[IV of 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 Rin Adalat.
Iftekhar Afzal Vs. Pubali Bank Ltd. & Ors 6BLT(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 entertainable by the Artha Rin Adalat and as such, incompetent.
Sultan Alam Vs Rupali Bank 2BLT (HCD)-l 18
Section-2(Ka) read with Bangladesh Commerce Bank Ltd. [Act No. XII of 1997]
Though Bangladesh Commerce and Investment Limited was neither a financial institution nor a commercial bank but even then
sanctioned loan to the defendant No.1 and so the entire transaction being illegal suit does not lie; as contended by the learned counsel for the Petitioners —The High Court Division observed that section 2(Ka) of Artha Rin Adalat Ain (Act IV of 1990) defines “Financial Institution” as a financial institution licensed under the Financial Institution Act, 1993 and the Preamble of Act XII of 1997 clearly states the reason for reconstitution of the erstwhile Bangladesh Commerce and Investment Limited as it, being a non-banking financial institution licensed by the Bangladesh Bank, functioned to the detriment of the interest of the depositors and customers and so the erstwhile Bangladesh Commerce and Investment Limited was a licensed financial institution within the meaning of section 2(ka) of Artha Rin Adalat Ain; besides under section 13 of the above Act 12 of 1997 all assets and liabilities of erstwhile Bangladesh Commerce and Investment Limited vested in the newly constituted respondent No. I and the newly constituted respondent No.1, being a financial institution within the meaning of Artha Rin Adalat Ain, the Adalat committed no error in taking the view that Bangladesh Commerce Bank Limited was re-constituted by Act XII of 1997 as a commercial bank and the defendants having taken loan from its predecessor i.e. Bangladesh Commerce and Investment Bank/ the suit was filed before the Adalat was maintainable —Held; It is thus evident that Act 12 of 1997 covered the loan which was granted by Commerce Bank and Investment Limited to the defendant No.1. Further the above Commerce Bank and Investment Limited, which became defunct in the year 1992 did not file the above suit. So we are of the view that the High Court Division on applying the principle of law as applicable in the present case arrived at a correct decision which does not suffer from any illegality or infirmity so as to call for any interference.
M/s. Hai Iron and Re-Rolling Mills Ltd. Vs. Bangladesh Commerce Bank Ltd. & Ors 16 BLT (AD)122
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 Ind. & Ors Vs. Eastern Bank Ltd. & Anr. 7BLT (AD)-372
Section — 2(kha)
From the averments made in the plaint it is seen that Cash-Credit (hypothecation) and Cash-Credit (pledge) facilities were allowed to the defendant Nos. 1 and 2. It also appears from the averments made in the plaint and the papers placed on the record that said loans were given to the defendant Nos. 1 and 2 to enable them to lift the fertilizer which they have purchased in advance from the defendant Nos.3 and 4 who got the allotment of the fertilizer from defendant No.7. In our opinion upon making advance sale of the fertilizer the defendant Nos.3 and 4 had hardly anything to do except facilitating the defendant Nos. l and 2 to lift the fertilizer, which the defendant Nos.3 and 4 did as regard the fertilizer in question. From the papers on the record it is seen that the defendant Nos.3 and 4 to make the agreement of advance sale fruitful they did everything to enable the Bank and the defendant Nos.1 and 2 to lift the fertilizer from Respondent No.7 —Held; In the background of the materials on record and the discussions made hereinbefore in our view it cannot be said that defendant
Nos.3 and 4 obtained loan from the Bank or received any financial facilities from the Bank and that they are also not the guarantors in respect of the loan made available by the defendant Nos. I and 2.
Sonali Bank Vs. Md. Sirajul Hoque Chowdhury & Ors 14 BLT (AD)128
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.
United Commercial Bank Ltd. Vs. M/S Freshner Bucket & Redoing industries & Ors 6BLT (HCD)-182
Section-5 read with Bangladesh Shilpa Bank Order, 1972 Article-33
It is now a settled law that outstanding loan money can be realized either through the special law or through the ordinary
law and if financial institution like the respondent Bangladesh Shilpa Bank wants to realize its outstanding loan money through Artha Rin Adalat, then it must pay Advalorem Court fee and file a plaint for a regular suit but in the instant case the respondent has filed an application not under the normal law but under the special law i.e. under the provisions of Article 33 of P.O. 129 of 1972 and on payment of Court fee Tk. 5.00 only. The Section 33 of P.O. 129 of 1972 provides for entertainment of such application only by the District Judge, who is given the exclusive jurisdiction to deal with such application for realization of respondents due money. The Artha Rin Adalat has no jurisdiction to entertain an application under Section-33 of P.O. 129 of 1972.
Abdur Razzaque Chowdhury & Ors Vs. Subjudge & Artha Rin Adalat & Ors. 10BLT (HCD)-266
Section-5(4) (5) Read with Order-7
Rule-11 and Order-S Rule-6 of the Code of Civil Procedure, 1908
In a case under Artha Rin Adalat Ain whether a defendant can claim in written statement can set off or counterclaim— Whether an application under Order 7 Rule II 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 implied-ly 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 ofthe 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 paten inadmissibility of the counterclaim within the framework of Adalat Act, plaintiffs application under Order-7 Rule -Il can be treated as one under Section- 151 C.P.C.
Sultana Jute Mills Ltd. Vs. Agrani Bank & Ors. 2BLT (AD)-127
Sections-5 and 7 read with Bangladesh House Building Finance Corporation Order, 1973 [P.0.7 of 1973] Article-27
Article 27 of P. 0. No. 7 of 1973 being a self-sufficient and self-contained legislation, the House Building Finance Corporation is under no obligation to seek redress before the Artha Rin Adalat. The provisions of one special law cannot over-ride the provisions of another special law.
Bangladesh House Building Finance Corporation Vs. Shahid Sarwar Abu Hossain. 9 BLT (HCD)-289
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 arc not entitled to file any cross objection. under Order-4 I, Rule-22 of the Code of Civil Procedure—the petitions are dismissed.
M. Zahirul Islam Vs. National Bank Ltd. 2BLT (AD)-23
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 jan-A -Alan, Vs. Arab Bangladesh Bank Ltd. & Ors. 7BLT (AD)-254
Payment of 50% of decreetal dues as condition for appeal.
Section-7 provides for deposit of at least 50% of the decreetal dues in the trial Court as a condition precedent for preferring an appeal. A hank guarantee is no substitute for cash deposit.
M/S Hossain Traders & Ors. Vs. IFIC Bank Ltd. 9BLT (HCD)-220
Section-7 provides for deposit of at least 50% of the decreetal dues in the Trial Court within 30 days of the decree as condition precedent for preferring an appeal. Instead of depositing the said money in the Court, the appellant deposited it in the current account maintained with the decree-holder Bank, Since the appellant has deposited 50% of the decreetal dues within the stipulated time, albeit in a non-traditional forum, the deposit should treated as a valid one. The Court is to look into the substance o the law, rather than its form.
Sk. Muslemuddin Ahmed Vs. Agrani Bank 9BLT (HCD)-249
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
Artha Rin Adalat (Amendment) Ain, 1992
Section-5 read with Code of Civil Procedure, 1908 Order-9 rule-13
Amendment made in Artha Rin Adalat Ain which came into force on 17.07.1992
The Judgment and decree passed expiration 19.02.1992 could not be set aside by filing a Miscellaneous case under order 9 Rule 13 of the Code of Civil Procedure as order 9 Rule 13 of the Code of Civil Procedure was not available at the relevant time to the Judgment debtor.
Ramisuddin Vs. Pubali Bank Ltd. & ors. 12 BLT (HCD)-138.
Artha Rin Adalat Ain, 2003
Section —2 read with Banking Companies Act, 1991 Section-5
Whether a guarantor would become a defaulter within the meaning of the Bank Company Act.
A defaulter shall mean a person or institution that obtained advance or loan or interest thereupon which becomes within the meaning as notified by the Bangladesh Bank and already expired six months. The ‘??’ what is popularly known loan has not been defined in the Bank Company Act but exhaustibly defined by Clause (i) of section 2 of the Ain as quoted above. Such definition includes amongst other a guarantor of a loan. It is true clause (?) of section 5 of the Bank Company Act defines a ‘???????’ that is a debtor which includes a ‘????????’ that is a guarantor and in the definition of defaulter in said clause (t) of section 5 such guarantor is not mentioned. Use of the word guarantor in such definition of a defaulter is not at all necessary. When a guarantor is clearly intended to be covered by the sweep of
the above definition of a defaulter non-mention of the word does not make any difference.
IFIC Bank Ltd. & Ors Vs. M/S. Beximco Holding Ltd & ors. 13 BLT (HCD)23
Section —9(5) read with 13(1)
Impugned Judgment and decree passed under Section 13(1) —Held if there is no specific admission made in the written statement as contemplated in section 9 (5) of the Ain, the Adalat cannot come to conclusion as regards the said fact of the case.
Md. Arfan Uddin Akand & Ors Vs. Artha Rin Adalat & Ors 15 BLT (HCD)343
Section-17 read with Section 19(6)
The Artha Rin Adalat suit shall not abate or dismissed rather it should be disposed on merit. Even if it has not been heard
or disposed of within the stipulated time. Section 17(1)(2) of the Ain albeit provided time limit to conclude the trial firstly within 90 days if not; extend the period for further period of 30 days, if not concluded within the aforesaid period; the Ain does not provide any consequential effect or produce or resulting use of the suit and as such the time limit as provided under Section 17 (1)(2) of the Artha Rin Adalat Ain is not mandatory at it has no consequential effect or resulting use laid down in the Act itself even if the suit is not disposed of within the time limit. Artha Rin Adalat is a civil court having limited jurisdiction. Instant suit was filed in 1989 and it has crossed Artha Rin Adalat Ain 1990 and now continuing under the provisions of Artha Rin Adalat Ain, 2003 and all the law it is the intention of the
legislature to dispose of the suit on merit and also with an intention to
dispose of the suit expeditiously or in priority basis and as such the
provisions as laid down in section 17 of the Ain is merely directory one.
M/s Jewel Cotton Shipping & Weaving Mills Lid. Vs Bangladesh & Ors 16 BLT(HCD)271
Section 21 is an overriding provision, to which effect is to be given subject only to the satisfaction of the learned Judge of the Artha Rin that the procedure would be fit and proper in his discretion. The fruitfulness or otherwise of the impending Settlement Conference is not a consideration to weight the mind of the learned Judge at the inspection of that procedure. The procedure is laid down by law and is to be followed, subject only to the satisfaction of the learned Judge that such procedure is fit and proper in the facts and circumstances of the case.
H.M.M. Atom Vs. Govt. of the People Republic of Bangladesh 12 BLT (HCD)292
Section-21 read with Section-22
Conduct of the Parties
An application is not to be decided only on the basis of the provision of law mentioned in the application but on the basis of the materials contained in the application and an application is not to he rejected because of wrong mentioning of the provisions of law. In deciding any application the conduct of the parties need also to be considered.
M/S Ali Reza Vs. Joint District Judge, & Anr 13 BLT (HCD)80
Section —21 and Section 22
From reading section 21 it appears that if the Court deems fit and proper after filing and perusing the written statement then the Court can invoke the provision of this section. But section 22 clearly said that if the parties desires then the Court has no other choice but to go for
mediation/arbitration. Reading section 21 we find that the power given to the Court under section 21 is a discretionary power to be exercised judiciously.
M/S Rana Apparels Ltd. & Anr Vs. Govt. of Bangladesh & Ors 15 BLT (HCD)104
Section-21 read with Section-22(4)
High Court Division’s observations is that It is now a settled principle that an application is not to be decided only on the basis of the provision of law mentioned in the application but on the basis of the materials contained in the application and an application is not to be
rejected because of wrong mentioning of the provisions o law. In deciding any application the conduct of the patties need also to he considered. -Held; The High Court Division upon correct assessment of the materials on record arrived at a correct decision.
M/s. Ali Reza Vs. Artha Rin Adalat, 2nd Court & Anr 15 BLT (AD)323
Section-26 read with Code of Civil Procedure,1908 Order 21 rule 98
Since specific provision is not available in the Act enabling the Artha Rin Court to put the decree-holder into possession, the Court may exercise its such Jurisdiction as provided in rules 97 and 98 under Order XXI of the Code read with section 26 of the Act, and give necessary directions to execute its order.
IFIC Bank Limited Vs. M/S. Marinar Fashions Wear Pvt. Ltd. & Ors 15 BLT (HCD)425
Whether on the issuance of the certificate of title in favour of the decree holder, the execution case had already been disposed of and the court has got nothing further to do in this respect. Held; Sub-Section 7 envisages vesting of ownership of the property of the judgment-debtor upon the decree-holder. The said vesting of ownership includes delivery of possession of the property. Without the delivery of possession, the execution case cannot be disposed of.
IFIC Bank Limited Vs. M/S. Marinar Fashions Wear Pvt. Ltd. & Ors 15 BLT (HCD)425
Four Installment within one year
In the instant case the Adalat passed an order to make payment on four installments within one year, which means payment may he made on four installments within one year. It may be within one month, two months, six months or any month during the duration of one year. Even petitioner may make payment of 4(four) installment at a time within last day of one year.
Md. Shamsul Alam Talukder Vs Bangladesh & Ors 16BLT(HCD)440
Whether the execution Cases filed under the repealed Artha Rin Adalat Ain 1990 treated as pending cases within the meaning of section 60(3) of the Artha Rin Adalat Ain, 2003
Held: We hold that the execution cases filed under the Ain, 1990 comes within the meaning of “????????? ?????” as contemplated in section 60(3) of the Ain, 2003. As already mentioned section 60(3) of the Ain, 2003 manifests the view that the Artha Rin Adalat established under section 4 of the Ain, 2003 has entirely inherited upon repealing the Ain, 1990 in which all the eases relating to recovery of loan including execution cases pending in those Adalat under the Ain, 1990 stood transferred by operation of law to the Artha Rin Adalat constituted under the new Ain namely the Artha Rin Adalat Ain, 2003 providing statutory power to dispose of all the pending cases in accordance with the provisions of the Ain, 2003, as far possible.
Md. Mofiz Mia Vs Artha Rin Ad lt.& Ors 16BLT(HCD) 476
Bangladesh Abandoned Property, (Land, Building and other Property) Rules, 1972
Rule – 8(2) read with P.O. No.16 of 1972 Article – 15
Rule 8(2) of the Bangladesh Abandoned Property (Land, Building and other Property) Rules, 1972 though provides for sale of the property to the highest bidder in the open market but the said provision is only applicable in case of rejection under Article 15 of P.O. No.16 of 1972.
Govt. of Bangladesh & Ors. Vs. Mrs. Rosey Firoj & Ors. 14 BLT (AD)201.