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A guarantor is also a debtor

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01st-Oct-2016       
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High Court Division :
(Special Original Jurisdiction)
Md Rezaul Haque J
Md Khurshid Alam
Sarkar J
Abdur Rashid Bhuiyan  (Md) ……………..Petitioner
vs
Bangladesh Bank and others ………. Respondents
Judgment
February 29th, 2016
Bank Company Act (XIVof 1991)
Section 27(MM)
Loan-defaulter-A loan-defaulter (†Ljvcx FY MÖnxZv) has been defined to be one who is a debtor/borrower/ Noanee-person (†`bv`vi e¨w³) or establishment /corporate body or company (cÖwZôvb ev †Kv¤úvbx) having availed a loan for him/itself or for the business-concern/ establishment/body-corporate, with which he/it is connected, fails to make the agreed installment for six months from the due date ...... (18)
Bank Company Act (XIV of 1991)
Section 27 (KK)
A person or a body incorporate when  places himself/itself as a guarantor in favour of a person or business' knowing fully-well the provisions of the Aim, 2003 and the BC Act, he  cannot escape the liability which he has taken on his shoulder inasmuch as the Ain 2003 in unambiguous terms made a provision that the guarantor shall be liable for the payment of the 1oan sanctioned in favour of a loanee be it a private individual or a body corporate/ establishment, on top of the provision of the BC Act, 1991 which provides the definition of a debtor (†`bv`vi) in very explicit and specific terms stating that a guarantor (Rvwgb`vi) shall also be included as a debtor (‡`bv`vi). The name of a guarantor (Rvwgb`vi) is liable to be  sent to the Bangladesh Bank by all the schedule Banks and Financial Institutions for publishing the same in the CIB report as a part of their statutory duty cast upon them by section 27(KK)of the Act. ………..(24).
Quazi Nasibul Hasan vs Bangladesh Bank. 61 DLR 96; Mohsina Rahman vs Bangladesh, 17 BLC 856; Mahmudur Rahman vs Bangladesh, 59 DLR 540; Manjur Morshed vs Abul Kalam, 63 DLR (AD) 83; DG Mahajan vs State of Maharashtra, AIR 1977 (SC) 915; S Sundaram  Pillai vs Pattabiraman, 1985(1) SCC 591; Dattattaya Govind Mahajan vs State, of Maharashtra (1977) 2 SCC 548; State of Bombay vs United Motors Ltd, AIR 1953 (SC) 252; Bandar Nagori Bahumukhi Samabay  Samity Limited vs Bangladesh, 5 ALR 2015(1) 194 and AKM Asaduzzaman vs Public Service Commission 4 ALR 2014(1) 278 ref.
Qumrul Haque Siddique with Md Imam Hasan and Md Joynal Abedin. Advocates-the For the Petitioner.
Syed Hasan Zobair, advocate-For Respondent No.3         
Judgment
Md Khurshid Alam Sarkar J : Rule was issued calling upon the respondents to show cause as to why section 5(MM) of the Bank Company Act, 1991, as the said law stands after its amendment on 12-7-2013 (annexure-D) so far as it relates to inclusion of a guarantor as the  Ò†Ljvcx FY MÖnxZvÓ (loan-defaulter) should not be declared to be ultra  vires, the Constitution  for being violative of Articles 26,27,31,40 and 42 of the Constitution  and, as such, void and also to show cause as to why inclusion of the name of the petitioner in the report of the Credit Information Bureau (CIB) of the Bangladesh Bank classifying the petitioner as a loan defaulter as a guarantor of the loan availed by. The Earth International Tannery Limited from the Agrani Bank Ltd (annexure-C), should not be declared to have been listed and published without lawful authority and is of no legal effect and/or pass any other order or direction as this Court may deem fit and proper.
2. The fact of the case, briefly, is that the petitioner is a businessman who stood as a third party guarantor by mortgaging 53.75 decimals of his land against the loan taken by The Earth International Tannery Limited (hereinafter referred to as the company or respondent No.4) which has been availing various facilities including Eid Advance,  Cash Credit (Hypo) and Term Loan since 25-17-2006 from the Agrani Bank Ltd (the Bank or respondent No.3). Eventually, the company failed to pay the installments and the Bank filed Artharin Suit No. 275 of 2013 before the Artharin Adalat No.1 Dhaka impleading the company, its directors and petitioner as the defendants of the suit. When the petitioner came to know that at the instance of the Bank, the Credit Information Bureau (CIB) of Bangladesh Bank has included his name as a loan defaulter classifying the loan of the company, he moved this Court by filing an application under Article 102 of the Constitution and hence this Rule.
3. Agrani Bank (respondent No.3) contested this Rule by filing an affidavit-in opposition contending, inter-alia, that the petitioner has admittedly placed himself as the guarantor against the loan-facilities sanctioned in favour of the company and when the company failed to pay the installments as per the terms of the sanction letter, the Bank sent several notices to the company as well as to this petitioner and, thereafter, the Bank has forwarded the name of the petitioner to the Bangladesh Bank as a loan defaulter.
4. Mr Qumrul Haque Siddique, the learned Advocate appearing for the petitioner, at the very outset candidly submits that he does hot press the first part of the instant Rule by which the vires of section 5(MM) of the Bank Company Act, 1991 (the BC Act), so far as it seeks to include a guarantor as the Ò†Ljvcx FY MÖnxZvÓ (loan-defaulter), was challenged.
5. He then submits that the name of the petitioner has been included in the CIB report on misconception and misconstruction of the provision of section 5(MM) of the BC Act inasmuch as the petitioner, being not connected in any way with the business of the loanee-company and having simply placed himself as a guarantor, does not come within the mischief of section 5 (MM) of the BC Act.
6. Mr Siddique, the learned Advocate for the petitioner, vehemently argues that a person who does not have any interest in the company, which has availed loan from any schedule Bank/Financial Institution, has got no role to play in the business of the said loanee-company and the fact of a third-party's volunteering to place himself as a guarantor in the loan-transaction is a mere assistance/cooperation towards friends or relatives to help them to obtain loan facilities.
7. By putting his best efforts to pursue this Court on the above point, he takes us through section 5(MM) of the BC Act line-by-line together with its "Explanation" and submits that in the said "Explanation" the expression ÒD³ cÖwZôv‡bi F‡Yi Rvwgb`vZv bv nB‡jÓ deserves to be considered by this Court punctiliously with an aim to furnish a pragmatic interpretation of the amended section 5(MM)  of the BC Act and the Exphtnation' appended thereto inasmuch as the said· expression specifically speaks about cÖwZôvb (company/ business establishment) and the hitter expression Dnvi ¯^v_© mswkøó cÖwZôvb ewjqv MY¨ nB‡ebv also mentions ÒcÖwZôvbÓ (company/business concern). He continues to argue that both these expressions contain the word ÒcÖwZôvbÓ (company, partnership or proprietorship business) and both of them are in the negative form and, thus, the two negative expressions generate a meaning that if anyone being the director/ shareholder of a company or partner /proprietor of any business-concern stands as a guarantor of a loan taken by his company or partnership or proprietorship-business, only in that case will the said expression  Ò¯^v_© mswkøó cÖwZôvb ewjqv MY¨ nB‡ebvÓ attract the guarantor. He seeks· to· simplify his above count of submission by arguing that in  the "Explanation" .of the amended definition of section 5(MM)  of the BC Act, the expression ÒD³ cÖwZôv‡bi F‡Yi Rvwgb`vZv bv nB‡j cannot include a party who is a natural person, for, the phraseology ÒcÖwZôvb FYÓ has been used by the Legislature to refer to a director, shareholder or the proprietor and being connected in the ÒcÖwZôvbÓ (company business-concern) in any of the above. capacity stands as a guarantor for the loan taken by or for ÒcÖwZôvbÓ (company/business-concern) and, thus, it is not meant for a natural person who does not have any nexus with the ÒcÖwZôvbÓ (company/business-concern) inasmuch as until a guarantor stands as a surety for a ÒcÖwZôvbÓ (company/business-concern) in which he has any interest, the guarantor cannot be termed to have an interest in the said sanctioned loan.
8. In an endeavour to substantiate' his submissions on the point that a guarantor is not to be treated as a ‡Ljvcx FY MÖnxZv (loan-defaulter), he relies on the following cases; (i) Quazi Nasibul Hasan vs Bangladesh Bank 61 DLR 96; (ii) Mohsina Rahman vs Bangladesh 17 BLC-856 and (iii) Mahmudur Rahman vs Bangladesh 59 DLR 540.     
9. He then takes us through the repealed section 5(MM)  of the  BC Act in tandem with the amended section 5(MM)  of the BC Act and argues  that the repealed section 5(MM)   and the Proviso thereto did not inscribe the guarantor as a loan defaulter and the amended section 5(MM)  also does not speak about the guarantor. He Points out that  by the amendment  the Legislature did not bring any change in the definition clause of section 5(MM)   of the BC Act, as apparently it remains as it was before the amendment, keeping the provision of section 5(MM)  of the BC Act almost intact. But, he adds, with the "Explanations" appended underneath thereto the responsibility of guarantor has been sought to include in section 5(MM) of the BC Act. By placing the relevant chapter from the book 'Interpretation of Statutes, by Mr Mahmudul Islam in tandem with the Paragraph 33 of the case of Manjur Morshed vs Abul Kalam 63 DLR(AD) 83, he forcefully submits that an "Explanation" appended to the main provision/section cannot- be read to limit or restrict the scope of a section of definition given in any statute.
10. By making the aforesaid submissions, the  learned Advocate for the petitioner prays , for making the Rule absolute.
11. Per contra, Mr Syed Hasan Zobair, the learned Advocate for respondent No-3  places section 5(Q)  of the BC Act and submit that anyone with ordinary prudence upon skimming through the said provision would take a view that ÒRvwgb`viÓ guarantor) has also been included as a "†`bv`vi" (debtor/loanee). He proffers that since the BC Act, 1991, has defined the identity and position of a borrower †`bv`vi, in clearer terms, no interpretation is required any person or any corporate body, let alone this' Court. Mr Zobair, then,  takes us through the definition clause of section, 5(MM)  of the BC Act and side-by-side the repealed definition of section 5(MM)  of the BC Act and submits that previously in numerous cases the issue as, to whether a guarantor is a borrower or not was taken to this Court for examination wherein the various Division Benches of this  Court  had, delivered, conflicting judgments and pursuant to the aforesaid events, the Legislature, by amending the provision of section 5(MM)  of the BC Act, has clarified their intention by incorporating the word Ò†`bv`viÓ (borrower /loanee) in the definition clause. Mr Zobair further submits that the Legislature has appended the "Explanation" to section- 5(MM)  of the BC Act with a view to clarify the extent and- scope of section 5(MM)  of the BC Act and convey their intention and in doing so the Legislature did not inscribe any word/s in the said "Explanation" which in any way seeks to limit, restrict or expand the contents or scope or spirit of the main provision of section 5(MM)  of the BC Act.
12. In reply to the submissions advanced by the  learned Advocate or the petitioner with regard to the comparative analysis on the provisions of the repealed section 5(MM)  of the BC Act and amended section 5(MM)  of the BC Act, Mr Zobair argues that the "Explanation" appended to this amended section 5(MM)  of the BC Act has sought to declare and clarify in unambiguous terms their person or body incorporate who places himself is a guarantor will be attracted by the expression Ò¯^v_© mswkøó cÖwZôvb". He posits that when person or  body incorporate stands as a surety against a loan taken by anyone, be it a company or business-concern or private individual, the logical presumption is that he has, an interest in the said sanctioned loan. He forcefully argues that no person or body incorpote without having any interest in any sanctioned loan, be it for a private party's loan or loan or a company/ business-concern cÖwZôvb FY can put himself in such a risky engagement and onerous position;
13. He submits that the writ petitioner, who has placed himself as a guarantor, clearly comes within the definition of section 5(MM) of the BC Act if the said provision is read concurrently with section 5(MM)  and section 27(KK)  of the BC Act and, therefore, according to him, the Bank was under statutory duty to send his name to its regulatory authority, ·namely the Bangladesh Bank and, by doing so, the Bank has not committed any illegality. He lastly submits that the petitioner could have approached the Bangladesh Bank with regard to his grievance that he is not a person to be held liable for payment of loan for which he has stood as a surety, but without doing so he moved this petition directly before this Court seeking interpretation of section 5(MM)  of the BC Act from this Court as a device to frustrate the provisions of section 5(MM)  section 5(MM)  and section 27(KK)  of the BC Act, the legal weapons by which the schedule Banks of this land and· the Bangladesh Bank have been putting their efforts to control the activities of loan-defaulters. To substantiate ·the arguments advanced by the learned Advocate for respondent No.3, the following case laws' have been referred to : (i) DG Mahajan vs State of Maharashtra AIR 1977 (SC) 915 (relevant Para-9, page-927), (ii) S Sundaram Pillai vs Pattabiraman 1985(1) SCC 591, (iii) Dattatraya Govind Mahajan vs State of Maharashtra (1977) 2 SCC 548 (iv) S Sundaramvs R Pattabhiraman AIR 1985 (SC) 582 (relevant Para52, Page  593) and (v) State of Bombay vs United Motors Ltd AIR 1953 (SC) 252 (relevant Paras 14 & 15, Page-258).
14. By putting forward· the" above submissions, the learned Advocate for the Agrani Bank (respondent No.3) prays for discharging the Rule with exemplary costs.
15. We have heard the learned Advocates for the petitioner and respondent No.3, perused the writ petition along with its annexures, the affidavit-in-opposition filed by respondent No. 3 and the relevant laws and decisions placed before us we have considered their submissions together with the relevant laws and decisions very minutely.
16. The prime and only issue to be examined by this Court is to see whether the provisions of section 5(MM)  of the BC Act magnetizes the position of the petitioner to clasp him as a debtor 5(†`bv`vi)   
17. It would be profitable to look at the provision of section 5(MM)  of the no Act towards . resolution on the issue. section 5(MM)  the BC Act, is reproduced below;
5(MM) “খেলাপী ঋন গ্রহীতা” অর্থ কোন দেনাদার ব্যক্তি বা প্রতিষ্ঠান বা কোম্পানী যাহার নিজের বা স্বার্থ সংশ্লিষ্ট প্রতিষ্ঠানের অনুকূলে প্রদত্ত অগ্রীম, ঋণ বা অন্য কোন আর্থিক সুবিধা বা উহার অংশ বা উহার উপর অর্জিত সুদ বা উহার মুনাফা বাংলাদেশ ব্যাংক কর্তৃক জারীকৃত সংজ্ঞা অনুযায়ী মেয়াদোত্তীর্ণ হওয়ার ৬(ছয়) মাস অতিবাহিত হইয়াছে ;
ব্যাখ্যা। এই দফায় উদ্দেশ্য পূরণকল্পে কোন ব্যক্তি বা, ক্ষেত্রমত, প্রতিষ্ঠান বা কোম্পানী অন্য কোন প্রতিষ্ঠানের পরিচালক না হইলে অথবা উক্ত প্রতিষ্ঠানে তাহার বা উহার শেয়ারের অংশ ২০% এর অধিক না হইলে অথবা উক্ত প্রতিষ্ঠানের ঋণের জামিনদাতা না হইলে, উক্ত প্রতিষ্ঠান তাহার বা উহার স্বার্থ সংশ্লিষ্ট প্রতিষ্ঠান বলিয়া গণ্য হইবে না;
18. From a minute reading of the above provisions, it appears that a loan-defaulter  (†Ljvcx FY MÖnxZv) has been defined to be one who is a debtor/borrower/loanee-person (†`bv`vi e¨w³) or establishment/corporate body or company (cÖwZôvb ev K¤úvbx) having availed a loan for him/itself or for the business-concern/establishment/bodycorporate, with which he/it is connected, fails to make the agreed installment for six months from the due date. By appending Òe¨vL¨vÓ (Explanation) thereto, the following category of natural person (e¨w³) and establishment/ company/ body-corporate have been excluded from the definition of  “খেলাপী ঋণ গ্রহীতা” (i) a person or establishment company who is not a director, (ii) who is not a share holder of 20% and above of the loanee-company and (iii) who is not a guarantor for the loan taken by the loanee-person or the company.
19. It transpires that the expression  “উক্ত প্রতিষ্ঠানের  ঋণের জামিনদাতা না হইলে” someone stands as a guarantor for the loan taken by the company/ establishment/ business-firm) has apparently made a scope for the learned Advocate for the petitioner to make his lengthy argument and contest this Rule by which the learned Advocate for the petitioner to make his lengthy argument and contest this Rule by which the learned Advocate for the petitioner has sought to argue that if a guarantor does not stand as a surety for its own (establishment/ body/corporate business), he will not be included in the definition of খেলাপী ঋণ গ্রহীতা (Joan-defaulter).
20. In order to have an answer to the above argument of the learned Advocate for the petitioner, we are required to look at the definition
of "দেনাদার" (ফবনঃড়ৎ) ধং ফবভরহবফ রহ ংবপঃরড়হ  ৫(ছ)   ড়ভ ঃযব ইঈ অপঃ, যিরপয রং ৎবঢ়ৎড়ফঁপবফ নবষড়:ি
৫(ছ) “দেনাদার অর্থ ঋণ ও অগ্রীম গ্রহণ, লাভ ক্ষতির ভাগাভাগি, খরিদ বা ইজাদার ভিত্তিতে বা অন্য কোনভাবে আর্থিক সুযোগ-সুবিধা গ্রহণকারী ব্যক্তি, কোম্পানী বা প্রতিষ্ঠান এবং কোন জামিনদারও ইহার অন্তর্ভুক্ত হইবে ;
(underlined by us)
21. From the above expressions employed in  section 5(Q)  of the BC Act Ò†`bv`viÓ A_©..†Kvb Rvwgb`viI Bnvi AšÍfz©³ nB‡e), there remains, no ambiguity in having a definite meaning of খেলাপী ঋণ গ্রহীতা inasmuch as the word debtor (‡`bv`vi) in clearer terms includes guarantor (Rvwgb`vi) as well.
22. Moreover, the term guarantee is very much if the definition of 'loan' in the Artharin Adalat Ain, 2003 (the Ain, 2003). Loan as defined in section 2 of the Ain, 2003 is as follows:-
“ঋণ অর্থ”
১। অগ্রিম, ধার, নগদ ঋণ, ওভার ড্রাফট ব্যাংকিং ক্রেডিট, বাটাকৃত বা ক্রয়কৃত বিল, ইসলামী শরীয়া মোতাবেক পরিচালিত আর্থিক প্রতিষ্ঠান কর্তৃক বিনিয়োগকৃত অর্থ বা অন্য যে কোন আর্থিক অনুকুল্য বা সুযোগ-সুবিধা, যে নামেই অভিহিত হউক না কেন,
২। গ্যারান্টি, ইনডেমনিটি, ঋণপত্র বা অন্য কোন আর্থিক বন্দোবস্ত যাহা কোন আর্থিক প্রতিষ্ঠান ঋণ গ্রহীতার পক্ষে প্রদান বা জারী করে বা দায় হিসাবে গ্রহণ করে।
৩। কোন আর্থিক প্রতিষ্ঠান কর্তৃক উহার কোন কর্মকর্তা বা কর্মচারীকে প্রদত্ত কোন ঋণ ; এবং
৪। পূর্ববর্তী ক্রমিক (১) হইতে (৩) এ উল্লিখিত ঋণ, বা ক্ষেত্রমত ইসলামী শরীয়া অনুযায়ী পরিচালিত আর্থিক প্রতিষ্ঠান কর্তৃক বিনিয়োগকৃত অর্থ এর উপর বৈধভাবে আরোপিত সুদ, দন্ড সুদ বা মুনাফা বা ভাড়া ঃ” (ঁহফবৎষরহবফ নু ঁং)
২৩. ওঃ রং হড়ঃ ফরভভরপঁষঃ ঃড় ঁহফবৎংঃধহফ ভৎড়স ঃযব ধনড়াব ংঁন-ংবপঃরড়হ; ২ ড়ভ ংবপঃরড়হ ২ ড়ভ ঃযব অরহ, ২০০৩ (গ্যারন্টি যাহা কোন আর্থিক প্রতিষ্ঠান ৃৃ.. দায় হিসাবে গ্রহণ করে) that guarantee given by anyone to any Bank/Financial Institutions; irrespective of the fact as to whether the said guarantee is given in favour of a natural person or for a business- concern, clearly falls, within the mischief of section 2 of the Ain, 2003 for, it defines guarantee as it loan and therefore,  attracts section 5(MM)  of the BC Act.
 (To be continued)

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GAFFARGAON: Vice-Chairman of the Central Committee of Muktijodha Sanghati Parishad Major (Retd.) Md Rezaul Karim, a veteran freedom fighter and an Awami League leader addressing a meeting on his participation in the coming National Election as a candidate from Awami League in the election area Mymensingh-10 (Gaffargaon & Pagla PS) Primary School field, Gaffargaon on Friday. Among others, freedom fighter Mofazzal Hossain, Auditor (retd.) Alhaj Abdul Karim and Ex Ward Member Saiful Islam also spoke in the meeting at Charalgi (Nidiar Char) .


Editorial »

Higher production capacity for power plants


THE state-owned power plants can't generate electricity to a minimum of their stated capacity as they lack improved technology, besides management failure to achieve the highest output as per a report in The New Nation on Sunday. The report quoting Bangladesh Power Development Board (BPDB) said its power plants can ...

International »

Hariri announces return to Lebanon as crisis simmers


AP, Paris :Lebanon's Prime Minister Saad Hariri said he will return home in the coming days from where he will declare a political stance for the first time since making a strange resignation announcement from Saudi Arabia that unleashed fears of a crisis in Lebanon.Hariri and his family met Saturday ...

 
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