The New Nation - Internet Edition

Appellate Division

(Civil)

Md. Ruhul Amin-C.J.

M.M. Ruhul Amin-J.

Md. Tafazzul Islam-J.

Md. Hassan Ameen-J.

Civil petition for leave to appeal No. 67 of 2007,

(From the judgment and order dated 12.12.2006 passed by the High Court Division in Civil Revision No.2633 of 2004.)

Belal Hossain

tttt.Petitioner

Vs

Kazi Jane Alam and othersttttRespondents

For the Petitioenr: Mr AJ Mohammad Ali, Senior Advocate instructed by Mr. Md. Nawab Ali, Advocate-on- Record.

For Respondent

No.1 Mr. Abdul Wadud Bhuiyan, Senior Advocate instructed by Mr. Syed Mahbubur Rahman, Advocate-on- Record.

Respondent Nos. 2-7 : Not represented.

Judgment: 8 May, 2007

Bank Companies Act, 1991Section 2- Shall not affect provision of existing law-

Local Government (Union Parishads) Ordinance, 1983-

'Section 7(2)(Chha)- Failure to repay any of the instalments within specified date makes the loanee defaulter.

Section 2 of the Bank Companies Act, 1991 does not affect the provisions of· other existing law and as such, the provisions of section 7(2)(chha) of the Local Government (Union Parishads). Ordinance, 1983 shall remain operative. Since the petitioner admittedly defaulted in the repayment of the instalments of the loan money within specified date he was defaulter and was disqualified to contest in the election.

Section 2 of Bank Company Ain 1991(Act 14 of. 1991) provides that provision of said Act shall not affect the provisions of any other law for the time being in force and also is not in addition to the provisions of any other· existing law. Section 7 (2) (Chha) of Local Government (Union Parishads) Ordinance, 1983 provides that if any of the instalments granted to a loanee by the Financial Institution is not paid within the prescribed period for payment of the instalment, the loanee shall be a defaulter within the meaning of Section 7(2)(Chha) of the Ordinance tttt(Para 10)

Therefore, in view of the discussions made (above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same. . .. .. t (Para 11)

JUDGMENT

M. M. RUHUL AMIN-J: This petition for leave to appeal is directed against the judgment and order dated 12.12.2006 passed by a Single Bench of the High Court Division in Civil Revision No.2633 of 2004 making the Rule absolute.

2. Short facts are that the petitioner filed Election Petition Case No.3 of 2003 in the Court of Assistant Judge, Muladi, District Barisal and Election Tribunal for declaration that the election of the opposite party No. 1 for the office of Chairman of No. 4 Gachua Union Parishad, Muladi, District-Barisal was void and the petitioner declared elected, on the ground, that the opposite party No.1 was a loan defaulter of Janata Bank, Corporate Branch, 110, Motijheel C/A. Dhaka in addition to other grounds. The contention is that the opposite party No.1 took loan of Tk. 25 lac from the said Branch of Janata Bank on condition to repay the entire money in 10 years time at a monthly instalment of Tk.41,250/- but did not repay the said loan and thereby became a defaulter and was disqualified to be elected as Chairman and/or to continue as a Chairman of the concerned Union Parishad.

3. The opposite party No.1 of the case contested the election petition by filing a written objection denying all the material allegations but admitted that he has availed loan of Tk. 25 lac from the Janata Bank Corporate Branch, Dhaka in 2002 repayable in 10 years and he paid 6/7 insta1ments. Therefore, he is neither a defaulter nor defaulted in payment of monthly instalments to the Bank and the bank has not instituted loan case in any court against him. The opposite party No.1 filed an additional written objection on 01.11.2003 in the election case showing deposit of loan money as under;-

The date of deposit Amount

14.08.2001 60,000/-

23.12.2001 1,40,000/-

24.04.2002 1,00,000/-

28.12.2002 90,000/-

29.12.2002 64,000/- 01.10.2003 5,000/-

4,59,000/-

4. The Election Tribunal on consideration of the materials on record and upon hearing the parties found that the opposite party No.1 became a defaulter in repayment of loan money received by him from Janata Bank and thereby became disqualified and accordingly allowed the election petition. On appeal in Election Appeal No. 1 of 2003 before the learned District Judge and the Election Appellate Tribunal, Barisal considering a circular (being No.10 dated 14.05.2001) issued by the Bangladesh Bank and Sub-section 5 (ga ga) of Section 5 of the Bank Companies Ain, 1991 held that the opposite party No.1 is not a defaulter and accordingly allowed the appeal.

5. Being aggrieved, the petitioner before election Tribunal moved the High Court Division and obtained the Rule, which after hearing was made absolute.

6. We have heard Mr. A.J. Mohammad Ali, the learned Counsel for the petitioner and Mr. Abdul Wadud Bhuiyan, the learned Counsel for respondent No.1 and perused the judgment of the High Court Division and other connected papers .

7. It is not disputed that the opposite party No.1, the present petitioner took loan of Tk.25 lacs from Janata Bank, Corporate Branch, 110, Motijheel C/A. Dhaka and as per statement submitted by him in his additional written objection dated 01.11.2003 he deposited in total a sum of Tk. 4,59,000 / - Tk. 60,000 / - on 14.08.2001, Tk. l,40,000 / -on 23.12.2001,. Tk. 100.000/- on 24.04.2002, Tk. 90,000/ on 28.12.2002, Tk. 64,000/ - on '29.12.2002 and Tk. 5,000/- on 01.10.2003.

8. It is also not disputed that he was to repay the loan by monthly instalment of Tk.41,250/ - within a period of 10 years from his own statements as made in the additional statement. It is clear that he defaulted in making monthly instalment as after payment of 1st instalment he did not repay the 2nd monthly instalment rather he paid instalments after a lapse of 4 months, 8 months and 10 months.

9. The High Court Division referring to the decision in the case of Nur Mohammad Vs. Badruddoza Chowdhur and another reported in 42 DLR(AD)116 observed that in that case it was held that failure to pay any instahnent of the loan should be taken as defaulter in view of the nature of duties of such public office of opposite party No.1 petitioner.

10. The learned Counsel for the petitioner has drawn our attention to Sub-section (Ga Ga) of Section 5 of the Bank Companies Ain, 1991 and also Bangladesh Bank Circular No. 10 dated 14.05.2001 and submitted that in terms of Sub-section (Ga Ga) of Section 5 the opposite party No.1 petitioner is not a loan defaulter. Section 2 of Bank Companies Ain. 1991(Act 14 of 1991) provides that provision of said Act shall not affect the provisions of any other law for the time being in force and also is not in addition to the provisions of any other existing law. Section 7 (2) (Chha) of Local Government (Union Parishads) Ordinance, 1983 provides that if any of the instalments granted to a loanee by the Financial Institution is not paid within the prescribed period for payment of the instalment, the loanee shall be a defaulter within the meaning of Section 7(2)(Chha) of the Ordinance.

11. Therefore, in view of the discussions made above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.

12. Accordingly, the leave petition is dismissed.

Case cited: Nur Mohammad Vs. Badruddoza

Chowdhury and another, 42 DLR (AD) 116.