Banesa Bibi Vs. The Senior Vice-President and others, 2009

 

 

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim

Md. Joynul Abedin

Shah Abu Nayeem Mominur Rahman

 Banesa Bibi…………………………..Petitioner

Vs.

The Senior Vice-President and others……………Respondents

Judgment

April 19, 2009.

Lawyers Involved:

Rokanuddin Mahmud, Senior Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-Record-For the Petitioner.

Harun-Or-Rashid, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For Respondent Nos. 8.

Not Represented-Respondent Nos.1-7 & 9-11.

Civil Petition for Leave to Appeal No.1774 of 2008.

Judgment

Shah Abu Nayeem Mominur Rahman J. – This leave petition is directed against the judgment and order dated 14.05.2008 passed in Writ Petition No. 4196 of 2007 by the High Court Division discharging the Rule.

2. The petitioner hereof filed the writ petition challenging the auction sale of the property consistence of 495 ajutangsha in C.S. Plot No.1418, in C.S. Khatian No.62, J.L.No.271, Mouza-Joarshahara, Police Station-Badda under sub-registry office Gulshan, District- Dhaka, with a 5(five) storied building standing thereon, vide sale deed No.18040 dated 12.12.2004 executed by the mortgage Al-Arafah Islami Bank Limited, as appointed attorney of Mrs. Banesa Bibi, the owner-mortgagor of the property in favour of Jabiullah Siddique, the auction purchaser. The aforesaid Banesa Bibi enjoyed a loan facility from Al Arafah Islami Bank Ltd. securing the said loan mortgaging the property described hereinabove being owner thereof as far back in December, 2002 but she failed to make repayment of installments in terms of the loan and as per section 12 of the Artha Rin Adalat Ain, 2003. The bank put the said property in auction inviting bid through publication of notice in the Daily National newspapers in September, 2004 and the property has been auction sold against Tk. 17,10,000/- and in due course the required sale deed was executed and registered on 12.12.2002 in favour of the auction purchaser by the bank, as attorney of owner-mortgagor Banesa Bibi. The auction notice was published in the Daily Inquilab on 01.09.2004 and 29.09.2004 and in Daily Jugantor on 29.09.2004 and that the auction purchaser subsequently sold out the auction purchased property to Messrs Md. Shahidul Islam, Abul Khaier, Abdus salam Mattabor, Md. Omar Faruk Khan and Md. Bazlur Rahman Vide deed No. 6912 dated 29.03.2007 registered with Gulshan Sub-Registration Office. The petitioner being a lady had no knowledge about auction process i.e. the alleged demands made by the bank for adjustment of the outstanding loan amount, the publication of notice under Section 12 of the Artha Rin Adalat Ain. 2003 for sale of the property in the Daily Inquilab on 01.09.2004 and 29.09.2004 and in Daly Jugantor on 29.09.2004 and the sale of the property in auction in favour of the highest auction bidder Jabiullah Siddique and about the subsequent sale by said Jabiullah Siddique inasmuch as the petitioner is in possession of the said property. The petitioner filed the writ petition alleging violation of principle of natural justice and alleging that the auction sale by the bank is in fact an arbitrary, mala fide and discriminatory action and is illegal, without lawful authority and of no legal effect and that the property has been sold at a shockingly low value alleging the value of the property was around Tk. 50000/- in the year 2004 and that the bank has filed the suit in violation of the terms of the loan inasmuch as the loan refund period was extended for 10 years payable in monthly installments effective from July 2003.

3. The High Court Division after hearing the parties discharged the Rule issued, considering the provisions of section 12(8) of the Artha Rin Adalat Ain, 2003 which provides as under:

“?????? ???? ???? ??? ???? ???????? ???? ????? ??????? ??? ?? ????? ???? ?????? ?????????? ?????? ???? ?? ???? ??????? ?????? ??? ??? ?????? ?????? ?? ??????? ???????? ?????? ??? ????, ???? ?????? ??????? ?????? ??? ?????? ?????? ????? ??? ??????? ???? ?? ??? ????? ?????? ??? ??????? :

??? ???? ???? ??, ?????? ?????????? ?????? ?????? ?????????? ??? ??? ?????? ?? ???????? ???? ??????, ?????? ?????? ???? ?? ??????? ?????? ???????????? ???????? ????????? ???? ????? ???????”?

Which debars challenging of any auction sale made under Section 12 of the Artha Rin Adalat Ain, 2003. The High Court Division also observed that the writ petitioner did not come up with clean hand inasmush as the writ petitioner did not mention about the Writ Petition No. 4105 of 2005 filed earlier on the same issue, which was dismissed for default, in the instant writ petition, and that the learned Advocate appearing for the writ petitioner could not substantiate the allegation of illegalities and irregularities in the auction process as alleged and that the auction sale has been made after proper publication of auction sale notice in the daily National Newspaper and following the provision of law.

4. Being aggrieved, the leave petitioner has come up with the present leave petition. Perused the leave petition and heard the learned Advocate. The learned Advocate appearing for the leave petition alleged practice of fraud with mala fide intention to illegally grab the petitioner’s properties through the impugned auction sale and hence interference is prayed for and that the mortgagee bank sold the property in auction violating the terms of the loan in that the period for and that the mortgagee bank sold the property in auction violating the terms of the loan in that the period for adjustment of loan was 10 years but the property has been auction-sold much earlier then stipulated period and that the High Court Division failed to consider that the auction sale took place fraudulently by the bank manager in collusion with auction purchaser and thereby the High Court Division also failed to consider the shockingly low price of the property being at Tk. 17,10,000/- as against the prevailing market price of the property being Tk. 50,00,000/- and that auction process has been completed without following the mandatory provisions of section 12 of the Artha Rin Adalat Ain, 2003, which refers to provisions of Section 33 thereof, which has not been complied with in the process of auction and therefore interference by this Court is necessary for end of justice.

5. We have considered the statements made in the leave petition and the submissions of the learned Advocate appealing for the leave petitioner. We have also perused the impugned judgment and order passed by the High Court Division and the contents of the writ petition as well as the affidavit-in-opposition.

6. It appears that the predecessor of the leave petitioners enjoyed loan facility from the bank securing the same by mortgaging her property in reference and as she failed to repay the loan installments in terms of the loan in spite of demand notices sent by the bank, the bank, being appointed as attorney of the mortgagee-loanee by a registered power of attorney, sold the properties in auction, notice of which was duly published in the National Dailies namely Daily Inquilab and Daily Jugantor, for more then once, and that the property was auction sold to the highest bidder publicly.

7. It thus appears that the mortgagee bank has auction sold the property following the provisions of Section 12 of the Artha Rin Adalat Ain, 2003 Since the predecessor of the leave petitioners did not respond to the demand notices sent by the bank and ignored the auction sale notice published in the National dailies as aforementioned and the leave petitioners have made up with the leave petition auction sale. It appears from the writ petition as well as the leave petition that the leave petitioners did not disclose as to when and how the loanee or they came to know about the auction sale and also did not mention in the writ petition about the other writ petition filed two years back, being Writ Petition No.4105 of 2005. Be that as it may as per Section 12(8) of the Artha Rin Adalat Ain, 2003 and proviso thereof, which provided that in case of an auction sale held illegally or with irregularity, the sale cannot be challenged. However, owner may sue the bank concern for any loss, if suffered because of such illegal or irregular auction sale. The Provision of section 12(8) of the Artha Rin Adalat Ain, 2003 has been quoted above. It has also been submitted by the learned Advocate appearing for the leave petitioner that no power of attorney was given by the leave petitioner in favour of bank but from the Annexure to the leave petition it appears that the bank was appointed as attorney by the mortgagor-loanee vide General Power Attorney deed No. 7394 dated 14.06.2000 duly registered with the Gulshan Sub-Registry Office, Dhaka.

8. In the facts and circumstances, we do not find any merit in the leave petition and hold that the impugned judgment and order has been passed in accordance with law and no interference is called for.

The petition is accordingly dismissed.

ED

Source : 18 BLT (AD) (2010) 507

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