Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Monday, November 19, 2018 10:03:09 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

Loan once admitted cannot be subsequently denied

By
18th-Aug-2018       
Comments
Share your thought
Post a comment »
Read all () »

(From previous issue)
15. He has further argued that the plaintiff and defendants by amicable settlement came to compromise and by dint of that compromise prepared application and Solenama signing by them on behalf of the respective parties. Thereafter, they filed a joint application before the Court on 19-3-2009. The terms of compromise have been laid down in application for compromise which was referred by the learned Advocate and pointed that by dint of that compromise on the same date the suit was decreed and, as such, the trial Judge without considering the earlier compromise decree acted illegally in taking further evidence decreeing the suit in part.
16. Therefore, Judgment and decree passed by the Court below on 29-11-2010 is liable to be set aside.
17. Mr Md Imam Hasan took us to the stipulations of compromise application as  recited therein and read out the same where from it has clearly shown that the defendants clearly admitted to repay Taka 4,34,35,754.32 excluding Taka 59,43,815 which was excluded as interest and in the earlier decree dated 19-3-2009 the Court has also examined PW No.1 and DW No.1 in respect of compromise application thereafter, the same Court has drawn up the decree decreeing the suit on compromise to pay money in terms of compromise petition.
18. Therefore, there is no further scope to adduce any evidence on Behalf of the plaintiff to narrate the plaint case. However, Mr Hasan concedes that the Mofassal lawyer also without considering the law to its legal perspective taking its own view inadvertently filed the application to proceed with the suit for further evidence which, was also allowed by the Court without considering the earlier compromise Judgment and decree.
19. Therefore, according to Mr Md Imam Hasan the 2nd Judgment and decree is illegal, void ab-initio which is liable to be set aside.
20. In respect of documentary evidence produced by the plaintiff at the time of 2nd testimonies given on behalf of the plaintiff Bank were produced before the trial Court and the defendant's company also produced some documents by giving testimonies which are not relevant for consideration of the instant suit. However, he argued that as a matter of fact the plaintiff and defendants none can go beyond the compromise decree. Therefore he prays for allowing the appeal setting aside the Judgment and decree dated 29-11-2010 passed by the Judge, (Joint District Judge) Artha Rin Adalat No.1, Chittagong as a 2nd Judgment and decree.
21. Mr Md Imam Hasan in support of his submissions he referred the Section 13 and 50 of the Artha Rin Adalat Ain, 2003. He also cited some decisions to the case of Sultana Jute Mills Ltd. vs Agrani Bank reported in 2 ADC 149, to the case of Janata Bank Ltd vs Mohiuddin Specialioed Textile reported in 62 DLR 501 to the case of Messers Ibrahim vs Mizanul Huque Chowdhltnj reported in 69 DLR (AD) 192. He further pointed that in view of the provision of the Section 13 of the Artha Rin Adalat, after passing the compromise decree in the instant suit decree was drawn up and suit was admittedly, decreed on the basis of that compromise decree, therefore, the 2nd Judgment and decree is nullity.
22. He has also pointed that as per subsection 1 of Section 15 of the Artha Rin Adalat Ain, 2003, the Court is not entitled to reduce cut any interest/profit as claimed by the plaintiff Bank against the defendants however, the learned Judge without considering the provision of Sections 13 and 15 of the Artha Rin Adalat Ain, 2003 decreed the suit taking view that defendants had suffered a lot due to negligence of the plaintiff Bank for which the Court erred in law in passing the 2nd decree in part. Mr Hasan argued that if any defendants claim any compensation and damage tor negligence then he can file proper suit in accordance with law against the company or respective parties. However, according to him the defendants cannot claim such damage, adjustment or counter claim in a Artha Rin case. In that view of the matter the trial court erred in law in adjudging' and giving some relief in favour of the defendants mentioning section 57 of the Artha Rin Adalat Ain, which is not only contrary to the law enacted in Artha Rin Adalat, rather, violation of the principles enunciated by the apex court. Therefore, he prays for allowing the appeal setting aside the 2nd Judgment and decree dated 29-11-2010 passed by the Judge, (Joint District Judge) Artha Rin Adalat No. I, Chittagong as a 2nd Judgment and decree.
23. Mr SM Abdur Rouf, the learned Advocate appearing on behalf of the Respondents at the first instance took us to the 2nd Judgment and decree referring to all the testimonies and documents produced before the trial Court and argued that the trial Court after considering all the materials on record correctly took the view that the defendants suffered a lot due to negligence of the plaintiff Bank. He has further argued that according to the testimonies of DW No. 1 the loan was disbursed after 11 months of the sanction. Therefore, the defendants company could not avail the seasonal product of the company of which the value of the products have come down measurable in the share-market and there is a serious labour agitation for non payment of the wages and other benefits. In such situation the defendant company was not in position to repay the loan and interest as claimed by the plaintiff Bank. However, such, circumstances and situations were communicated to the Bank. He referring the Exhibit Ka to Kha and Uma argued that those exhibits clearly indicated that the defendants claim were not vague, rather, the company rightly claimed waiver of the interest which was supported by the exhibits as a competent reason. In that view of the matter the Judgment and decree passed by the Court below on 29-11-2010 cannot be set aside. In support of his submissions he relied upon the case Sonali Bank vs Md Mokshed Ali Khan reported 13 BLT 331, to the case of Md Arfan Uddin Akand vs Joint District-Judge and Artha Rin Adalat No.1, Gazipur reported 15 BLT 343.
24. However, Mr SM Abdur Rouf, the learned Advocate very candidly concedes that the legal point raised by the learned Advocate for the appellant regarding compromise and if taken into consideration by this Court as compromise decree had already taken place in earlier occasion. In that case he has no legal submission, rather, the decision of the Court will be prevailed and upheld in accordance with law.
25. We have gone through the Judgment and decree dated 29-11-2010 passed by the Judge, Artha Rin Adalat No.1, Chittagong. On perusal of the Judgment and decree it appears that the learned Judge of the Courts below after taking evidences of both the sides passed the Judgment and decree. However, in the Judgment and testimonies of the PWs and D.W we do not find any mentioning regarding the earlier compromise Judgment and decree.
26. We have also perused the compromise application dated 19-3-2009. On perusal of the aforesaid compromise application it appears that there was a stipulation if the borrower defendants failed to repay two (2) loan instalments as per schedule of the compromise, then the suit would be revived and the interest waiver stipulation would be withdrawn; We have also perused the Judgment and decree dated 19-3-2009 from which it is clearly divulged that the Court at the time of passing the Judgment, the terms revival of the suit was considered, thereby, narrated in the decree that the suit is decreed as per stipulation of compromise application and decree was drawn up in accordance with the compromise application.
27. On perusal of the earlier Judgment and decree it has clearly reflected that there is no ambiguity regarding the compromise decree.
28. On behalf of the defendants the defendant No.4 has been adduced as DW No. 1 while he deposed in the Courts below he neither alleged that the earlier compromise decree was taken by the plaintiff Bank by any exception nor he has complained in evidence regarding the compromise decree. So, we have no hesitation to come to a conclusion regarding the compromise decree that it was legal, lawful and valid, even then, it was stipulated in the solenama that if the borrower failed to pay 2 (two) instalments of compromise loan in that case the suit would be revived.
29. We have considered the testimonies of the PWs and DW. It appears from the materials on record that after sanctioning the loan, the loan money was disbursed after 2 days and the defendant company withdrew the money by giving cheques from the companies account day by day and availed the total money in accordance with the terms and condition of the sanction letter of the loan. In the testimony of the DW No.1 though it has been alleged that the disbursement of the loan has taken place after 11 months of the sanction but all the documents have been produced by the Bank i.e. Bank statement Exhibit- 21 and others do not speak so, rather it appears from the Exhibit-21 that the plaintiff Bank never violated any terms and condition, of the sanction letter.
30. The compromise between the borrowers and Bank were not invalid due to the plaintiff Bank, rather, the borrowers were unable to maintain the stipulation and thereby failed to repay the loan. Therefore, it is admitted facts that the defendants are loanee of the Bank. Moreover, the written statement was submitted on 18-2-2007 and compromise application was filed on 19-3-2009, admitting Taka 4,34,35,754.32. So, the allegations made in the written statement do not bear any merit. The plaintiffs claim once admitted by the defendants cannot be denied later on. The plaintiff is precluded by the principles of estoppel. Moreso, at the time of compromise decree and deposition made at the time of contest Mr Perwaizuddin was at both times as DW No. 1. So,  it cannot be accepted that same person once admitted the loan and after foiling to repay the loan on admission, he would be allowed to deny the same.
31. According to the provision of the Section 58 of the Evidence Act, facts admitted need not be proved; so, we are of the view that the learned Judge in decreeing suit in part violated the provision of the Section 58 of the Evidence Act as well as Section 13 and 50 of Artha Rin Adalat Ain, 2003. Therefore, we are of the opinion that the judgment and decree appealed before this Court has been suffering from legal infirmity and passed in flagrant violation of law.
32. In view of the discussions made herein above we find the submissions advanced by the learned Advocate for the Appellant bear merit. The decisions cited by him in support of his submissions are also applicable in the instant first appeal.
33. On the other hand, the submissions advanced and decisions referred by the learned Advocate for the respondents in respect of factual aspect, not in legal point. Therefore, on perusal of the same it is clearly divulged that the facts and circumstances of those decisions are quite distinguishable from the facts and circumstances of the instant appeal.
34. In that view of the matter we are not inclined to accept the decisions dated in favour of the defendant-respondents.
35. Thus, the appeal having merit, it succeeds.
36. In the result, the appeal is allowed.
37. The Judgment and decree dated 29-11-2010 passed by the Judge, Artha Rin Adalat, 1st Court, Chittagong in Artha Rin Case No. 62 of 2006 so far it relates to part decree is hereby set aside. The suit is decreed on contest against the defendants Nos. 1 and 4 and ex-parte rest of the defendants. The defendants are directed to pay Taka 4,03,79,845.32 as of 31-7-2006 within 90 (ninety) days. In default, the plaintiff would be entitled to realise the same in accordance with law with 12% interest per annum till realisation of the amount.
However, the Office is directed to communicate the Order at once.

Tariff
Add Rate

News Archive

Inside The New Nation

City »

Bangladesh Army Chief Aziz Ahmed inspcting parade on occasion of endorsing regimental colour to Adhoc 11 Bangladesh Infantry Regiment (Machanised ) at CMP Center and School Parade Ground in Savar Cantonment yesterday.


Cricket »

BCB President Nazmul Hassan assumes rotating ACC Presidency


President of Bangladesh Cricket Board (BCB) Nazmul Hassan Papon MP assumed the post of Asian Cricket Council (ACC) President for a two- year term at its Annual General Meeting held in the Pakistani city of Lahore on Saturday.Nazmul Hassan Papon is the 3rd ACC President from Bangladesh following in the ...

Cricket »

England win second Test against Sri Lanka to seal series


AFP, Kandy :Jack Leach's first five-wicket haul clinched an overwhelming win for England in the second Test against Sri Lanka on Sunday that sealed the series with a match to go.England needed just 30 minutes on the fifth day to take the final three wickets with Leach fittingly getting last ...

Editorial »

US-China trade war : An opportunity for BD to expand businesses and attract FDI


THE ongoing trade war between the US and China has created a better opportunity for Bangladesh, especially for garment sectors. The exporters have been receiving a greater number of work orders from both China and the US. The current trade war has opened an opportune moment for us (Bangladesh) as ...

International »

Sri Lankan President seeks talks to end power struggle


AFP, Colombo :Sri Lanka's President Maithripala Sirisena on Sunday called crucial talks with political leaders in a bid to end a power struggle with the prime minister he sacked last month.The Indian Ocean nation has been paralysed since October 26 when Sirisena deposed Ranil Wickremesinghe as premier and replaced him ...

International »

No ‘final conclusion’ on Khashoggi killing, say US


AFP, Washington  :The US government has not reached a final conclusion over the killing of Jamal Khashoggi, the State Department said Saturday following reports that the CIA had held the Saudi Crown Prince responsible."Recent reports indicating that the US government has made a final conclusion are inaccurate," State Department spokeswoman ...

Entertainment »

What Kriti Sanon is learning for her next movie?


Actress Kriti Sanon who has her hands filled currently with multiple projects has started taking Marathi lessons for her upcoming next. The actress who is currently shooting for Housefull 4 has already begun prep for her next, Panipat. As Kriti will be seen essaying the role of a Maratha queen ...

Entertainment »

IFFI to pay tributes to Sridevi, Shashi Kapoor and others


Actor Sridevi, who died unexpectedly earlier this year, will be posthumously honoured at the 49th edition of International Film Festival of India (IFFI). Sridevi, who had an illustrious career spanning over four decades, died at the age of 55 due to accidental drowning in Dubai earlier this year. The actor ...

Campus Life »

DIU Chairman gets honorary doctorate


Campus Report :In recognition of his vision to digital transformation of society, skill management to imbibe the spirit of entrepreneurship in every youth, and social contribution to destitute children through Daffodil Institute of Social Sciences (DISS) in association with Kalinga Institute of Social Sciences (KISS), Bhubaneswar, India, the management of ...

Business & Economy »

Mohammad Nawaz, Director of South Bangla Agriculture & Commerce (SBAC) Bank Ltd, inaugurating its 66th branch at Abdullahpur in South Keranigonj of Dhaka on Sunday. Md. Golam Faruque, Managing Director of the bank presided over the ceremony. DMD Tariqul Islam Chowdhury, Company Secretary Md. Mokaddes Ali and Branch Manager Salil Kumar Dutta were present.


Football »

Neymar penalty punishes Uruguay in feisty friendly


Neymar kept his cool to score the controversial penalty that fired Brazil to a 1-0 win over Uruguay in a full-blooded friendly on Friday.Brazil captain Neymar was subjected to some ferocious fouls from Uruguay as the clash between the South American rivals boiled over at Arsenal's Emirates Stadium.But the Paris ...

Cricket »

Shakib returns as BCB announces squad for 1st Test against WI


The Bangladesh Cricket Board (BCB) on Saturday announced the squad for the first Test of two-match series against the West Indies (WI) with ace all-rounder Shakib Al Hasan returned to the squad.Another big-name inclusion in the squad is Soumya Sarkar, whose last Test appearance came on the tour of South ...

Editorial »

Pro-people police is the demand of time


THE Police Investigation Bureau (PIB) has unveiled the mystery behind a spine-chilling crime where a middle-aged woman passenger was killed inside a running bus at Ashulia in the outskirts of Dhaka city. It took hardly seven days for them to crack the case. Police have already arrested the murderers along ...

International »

US opposes UN resolution condemning Israel's occupation of Golan Heights


AFP, United Nations :For the first time, the United States voted Friday against an annual UN resolution condemning Israel's occupation of the Golan Heights, dropping its practice of abstaining in the vote.The non-binding resolution was adopted in a General Assembly committee by a vote of 151 to 2, with the ...

Entertainment »

Aupee Karim returning to big screen


Entertainment Desk :Actress Aupee Karim is returning to the big screen after 15 years , with a film titled "Debris of Desire."Aupee made her debut in cinema with Mostofa Sarwar Farooki's 'Bachelor,' for which the actor won the Bangladesh National Film Award for Best Actress in 2004. The film is ...

 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news