Appellate Division Cases
(Civil)
PARTIES
A.Q.M. Shah Alam Chowdhury……………. Petitioner.
-VS-
Govt. of Bangladesh represented by the Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Dhaka and others ………… Respondents.
JUSTICES
Md. Ruhul Amin CJ
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Abdul Matin J
Judgment Dated: 29th October 2007
Zahirul Islam vs. National Bank Limited and others, 46 DLR (AD) 191
Section 60(3) of Ain, 2003, the provisions of sub-section (2) and (3) of section 12 of the said Am 2003
M.A. Hai vs. Trading Corporation of Bangladesh reported in 40 DLR(AD) 206 Ga/i M. Towifc vs. Agrani Bank and others, 54 DLR (AD) 6
Challenging the proceeding of Money Execution Case ….(2)
As it appears the High Court Division discharged the Rule holding that the provisions of sub-section (2) of section 12 of Ain 2003 do not apply to instant suit because no property of the company or the respondent No.8 was in possession and control of the bank by way of lien or mortgage; further sub-section (3) of section 12 provided that if any financial institution advances loan to the debtor by taking mortgage of immovable property or by way of hypothecation of movable property and if power of attorney is given to the financial institution at the time of mortgaging or hypothecating the property then, instead of selling the property and adjusting the sale proceeds against the loan amount, no suit can be filed by any financial institution before the Artha Rin Adalat and sub section (1) of section 12 of Ain 2003 provided that if any financial institution does not follow the provisions as laid down in the proviso of the above sub-section (2) and (3) of section 12 of Ain 2003, the Court, on its own initiative or on the written application of the debtor, shall pass a decree deducting the value, if any shown by the financial institution and if the, valuation has not been shown, the Court may evaluate its price on the basis of report of the local Sub Registrar and pass decree deducting such an amount as claimed in the suit but in the suit in hand the provisions of sub-section (6) of section 12 of Ain 2003 are not applicable as the instant suit being filed on 4.11.1999 there was no scope for compliance with the provisions of sub Section (3) of the section 12 of the Ain, 2003 which came into force on 10.3.2003 and further the contents of the order dated 16.5.2003 passed in the instant suit reveals that the petitioner, though filed an application under section 49 of the Ain of 2003 praying for allowing him to repay the outstanding dues by installments but did not file any application before the Artha Rin Adalat praying for selling the mortgaged property in terms of sub-section (3) of section 12 of Ain 2003 and now in the writ petition the petitioner, for the first time, tried to make out a case that the Artha Rin Adalat should have compiled with the prevision of sub section (6) of section
12 of Ain, 2003 ……………………….(5)
Question as to whether the suit against the debtor was barred by limitation or not may be agitated in appeal and not in writ jurisdiction …………….(6)
Syed Amirul Islam, Advocate, instructed by Aftab Hossain, Advocate-on-Record. ……………..For the Petitioner.
Akter Imam, Senior Advocate instructed by A.KM. Shahidul Huq, Advocate-on-Record ………………………………..For Respondents
Respondent Nos. 1-2, 4-8…………………………. Not represented
Civil Petition for leave to Appeal No. 913 of 2005
(From the judgment and order dated 3.4.2005 passed by the High Court Division in Writ Petition No. 5350 of 2004).
JUDGMENT
Md. Tafazzul Islam J : This petition for leave to appeal is directed against the judgment and order dated 3.4.2005 of the High Court Division passed in Writ Petition No. 5350 of 2004 discharging the Rule and also vacating the order of stay.
2. Brief facts are that the petitioner filed the above writ petition challenging the proceeding of Money Execution Case No. 48 of 2004 of Artha Rin Adalat No. 3 Dhaka stating that City Bank Limited, the respondent No. 3, hereinafter referred to as the bank, instituted Title Suit No. 71 of 1999 in the Artha Rin Adalat No. 3, Dhaka for realization of Tk. 2.23,80.406.74 only from him, M/s World Resources Limited, the respondent No.4 and hereinafter referred to as the company, and also from the respondent Nos. 5-8 stating, inter alia, that he is the Managing Director of the above company and the bank gave a loan of Tk. 1,40,00,000.00 only to the company and as additional security against the
above loan the respondent No.8, the full sister of the petitioner, apart from mortgaging
her property in favour of the bank also gave power to the bank to sell the same and the company repaid a sum of Tk.20,00,000/-only and failed to pay the balance amount. The petitioner and the respondent Nos. 4-8, contested the above suit and filed written statement contending that due of continuous political unrest like hartal etc, the company sustained heavy loss and that the bank gave loan of Tk. 1,40,00,000/- to the company but claimed decree for Tk.2,23,80,406.74 without specifying on what accounts they made
claim in excess of actual loan amount of Tk. 1.40 crore; after hearing, the suit was decreed for Tk. 2,23,80,406.74; he due to his chronic heart disease and family crisis,
could not prefer appeal within period of limitation and meanwhile the bank, to put the said decree into execution, filed the above Money Execution Case No. 48 of 2004 and he from the notice published in the Daily Ittafaq dated 23.8.2004, came to know about the same. The bank contested the Rule by filing affidavit in opposition contending that in view of the principles as laid down in the case of Zahirul Islam vs. National Bank Limited and others, 46 DLR(AD)191 and in the case of M.A. Hai Md. Wazed Ah Miah and Md. Hoslem vs. The Tradind Corporation of Bangladesh 54 DLR (AD)6, the writ petition is not maintainable and further the above Title Suit No. 71 of 1999 was filed ‘on
4.11.1999 and Artha Rin Adalat Ain 2003, hereinafter referred to as Ain 2003, came
into force on 10.3.2003 when the instant suit was pending and in view of the provisions
of section 60(3) of Ain, 2003, the provisions of sub-sections (2) and (3) of section 12 of the said Ain 2003 prescribing pre suit procedures being not at all applicable in respect of the instant suit the situation for compliance of the provision of sub-section (6) of section 12 of Ain 2003 did not arise at all and further if the company had any grievance in this respect they should have filed an application before the Court under the provisions of
the above sub-section (6) of section 12 of Ain 2003 but no such application was filed and further, the issue as to on what basis the bank claimed excess money beyond the amount of loan granted being a question of fact can not be decided in the writ jurisdiction and that the bank prayed for decree for an amount of Tk. 2,23,80,407.74/- due as on 30.09.99 along with pendentilite and post decretal interest and moreover, no appeal having been filed against the judgment and decree dated 1.6.2003 within 30 days by any one of the
seven defendants on depositing 50% of the decretal dues, the said judgment and decree of the Artha Rin Adalat became conclusive and final against all the defendants and as so the High Court Division can not go behind the decree.
3. The High Court Division, after hearing, discharged the Rule.
4. We have heard the learned counsel for the petitioner and perused the records.
5. As it appears the High Court Division discharged, the Rule holding that the provisions
of sub-section (2) of section 12 of Ain 2003 do not apply to instant suit because no property of the company or the respondent No.8 was in possession and control of the bank by way of lien or mortgage; further sub-section (3) of section 12 provided that if any financial institution advances loan to the debtor by taking mortgage of immovable property or by way of hypothecation of movable property and if power of attorney is given to the financial institution at the time of mortgaging or hypothecating the property then, instead of selling the property and adjusting the sale proceeds against the loan
amount, no suit can be filed by any financial institution before the Artha Rin Adalat
and sub section (1) of section 12 of Am 2003 provided that if any financial institution
does not follow the provisions as laid down in the proviso of the above sub-section
(2) and (3) of section 12 of Ain 2003, the Court, on its own initiative or on the written application of the debtor, shall pass a decree deducting the value, if any shown by the financial institution and if the, valuation has not been shown, the Court may evaluate its price on the basis of report of the local Sub Registrar and pass decree deducting such an amount as claimed in the suit but in the suit in hand the provisions of sub-section (6) of section 12 of Ain 2003 are not applicable as the instant suit being filed on 4.11.1999 there was no scope for compliance with the provisions of sub Section (3) of the section 12 of the Ain, 2003 which came into force on 10.3.2003 and further the contents of the order dated 16.5.2003 passed in the instant suit reveals that the petitioner, though filed an application under section 49 oi” the Ain of 2003 praying for allowing him to repay the outstanding -dues by installments but did not file any application before the Artha Rin
Adalat praying for selling the mortgaged property in terms of sub-section (3) of section
12 of Ain 2003 and now in the writ petition the petitioner, for the first time, tried to make out a case that the Artha Rin Adalat should have compiled with the prevision of sub section (6) of section 12 of Am, 2003.
6. It also appears, the High Court Division while discharging the Rule also relied on the case of Zahirul Islam vs. National Bank Limited 46 DLR(AD) 191, wherein this Division held that the question as to whether the suit against the debtor was barred by limitation or not may be agitated in appeal and not in writ jurisdiction.
7. Regarding the case of M.A. Hai vs. Trading Corporation of Bangladesh reported in 40 DLR(AD) 206 as referred to by the learned counsel for the petitioner, the High Court Division found that in the above case, which arose out of a writ petition filed in relation to a criminal proceeding, this Division held that availability of alternative remedy by way of appeal or revision will not stand in the way of invoking writ jurisdiction raising purely
question of law or interpretation of statute but the case in hand arose out of an Artha Rin Case and moreover subsequently this Division in the case of Gazi M. Towfic vs. Agrani Bank and others, 54 DLR(AD)6 which arose out of Artha Rin case, held that as special provision for appeal has been provided against the judgment addecree passed in Artha Rin cases no application under Article 102 lies against such judgment and decree.
8. We are of the view that the High Court Division on due consideration of the materials
on record and the law involved discharged the Rule. The learned counsel for the petitioner could also not point out any infirmity of any kind calling for interference by this Division.
9. Accordingly, the petition is dismissed.
Source : V ADC (2008), 198