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Provision of law is a continuous process

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20th-Aug-2016       
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High Court Division :
(Special Original Jurisdiction)
Syed Md Dastagir
Husain J
Md. Salim J
Shamsul Alam (Md) ...............Petitioner
vs
Bangladesh, represented by the Secretary Ministry of Law, Justice and Parliamentary
Affairs and others.............
..............Respondents  
Judgment
May 20th, 2015.
Bank Companies Act (XIV of 1991)
Sections 27KaKa and 5GaGa
Contract Act (IX of 1872)
Section 26
The report as has been initiated is very much within the provision of law and inclusion of the name of the petitioner in the CIB Report as per Bank Companies Act is also within the provision of law as it is a continuous process.
Being Managing Director, Director he obtained loan from different banks and leasing to companies and already there is a decree against the petitioner and there is execution proceeding, the petitioner has been considered as a defaulter. Thereby as per decree he is established as a defaulting borrower and as well as guarantor. A decree is against him as a defaulter. Therefore he cannot at the moment says that his name should not be included in the CIB Report. In the present case his name may not be included as defaulter borrower as he has got share of 6.66% of share but fact remains already he has been declared as a defaulter by a competent court. ........(9)
Shah Md Munir Sharif with AKM Nurul Alam and Mohammad Imran Jahangir, Advocates-For the Petitioner.
KS Salahuddin Ahmed, Advocate-For the Respondent No.8.
Sikder Mahmudur Razi, Advocate-For the Respondent No.6.
Md Mozaharul Islam with Md Moniruzzaman Advocates-For the Respondent No.7.
Nahid Mahtab with Rumana Hoque, Advocates-For the Respondent No.3.
Farzana Ahmed with Md Mojibur Rahman and Shaila Nasneen Shanta, Advocates-For the Respondent No.9.
Judgment
Syed Md Dastagir Husain J : Rule was issued calling upon the respondents to show cause as to why the section 4 (L) of e¨vsK †Kv¤úvbx (ms‡kvab) AvBb,  2013 (Act No. XXVII of 2013) published in the Bangladesh Gazette on 22-7-2013 (Annexure-C) should not be declared to be void being ultra vires of the Constitution and as to why Report of the Credit Information Bureau classifying the petitioner as defaulter borrower and as to why debarring the petitioner from enjoying any kind of banking accommodation by applying sub-section 3 of section 27KK of e¨vsK †Kv¤úvbx 1991 should not be declared to have been made without lawful authority and is of no legal effect.
2. The petitioner is the guarantor of MEB Sheet Glass Industries Limited, incorporated on 9-12-1992 under the Companies Act, 1913. He has also subscribed 300 shares which is 6.66% of the total shares. The petitioner executed the personal guarantee against the loan availed by the company. The MEB Sheet Glass Industries Limited applied for credit facilities to the respondent Nos. 6-9. The respondent Nos. 6-9 vide several sanction letter sanctioned the credit facilities and the company enjoyed the facilities. The company MEB Sheet Glass Industries Limited was reported to the Credit Information Bureau of Bangladesh Bank. The Credit Information Bureau of Bangladesh Bank published the credit information report of MEB Sheet Glass Industries Limited in the CIB. Since the petitioner does not held more than 20% share in the company, MEB Sheet Glass Industries Limited, in such view of the matter linking the petitioner for the liability of company is illegal and arbitrary and as such the petitioner being aggrieved by and dissatisfied, the petitioner came before this court under Article 102 of the Constitution and obtained the present Rule.
3. Mr Shah Md Munir Sharif, the learned advocate appearing on behalf of the petitioner submits that the Credit Information Bureau was established under Bangladesh Bank Order, 1972 and Article 45 of the Bangladesh Bank Order authorizes any banking company for collecting information of any borrower or class of borrower. The definition of borrower in terms of Bangladesh Bank Order, 1972 is different from the definition of †Ljvcx FY MÖnxZv  as introduced by the impugned amendment. He submits that whether a guarantor is liable to be included in the report of CIB or not and whether a Bank company can collect Credit Information about guarantor of a loan transaction is to be looked into. On this context he also referred the decision reported in 61 DLR 97 that the larger Bench by making Rule absolute stated that impugned inclusion of name of the petitioner, not being a "defaulter borrower" as per the definition of sections 5 GaGa of the Act, in the CIB report in reference is illegal and arbitrary.
 (To be continued)
Therefore a guarantor is not included in the definition of borrower FY MÖnxZv in terms of clause -b of Article 42 of Bangladesh Bank Order, 1972. He further submits that every citizen shall have the right to conduct any lawful trade or business and inclusion of the name of the petitioners in the report of Credit Information Bureau is a prohibition and is not permitted by law and as such liable to be declared to have been made without lawful authority and is of no legal effect.
4. On the other hand Mr Sikder Mahmudur Razi, the learned advocate appearing on behalf of the respondent No. 6 by filing affidavit in opposition submits that section 6(5) of the Artha Rin Adalat Ain, 2003 provides that at the time of filing suit against the principal borrower, the financial institution shall also implead the third party mortgagor or third party guarantor in the said suit. Therefore as per section 126 of the Contract Act and section 2(Kha) & 6(5) of the Artha Rin Adalat Ain it can logically be construed and interpreted that a guarantor/surety who fails to perform the promise or discharge the liability is a person in default and therefore, he can be termed as defaulter borrower. Now a guarantor has been included in section 5 GaGa of the Act, 1991. The petitioner cannot be absolved from the liability as he was guarantor. He also by supplementary affidavit in opposition submits that he petitioner is also a director of Mohammed Elias Brothers (Pvt) Ltd. In short MEB (Pvt) Ltd. That MEB (Pvt) Ltd. hereinafter referred to as the borrower company enjoyed L/C and LTR Limit from the respondent No.6 Bank, that was also rescheduled on 31-3-2011. Since the borrower company failed to adjust its liabilities as per the terms and conditions, therefore the respondent No.6 bank filed Artha Rin Suit being No.60 of 2013 for realization of Taka 39,50,20,001.24 only and obtained decree ex-parte on 22-10-2013. Subsequently on 30-1-2014 the bank also filed Artha Execution Case No.8 of 2014. Therefore he is a defaulter and rightly the name of the petitioner has been included in the CIB Report and, as such, the Rule is to be discharged.
5. Mr KS Salah Uddin Ahmed, the learned advocate appearing on behalf of the Respondent No.8 by filing affidavit in opposition submits that the petitioner is admittedly a Director of MEB Sheet Glass Industries Limited as such inclusion of his name in the list under section 5GaGa and section 27KaKa of the Bank Companies Act, 1991 read with Bangladesh Bank Order 1972 is absolutely as per law and, as such, the instant Writ petition is not maintainable. The petitioner is also a guarantor of the said credit facility and by subsequent amendment guarantor has been included in the definition· of defaulter. Therefore inclusion of his name in the CIB Report is in accordance with law. The reported case 61 DLR 97 is not applicable as it is different and distinguishable facts in this particular case. The petitioner is admittedly, a director and a share holder. The petitioner is a habitual loan defaulter and he is not coming in dean and, as such, the instant writ petitioner is not maintainable. In the instant case section 5GaGa and section 27KaKa of the Bank Companies, Act, 1991 is very much applicable, since the petitioner is a defaulter borrower. The respondent financial institution sanctioned a facility amounting to Taka 5 (five crores) in favour of the MEB Sheet Glass Industries Limited and the petitioner was a director of the said company and, as such, he is a defaulter and he also defaulted in the payment. Under such facts and circumstances the inclusion of the name of the petitioner in the CIB Report is very much under law and, as such, the instant writ petition is not maintainable and the Rule is to be discharged.
6. Ms Farzana Ahmed, the learned advocate appearing on behalf of the respondent No.9 by filing affidavit in opposition submits that the writ petitioner is a share holder director and Managing Director of the Company as well as the guarantor of the crectit facility availed by the Company, Therefore, as per section 5GaGa of the Bank Companies Act, 1991 a guarantor is very much included and, as such, his name has been included in the CIB Report is legal, not arbitrary. The borrower company took lease facility on 10th October, 2006 within the purview of section 126 of the Contract Act, 1872 meaning the Writ Petitioner entered into a Contract of Guarantee under section 126 of the Contract Act, 1872. The writ petitioner himself voluntarily by understanding accepted the full responsibility of a guarantor under the Contract Act, 1872. Section 5GaGa of the Bank Companies Act, Artha Rin Adalat Ain, 2003 and the Companies Act, 1994 are very much interrelated in securing loan availed by the Company where he is a share holder director and the Managing Director of the same Company and he is playing active management role in the Company as such played part in defaulting to repay to loan/lease liability of the Company and, as such, he is defaulter and his name rightly been included in the CIB Report. Inclusion of guarantor in the definition of defaulted borrower is not violative under Article 40 of the Constitution. Long 9 years when the company defaulted to repay its loan liability and the name of the writ petitioner was referred to CIB as such the writ petition is not maintainable.
7. Mrs Nahid Mahtab, the learned advocate appearing on behalf of the respondent No.3 submits that since the petitioner defaulted in payment and already a suit has been decreed, the petitioner by suppressing all those materials facts obtained the Rule and, as such, a defaulter can not get any privilege by showing in the instant writ petition that he has got only share of 6.66% and cannot be a defaulter borrower.
8. Mr Mazaharul Islam, the learned advocate appearing on behalf of the Respondent No.7 adopted the arguments made by the learned advocates for the respondents.
9. Heard the learned advocates. It appears that the petitioner is coming forward with an application that his name should not enter into the report of CIB as he is a guarantor who has only 6.66% share in the said company. Moreover guarantor is included by gazette notification only on 22-7-2013 as such he is not included as defaulting borrower. But fact remain being Managing Director, Director he obtained loan from different banks and leasing companies and already there is a decree against the petitioner and there is execution proceeding, the petitioner has been considered as a defaulter. Thereby as per decree he is established as a defaulting borrower and as well as guarantor. A decree is against him as a defaulter. Therefore he cannot at the moment says that his name should not be included in the CIB Report. In the present case his name may not be included as defaulter borrower as he has got share of 6.66% of share but fact remains already he has been declared as a defaulter by a competent court. Therefore the report as has been initiated is very much within the provision of law and inclusion of the name of the petitioner in the CIB Report as per Bangladesh Bank Companies Act is also within the provision of law as it is a continuous process. Under such facts and circumstances we do not find any merit in the instant writ petition. Accordingly the Rule is discharged. Stay granted earlier is vacated.

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