ARTHA RIN ADALAT AIN, 1990 (IV OF 1990)
Maintainability of a suit to challenge the decree passed by an Artha Rin Adalat
When the petitioner’s allegation of non- service of summons of the suit before the Artha Rin Adalat is correct, his remedy of a separate suit to challenge the decree is not barred under the facts and circumstances of the case, provided his remedies under the Artha Rin Adalat Act stood barred at the time of filing the suit for no fault of his own.
Md. Mozammel Hoque vs. Sonali Bank and another, 15 BLD (AD) 35.
Application of Section 151 C.P.C.
The Artha Rin Adalat Act, 1990 specifically provides for only two remedies against an exparte decree—it is either by an application or by way of an appeal. In both the cases deposit of 50% of the decreetal amount is necessary. Section 151 of the Code of Civil Procedure is not applicable in such a situation for enabling the petitioner to avoid the statutory requirement.
Md. Nur Islam vs. Agrani Bank, 15 BLD (AD) 132.
Section—2
To attract the jurisdiction of the Artha Rin Adalat the plaintiff must be a financial institution as contemplated under section 2 of the Artha Rin Adalat Am. Because it is only such a financial institution which is entitled to institute a suit before the Adalat for realisation of any advance made to any party as a loan. The Artha Rin Adalat is a civil Court of defined nature and limited jurisdictional and it does not enjoy all the powers of the Code of Civil Procedure.
Kazi Jawaherul Islam (K.J. Islam). Vs. Standard Co-operative Credit Society Limited & ors, 18 BLD (HCD) 311.
Sections—2(Kha) and 5(1)
Only financial institutions can institute suits before the Artha Rin Adalats for realisation of loans advanced by such institutions to borrowers. Artha Rin Adalat act is a special law which has been designed for deciding only those cases which are for recovery of loans from the borrowers. In the instant case, the petitioner has not borrowed any money from the Bank and as such the Artha Rin Ada- tat acted illegally and without jurisdiction in trying and decreeing the suit.
Md. Harunar Rashid Vs. Subordinate Judge (Artha Rin Adalat), Bogra and others, 18 BLD (HCD) 126
Ref: 46DLR (AD) 174—Cited.
Sections—3 and 5(1)
In view of the provisions of Sections 3 and 5(1) of Act a financial institution can institute a suit for realisation of its loan in the Artha Rin Adalat under the said A1t and by reason of the proviso of section 5(1) of the Act the special provision or procedure for realisation of loan provided in the law by which the financial institution was established will not be affected. The option is with the financial institution either to bring a suit under Section 5(1) of the Act or to take recourse to the special procedures provided in the relevant law.
In the instant case the Corporation having already brought the proceedings’ under Article 27 of P.O.No 7 of 1973; this proceeding cannot be transferred to the Artha Rin Adalat, which has jurisdiction to try a suit and not a proceeding under Article 27 of P.O. No. 7 of 1973.
Bangladesh House Building Finance Corporation vs. Jahan Ara Akhter and another, 16 BLD (AD) 231.
Section—5
Artha Rin Adalat Ain is meant for realisation of any loan advanced to any party by any financial institution including the present plaintiff-bank. In the instant case the suit has been filed not for realisation of any loan money from the defendant who was admittedly not a loanee, but he misappropriated the bank’s money. By no stretch of imagination the suit comes within the provision of Artha Rin Adalat Ain.
Agrani Bank, Janna Branch, Manikganj Vs A.F.M. Enamul Haq, 19 BLD (HCD) 12.
Ref: 44 DLR (AD) 260—Cited.
Section—5
Code of Civil Procedure, 1908(V of 1908) Sections—10 and 151
Simultaneous/Analogous trial—Suits filed under special law cannot be stayed for analogous or simultaneous hearing of the suit filed under general law, but it may be vice-versa.
United Commercial Bank Limited Vs Messrs. Freshner Bucket & Redging Industries and others, 19 BLD (HCD) 546.
Ref: 38 DLR (AD) 70; 42DLR140—Cited.
Section—5
Code of Civil Procedure, 1908 Section—115
In the two money suit filed by the United Commercial Bank Ltd pending in the Artha Rin Adalat the defendant-opposite parties filed two applications for analogous or simultaneons hearing with the later suit filed by the opposite parties whereupon the Artha Rin Adalat while rejecting the prayer for analogous hearing allowed the prayer for simultaneous hearing by the impugned orders. Admittedly, the opposite parties are not financial institutions for which the Adalat under the provisions of Artha Rin Adalat Act cannot legally pass any order as to how the suits filed under general law would proceed simultaneously or otherwise with suits filed in Adalat under the provisions of Artha Rin Adalat Act and as such the Adalat acted beyond its jurisdiction conferred by section 5 of the Act for which the impugned order are amenable to revisional jurisdiction under section 115 of the Code.
United Commercial Bank Limited Vs Messrs. Freshner Bucket & Redging Industries and others, 19BLD (HCD) 546.
Ref: 14BLD (AD) 196: 46DLR (AD) 174; 18 BLD 291—Cited.
Sections—5(4) (5)
Under Section 5(4) the Artha Rin Adalat is deemed to be a Civil Court and it has been vested with all the powers of a Civil Court. Section 5(5) of the Act provides that the Artha Rin Adalat will follow the provisions of the Code of Civil Procedure in so far as these are not contrary to the provisions of the Act. The Artha Rin Adalat is a special forum of limited jurisdiction and it is not an ordinary civil court.
Sultan Alam @ S.A. Badal Vs. Rupali Bank Ltd. and others, 14 BLD (HCD) 297.
Sections—5(4) and 5(5) 6 and 7
Code of Civil Procedure (V of 1908) Section—115, and Order 8 Rule 6
The Artha Rin Adalat Am is a special legislation providing for special measures to realise loans given by financial institutio1s Section 5(4) of the Act gives the Artha Rio Adalat the powers and jurisdiction of a civil Court, but subject to the provisions of the Act itself. Section 5(5) of the Act makes the Code of Civil Procedure applicable to the proceedings of the Artha Rin Adalat, but only if the Adalat Act does not contain anything different. In fact, this Act has made several significant departures from the Code of Civil Procedure.
The Artha Rin Adalat Act contains four different kinds of subject matters, namely (i) jurisdictional matter setting out the parameter and boundaries of the Special Court set up under the special legislation (Section 5(1) read with Section 2(ka) and (Kha) (ii) establishment of the Special Court and its administration (Sections 4 and 5(2) and 3); (iii) the procedural provisions (Sections 5(4),(5) (5ka) (6)and 6); and (iv) substantive rights. (Right of appeal under Section 7)
Artha Rin Adalat is not a full-fledged Civil Court with all the powers and jurisdiction of a Civil Court. It is a Civil Court of a defined and limited jurisdiction. The Artha Rin Adalat Am does not give the Artha Rin Adalat any jurisdiction to adjudicate upon any matter other than that provided in Section 5(1) of the Act. A defendant, therefore, cannot claim a set-off or counter-claim in a suit filed under the Adalat Act as Rule 6 of Order 8 is inconsistent with the jurisdictional provision of the Adalat Act.
The High Court Division has no jurisdiction to entertain an application under Section 115 of the Code of Civil Procedure against any interlocutory order passed by the Artha Rin Adalat.
Sultana Jute Mills Ltd. and others Vs. Agrani Bank and others, 14BLD (AD) 197.
Section—5(5)
Code of Civil Procedure, 1908 (V of 1908) Order IX Rule 9
From the absence of any provision in the Am prohibiting filing an application under Order TX Rule 9 of the Code and from the specific mention of the Code in sub-section (5) of section 5 of the Am, provisions of Order IX Rule 9 of the Code may be followed by the plaintiff financial institution before the Artha Rin Adalat for setting aside an exparte order of dismissal of the suit for default.
Artha Rin Adalat has been set up under the Artha Rin Adalat Am, 1990 with a judicial officer as presiding officer for adjudication of claim of loan by the financial institutions which include bank. No special procedure has been provided for trial of Artha Rin Suits under the said Am. But to expedite disposal of those suits certain provisions have been made and power to file an application under Order 9 Rule 13 of the Code and prefer appeal before the High Court Division have been given subject to deposit of half (½) of the decretal dues. Under sub-section (4) of section 5 of the Am Artha Rin Adalat is deemed to be a civil court and under sub-section (5) of section 5 Adalat is regulated by the provisions of the Code of Civil Procedure unless there is anything contrary in the Am. On going through the provisions of the Am we do not find any provision therein which is contrary to the provision of Order 9 Rule 9 of the Code. Unless the order of dismissal for default is allowed to be set aside the plaintiff bank would suffer loss and the borrower would be benefited. It is not the intention of Am to deprive a financial institution from realisation of its just dues from the borrower though there is sufficient reason for non-appearance of the plaintiff financial institution in Court on the date of hearing of the suit. [Per Kazi Ebadul Hoque, J.]
Islami Bank Bangladesh Limited Vs Al-Haj Md. Shafiuddin Howlader & anr., 20 BLD (AD) 162.
Section—5(4) (5)
According to sub-section (4) of section 5 of the Act the Artha Rin Adalat is a civil Court having all the powers and jurisdiction under the Civil Procedure Code, 1908, subject to the provisions of the Act. Sub-section (5) of section 5 thereof makes the provisions of the said Code applicable, notwithstanding anything to the contrary, to the conduct of proceedings in an Artha Rin Adalat. Order 9, Rule 9 is an integral part of the Code. There is no specific bar to an application under Order 9 Rule 9 in the cases under the Act. [Per Bimalendu Bikash Roy Choudhury, J.]
Islami Bank Bangladesh Limited Vs AlHaj Md. Shafiuddin Howlader & anr., 20 BLD (AD) 162.
Ref: Sultana Jute Mills Limited vs. Agrani Bank, 14BLD (AD) 196 46 DLR (AD) 174—Cited.
Sections—5, 6, and 7
Land Reforms Ordinance, 1984 (X of 1984) Section—6
Section 5 of the Artha Rin Adalat Act, 1990 enunciates the powers and jurisdiction of the Artha Rin Adalat. Section 6 of the Act enjoins for payment of at least half of the decreetal amount for filing an appeal from the decree passed by an Artha Rin Adalat. While Section 5 confers upon the Artha Rin Adalat exclusive jurisdiction to hear and decide any suit for recovery of loan by a financial institution, Section 7 provides the forum for appeal.
Section 6 of the Land Reforms Ordinance, 1984 provides that land used as homestead in the rural area is exempt from all legal processes including sale and the owner of such land cannot be dispossessed or evicted therefrom by any means by any office, Court or any other authority.
From the preamble of the Land Reforms Ordinance, 1984 it is seen that this Ordinance was promulgated for the purpose of reform of the law relating to land tenure, land holding and land transfer with a view to maximising the production and for ensuring better relationships between the land owners and the bargaders. Read in the light of the preamble it is held that Section 6 of the Land Reforms Ordinance does not exclude the jurisdiction of Artha Rin Adalat, a creature of a subsequent Act and special legislation for quick recovery of money from loanees by financial institutions and as such execution of a decree passed by an Artha Rin Adalat by way of sale of the mortgaged property, including a homestead, is not barred under the law.
Messers Rabeya Oil Mills Vs Janata Bank and another, 16 BLD (HCD) 301.
Sections—5, 6, 7 and 8
A combined reading of sections 5, 6, 7 and 8 of the Am makes it abundantly clear that the Adalat Ain special Courts for prompt realization of loans by financial institutions and such a Court is a civil court only for limited purposes.
A revisional application under section 15 of the Code of Civil Procedure against any Interlocutory order passed by an Artha Rin Adalat is not maintainable in law.
Belayet Hossan vs. Bank Indosuez, 18 BLD (HCD) 291.
Ref: 14 BLD (AD) 195 46 DLR (AD) 174—Cited.
Section—6
Interlocutory Order
Interlocutory order passed by the Artha Rin Adalat is not amenable to revisional jurisdiction.
Iftekhar Afzal Vs Pubali Bank Ltd. And Others, 18 BLD (HCD) 642.
Sections—6 and 7
In a case under the Artha Rin Adalat Act, there is no scope to file any cross objection under Order XLI, Rule 22 of the Code of Civil Procedure.
Md. Zahirul Islam Vs. National Bank Limited and others 14 BLD (AD) 95.
Sections—6 and 7
These sections do not stand as a bar against a suit filed by person, who was not party in an Artha Rin Adalat proceeding, praying for a declaration of her title in the suit property and incidentally praying that the decree of the Artha Rin Adalat is not binding upon her.
The learned Subordinate Judge was directed to dispose of the suit within reasonable time pending which further proceedings of the Money Execution case was stayed.
Chaina Arjuman Banu vs. Rupali Bank Limited and others, 14 BLD (HCD) 321.
Section—7
The Artha Rin Adalat is not an ordinary civil court but it is a special forum of limited jurisdiction. But nevertheless it is a court subordinate to the High Court Division as an appeal lies to the High Court Division against judgment and decree passed by the Artha Rin Adalat under section 7 of the Act.
Sonali Bank vs. M/S. Ali Tenary and others, 14 BLD (HCD) 457.
Section—7
Judging the provisions of Section 7 of the Artha Rin Adalat Am, it is found that the Code of Civil Procedure is not applicable for the purpose of an appeal against the order of the Artha Rin Adalat, it not being a decree, judgment or final order under Order 9 Rule 13 of Code of Civil Procedure. An ad interim order passed by the Artha Rin Adalat is not appealable.
Aminul Hoque vs. Janata Bank and others, 14 BLD (HCD) 105.
Ref: 37 DLR (HCD) 117; A.I.R. 1957 (SC)) 628; 38 DLR (AD) 172; 42 DLR (AD) 221-Cited.
Section—7
At the time of preferring regular appeal before the High Court Division under section 7 of the Artha Rin Adalat Am against a decree of the Artha Rin Adalat the appellant may deposit 50% of the decretal amount before the trial court either by cash or by Bank Guarantee and the furnishing of Bank Guarantee will be sufficient to comply with the requirement of section 7 of the Act.
Habib Bank Limited Vs Eastern Bank Limited & another, 19 BLD (HCD) 553.
Section—7
Bank Guarantee is no substitute for cash deposit
Section 7 of the Artha Rin Adalat Am provides for deposit of at least 50% of the decreetal dues in cash in the trial Court within 30 days of the decree as a condition precedent for preferring an appeal before the High Court Division. Bank guarantee is no substitute for the statutory deposit of cash money in the trial Court.
Messers Hossain Traders & ors Vs IFIC Bank Limited, 21 BLD (HCD) 215.
Ref: Abdus Sattar and ors Vs. IFIC Bank Ltd, 52 DLR52—relied;
Ref: Habib Bank Ltd. vs. U.A.E. Bangladesh and another, 52 DLR (HCD) 25— differed.
Section—7(2)
Section 7(1) of the Artha Rin Adalat Am provides that within 30 days from the date of making the decree the appeal is to be filed before the High Court Division and subsection (2) of section 7 provides that no appeal shall be entertained unless half of the decretal amount is deposited in the court making the decree. Section 7 prescribes two conditions to be satisfied by an appellant—one the appeal must be preferred within 30 days from the date of the decree and the other, no appeal shall be entertained unless half of the decretal amount is deposited in the court making the decree. Section 7 of the Am nowhere speaks about bank guarantee. The expression 5Tf used in sub-section (2) of section 7 of the Act cannot be construed to be “Bank Guarantee”. The expression A_© as used in this subsection means cash money and not Bank Guarantee”.
Abdus Sattar and others. Vs International Finance Investment and Commerce Bank Ltd., 21 BLD (AD) 77.
Section—8
Section 8 of the Am provides that before preferring an appeal the judgment debtor must deposit 50% of the decreetal amount with the Adalat. Sub-section (4) of Section 8 of the Artha Rin Adalat Am provided that no appeal without any such deposit can be entertained. Where there is no deposit as contemplated under the Am the tendering of the instant appeal without deposit is beyond the scope and as such the appeal cannot be entertained.
In the instant case the Memorandum of Appeal though tendered within 30 days but there was no deposit and the actual deposit being made on 9.11.1996, which was beyond the period of limitation, and as such the appeal ‘is not maintainable due to noncompliance of the provision of section 8 of the Artha Rin Adalat Ain.
Habib Bank Limited Vs UAE Bangladesh International Company Limited and another, 18 BLD (HCD) 422.
Section—9
Under Section 9 of the Act as amended by Act No. 51 of 1990 on 30.7.1990 all pending suits instituted by any financial institution in any Court stand transferred to the concerned Artha Rin Adalat and these will be heard and disposed of in accordance with the provisions of this Act. When a decree is passed by a Subordinate Judge acting as Artha Rin Adalat, the appellant is required to deposit half of the decretal amount in the trial court before filing the appeal.
Firoz Miah Vs. Sonali Bank, Wage Earners Branch, Dhaka and others, 15 BLD (HCD) 127.
ARTHA RIN ADALAT (AMENDMENT) AIN, 1992 (XXV OF 1992)
Section—5
A suit to set aside the exparte decree passed by Artha Rin Adalat is not maintainable in view of the remedy available under the Artha Rin Adalat Act itself.
M/s. Sekander Jute Bailing Ltd. Vs Sonali Bank and another, 18 BLD (AD) 268.
Section—5 Sub-sections (4) and (5)
Artha Rin Adalat Am is a special law under which Courts have been constituted with their own forum of appeal. By analysing the provisions of Sub-sections (4) and (5) of Section 5, it cannot be said that an Artha Rin Adalat is an ordinary Civil Court for all purposes and all the provisions of the Code of Civil Procedure are applicable in a proceeding under this Act. The provisions of the Code of Civil Procedure are applicable subject to the provisions of this special law.
Messers MAC Proprietor, Mahtabuddin Chowdhury and another vs. Agrani Bank, 14 BLD (HCD) 195.