JAFRI SOAP AND CHEMICAL INDUSTRIES Vs. AGRANI BANK

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 16.06.2011 passed by learned Joint District Judge, 1st Court, Narayanganj dismissing the Title Suit No. 90 of 2005.

(2.) Short fact, necessary for disposal of the Rule, is that the plaintiff No. 2 as the proprietor of the plaintiff-appellant Messrs Jafri Soap and Chemical Industries, took a loan facility of Tk. 80,000/- by opening a C.C pledge account No. 150 and deposited two purchase deeds being Nos. 801 and 8743 respectively as Security for obtaining loan from defendant Agrani Bank Head Office Dhaka. But no Mortgage deed was executed between the plaintiffs and the defendant Bank in the year of 1977. While plaintiff No. 2 was carrying on the said business in the name and style of the plaintiff No. 1 by taking loan and paying up the same from time to time in course of banking transaction with defendant Bank till 1980 all on a sudden in the year of 1980 the defendant Bank stopped to grant loan facility of Tk. 1,31,310/- causing damage of Tk. 1,31,310/- to the plaintiff No. 1 without assigning any reason whatsoever. Plaintiff No. 2 on several occasion requested the defendant Bank to release the purchase deeds shown in schedule-B of the plaint in favour of the plaintiff No. 1 as the loan facility had already been stopped by the defendant Bank but in vain. Rather, the defendant Bank as plaintiff instituted a suit, being Artho Rin Mortgage Suit No. 38 of 1991 for realization of Tk. 57,83,725/51 in the court of Artha Rin and the then Sub-ordinate Judge, now Joint District Judge, Narayongonj, against one Messrs Jafri Jute Balling and others as defendants which was decreed ex-parte in preliminary form on 27.01.1992.

(3.) Thereafter in the year of 1993 the defendant Bank as decree-holder filed a case, being Mortgage Execution Case No. 25 of 1993 for realization of decreetal amount of Tk. 57,83,725/51 by auction sale of the land shown in schedule-A of the plaint along with other lands in the Court of Artha Rin Adalat, Narayongonj, against the aforesaid Messrs Jafri Jute Balling and others as judgment-debtors on 07.03.1993. At one stage the auction sale of the suit property mentioned in schedule-A of the plaint was held at a consideration money of Tk. 35,28,000/00 which is too much lower than its actual value of Tk. 95,00,000/- in favour of one M A Awal (defendant no. 3 of the original suit) on 19/11/2007. The plaintiff No. 1 was neither made party to Artha Rin Mortgage Suit No. 38 of 1991 nor the schedule-A land to the plaint was mortgaged nor the sale deeds were given as security of mortgage by the plaintiffs to the defendant Bank. So, the decree dated 27.01.1992 of Artha Rin Mortgage Suit No. 38 of 1991 is not binding upon the plaintiffs as the land mentioned in schedule A as well as the sale deeds shown in schedule B of the plaint are not the actual subject Matter of Artha Rin Suit No. 38 of 1991 and Mortgage Execution Case No. 25 of 1993 pending in the Court of Artha Rin Adalat, Narayangonj. The defendant Bank has taken all measures to execute the auction sale of the land noted in schedule-A of the plaint although it is not so mortgaged in respect of loan sanctioned in favour of Messrs Jafri Jute Balling. So, the plaintiffs have been compelled to file the original suit praying for a declaration that the decree of Artha Rin Suit No. 38 of 91 is not binding upon them along with a separate declaration that auction sale of the suit land at the consideration money of taka 35,28000/-instead of taka 95,00000/- in favour of defendant no.3 held on 19.11.2007 in strength of which sale deed was executed in the name of defendant nos. 3 is illegal, collusive, void and without jurisdiction.