SONALI BANK Vs. MD. SIRAJUL HOQUE CHOWDHURY

JUDGEMENT

(1.) The appeal by leave is against the judgment and Order dated March 30, 1997 of a Division Bench of the High Court Division passed in Civil Order No. 1383 of 1997 rejecting the revisional application summarily. The revisional application was filed against the order dated 19. 2. 1997 of the Court of Subordinate Judge and Artha Rin Adalat, Jessore allowing an application filed under order 1 Rule 10 (2) of the Code of Civil Procedure and thereupon striking out the name of defendant Nos. 3 and 4 (herein respondent Nos.1 and 2).

(2.) Facts, in short, are that appellant Bank has filed suit, Money Suit No. 7 of 1996, in the Court of Subordinate Judge and Artha Rin Adalat, Jessore for realization of Tk. 39,32,725,92/- (as on 24.6.1996) impleading as many as 7 defendants including the present Respondent Nos. 1 and 2 stating, inter alia, that on the prayer of the defendant Nos. 1 and 2 the Bank by its sanction letter dated 16.7.1995 allowed loan of Tk. 5,00,000/- by way of Cash credit (hypothecation) and Tk. 30,00,000/- by way of Cash Credit (pledge) and the loanees executed charge documents in favour of the Bank, that proprietors (defendant Nos. 3 and 4) of M/S Chowdhury Trading, a dealer of the defendant No. 7 (Zia Fertilizer Company Limited) got allotment of 1,000 metric tons of Urea fertilizer from the said defendant but due to paucity of fund they were not in a position to withdraw the said fertilizer and in that situation they entered into an agreement with the defendant Nos.1 and 2 for sale of the said fertilizer and made an advance sale of fertilizer upon concluding written agreement for sale, that the defendant Nos.1 and 2 on the basis of said agreement for sale obtained a demand draft in favour of defendant No. 7 for the price of the fertilizer from the bank as against the loan sanctioned in the name of said defendants, that while the defendant Nos.1 and 2 obtained demand draft from the Bank, the defendant Nos. 3 and 4 executed a receipt acknowledging receipt of said demand draft as well as promised to deliver the letter of allotment to the Bank and also undertook to give necessary letter of authority in favour of the designated person of the Bank so that the said agent of the Bank can lift the fertilizer from the defendant No. 7 (Zia Fertilizer Company Ltd.) that in due course the demand draft obtained from the Bank was deposited in the office of the fertilizer factory. It may be mentioned that the defendant Nos. 3 and 4 made over to the Bank letter of allotment issued by the fertilizer factory, the receipt granted by defendant No.7 acknowledging receiving of the Bank draft and the letter of authorization executed in favour of Bank's nominee authorizing lifting of fertilizer allotted to defendant Nos. 3 and 4.

(3.) It is the case of the Bank that allotted consignment of fertilizer was not delivered to the authorized officer of the bank by the fertilizer factory and that the Bank could not realize the amount of the Bank draft.