahaul Huq

       ... Petitioner -VS-

Bangladesh Bank and others

.......Respondents

Mr. A.K.M. Fakhrul Islam, with

Mr. Md. Faruk Hossain, Advocates

…..For the Petitioner

Mr. A.S.M. Sharif Newaz, Advocate

… For the respondent No. 6

   Present:

Mr. Justice Zafar Ahmed

      And

Mr. Justice Sardar Md. Rashed Jahangir

Heard on: 09.5.2024 and 16.05.2024. Judgment on : 30.06.2024.

Zafar Ahmed, J.

In the instant writ petition, this Court issued a Rule Nisi

on 19.10.2023 calling upon the respondents to show cause as to why the publication of the name of the petitioner in Credit

Information Bureau Report (CIB Report) of Bangladesh Bank in connection with the credit facilities provided by respondent Nos. 4-5 to the respondent No. 6 Sinha Dyeing and Finishing Ltd. should not be declared to have been done without lawful authority and is of no legal effect and as to why the respondent Nos. 1-3, should not be directed to dispose of application dated 25.01.2023 (Annexure-C) filed by the petitioner for removing his name from the CIB Report.

At the time of issuance of the Rule Nisi, this Court passed an interim order directing the concerned respondents to dispose of the petitioner’s representation dated 25.01.2023 (Annexure-C) within 30 days.

Respondent No. 6 Sinha Dyeing and Finishing Ltd. filed an affidavit-in-opposition supporting the case of the petitioner.

The respondent No. 6 company was incorporated under the Companies Act, 1913 and Certificate of incorporation was issued on 14.08.1994. The company issued 4000 shares. One of the shareholders was Jaycee Fashions (Pvt.) Ltd. having 200 shares that is 5% of the total shares. Jaycee Fashions was represented by its managing director A.N.M. Bahaul Huq (petitioner). Thereafter, on 02.09.2009 the petitioner transferred his entire share of Jaycee Fashions and ceased to be a director and managing director of the same. However, Jaycee Fashions continued to hold its 200 shares in the respondent No. 6 company being represented by one Anisur Rahman Sinha. The lender Bank Shahjalal Islami Bank issued no objection certificate (NOC) on 08.02.2018 regarding the change in nomination of Jaycee Fashions  and waiver of providing personal guarantee of the petitioner. Subsequently, the petitioner became one of the directors of Western Agro Products Ltd. The petitioner was informed by the respondent No. 5 Meghna Bank Ltd., vide its memo dated 09.01.2023 (Annexure-B) that the credit facilities of  Western Agro Products Ltd. could not be renewed for the reason that the account of respondent No. 6 was shown “BL” (bad and loss) status in the CIB report of Bangladesh Bank. Thereafter, the petitioner made a representation dated 25.01.2023 to Bangladesh Bank. Having received no response, the petitioner filed the instant writ petition and obtained the Rule. It appears from the supplementary affidavit filed by the petitioner that on 20.05.2024 another representation was made to Bangladesh Bank to remove the name of the petitioner from the CIB report. It appears that Bangladesh Bank is sitting silent over the matter.

Section 5(NN) of the Bank Companies Act, 1991 (as amended) runs as follows: 

5z (NN) “­Mm¡f£ GZ NËq£a” ¡ AbÑ ®L¡e ­ce¡c¡l hÉ¢š² h¡

f¢ËaÖW¡e h¡ ®L¡Çf¡e£ k¡q¡l ¢e­Sl h¡ ü¡bÑ pw¢nÔÖV f¢ËaÖW¡­el

Ae¤L¨­m fËcš ANË£j, GZ h¡ AeÉ ®L¡e B¢bÑL p¤¢hd¡ h¡ Eq¡l Awn h¡ Eq¡l Efl A¢SÑa p¤c h¡ Eq¡l j¤e¡g¡ h¡wm¡­cn hÉ¡wL LaѪL S¡l£L«a pw‘¡ Ae¤k¡u£ ®ju¡­c¡š£ZÑ qJu¡l 6 (Ru) j¡p A¢ah¡¢qa qCu¡­Rx

hÉ¡MÉ¡- HC cg¡l E­ŸnÉ f§lZL­Òf ®L¡e hÉ¢š² h¡, ®rœja,

f¢ËaÖW¡e h¡ ®L¡Çf¡e£ AeÉ ®L¡e fË¢aÖW¡­el f¢lQ¡mL e¡ qC­m

Abh¡ Eš² f¢ËaÖW¡­e a¡q¡l h¡ Eq¡l ®nu¡­ll Awn 20% Hl

A¢dL e¡ qC­m Abh¡ Eš² f¢ËaÖW¡­el G­Zl S¡¢jec¡a¡ e¡ qC­m,

Eš² fË¢aÖW¡e a¡q¡l h¡ Eq¡lü ¡bÑ pw¢nÔÖV fË¢aÖW¡ eh¢mu¡ NZÉ

qC­h e¡”z (emphasis supplied)

Admittedly, Jaycee  Fashions,  of  which  the  petitioner

was the managing director, held 5% shares of the respondent No. 6 company which is the defaulter borrower. Therefore, as per explanation to Section 5(NN), Jaycee Fashions cannot be treated as interested establishment (ü¡bÑ pw¢nÔø fТaù¡ew ) ithin the meaning of Section 5(NN). Hence, Jaycee Fashions cannot be termed as defaulter borrower as being ü¡bÑ pw¢nÔø fТaù¡ea s per definition of defaulter borrower given in Section 5(NN). Moreover, the petitioner had already resigned from the board of directors of Jaycee Fashions which was approved by the

concerned bank as per requirement of Section 27L of the Bank Companies Act, 1991.

Subsection (5) of Section 27M provides that the aggrieved person or establishment identified as wilful defaulter under subsection (4) may prefer an appeal to Bangladesh Bank and the decision of Bangladesh shall be final. In the case in hand, the petitioner was not treated as wilful defaulter and accordingly, subsection (5) providing an appellate forum does not apply to the case. 

In view of the foregoing discussions, both on facts and law, we find merit in the Rule.

In the result the Rule is made absolute. The concerned respondents are directed to strike out the name of the petitioner from the CIB report as defaulter borrower provided the petitioner is not a defaulter borrower or wilful borrower in accordance with law for any other accounts other than that of the respondent No. 6 Sinha Dyeing and Finishing Ltd.

Sardar Md. Rashed Jahangir, J.

I agree.

Kabir,BO.