Bank Companies Act, 1991
Sections 5gaga, 27kaka (2) & (4)
Bangladesh Bank Order, 1972
Article 42-48 (Chapter IV)
Publication of writ petitioners names in the CIB Report of Bangladesh Bank–– The borrower who takes over the management unencumbered can in no way be responsible of the previous liabilities which must be vested upon the previous management. In the instant case, the respondent no. 1, company did not avail any loan after the new management took over the charge of it so, as per the agreement and that of the order of the High Court Division staying the winding-up proceeding, they cannot be treated as defaulting-borrowers.
Appellate Division, therefore, hold that in no way the respondent Nos. 1 and 2 can be treated as defaulting-borrower and the High Court Division has rightly declared their enlistment in the CIB report illegal directing to remove their names from the CIB report. The judgment and order passed by the High Court Division is elaborate, speaking and well composed. This Division is not inclined to interfere with the same. .....Bangladesh Bank =VS= Homeland Footwear Limited, (Civil), 2023(2) [15 LM (AD) 608] ....View Full Judgment

The process of enlistment of any defaulter name in the CIB list is a continuing process within the meaning of section 5 GaGa read with section 27 KaKa of Banking Companies Act 1991 and also read with Article 42 of Bangladesh Bank Order 1972. If all these provisions are read together one and only inference that could be made is that if any person or a company is indebted to in any manner with any financial institution and the debt remains unpaid, it is the duty of the respondent Bangladesh Bank in its turn to enlist the name of the incumbent in the CIB list nothing more nothing less. ...Shafi A Choudhury Vs. Bangladesh & ors, (Civil), 2 SCOB [2015] HCD 27 ....View Full Judgment

The moment a bank or any other financial institutions reschedules a loan or grants any kind of loan, credit facilities or any other sort of financial assistance infavour of any person, it is virtually an admission on its part that the person to whom such financial assistance is being granted is not a loan defaulter under the definition provided in Section 5 GaGa of Bank Companies Act,1991. ...Shoel Textile Mills Ltd & ors Vs Bangladesh & ors, (Civil), 5 SCOB [2015] HCD 74 ....View Full Judgment

Since SABTNCO and Dutch Bangla Bank Ltd have already cancelled the bank guarantee executed by the writ petitioners-respondents-applicants and in view of the decision of Sonali Bank vide letter dated 22nd March, 2006 to withdraw Civil Petitions for Leave to Appeal Nos. 479-480 of 2005 the application for dismissing the Civil Petition for Leave to Appeal Nos. 479-480 of 2005 is allowed.
Sonali Bank vs Md Mostafa Kamal 13 BLC (AD) 118.

Whether Directorship of a Bank-Director can be taken away for the default of a third party for whom the Director has stood a guarantor, without first going for recovery of loan through Artharin Adalat.
The scheme of the two statutes, namely, the Banking Companies Act and the Artharin Ain, are distinct and, further, the provisions of Section 17 of the Banking Companies Act and the provisions of Section 5 of the Artharin Ain provide completely different course of actions for the ‘defaulter loanee’ and ‘defaulter guarantor’. Md. Shahbuddin Alam -Vs.- Bangladesh Bank and others (St. Original) 2019 ALR (HCD) Online 199 ....View Full Judgment

While the provisions of Section 17 of the Banking Companies Act aims at vacating the directorship of a person of a scheduled Bank, Section 5 of the Artharin strategies about recovery of outstanding loan from the borrower, mortgagor and guarantor. Md. Shahbuddin Alam -Vs.- Bangladesh Bank and others (St. Original) 2019 ALR (HCD) Online 199 ....View Full Judgment

Section—10g/ill with Article—56 of P.O. 127 of 1972, Clause-4 of the Non-Banking Financial Order, 1989
The company advanced a huge to the accused petitioner with 19 other directors of the Bangladesh Commerce and Investment Ltd. (BCI Ltd.) and their relations in violation of the laws. Warrant of arrest being issued, the petitioner was arrested on 1.8.92. He was granted an ad interim bail on 22.2.93 on condition of his depositing the entire loan money & filing certificate from the Bangladesh Bank. On the expiry of extended period on 29.6.93. the accused petitioner, having not surrendered in the Court of M. M. is a fugitive from law and justice and he is not entitled to bail. Surrender in the Court of C. M. during the pendency of the bail. This will not prejudge what view the other courts will take in respect of future bail application filed by him. [Paras-4 & 5]
Md. SaiduL Islam Chowdhury Vs. The State & others 3 BLT (AD)-144

The High Court division will only decide the legality of the notice under section 17 of the Act on perusal of the notice only and on no other supporting or opposing materials. Md. Safiul Alam alias Masudul Alam Chowdhury Vs Bangladesh Bank and others, 19 BLD (AD) 249.

On a close reading of section 17 of the Act, as amended up-to-date it appears that since the said section is concerned with the subject matter of vacancy of the office of directors which is an additional occasion for vacancy other than those contained in the Companies Act, 1994 and since the entire scheme of the said Act is to bestow upon the Bangladesh Bank a strong regulatory power over the functioning and business of bank companies, it is enough if the offending director is intimated in a notice under section 17 of the Act that he has a personal liability to repay a loan of the kind described in section 17 and that on the date of notice the loan remains unliquidated upon expiry of the stipulated.. date of repayment of either the whole loan or an installment thereof. It is not necessary to describe in the notice the nature and number of document or documents on the basis of which the offending director is claimed by the lender Bank to be personally responsible for repayment of a loan or an installment. But if the offending debtor denies his personal liability to repay the loan in his written representation the Bangladesh Bank may send for the incriminating materials and confront the offending director with the same. It is before respondent No. 1 that the offending director will place all his grievances against the show cause notice and it is respondent No. I who will determine the relevance, genuineness, connection between the lender Bank’s documents and the loans in question and the liability or otherwise of the offending director. Md. Saiful Alam alias Masudul Alam Chowdhury Vs Bangladesh Bank and others, 19 BLD (AD) 249.

In issuing the notices under section 17 of the Act the lender Bank acted neither as a substantive authority nor as a Court nor as a tribunal. It acted purely in an executive capacity under an authority granted by a statute if the show cause notice is issued by an unauthorised or if the allegations in the show cause notice on the face of it do not attract the mischief of section 17, a notice under section 17 can certainly be challenged in the writ jurisdiction and declared to have been issued without lawful authority and to be of no legal effect. Mr. A.S.F. Rahman and others Vs Bangladesh Bank and others, 20 BLD (AD) 32.

The High Court Division simply does not have the jurisdiction to decide the validity of a notice under section 17 of the Act upon adjudication of documents both sides. The offending director may have a very good case to show that he has no personal liability to the lender Bank at all. But it is not for the High Court Division to determine or even hint at the offending director’s personal liability or otherwise, except on admission, when the only us before it is whether the notice under section 17 of the Act is legal or not. Abdullah Ahsan Vs Bangladesh Bank and others, 20 BLD (AD) 260.

The directorship of any scheduled Bank shall be vacant on the following events; (i) if a Director of a Scheduled Bank does not pay the loan, or interest thereof, taken by him from any Bank/Financial Institutions, (ii) when a Director of any scheduled Bank places him/herself as a guarantor to any loan taken by a third person and the said Director of the scheduled Bank fails to repay the loan money after receiving notice from the Bangladesh Bank, and (iii) if a Director of any scheduled Bank fails to carry out/complete the duty and responsibility undertaken by him. In other words, when a Director of any scheduled Bank either takes loan for himself or stands as a guarantor of another loanee, and if the loan remains unpaid despite issuance of notice by the Bangladesh Bank under Section 17 of the Banking Companies Act, his/her directorship may be vacated without exhausting the formalities set out in sub-Sections (2) & (3) of Section 17 of the Banking Companies Act. …Md. Shahbuddin Alam Vs. Bangladesh Bank & ors, (Civil), 16 SCOB [2022] HCD 151 ....View Full Judgment

It is to be noticed from the language employed in sub-Sections 1, 2 & 3 of Section 17 of the Banking Companies Act that vacancy of directorship occurs the moment any of the events enumerated in clauses (a) to (c) of sub-Section 1 of Section 17 of the Banking Companies Act takes place, for, neither any of the sub-Sections of Section 17 of the Banking Companies Act nor any other provisions of the Banking Companies Act seek to halt the proceedings under Section 17 of the Banking Companies Act on the plea of filing a representation to the lender Bank or to the Bangladesh Bank or to any other authority. …Md. Shahbuddin Alam Vs. Bangladesh Bank & ors, (Civil), 16 SCOB [2022] HCD 151 ....View Full Judgment

The submissions advanced by the learned Advocate for the petitioner that the petitioner being not the loanee, that is to say that the petitioner being merely a guarantor of the loanee, his directorship in a scheduled Bank should not be taken away by invoking the provisions of Section 17 of the Banking Companies Act, is completely misconceived. The laws herald very stoutly that a Director of any scheduled Bank whenever would be found to be either as the ‘defaulter loanee’ or as the ‘defaulter guarantor’, proceedings against the aforesaid Director under Section 17 of the Banking Companies Act would be initiated. …Md. Shahbuddin Alam Vs. Bangladesh Bank & ors, (Civil), 16 SCOB [2022] HCD 151 ....View Full Judgment

Banking Companies Act
Section 17 and
Section 5 of the Artharin Adalat Ain:
The provisions of Section 17 of the Banking Companies Act and the provisions of Section 5 of the Artharin Ain provide completely different course of actions for the ‘defaulter loanee’ and ‘defaulter guarantor’. In other words, while the provisions of Section 17 of the Banking Companies Act aims at vacating the directorship of a person of a scheduled Bank, Section 5 of the Artharin strategies about recovery of outstanding loan from the borrower, mortgagor and guarantor. Thus, the submissions of the learned Advocate for the petitioner that without going for recovery of loan by invoking the provisions of the Artharin Ain from the Borrower-company at first, commencement of any proceedings under Section 17 of the Banking Companies Act is not legal, appears to me to be completely without any substance. …Md. Shahbuddin Alam Vs. Bangladesh Bank & ors, (Civil), 16 SCOB [2022] HCD 151 ....View Full Judgment

We are of the opinion that since the said section if concerned with the subject matter of vacancy of the office of directors which is an additional occasion for vacancy other than those contained in the Companies Act. 1994 and since the entire scheme of the said Act is to bestow upon the Bangladesh Bank a strong regulatory power over the functioning and business of bank companies, it is enough if the offending director is intimated in a notice under section 17 of the said Act that he has a personal liability to repay a loan of the kind described in section 17 and that on the date of notice the loan remains liquidated upon expiry of the stipulated date of repayment of either the whole loan or an installment thereof. It is not necessary to describe in the notice the nature and number of document on the basis of which the offending director is claimed by the lender Bank to be personally responsible for repayment of a loan or an installment. But if offending director denies his personal liability to repay the loan in his written representation the Bangladesh Bank may send for the incriminating materials and confront the offending director with the same.
Masudul Alam Chowdhury Vs. Bangladeshn Bank & Ors. 8 BLT (AD) 13

Held: In the case of Md. Saiful Alam alias Masudul Alam Chowdhury vs. Bangladesh Bank and others, C.P. 529 of 1999 we have held that it is the Bangladesh Bank which is authorized under the Act to determine the relevance, genuineness; connection between the lender Bank’s documents and the loans in question and the liability or ‘non liability of the offending director and that the High Court Division is not, the forum for adjudication upon the documents of the offending director and the lender Bank.
Aminul Haque Chowdhury Vs. Bangladesh Bank & Anr. 10 BLT (AD)-36

When a Director of any scheduled Bank either takes loan for himself or stands as a guarantor of another loanee, and if the loan remains unpaid despite issuance of notice by the Bangladesh Bank under Section 17 of the Banking Companies Act, his/her directorship may be vacated without exhausting the formalities set out in sub-Sections (2) & (3) of Section 17 of the Banking Companies Act. Md. Shahbuddin Alam -Vs.- Bangladesh Bank and others (St. Original) 2019 ALR (HCD) Online 199 ....View Full Judgment

Whether a Bank-Director’s office would be vacated due to failure of re-payment of loan taken by a third-party for whom the Director has stood as guarantor.
A Director of any scheduled Bank when-ever would be found to be either as the ‘defaulter loanee’ or as the ‘defaulter guarantor’, proceedings against the aforesaid Di-rector under Section 17 of the Banking Companies Act would be initiated. Md. Shahbuddin Alam -Vs.- Bangladesh Bank and others (St. Original) 2019 ALR (HCD) Online 199 ....View Full Judgment

Granting of loan to a person whose name has been included as a loan defaulter in the CIB list, by granting him such loan or by rescheduling the loan or extending any other credit facilities, it is practically redeeming a person from the classification of loan defaulter within the definition provided in Section 5GaGa of Bank Companies Act, 1991. ...Shoel Textile Mills Ltd & ors Vs Bangladesh & ors, (Civil), 5 SCOB [2015] HCD 74 ....View Full Judgment

The respondent transferred all his shares in favour of Reza Quadir on 25-7-1996 as is evident by exhibit-D and the statutory return to that effect was duly filed with the office of the Registrar of Joint Stock Companies on 18-12-1996. The amended section 27Ka of Banking Companies Act came into force when the respondent was neither a share-holder of the company nor a Member of the Board of Directors of the borrower company. His shares have already been validly transferred prior to that date and as such he does not come within the definition of defaulter-borrower by virtue of the personal guarantee. In the light of the findings, we do not find substance in this appeal. Accordingly. this appeal is dismissed. ...Sonali Bank =VS= Major Monjur Quader (Rtd.), (Civil), 2019 (1) [6 LM (AD) 8] ....View Full Judgment

Credit Information Bureau (CIB) matter– Realizing and exempting the interest of loan money is a policy decision of the Board of Directors of the concerned bank which is not amenable in the writ of mandamus– Already found that the writ petitioner is a defaulter borrower. The respondent Bank filed 3(three) Artha Rin suits against him which are pending. In such a circumstances, the writ respondent No.5-Bank sent the name of the borrower respondent No. 1 to the leave petitioner No.2 to circulate the same in the CIB database which is the legal requirement of routine work of the writ respondent Bank. In publishing / circulating the name of the writ petitioner, the writ respondents did not violate any law. The writ petitioner-respondent herein was not able to make out any specific legal infringement of his right, rather, made out points disclosing disputed question of facts. Appellate Division is, therefore, of the view that in the given facts and circumstances of the case, there is no cogent reason to file the writ of mandamus as an aggrieved person. Nevertheless the High Court Division without considering the legal aspects of the case in its true perspective issued the Rule directing the writ respondent No.5-Bank to realize the principal loan money by 60(sixty) installments exempting interest which cannot be done in a writ of mandamus.
Settled principle expounded for a long line of catena, the High Court Division committed serious illegality and miscarriage of justice in directing the private bank exempting the interest of Bank loan money. As the writ respondents have not violated any law or any right of the writ petitioner, therefore, the impugned judgment passed by the High Court Division cannot be sustained in law. ...Ministry of Finance, Bangladesh =VS= M.N.H. Bulu, (Civil), 2021(2) [11 LM (AD) 70] ....View Full Judgment

The Cabinet Committtee further decided in the same meeting that there shall be no further extension of time limit to complete formalities by the writ petitioner. The Bangladesh Bank accordingly, informed that the proposed Sundarban Bank International Ltd. did not reach the stage at any time for applying for licence to com­mence banking business. This letter was either addressed to the writ petitioner nor a copy of the same was endorsed to him and it is also not an order rather it was a reply made in compliance with the query made by the Ministry of Finance by Annexure-O to the writ petition. Moreover, the impugned Annexure-Q being a reply by the Bangladesh Bank in reply to query made by the Ministry of Finance and uncommunicated to the writ petitioner in the process of reaching decision in the matter, it did not create any legal right in favour of the writ petitioner.
Bangladesh Bank vs M Habibullah Bahar 12 BLC (AD) 87.

Experience shows that the calculation of interest is a very challenging job and at times, we find that the Bank officials are not so vigilant and not so diligent in calculating interest; therefore, Bangladesh Bank should exercise its power as embodied under section 45 and 49 of the Bank Company Ain, 1991 to inspect the case as to the calculation of interest by FIs at least on random basis. Bangladesh Bank should examine as to whether the interest calculated is in accordance with law or not. Mere denial or no objection as to calculation of interest by the borrower does not ipso facto give validity of the statement as to interest. ...Md. Shahin Ikbal Vs. General Certificate Officer & ors, (Civil), 17 SCOB [2023] HCD 168 ....View Full Judgment

The provisions of the Bank Companies Act 1991 which gave it the regulatory power. Under section 45 of the Bank Companies Act 1991 the Bangladesh Bank is empowered to give any direction upon any bank or financial institutions for public interest for the development of banking practice and for proper management of a bank. ...Sonali Bank Limited=VS=Roseburg Industries Limited, (Civil), 2020 [9 LM (AD) 173] ....View Full Judgment

In view of the existence of the report and recommendation it cannot be said that there was no material before the respondent No.1 to form the opinion concerning the appellant or that the said opinion was merely fanciful. So the requirement of formation of an opinion by the Bangladesh Bank has been made before directing a Director, Chairman or Chief Executive of a banking company to refrain from performing functions of his office during the pendency of the enquiry proceedings against him for his removal from office under section 46 of the Act. Such opinion must be formed on the basis of relevant materials on record and not fancifully without any such material nor on the basis of irrelevant materials. Abdur Rahim Chowdhury Vs Bangladesh Bank and others, 20 BLD (AD) 170.

Whether there was sufficient good reason to form an opinion cannot be looked into by the Court as that would be substituting the opinion of the Bangladesh Bank. The Court cannot accept the contention that the Bangladesh Bank could not have arrived at an opinion or satisfaction to suspend the petitioner on a single transaction. Abdur Rahim Chowdhury Vs Bangladesh Bank and others, 20 BLD (AD) 170.

It requires that the person against whom a penal order is to be made shall be given a reasonable opportunity for offering his explanation against the proposed order. The fairness or fair play in action also demands it.
Kamal Uddin Ahmed-Vs.-The Governor, Bangladesh Bank & ors. 2 ALR (2013)(AD) 223

The facts and circumstances prima facie indicate that the proceeding that has been initiated is only to circumvent the order passed by this Division in civil Miscellaneous Petition No. 534 of 1999 of which Bangladesh Bank was fully aware. When Bangladesh Bank petitioner is fully aware of this Division’s order or had knowledge of the order they are bound to honour the same. Reliance is placed on the principle of law enunciated by the House of Lords in the case of Attorney General Vs. Times Newspapers Ltd. and another reporter in (1991)2 All England law Reports Page- 398 wherein it has been held that a person who is aware of an order of the Court is bound to obey the same even though he was not a party to that when it affects the result of the earlier order. Here in the present case earlier order of this Division was to maintain status quo in respect of composition of the Board of Directors of the Bank and a copy of that order was sent to Bangladesh Bank by UCBL and in such a situation the Bangladesh Bank is bound to honour the order passed by this Division.
Bangladesh Bank & Ors. Vs. Zafor Ahmed Chowdhury&Anr. 9 BLT (AD) 230

In the instant case, the appellants were removed under section 48 of the Act from Directorship of the Bank for suppression of material facts which affected the interest of the share-holders of the Bank. The principle of natural justice was duly complied with by reason of the fact that in the show cause notices the allegations against them were duly brought to their notice enabling them to furnish their explanation thereto. Therefore the grievances of the appellants for violation of natural justice and fairplay of action have no substances.
Kamal Uddin Ahmed-Vs.-The Governor, Bangladesh Bank & ors. 2 ALR (2013)(AD) 223

A relief to which one is not entitled to directly cannot be given to that person indirectly. The winding up of a bank can only be done as provided under sections 64 and 65 of the Bank Company Act 1991 and cannot be wound up at the instance of the writ petitioner in an indirect manner. (Per Mahmudul Amin Choudhury, CJ) BRAC v. Professor Mozaffar Ahmed and others, 22 BLD (AD) 41.

A relief to which one is not entitled to directly cannot be given to that person indirectly. The winding up of a bank can only be done as provided under sections 64 and 65 of the Bank Company Act 1991 and cannot be wound up at the instance of the writ petitioner in an indirect manner. (Per Mahmudul Amin Choudhury, CJ)
BRAC vs. Professor Mozaffar Ahmed and others, 22 BLD (AD) 41

Election of director— Nomination of Candidate as contemplated in Article 114 of the Articles of Association of IFICB—
A seven days prior notice before the Annual General Meeting as to the candidature of a share-holder for election as director either in his own handwriting or of his agent with his endorsement shall have to be left is the office of the Company otherwise there will be no valid nomination consequently leading to the cancellation of the election of such a candidate as director.
A.S.F. Rahman & another Vs. A.M. Agha Yousuf & others- 5 MLR (2000) (AD) 264.

No injunction can be granted against operation of bank account and withdrawal of the money in deposit as per terms of contract. The account being opened with a specific condition setting the act of operation of payment, the Bank is bound to comply with the condition on which it has accepted the deposit.
Ziauddin Ahmed and others vs Arab Bangladesh Bank and others 53 DLR (AD) 107.

Section—109/111 with Article—56 of P.O. 127 of 1972,
Clause-4 of the Non-Banking Financial Order, 1989
The company advanced a huge to the accused petitioner with 19 other directors of the Bangladesh Commerce and Investment Ltd. (BCI Ltd.) and their relations in violation of the laws. Warrant of arrest being issued, the petitioner was arrested on 1.8.92. He was granted an ad interim bail on 22.2.93 on condition of his depositing the entire loan money & filing certificate from the Bangladesh Bank. On the expiry of extended period on 29.6.93, the accused petitioner, having not surrendered in the Court of M. M. is a fugitive from law and justice and he is not entitled to bail. Surrender in the Court of C. M. during the pendency of the bail. This will not prejudge what view the other courts will take in respect of future bail application filed by him.
Md. Saidul Islam Chowdhury Vs. The State & Anr. 3 BLT (AD) 144.

Section 110 of Ranking Companies Act, 1991 also provides that a Manager, Officer and other functionaries of the Banking Company are deemed to be public servants under section 21 of the Penal Code and hence the appellant and the respondent are public servants and the case has been rightly instituted in the Court of Special Judge against the respondent.
International Finance Investment and Commerce Bank Ltd vs Abdul Quayam and another 4 BLC (AD) 255.

When a winding up order has been made or a provisional liquidator has been appointed, no suit or other legal proceedings can proceed or commence except by leave of the Court. The policy underlying this provision is to protect the assets for equitable distribution among those entitled, and to prevent the administration being embarrassed by a general scramble of creditors. When a winding up order of a company has been made, the combined effect of sections 250,322 and 328 of the Act is that such order operates automatically as a stay of all actions, executions, distresses etc. against the company subject to the discretion of the Court to allow actions to proceed notwithstanding the winding up.
Kamal Uddin Ahmed-Vs.-The Governor, Bangladesh Bank & ors. 2 ALR (2013)(AD) 223