IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Badruzzaman.

And

Mr. Justice Sashanka Shekhar Sarkar

First Appeal No. 284 of 2006

Janata Bank, Khulna Corporate Branch, Khulna.

....Plaintiffs-Appellants

-Versus-

Arab Bangladesh Bank Ltd. and another .........Defendants-Respondents

Mr. Md. Khalilur Rahman Bhuiyan, Adv.

… For the Appellants

No one appears

… For the respondents

Heard on: 06.03.2024, 07.03.2024, 09.05.2024 and Judgment on: 13.05.2024.

Sashanka Shekhar Sarkar, J:

This Appeal is directed against the judgment and decree 18.07.2006 (decree signed on 25.07.2006) passed by the learned Judge, Artho Rin Adalot, Khulna in Aurthor Rin Suit No. 25 of 2005 decreeing the suit.

The facts, relevant for disposal of this appeal, in brief, are that the appellants as plaintiffs filed Aurtho Rin Suit No. 25 of 2005 for the following reliefs;

1. A decree for an amount of Tk. 87,00,830/= be passed.
2. Pendentilite interest as per law till full and final realization of the decreetal dues be passed.

The plaintiff filed money suit impleading the defendant No. 1 alleging that for the purpose of business transaction the defendant No.1, opened an account on 01.04.2004. Defendant No. 2 is a subscriber of the plaintiff-bank and defendant No. 3 is the wife of defendant No. 2. The defendant No. 1 applied for loan to the plaintiff for his business purpose against the security of a FDR of Tk. 45,000,00/= ( Forty Five lacs) issued by the defendant No. 5, Arab Bangladesh Bank, Dhanmondi Branch on 24.11.2004. Upon the said application, the defendant No. 5 made lien mark and informed the matter through a letter dated 10.05.2004 that the defendant No. 4 and 5 are bound to make the payment of the FDR amount to the plaintiff and accordingly the plaintiff-bank sanctioned loan of Tk. 81,00,000/= in favour of the defendant No. 1. The defendant No. 1 submitted all the necessary and relevant documents in regard to sanction of loan to the bank on 01.05.2004. The defendant No. 3 endorsed the loan as a guarantor and the same was submitted to the plaintiff-bank. The plaintiff sanctioned loan against FDR issued in favour of the defendant No. 2 having lien mark from the defendant No. 5 because, the plaintiff was so confirmed that if the defendant No. 5 does not make payment of the loan, the FDR submitted as security, will be enchased by virtue of the lien mark. The plaintiff on 01.08.2004 came to know from a report published in the daily news paper “Prothom Alo” that, no FDR as well as lien mark was issued in favour of the defendant No. 2. Accordingly the plaintiff lodged FIR with Khulna Police Station on 02.08.2004 implicating the defendant Nos. 1, 2, 3 and 5 to the effect that they in collusion with each other misappropriated Tk. 82,52, 488/= . Subsequently on inquiry about the said FDR came to know that the defendant No. 1 is a habitual perpetrator and used to take