ARAB BANGLADESH BANK LTD. Vs. ZIAUDDIN

JUDGEMENT

(1.) This appeal is directed against judgment and order dated 8-7-95 passed by the learned Subordinate Judge, 1st Court, Comilla in Title Suit No.4 of 1995 who by the said order restrained the appellant from making any payment to defendant No.1 exceeding 1/4th of her share now being kept in the bank with the name of her late husband and the trial Court also allow defendant No.1 who is respondent No.5 here withdraw 1/4th of the deposited amount from the appellant bank.

(2.) The short fact leading to this appeal is that, the plaintiffs who are respondents here instituted the aforesaid suit praying for a declaration that they are entitled to 3/4th amount of money now being kept with the appellant-bank in FDR showing in the name of defendant No.1 and her late husband Nur Uddin Ahmed and they are also entitled to 3/4th of the amount now lying with Mr Omar Krishna amounting to Tk 5,00,000.00. The fact leading to this appeal is that, late Nur Uddin Ahmed with his own money made a fixed deposit with the appellant bank with a stipulation that he or his wife defendant No.1 would operate the account and in case of death of one of the account-holders the survivor shall operate the same. The plaintiffs further case is that after the death of said Nur Uddin Ahmed these plaintiffs became co-sharers in the properties left behind by him and they as co-sharers inherited the properties left behind by late Nur Uddin Ahmed. After filing of the suit the plaintiffs filed an application under Order 39, rule 1 read with section 151 of the Code of Civil Procedure and prayed for restraining the appellant bank from making any payment to defendant No.1 from the account maintained with them by Late Nur Uddin Ahmed and his wife defendant No.1. Before the trial Court defendant No.1 entered appearance and contested the application for injunction and her case is that the money was deposited in the joint account with a clear instruction that any one or survivor may operate the account and after the death of Nur Uddin Ahmed she is now legally entitled to the money and to operate the account. The learned Subordinate Judge on hearing both the sides by the impugned order dated 8-7-95 restrained the bank as well as respondent No.5 as aforesaid.

(3.) Mr. Rafiq-Ul Huq, the learned Counsel appearing on behalf of the appellant at the very outset submits that this appellant is the banker of respondent No.5 and her late husband and as a banker they are debtors and the bank is bound to pay the money to the survivor. He submits that trial Court failed to appreciate the latest position in Banking Laws in this country and relying on a decision reported in 32 CWN 817 passed the order of injunction. It is submitted by Mr. Huq that the banks in such cases are now guided under section 103 of the Banking Companies Act, 1991 and the bank cannot withhold the payment when there is a direction of the account-holder at the time of opening of the account. He argued that in view of the clear provision of section 103 of the Banking Companies Act, 1991 the bank may not be injuncted in fulfilling their contractual obligation.