IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION (CIVIL APPELLATE JURISDICTION) CIVIL PETITION FOR LEAVE TO APPEAL NO. 2274 OF 2010. IN THE MATTER OF: An application for acceptance of additional grounds on behalf of the petitioners. AND IN THE MATTER OF A.S.F. Rahman and others.... PETITIONERS. (Respondent Nos.2-7 in Company Matter) -VERSUS One Bank Ltd. and others... RESPONDENTS.
=2= To Mr. Justice Surendra Kumar Sinha, the Hon ble Chief Justice of Bangladesh and his Hon ble companion Justices of the said Hon ble Court. The humble petition on behalf of the petitioner most respectfully S H E W E T H: 1. That this application for accepting additional paper book has been filed for addition of some new grounds on behalf of the petitioners which are necessary for proper adjudication of the instant leave petition. 2. That in addition with the earlier grounds as taken in this Civil Petition for Leave to Appeal, the following grounds may kindly be added for ends of justice-
=3= ADDITIONAL GROUNDS: I. For that the High Court Division committed illegality in holding that the Sale and Buy Back Agreement dated 10.08.2006 scheduled to be expired on 10.08.2007 not extended till 9.11.2007 stating that there is nothing on record to indicate that the guarantors had accepted the counter offer made by the petitioner while, in fact, the said Agreement was extended till 9.11.2007 as offered by the respondent No. 1 vide letter dated 9.08.2007 (page- 210, CPLA), and accordingly by signing the 2 nd Addendum dated 2.09.2007 for extension of the said Agreement dated 10.08.2006 (Annexure- Z-1, page- 299, CPLA) as stated therein and thereby sending the same to the respondent No. 1 and also by several communications between the petitioner and the respondents both verbal and in writing (including letter dated 29.07.2007 and 9.08.2007 (page- 208 & 210, CPLA)). The extension of the said Agreement was also admitted by the respondent No. 1 in its main petition stating that initially the validity of the Sale and Buy Back Agreement dated 10.8.2006 was up-to 9.08.2007 but the petitioner extended the same up-to 9.11.2007 in the request of the sellers on certain terms and conditions (para- 6, page- 69, CPLA)
=4= and in similar way in (para-11, page- 71, CPLA); and as such the impugned judgment and order is liable to be set aside for ends of justice. II. For that the High Court Division committed illegality in holding that the said Agreement was not extended and stood terminated with effect from 10.08.2007 ignoring the mandatory notice of termination as required under section 3.08 of the said Sale and Buy Back Agreement. The respondent No. 1 extended the said agreement till 9.11.2007, moreover, no notice of termination of the said agreement was served by it to the petitioner and as such the Agreement was valid up-to 9.11.2007, and in the meantime, the petitioners as Buy Back Guarantors exercised their right vide letter dated 8.11.2007 (page- 263, CPLA) along with sending a cheque amounting to Tk. 21,81,06,090.00 (twenty one crore eighty one lac six thousand ninety taka only) as offered by the respondent No. 1. Hence, the respondent No. 1, One Bank Limited is not entitled to register its name for the original and bonus shares in the Share Register of the IFIC Bank Ltd.
=5= III. For that the High Court Division committed an error of law holding that the respondent no.1 is entitled to register its name for the original shares including bonus shares in the Share Register of the respondent no.2, IFIC Bank Ltd; ignoring the law and facts that the respondent no.1 admittedly applied for registration of the said shares in it s name on 04.10.2007 (paragraph no.7 page 69, CPLA), which was long after the alleged expiry of the said agreement on 10.08.2007 unless extended till 9.11.2007 and also after expiry of Record Date on 25.09.2007 and within the period of Book Closer from 26.9.2007-25.10.2007 as declared by the IFIC Bank Ltd (Annexure- H-2, page- 243). The Provision of law is that, only the shareholders whose names appear in the share register of the IFIC Bank Ltd. as on 25.09.2007 would be able to attend AGM and cast their votes; so the share holders whose name appeared in the share register on the record date as on 25.09.2007 would be considered as legal shareholders and they would be entitled to get the bonus shares and the dividend. IV. For that High Court Division committed illegality in considering the aforesaid Sale and Buy Back Agreement as
=6= Sale Agreement, the agreement in question is not a sale agreement simplicitor. It is, in fact, as security document for loan and the shares under reference are collateral security against loan. The title of the shares never passed to the respondent No. 1. Moreover, it was no where intended by the petitioners and the respondent No. 1 in the said Agreement that title of the shares would ever pass to the respondent No. 1 in case of termination of the said Agreement, and it is also stated in section 3.08 of said Agreement. Unless there is a complete sale, the respondent No. 1 cannot claim any title under section 4 of the Sale and Goods Act, 1930 and under clause 2.06 of the said Agreement. V. For that the High Court Division most illegally declared the title of the original shares and bonus shares in favour of the respondent No. 1 without considering the provisions of law, the said Agreement as well as the materials on record, and as such, the impugned judgment and order is liable to be set aside for ends of justice.
=7= WHEREFORE, it is most humbly prayed that this Hon ble Court would graciously be pleased to allow this application and accept additional grounds on behalf of the petitioner for ends of justice and /or to pass such other or further order or orders as to this Hon ble Court may deem fit and proper. And for this act of kindness the petitioner as in duty bound shall ever pray. Drawn and filed by: (Mvi. Md. Wahidullah) Advocate-on-record For the Petitioner.
=8= IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION (CIVIL APPELLATE JURISDICTION) CIVIL PETITION FOR LEAVE TO APPEAL NO. 2274 OF 2010. A.S.F. Rahman and others.... PETITIONERS. (Respondent Nos.2-7 in Company Matter) -VERSUS One Bank Ltd. and others... RESPONDENTS. AFFIDAVIT OF FACTS I, Mvi. Md. Wahidullah, Advocate-on-Record for the Petitioner do hereby solemnly affirm and say as follows: 1. That the statements made in the annexed application for acceptance of additional grounds on behalf of the petitioner are true to my instruction received from the petitioner which I verily believe to be true. Sworn this the 30 th day of June, 2015. (Mvi. Md. Wahidullah) Advocate-on-Record. For the Petitioners.
=9= IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION (CIVIL APPELLATE JURISDICTION) CIVIL PETITION FOR LEAVE TO APPEAL NO. 2274 OF 2010. A.S.F. Rahman and others.... PETITIONERS. (Respondent Nos.2-7 in Company Matter) -VERSUS One Bank Ltd. and others... RESPONDENTS. For the Petitioner : Mr. Shah Monjurul Hoque, Advocate instructed by Mr. Mvi. Md. Wahidullah, Advocate-on-Record. For the Respondents : INDEX OF PAPERS Sl. No. Description of Papers Date Page 1. Application for acceptance of 30.06.2015 additional grounds. 1-7 2. Affidavit of Facts 30.06.2015-8- (Mvi. Md. Wahidullah) Advocate-on-record For the Petitioners.