Harun-or-Rashid (Md.) Vs. Pubali Bank Ltd. and others

Harun-or-Rashid (Md.) (Appellant)

Vs.

Pubali Bank Ltd. and others  (Respondents)

 

Supreme Court

Appellate Division

(Civil)

JUSTICES

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Judgment : August 1, 2007

The Constitution of the People’s Republic of Bangladesh, 1972, Article 102

The Artha Rin Adalat Ain 1990, Sections 6(1) and 7 An interlocutory order of the Artha Rin Adalat is final and conclusive and the aggrieved party cannot invoke revisional jurisdiction of the civil court including the High Court Division under section115 of the Code of Civil Procedure. However, the aggrieved party can invoke writ jurisdiction under Article 102 as the powers conferred on the High Court Division under the said Article cannot be taken away or abridged by any subordinate legislation otherwise than by an amendment of the Constitution………(10)

Cases Referred to-

Sultana Jute Mills Ltd vs. Agrani Bank, 1994, BLD (AD) 196 = 46 DLR (AD) 174; Sonali Bank vs. All Tannery, 48 DLR 57; Kazi Gowaherul Islam vs. Standard Cooperative, 50 DLR 431; Iftekhar Afzal vs. Pubali Bank Ltd. 50 DLR 623; Sardar Jane-e-Alam vs. AB Bank Ltd., 4 BLC (AD) 178; Hosne Ara Begum vs. Islami Bank Bangladesh Ltd., 5 MLR (AD) 290 = 53 DLR (AD) 9; Antibiotic Stores vs. Subordinate Judge, 55 DLR (AD) 13.

Lawyers Involved:

Rafique-ul-Huq, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record—For the Appellant. AKM Shahidul Huq, Advocate-on-Record — For the Appellant. Not represented—Respondent Nos. 2-3.

Civil Appeal No. 24 of 2001.

(From the judgment and order dated 24-1-2000 passed by the High Court Division in Writ Petition No. 4934 of 1999).

JUDGEMENT

Md. Joynul Abedin J.- This appeal by leave by the writ petitioner is from the judgment and order dated 24-1-2000 passed by a Division Bench of the High Court Division in Writ Petition No. 4934 of 1999 rejecting the writ petition summarily on the ground that a civil revision and not writ petition was main­tainable against an interlocutory order passed by Artha Rin Adalat.

2. Respondent No. 1, Pubali Bank Limited, dis­bursed certain amount of loan to the appellant for construction of commercial building (Supermarket) in Chuadanga town. The appellant having failed to repay the loan as per terms of the loan agreement the suit was filed by the respondent No. 1 against the appellant for realisation of the loan amount with interest. The suit was contested by the appellant and others. On 15-5-1999 the appellant filed an appli­cation for submitting a statement as to charging rate of interest by the respondent No. 1 from the appel­lant during 3-3-1989 to 24-11-1996.

3. The respondent No. 2, Artha Rin Adalat, rejected this application by order dated 23-8-1999. Against that order the appellant filed the aforesaid writ petition which was summarily rejected on the ground that writ petition is not maintainable against an interlocutory order of Artha Rin Adalat but a revision under section 115 of the Code of Civil Procedure is maintainable.

4. Leave was granted to consider the submis­sions that the learned judges of the High Court Divi­sion were not justified in rejecting the writ petition summarily on the ground of maintainability of the writ petition against an interlocutory order of Artha Rin Adalat and, as such, the impugned judgment and order is liable to be set aside by this Court. Fur­thermore, the learned Judges of the High Court Division failed to appreciate the decision in the case of Sultana Jute Mills Ltd. others vs. Agrani Bank reported in 1994 BLD (AD) 196 wherein it is settled that writ petition is maintainable against an inter­locutory order of the Artha Rin Adalat and in that view of the matter the impugned judgment and order is liable to be set aside by this Division. It is finally submitted that in view of some conflicting decisions of the High Court Division in the cases of Sonali Bank vs. Ali Tannery, 48 DLR 57, Kazi Gowaherul Islam vs. Standard Cooperative, 50 DLR 431 and Iftekhar Afzal vs. Pubali Bank Ltd., 50 DLR 623 an authorative pronouncement be made by this Division to resolve doubts with regard to the maintain­ability of writ petition or a revision against an inter­locutory order of Artha Rin Adalat.

5. We have heard Mr. Rafique-ul-Huq, the learned Counsel for the appellant and perused the judgment of the High Court Division and other con­nected papers. None appears for the respondent.

6. Mr. Rafique-ul-Huq submits that the High Court Division was not justified in rejecting the writ petition summarily on the ground of maintainability of the writ petition against an interlocutory order of Artha Rin Adalat and, as such, the impugned judg­ment and order is liable to be set aside by this Division. In support of his argument Mr. Huq has referred to a number of decisions in the case of Sul­tana Jute Mills Ltd. and others vs. Agrani Bank, 1994 BLD (AD) 196, Sardar Jane-e-Alam vs. AB Bank Ltd.,  4 BLC (AD) 178, Hosne Ara Begum and another vs. Islami Bank Bangladesh Ltd. 5 MLR (AD) 290 = 53 DLR (AD) 9, Bulbul Electric Market and others vs. Rupali Bank Ltd. and another, 11 MLR (AD) 409 and Antibiotic Stores and others vs. Subordinate Judge 55 DLR (AD) 13.

7. Admittedly the order dated 23-8-1999 passed by the Artha Rin Adalat in the present case is an interlocutory order. The question that falls for our consideration is, whether the learned Judges of the High Court Division are justified in summarily rejecting the writ petition challenging the said inter­locutory order on the ground that revision under section 115 of the Code of Civil Procedure and not the writ petition under Article 102 of the Consti­tution was competent.

8. It is to be borne in mind that Artha Rin Adalat Ain, 1990 is a special legislation and the Artha Rin Adalat created thereunder to recover out­standing loans given by the banks and financial institutions is a special court and not an ordinary civil Court as it arbitrates on loan liability by apply­ing the provisions of the special legislation, Artha Rin Adalat Ain, 1990, unless it provides otherwise. In other words, Artha Rin Adalat shall apply the provisions of the Artha Rin Adalat Ain, 1990 and not that of the Code of Civil Procedure. But it can do so insofar as it is not inconsistent with the provi­sions contained in the Artha Rin Adalat Ain, 1990. This position is reflected in sections 5(4) and (5) of the Artha Rin Adalat Ain, 1990 which reads as under:

in Bengali

9. Section 7 of the Artha Rin Adalat Ain, 1990 provides that when a contested or ex-parte judgment results in a decree, party aggrieved by such decree shall have a remedy by way of appeal before the High Court Division. But section 6(1) and the pro­viso to section 7 have made all other judgments not appellable which does not result in a decree but results only in an order and the same cannot also be called in question before any court of law or authority. The aforesaid sections 6(1) and 7 are reproduced below:

in Bengali

10. Joint reading of sections 6(1) and 7 of the Act shows that all judgment and order not being a decree of the Artha Rin Adalat have been treated as final and conclusive. In such situation the party aggrieved by such judgment or order of the Artha Rin Adalat cannot invoke revisional jurisdiction of the civil Court including the High Court Division under section 115 of the Code of Civil Procedure, inasmuch as to construe otherwise would be incon­sistent with the provisions of sections 5(4) and 5(5) of the Artha Rin Adalat. But in spite of such bar created against revisional jurisdiction of the civil Court including the High Court Division under section 115 of the Code of Civil Procedure the writ jurisdiction of the High Court Division under Article 102 of the Constitution can be invoked by the aggrieved party. Because the powers conferred on the High Court Division under Article 102 of the Constitution cannot be taken away or abridged by any subordinate legislation otherwise than by an amendment of the Constitution.

11. The learned Judges of -the High Court Divi­sion have held that since the decree passed by the Artha Rin Adalat has been made appealable to the High Court Division, Artha Rin Aalat is subordinate to the High Court Division and, in that view of the matter, the aggrieved party can challenge any interlocutory order of the Artha Rin Adalat by invoking revisional jurisdiction under section 115 of the Code of Civil Procedure in view of Article 109 of the Constitution. This view is absolutely erratic and perverse.

12. Article 109 of the Constitution confers administrative control and supervisory jurisdiction on the High Court Division. The power of control and superintendence is in addition to the power conferred upon the High Court Division to control inferior courts or tribunals through writs under Article 102. Supervisory jurisdiction extends to keeping the subordinate courts and tribunals within the limits of their authority ensuring that they obey law. This power of superintendence can be exercised where no appeal or revision lies. Power of superintendence and control over the subordinate courts and tribunals under Article 109 is to be exercised sparingly in appropriate cases to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. The power under Article 102 will only be exercised where the party affected moves the court but the power under Article 109 can be exercised by the High Court Division itself. The power of control and superintendence conferred on the High Court Division under Article 109 in relation to subordinate courts or tribunals is administrative in nature. Judicial power of review of the High Court Division can be exercised under Article 102 of the Cons­titution even in respect of some matter arising out of the supervisory power of the High Court Division under Article 109, inasmuch as Article 109 is not an enabling Article.

13. In view of the aforesaid statement, the writ petition filed by the appellant challenging the inter­locutory order dated 23-8-1999 of the Artha Rin Adalat was competent and maintainable.

In this view of the matter, the impugned judgment deserves interference and the same is accordingly, set aside.

The appeal is accordingly, allowed without any order as to costs.

Ed.

Source : 60 DLR (AD) (2008) 18

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