Artha Rin Adalat Act, 1990

Key Provisions of the Artha Rin Adalat Ain 1990

Whether a revisional application or a writ will lie against an interlocutory order passed by Artha Rin Adalat—Interlocutory order passed by the Artha Rin Adalat is not amenable to revisional jurisdiction—the power of superintendence should not ordinarily be exercised if any other remedy is available to the aggrieved party. And Article 102 of the Constitution having wider scope is available against an interlocutory order passed by Artha Rn Adalat. [Paras-17. 18 & 19]

Iftekhar Afzal Vs. Pubali Bank Ltd & Ors 6 BLT (HCD)-166

Whether the said Ain has empowered the Artha Rin Adalat to review its own Judgment –

The Artha Rin Adalat will follow the provisions of the Code of Civil Procedure for regulating the procedure in respect of such proceedings if It is not contrary to the provisions of the Act. The nature and function of the Artha Rin Adalat coupled with Its power and authority clearly indicate that it is a special forum of limited jurisdiction and not an ordinary civil court right to review like the right of appeal is a substantive right and not a mere matter of procedure — the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication no application for review under Order 47 Rule 1 of the Code of Civil Procedure lies in the Artha rin Adalat. The review application was not entertalnable by the Artha Rin Adalat and as such, Incompetent. [Paras-4 & 61]

Sultan Alam Vs Rupali Bank 2BLT (HCD)-1 18

Section-2 (Kha)

Loan —It seems that there is uniform opinion that with the deposit of money in a bank the relationship that follows between the banker and the depositor is one of debtor and creditor and the amount deposited is a debt to the depositor. Applying this proposition in the facts of the instant case as set out In the plaint there seems to be no escape from the conclusion that the defendant has a debt to the plaintiff which is concurrently found to be a financial institution and that being so it must be held that the suit filed by the plaintiff in the Artha Rin Adalat for realizing the said debt which is a loan; under Section 2 (Kha) is quite maintainable.

Saudi Bangladesh kid. & Ors Vs. Eastern Bank Ltd. & Anr 7 BLT (AD)-372

Section-5

Revisional jurisdiction –  Admittedly the opposite parties are not financial institution. Accordingly, the Artha Rin Adalat, under the provision Artha Rin Adalat Act cannot legally pass any order as to how the suits filed under the general law would proceed simultaneously or otherwise with suits filed in Artha Rin Adalat under the provision of Artha Rin Adalat, obviously if any such order is passed that cannot be said to have been passed under the Artha Rin Adalat Act and that order cannot get the benefit of section 5 of the Artha Rin Adalat Act.

As such we hold that the Artha Rin Adalat acted beyond its jurisdiction conferred by section 5 of the Artha Rin Adalat Act—impugned orders are amenable to revisional jurisdiction under Section 115 C.P.C. Paras-16 & 171

United Commercial Bank Ltd. Vs. MIS Freshner Bucket & Redoing Industries & Ors 6BLT(HCD)-182

Sectlon-5(4) (5) Read with Order-7 Rule-II and Order-S Rule-6 of the Code of Civil Procedure, 1908

In a case under Artha Rin Adalat Am whether a defendant can claim in written statement a set off or counterclaim— Whether an application under Order 7 Rule11 C.P.C. lies for rejection of that counterclaim and whether a writ petition or civil revisional application will lie to the High Court Division.

A defendant cannot claim in a written statement a set off or counterclaim against the plaintiff in a suit filed under the Artha Rin Adalat Act.

The bar to claim a set off or counterclaim is not expressly contained in the Artha Rin Adalat Act, but it is impliedly contained in section 5(1) read with section-2 (ka), 2 (kha) and sections-5(4) and 5(5) thereof. Although the effect of a set off or counterclaim is that of a plaint in a cross suit, Order-7, Rule-11, C.P.C will not apply in rejecting such set off or counterclaim. Plaintiff may have recourse to section 151 of the C.P.C. for such rejection. Alternatively, plaintiff may bring the maintainability of the set off or counterclaim as an issue of law under Order 14 Rule 2 C.P.C. which may be decided first. In view of the patent inadmissibility of the counterclaim within the framework of Adalat Act, plaintiffs’ application under Order-7 Rule -11 can be treated as one under Section-151 C.P.C.

Sultana Jute Mills Ltd. Vs. Agrani Bank & Ors. 2 BLT (AD)-127

Sections-6 and 7 Read with Order-41 Rule-22 of the Code of Civil Procedure, 1908

The Artha Rin Adalat is a special forum created by a law for adjudication of suits which can be filed by a Bank or a financial institution for recovery of its dues. Section- 7 of the ARA Act provides for a Special Period of Limitation of 30 days for preferring an appeal against the judgment of the decree of the ARA. The cross-objection filed beyond thirty days was rightly rejected by the High Court Division as time barred—in view of Section-6 of the ARA Act a defendant can only challenge the decree of the ARA by filing an appeal under Section-7 of the Act—and is liable to pay necessary court fee and observe other formalities—the petitioners are not entitled to file any cross- objection, under Order-4l, Rule-22 of the Code of Civil Procedure—the petitions are dismissed.

Md. Zahirul Islam Vs. National Bank Ltd. 2 BLT (AD)

Section-7

Although in section 7 it is provided that a judgment or decree of Artha Rin Adalat Is appealable yet a judgment which does not result in a decree but results only in an order is not appealable under the Artha Rin Adalat Ain. 1990. If any other meaning Is given to section 7, then this section will mean that the judgment is appealable but the operative portion of the judgment, namely, the order, will have to be challenged otherwise than by way of appeal. Such an incongruous result cannot be contemplated in any law.

Sardar Jart-A-Alam Vs. Arab Bangladesh Bank Ltd. & Ors. 7 BLT (AD)-254

Section-7(2)

Limitation—In the instant suit, the legal and correct decree was prepared and signed by the trial court on 3.9.96 when the original wrong decree prepared and signed on 7.2.96 was rectified upon realisation of deficit court fees from the plaintiff decree holders on the direction of the High Court Division—the limitation for preferring the appeal in question would start from 3.9.96 and not from 7.2.96.

ACKO Industries & Cold Storage Ltd. & Anr Vs. Pubali Bank Ltd. & Ors 6BLT (AD)-126

Amendment of the Written Statement

Prayer for amendment of the written statement — trial court rejected the prayer for amendment on the ground that since the petitioners filed the additional written statement, his application for amendment of the original written statement cannot be allowed—Held : Amendment of the written statement as sought by the defendant further the proposed amendment may also be necessary for the purpose of determining the real question in controversy between the parties

—Rule is made absolute. [Paras-9 & 10]

Rafiqullah & Ors Vs. Momtaz Uddin & Ors. 4BLT (HCD)-76

Answer to Interrogatories

Petitioner is the elected chairman of Pourashava—Respondent No. 2 challenging the electing of the petitioner, on the ground that he was a defaulter in repayment of loan taken from the Bangladesh Krishi Bank. The petitioner appeared and contested the case stating, inter alia, that he was not a defaulter. On the date for further examination of the petitioner, an application was filed on behalf of the petitioner seeking leave of the court to ask him two specific questions, namely (1) what was the time of repayment of the loan sanctioned by the Krishi Bank and how this time has been given? and (b) was the payment of installment re-scheduled by the Bank and if so what are the re-scheduled dates? The tribunal rejected the said application, the High Court Division observed that the petitioner should be allowed to give his reply in question No. 1, without saying anything about question No. 2.

Held: It is difficult to appreciate why the Tribunal rejected the prayer for the aforesaid 2 questions to be put to the petitioner because his case apparently was that he was not a defaulter. In order to substantiate his defence, he cannot bring any relevant fact on the record. Evidently the answers to the two questions will be relevant for the purpose of his defence. The petitioner should have been allowed to reply to both the questions. [Para-7]

Abdur Razzak Ashis Vs. Elec. Tribunal  & Sub Judge & Ors 3 BLT (AD)-182

Elements of the Benami Transaction

The 4 elements—In a case where the plaintiff claims title in the benami of the defendant the sale certificate is the most vital and material document and the sale certificate of the instant case along with the writ of delivery of possession were produced by the plaintiff from his own custody—Although the source of purchase money is an important criteria but Is not conclusive where there are other circumstances showing that the purchaser intended, property to belong to the person in whose favour the sale deed is executed—though both the courts below did not elaborately discussed about the 4 elements on the benami transaction but nevertheless it appears that in fact both the courts below took into consideration the elements—both the courts below have rightly arrived at a concurrent finding that the defendant No. 1 was benamder of the Plaintiff No. 1. [Paras-15 & 17]

Sananda Mohan Barua & Ors. Vs. Niranjart Proshad Barua & Ors 4 BLT (HCD) -187 .

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