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Bank Companies Act' 1991

BB enjoys the authority to safeguard public interest first

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21st-Dec-2019       
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High Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J }
KM Kamrul Kader J }
SA Oil Refinery Ltd……Petitioner
                                        vs
Bangladesh Bank and others…..Respondents    
Judgment
April 12th, 2018
Bank Companies Act (XIV of 1991)
Sections 45(l)(Ga)(Gha) and 49(Kha)
Under Bank Companies Act, 1991 Bangladesh Bank (BB) holds a sublime position as a strong regulatory body and can interfere with the functioning and business of banking companies in a given situation………………………. (11)
Professor Muhammad Yunus vs Bangladesh, 63 DLR 260; Mr ASF Rahman vs Bangladesh Bank, 20 BLD (AD) 32 = 52 DLR (AD) 61 and JIT Knit Composite Ltd., vs Government of Bangladesh, 18 BLC 480 ref.
Najmul Karim, Faisal Mahmud Faizee, Nahid Sultana, Muhammad Anjarul Hasan, Md Rafiul Islam, Advocates-For the Petitioners.
Sabel Nawaz, Md Golam Sarwar, Maloy Kumar Roy, Sabel Nawaz, Advocates- For the Respondents
Judgment
Md Ashfaqul Islam J : All these Writ petitions are taken up together for hearing and disposed of by a single judgment as there involved a common question of fact and law.
2. In all the petitions, the Rule Nisi was issued almost in a common terms. In writ petition No. 5376 of 2017 Rule was issued calling upon the respondents to show cause as to why the respondent Nos. 1-3 should not be directed to exercise 'the jurisdiction as contemplated in Section 49(1)(Cha) of the Bank Companies Act, 1991 in connection with the petitioner's loan accounts lying with the respondent Nos. 4 & 5 by directing them to review and reschedule the petitioner's liabilities and as to why the report of the Credit Information Bureau of Bangladesh Bank classifying the petitioner as defaulter borrower and debarring the petitioner from enjoying any kind of banking accommodation by application of Section 27 KaKa (3) of the Bank Companies Act, 1991 should not be declared to have been made without lawful authority.
3. Facts are also similar in other writ petitions and can be ascertained from the terms of the respective Rule. Mainly a direction has been sought upon in all the petitions upon the respondents who are the different wings of respondent No.1 Bangladesh Bank.
4. In all the cases complications have arisen due to recovery of loan as mentioned in the petition. Inaction on the part of the respondent Nos. 1-2 as regulatory authority in this respect is under challenge.
5. Mr Sabel Nawaz and Mr Md Golam Sarwar, the learned Advocates appearing for the petitioners candidly submits that it is within the absolute domain and competence of Bangladesh Bank to give a decision in a situation like this. However, Mr A Al-Masud Beagh and Mr Nikhil Kumar Biswas, the learned Advocates for the respondent-bank emphasized that whatever decision Bangladesh Bank would take in this regard should be taken in terms of the relevant laws applicable in that regard.
6. We have heard the learned counsel of both sides and considered their respective submissions. We have already mentioned that we are not going to touch upon the merit of the case in minute details by considering submissions of both sides. We have evaluated the petition, affidavit in opposition and other papers filed by the parties with precision. All these materials are before the respondent Nos. 1-2 and in all fairness we would expect that after scrutinizing those papers and documents and the relevant Laws as hinted herein after the respondents shall come to a decision.
7. That being the position, we do not want to embark upon vividly touching upon the merit of the case rather we think it would be worthwhile to leave the matter to be decided by the respondent No.I. Bangladesh Bank within their jurisdiction conferred under Section 45(1) (Ga) (Gha). 49 (Khal) of Bank Companies Act. 1991 read with Article 7 A(f) of the Bangladesh Bank Order 1972 (PO 127 of 1972).
    (emphasis added)
8. Let us now see what are the relevant provisions of laws on the issue-
Section 45 of the Bank Companies Act, 1991 runs  as follows:-
৪৫ । (১) বাংলাদেশ ব্যাংক যদি এই মর্মে সš'ষ্ট হয় যে  ক) জনস্বার্থে, বা  খ) মুদ্রানীতি এবং ব্যাংক-নীতির উন্নতি বিধানের জন্য, বা  গ) কোন ব্যাংক-কোম্পানীর আমানতকারীদের স্বার্থের পরিপšি' বা ব্যাংক-কোম্পানীর স¦ার্থের পক্ষে ক্ষতিকর কার্যকলাপ প্রতিরোধ করার জন্য; বা  ঘ) কোন ব্যাংক-কোম্পানীর যথাযথ ব্যব¯'াপনা নিশ্চিত করার জন্য, সাধারণভাবে সকল ব্যাংক-কোম্পানীকে, অথবা বিশেষ কোন ব্যাংক-কোম্পানীকে নির্দেশ প্রদান করা প্রয়োজন, তাহা হইলে বাংলাদেশ ব্যাংক যথাযথ নির্দেশ জারী করিতে পারিবে; এবং সংশ্লিষ্ট ব্যাংক-কোম্পানী উক্ত নির্দেশ পালন করিতে বাধ্য থাকিবে ।
২। বাংলাদেশ ব্যাংক স্বে"ছার অথবা উহার নিকট পেশকৃত কোন আবেদনের পরিপ্রেক্ষিতে উপ-ধারা  (১) এর অধীন প্রদত্ত নির্দেশ খারিজ  বা পরিবর্তন করিতে পারিবে; এবং এইরূপ বাতিলকরণ বা পরিবর্তন শর্তসাপেক্ষ হইতে হইবে ।
 ৯. ঝবপঃরড়হ ৪৯ ড়ভ ঃযব অপঃ ভঁৎঃযবৎ ংঃরঢ়ঁষধঃবং-
ধারা-৪৯ বাংলাদেশ ব্যাংকের অধিকতর ক্ষমতা ও কার্যাবলী ।
(১)    বাংলাদেশ ব্যাংক ---
ক) সাধারণভাবে সকল বা কোন বিশেষ ব্যাংক-কোম্পানীকে কোন নির্দিষ্ট বা বিশেষ শ্রেনীর লেনদেনে চুক্তিবদ্ধ হওয়ার বিরুদ্ধে সতর্ক বা নিষেধ করিতে পারিবে ;
খ) সাধারণভাবে সকল বা কোন বিশেষ ব্যাংক-কোম্পানীকে উহাদের বা উহার (ব্যবসা) সংক্রান্ত কোন বিশেষ ব্যাপারে নির্দিষ্ট কোন কার্যক্রম গ্রহণ না করার জন্য বা করার জন্য নির্দেশ প্রদান করিতে পারিবে;
10. Then Article 7 A (f) States:
The main functions of the Bank Shboth be:
a)………………………………………….
b)………………………………………….
c)………………………………………….
d)………………………………………….
e)………………………………………….
f)    to regulate and supervise banking companies and financial institutions, (underlining's are mine)
11.    On a combined reading of the above provisions, we want to reiterate that under Bank Companies Act, 1991 Bangladesh Bank holds a sublime position as a strong regulatory body and can interfere with the functioning and business of banking Companies in a given situation. Section 45(1) (Ga) (Cha) and 49(Kha) read with Article 7 A (f) of the Bangladesh Bank Order 1972 (PO 127 of 1972) in particular play a pivotal role in this regard.
12. In the case of Professor Muhammad Yunus vs Bangladesh, 63 DLR 260 it was held that under Sub-Section (l)(Ka) and Sub-Section (l)(Gha) of the Section 45 of the Act, Bangladesh Bank enjoys the authority to pass any direction on both or any of the Bank-Companies in the public interest or for ensuring proper management.
13. In this context we think it relevant to quote a line from the decision of the Mr ASF Rahman vs Bangladesh Bank, 20 BLD (AD) 32 = 52 DLR (AD) 61. In para 11 of the said decision our Appellate Division clearly observed- "Section 45(1)(Ga)(Gha) and Section 49(Kha) of the Bank Companies Act clearly invest Bangladesh Bank with a strong regulatory power over the functioning and business of banking companies."
14. In JIT Knit Composite Ltd. vs Government of Bangladesh, 18 BLC 480 where one of us was a party unequivocally endorsed the view of our Appellate Division and observed-
"Under Bank Companies Act, 1991 Bangladesh Bank holds a sublime position as a strong regulatory body and can interfere with the functioning and business of banking Companies in a given situation."
Fortified with all the decisions referred to above and our observations, all the Rules are disposed of Respondent No.1, Governor, Bangladesh Bank is hereby directed to give a decision with due importance on the matter within 4 (four) months on receipt of this order. The order of stay granted earlier by this Division shall continue till decision of the respondent.

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