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A guarantor is also a debtor

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08th-Oct-2016       Readers ( 243 )   0 Comments
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 (To be continued) :
24. In our view, a person or a body incorporate when places himself/itself as a guarantor infavour of  a person or business knowing fully-well the provisions of the Ain,  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 loan 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 defamation of a debtor (দেনাদার) in very 'explicit and specific terms stating that a guarantor (জামনিদার) shall also be inoluded as a debtor (দেনাদার). Taking into consideration the provisions of the Ain, 2003 and the BC Act, it is our considered view that the name of a guarantor (Rvgwb`vi) is liable to be sent to the Bangladesh Bank by all the schedule Banks and Financial- Institutions for publishing the same in the cm report as a part of their statutory duty cast upon them by section 27(KK) of the BC Act.
25. Previously in the repealed definition of loan-defaulter (খেলাপী ঋণ গ্রহীতা) under section 5(MM)  and 'Proviso thereto,. debtor/loanee-person (†`bv`vi e¨vw³) was not embodied in explicit terms and consequently this Court encountered with scores of litigations which prompted the Legislature to amend the provision of section 5(MM)  of the BC Act aimed at declaring and clarifying their real intention and by amendment of section 5(MM)  of the BC Act, we find that presently there is no ambiguity in the provision of section 5(MM)  of the BC Act which may call for an interpretation by. this Court. We also find the submission of the learned Advocate for the petitioner that the 'Explanation' (e¨vL¨v) has restricted the meaning of the main provision of section 5(MM) of the BC Act to be without any substance in that when the amended provision incorporates the words (†Kvb †`bv`vi e¨vw³)  (debtor) in black an white and section 5(MM)  of the BC Act, in defining the word (†`bv`vi) (debtor), includes, among others, the guarantor to be (†`bv`vi) (debtor), there remains no space 'to make any argument that the 'Explanation' (e¨vL¨v) is limiting the meaning of the provision of section 5(MM)  of the BC Act. Thus, the radio laid down in the case of Manjur Morshed Ali Abul Kalam 63 DLR (AD) 83 (Paragraph 33), as referred to by the learned Advocate for the petitioner, in fact, goes against the petitioner, hence, it has no manner of application here in this case. The above ratio and observations with regard to an "Explanation" to the main provision made in Para 33 of the above case are the reiteration of the principle laid down  in some Indian cases referred to by the learned Advocate for the Agrani Bank. The principles laid down in those Indian cases are quoted below:
It is now well settled that an 'Explanation' added to a statutory 'provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision.
The object of an 'Explanation' to a statutory provision is-
a) to explain the meaning and intendment of the Act itself.
b) Where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,
c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,
d) an 'Explanation' cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.
26. The Explanation' appended to section 5(MM)  of the BC Act has not restricted the meaning of main provision of section 5(MM)  of the BC Act, as has emerged from the examination carried out hereinbefore. Therefore, this Court is in full agreement with the above quoted observations made in various Indian cases and in the case of Manjur Morshed vs Abul Kalam 63 DLR (AD) 83 (Paragraph 33).
27. Also, the principles laid down in the cases referred to by the learned Advocate for the petitioner, in an endeavour to substantiate his arguments on the point of third-party guarantor's liability, are not applicable in this case in a  much as all the said cases were adjudicated upon on the basis of the provision of the repealed section 5(MM)  of the BC Act which had not included the word (†`bv`vi) (debtor) in specific wordings. Following the amendment of the law, the stance of the Courts of our land are now firm and consistent in holding the view that the guarantors are also liable to pay off the debt and if the guarantors, alongside the borrower, fail to pay the installments for 6 (six) months, their names are required to be sent by the schedule Banks/Financial Institutions to the Bangladesh Bank who is then duty bound to display their names as classified customers, as provided in section 27(QQ)  of the BC Act. Submission of Mr Siddique for the petitioner on that score, thus, is misconceived and fallacious one. Our Appellate Division and this Division in several decisions had already decided this aspect which is no longer a res nova.
28. In view of the above recorded deliberations, we find this Rule to be of without any merit and the same is liable to be discharged:
29. Before parting with this judgment, it would not be irrelevant to jot down here that nearly one hundred cases with similar facts and prayers were sent by the Honourable Chief Justice to us for disposal on priority basis and in all the cases the learned Advocates for the petitioners and the learned Advocates for the Banks/Financial Institutions/ Bangladesh Bank were allowed to make their submissions as lengthy as they wished so as to enable them to make out their respective cases. After conclusion of the hearing, in each 01 the cases, this Court expressed its mind that whenever Bangladesh Bank receives any information from the Banks/Financial Institutions that a person or a company, either in the capacity of a loanee or as a guarantor of a loan availed by an individual or any business-concern, has been in default to make payment against any loan for six months from the due dates of its payment, publication of the names of the borrowers/mortgagors/guarantors of the said loan as classified customers becomes a statutory duty for the Bangladesh Bank.
We made it known to them that there is no point to exmine in this case in the backdrop of the provision of section 2(2) of the Artha Rin Adalat Ain, 2003, sections 5(MM)   & 5(MM)  of the Bank Companies Act, 1991 and, accordingly, either they may pray for discharge/ disposal of these cases with a prayer to this, Court to allow them' to approach the concerned Banks/Financial Institutions for settlement of their claims within a stipulated time by rescheduling the loans/replacing the guarantors with new security or guarantor or, in' the alternative, they may pray for non-prosecution of the Rules. We, in the premises, asked the learned Advocates to acquaint with the dicta propounded by this Court in, the case of Bandar Nagar; Bahumukhi Samabay Samity Limited vs Bangladesh 5 ALR 2015(1) 194 towards helping this Court to save its working hours that requires in delivering a full judgment and, then, inform this Court as to whether they are willing to receive detailed judgments in the backdrop of our pronouncement that the Rules are liable to be discharged with usual costs. Conceding the Court's view, while a handful of the petitioners/their learned Advocates opted not to proceed with the Rules, a few of them prayed for discharging/disposing of the Rules granting the petitioners 4 (four) months breathing-time to enable them to negotiate for rescheduling of their loans with their respective Banks and this Court allowed their prayer with a direction upon the concerned Bank/Financial Institutions to consider the said petitioners' applications for reschedulement within 4 (four) months from the date of receipt of the order and with a further direction upon the Bangladesh Bank to refrain from publishing the petitioners' names in the cm report for the said 4 (four) months.
30. When this petitioner was pressing the first part of the Rule, by which the vires of section 5(MM) of the BC Act was challenged, we had suggested him to go through the entire case of AKM Asaduzzaman vs Public Service Commission 4 ALR 2014(1) 278 and on the following day the learned filing lawyer informed that he wishes to engage Advocate Qumrul Haque Siddiqui to assist the Court properly and thereby try to improve his case. Mr Siddique upon appearing before this Court,· at the very outset, conceded that there being no element of inconsistency of the law in question with any provisions of the Constitution, the first part of the Rule would not succeed and, accordingly, he prayed for non-prosecution of the first part of the Rule and prayed for one-day adjournment of the hearing to take preparation on the second part of the Rule and the prayer was allowed.
31. On the following day, when Mr Siddique was running late to appear before this Court, we asked the learned filing lawyer to be familiar with the principles laid down in the case of Bandar Nagari Bahumukhi Samabay Samity Limited Vs Bangladesh 5 ALR 20 15(1) 194, for, the remaining part of the Rule having been destined to be discharged, as has been held by us in  numerous cases of this kind, he may opt for non prosecution of the Rule or, in the alternative, the d Rule may be disposed of with the directions upon the Agrani Bank and Bangladesh Bank to allow p. the petitioner 4 (four) months' breathing-time so UJ that the petitioner could convince the borrower to m make payment of the loan or release him from the m guarantor ship by furnishing new security guarantor. To this end, he sought time to obtaining instructions from his client and the hearing was adjourned for one day, However, when the matter was called up on the following day, Mr Siddiqui by submitting a Synopsis' written in Bengali wished to proceed with the hearing of the Rule and this Court heard him for two days. At the close of the hearing of this case, this Court expressed its views that this Court does not find any law point which requires interpretation of section 5(MM) of the BC Act and asked the learned Advocate for the petitioner whether he wishes to receive a full judgment, for, this Court holds a persistent view that when, any law point or factual issue having been successfully agitated before this Court for its examination the petitioner loses the case on a marginal consideration, only then there would not be any costs.
However, it was opined by this Court that a case like the one in hand having not been fallen within the aforesaid category would certainly be faced with costs.
32. there is yet another reason which leads us to slap costs upon the petitioner. From the mariner and style of handling the present case, it appears to us that the attempt by the writ petitioner to seek interpretation on this provision is nothing but a device to dillydally the process of recovery of the loan from the loanee-company and this petitioner. Our above finding is substantiated by the fact that the petitioner never took any steps to hear the instant Rule and when the present Rule, having been issued before 2 (two) years, was not being taken care of by the learned Advocate for the petitioner, the Honorable Chief Justice sent the' case, along with· other hundred cases of similar nature, for quick disposal. Even, when the matter was appearing in the daily cause list, the learned Advocate for the petitioner was not bothering to take any steps and, under the circumstances, the Court placed the matter under the heading "For Order" with the name of the learned Advocate for the petitioner and, at this juncture; the learned Advocate for the petitioner appeared before this Court and prayed for time which was allowed. Thereafter, the learned Advocate for the petitioner on several occasions took adjournment and eventually he engaged Mr Siddiqui in this case.
33. In our dispassionate way of scrutinising the pattern of dealing with this case by the petitioner and, also; by the petitioner's learned Advocates in this Court and at the trial Court, we find that this petitioner in collaborati in with the borrower is desperately, trying to frustrate the legal step taken by the Bank. Therefore, the petitioner deserves slapping plenary costs to be paid to the Government Treasury for wasting the invaluable time of this Court,  first: by obtaining Rule with order of direction upon the' Bangladesh Bank not to publish his name in the CIB list, thereafter by extending time on several) occasions without taking any steps for disposal of the Rule and, lastly, compelling this Court, handing down a detailed judgment. This Court/ being, over Whelming over burdened with huge back pg of cases, now-a-days is certainly not in a position to hand down detailed judgment for each of the cases .. Given that a few lacs cases are awaiting their disposals, the learned Advocates" of this Court may expect to receive the detailed judgments only in those cases where at least there is one  marginal point; not' to' speak of clear-cut point, to be examined by 'the Appellate Division.
34. In the result, the Rule is discharged with a cost of Taka 50,000 (Fifty Thousand) to be paid by the petitioner to the Government Treasury: The order of stay granted at the time of issuance of this Rule is hereby vacated.
The office is directed to communicate this order at once.
(Concluded)

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