K. M. Muzahid Islam Vs. Bangladesh, 2009

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Shah Abu Nayeem Mominur Rahman J

 K. M. Muzahid Islam ………………………….Petitioner

Vs.

Bangladesh, repre­sented by the Secretary Ministry of Law, Justice and Parliamentary Affair of Bangladesh Secretariat, Ramna, Dhaka-1000 and others …….Respondents

 Judgment

May 19, 2009.

Lawyers Involved:

Dr. M. Zahir, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For the Petitioner

Md. Abdur Nur, Advocate-on-Record-For Respondent No.3.

Not represented- Respondent Nos. 1-2.

Civil Petition for Leave to Appeal No. 2119 of 2008.

(From the judgment and order dated 04.12.2007 passed by the High Court Division in Writ Petition No.1426 of 2006)

Judgment

  Shah Abu Nayeem Mominur Rahman J. – Instant leave petition under Article 103 of the Constitution is for granting leave to appeal against the judgment and order dated 04.12.2007 passed in Writ Petition No.1426 of 2006 by a Division Bench of the High Court Division discharging the Rule.

2. The petitioner hereof filed the Writ Petition No.1426 of 2006 challenging the Order No.11 dated 05.02.2006 passed by the Artha Rin Adalat, 2nd Court, Dhaka, in Artha Rin Execution Case No.490 of 2005 rejecting the petitioner’s application filed under Section 57 of the Artha Rin Adalat Ain, 2003 for dismissal of the Execution Case.

3. Facts relevant in the instant case are that the respondent No.3 bank instituted Artha Rin Suit No. 56 of 2004 in the Artha Rin Adalat, 2nd Court, Dhaka, on 20.04.2004 praying for recovery of money and for foreclosure of mortgage property stating that the petitioner as Managing Director of M/S. Al-Faruque Textile Mills Limited availed a loan facility of Tk.4,39,31,000/- for setting up of a Textile Mills, against which both movable and immovable prop­erty of said company were mortgaged to the bank as security and apart from that the said  Managing  Director and other Directors of the Borrower Company also stood guarantors for the repayment of the loan within the stipulated time, for which several agreements were executed in between the bank and the borrower com­pany as well as the Managing Director and Directors of the Borrower Company.

4. The respondent bank sanctioned Tk.4,18,50,000/- out of which the borrower company availed Tk.4,39,31,000/- and the loan amount was disbursed in between 30.12.1986 and 20.01.1991 and that the Textile Mills Unit went into operation in August, 1988. It was stipulated that the foreign currency loan amount out of the total loan amount was to be paid back in 15 half-yearly installments effective from 30.06.1988 and the local currency loan amount was to be repaid in 18 half-yearly installments effective from 31.12.1989 with interest as agreed upon. The borrow­er company and its Directors failed to make the repayment as per stipulated installments and as such a legal notice dated 19.11.1991 was sent under Section-34 of the Bangladesh Shilpa Bank Order and on receipt of the said notice the bor­rower Company and the guarantors prayed for reschedulement of the repayment schedule of the loan, to which the bank after discussions agreed, on certain specif­ic conditions, to which the borrower com­pany and its Directors agreed and con­firmed the acceptance of the conditions by their letter dated 15.11.1998 but for rea­sons best known to them, they did not exe­cute the formal document, and then by a letter dated 30.12.1998 they prayed for moratorium of one year for payment of the down-payment as per the rescheduled repayment scheme, mentioned hereinbe­fore, to which the respondent bank by its letter dated 09.03.1999 asked the borrow­er company and its Directors to comply with the agreed rescheduled repayment scheme within 15 days in default to initi­ate legal proceeding against them for real­ization of the outstanding loan amount but the said Borrower Company prayed for further facilities in the form of waiver of the accrued interest and others, and the Board of Directors of the bank in its meet­ing held on 01.08.2000 considered the prayer of the Borrower Company and allowed certain financial benefit and rescheduled the repayment schedule of the loan but the Borrower Company again defaulted and that a cheque issued by it was bounced and in such circumstances the respondent bank took steps for auction sale of the mortgaged property through publication auction notice in dailies “Inquilab” and “Bangladesh Observer” but there was no proper response and that the respondent bank’s subsequent efforts to auction sale of the property failed because of filing of Writ Petition No.5133 of 2003 in the High Court Division by the Borrower Company challenging the notice of the auction sale, and that ultimately Rule was discharged and then the Borrower Company moved the Appellate Division in Civil Petition for Leave to Appeal unsuccessfully. Faced with such situation the respondent bank filed the Artha Rin Suit for recovery of Tk. 44, 12,56,166/-,which includes the principal amount and the interest amount accrued thereon. The suit was decreed ex parte vide judgment and decree dated 08.11.2004 and pursuant to said decree the respondent-bank filed Artha Rin Execution Case No.49 of 2005 in the Artha Rin Adalat No.2, Dhaka, on 22.03.2005, for satisfaction of the decree and in the said Execution Case, the peti­tioner hereof on 05.02.2006 filed applica­tion under section 57 of the Artha Rin Adalat Ain, 2003 praying for dismissal of the execution case on the ground that the claim of the respondent-bank as made is violative of the provision of Section 47 of the Artha Rin Adalat Ain, 2003 and that the decree as passed has violated the pro­vision of Section 12 of the Artha Rin Adalat Ain, 2003 and thus the decree is a nullity, which was heard and disposed of by the impugned order dated 05.02.2006 rejecting the said application, observing that:

“??????????? ????? ?? ??, ????????? ???????? ???? ???? ????? ??? ??????????? ???? ????? ????????? ?????? ????? ????? ??? ?????? ?????? ?????? ?????? ???? ???? ?????? ??????????? ???? ????? ?????? ???? ? ???????? ???? ????? ?????? ???? ?? ?????? ???? ???? ??????? ?????? ???? ????? ????? ?????? ????? ???-???? ?? ?? ????? ???? ??????? ?????? ????? ??? ???????? ????? ?? ? ?????? ? ?? ??????? ???? ??????? ??? ?????? ??? ????”

5. The High Court Division on detailed discussion as to the provision of Section 47, the date on which the Artha Rin Adalat Ain, 2003 came into force and the provi­sions of Sections 5(3) and (4) of the Artha Rin Adalat Ain, 2003 and on consideration of the materials on record and the submis­sions of the learned Advocates of the respective parties discharged the Rule, observing that:-

“According to sub-section (3) of sec­tion 5 of Artha Rin Adalat Ain, 2003 only the decree for foreclosure requires to be made final and accord­ing to sub-section (4) of section 5 of the Artha Rin Adalat Ain, 2003 other decrees passed by the Artha Rin Adalat become final with the sale of mortgaged property. The Sub-section (4) of section 5 of Artha Rin Adalat Ain, 2003 makes it clear that saves and except the decrees passed in mortgage suits for foreclosure the decrees passed in other mortgage suits also do not require to be made final for the purpose of starting of the execution case. In the present case though in the plaint a decree for foreclosure was prayed for but the Artha Rin Adalat passed a simple money decree only. So we do not accept the contention of the learned Advocate for the writ peti­tioner that the impugned decree require to be made final before stating of the execution case and as such the execution case in question started on the basis of preliminary decree cannot continue further. In the writ petition though the validity of section 47(3) of the Artha Rin Adalat Ain, 2003 has been challenged but at the time of hearing of the rule no question was against before us from the side of the writ petitioner as to the validity of this section. The learned Advocate for the writ petition­er, of course has argued that the impugned decree was passed violat­ing the provision of this section. The learned Advocate has argued that according to this section 47 of Artha Rin Adalat Ain, 2003 the lending bank can not claim any amount exceeding 200% of the loan amount advanced by it to the petitioner and the Adalat also passed the decree for that claimed amount violating the pro­vision of this section 47. The learned Advocate has contended that this decree passed in contravention of sec­tion 47 of Artha Rin Adalat Ain, 2003 is illegal and void and as such it can not be executed. But we do not accept this argument of the learned Advocate for the writ petitioner. Section 47 of Artha Rin Adalat Ain, 2003 came into operation on 1st May, 2004 and the suit in question was filed 20th April, 2004. The provision of section 47 was not all applicable in this suit.”

6. Being aggrieved the leave petitioner has come up with the instant application. The learned Advocate appearing for the leave petitioner submitted that the High Court Division has erred in not considering that the decree as passed is bad, since the suit has been filed with a claim containing the interest amount, which is more than 300% of the principal loan amount and thus vio­lated the provision of Section 47 of the Artha Rin Adalat Ain, 2003, hereinafter referring to as the Ain, and that the High Court Division have failed to appreciate that the decree has been passed ignoring the provision of Section 12(6) of the Ain, which bars filing of suit without adjust­ment the sale proceeds of mortgaged prop­erty. The learned Advocate in elaborating his submission on Section 47(3) of the Ain stated that the Artha Rin Adalat Ain came into force on 10th March, 2003 and accordingly Section 47 came into force on 10 April, 2004 whereas the case was filed on 20.04.2004 i.e. within limitation but the Court below illegally held that the borrower company is not entitled to get the benefit under Section 47(3) which runs as under:

“??. (?) ?? ????? ????? ?? ?? ??? ???? ????? ?? ???? ?? ??????? ?????

??? ???? ???? ??, ??? ?????? ??????????, ????? ?????, ?? ???? ??????? ????? ???????, ?? ????? ????? ?????? ????? ???????”

7. Admittedly the suit has been filed adding interest amount more than 300% inasmuch as the principal amount of the loan enjoyed was 4,39,31,000/- and the suit has been filed claiming Tk.44,12,56,166/- with further interest @ 14.5% effective from 01.07.2002. The learned Advocate submitted that as per Section-5 of the General Clauses Act any Act or law, in which the date of com­mencement is not specifically mentioned, such Act or law comes into force on the day it is published in the official gazette and that the Artha Rin Adalat Ain, 2003 was published in the official gazette on 10.03.2003 and the Section 1(3) mentions that all other Sections, other than the Sections 46 and 47, shall come into force with effect from 01.05.2003 and the Section 47 will come into force one year after ‘the Ain’ comes into force and that even if word ‘????’ as appearing in Section 47(3) of the Ain and the word ‘???????’ as appearing in Sections 1(3) and 47(3) of the Ain has the same meaning there is dis­tinction in the meanings of the words ‘Act’ and ‘Section’. ‘Act’ is defined in Article 152 of the Constitution but the words ‘????’ or ‘?????’ have not been defined. The learned Advocate submitted that Section 1(3) of the Ain cannot be said to mean that ‘the Ain’ itself came into force with effect from 01.05.2003, since it has been clearly mentioned therein that all the Sections of the Ain except Sections 46 and 47 will come into force with effect from 01.05.2003, whereas the Ain has been promulgated on 10.03.2003 and therefore ‘the Ain’ has become ‘????’ for the purpose of Section 47(3) on 10.03.2003 and that even if the word ‘????’ and ‘?????’  are given the same meaning but those are not synonymous to the word ‘Ain’ and therefore the word ‘???’ men­tioned in Section 47(3) means Artha Rin Adalat Ain, 2003, itself, which became ‘????’’ on 10.03.2003 with its publication in the Gazette and therefore Section 47 became effective i.e. ‘???????’ one year thereafter i.e. on 10.03.2004 and accord­ingly the borrower company is entitled to get the benefit of Section 47 in the calcu­lation of the claimable interest amount and that the suit amount containing the interest amount as added being not in conformity with the provision of Section 47 of the Ain, the decree for the amount as passed is illegal. Consequently the execution case as filed for realization of the decreed amount is not maintainable and hence the impugned judgment and order passed by their lordships in the writ petition dis­charging the Rule is liable to be set aside.

8. We have perused the leave petition as well as the judgment and order passed by the High Court Division in discharging the Rule and the order passed by the Executing Court rejecting the application filed under Section 57 of the Ain. It appears that the learned Advocate has made his submission on the basis of Sections 5(2) and (3) of the Ain and did not take into consideration the provision of Section 5(4) of the Ain in its true per­spective. In order to appreciate the afore­said provisions of law we are quoting those herein below:

?? ??????? ??? ???????? (?) ???? ??? ???? ???? ????? ????? ?? ???, ?????? (?)?(?) ?? ????? ?????????? ?????? ???????????? ?? ???? ????????? ?????? ????? ???? ? ?? ???? ??????????, ????? ?? ???? ????  ????  ?? ?????? ????? ????? ???? ??? ???? ??????? ?????? ????????? ?????

?) ?? ????? ???? ?????? ??????????, ?????? ???????? ?????? ?????? ????? ??????????? ??????? ???? ??????? ???? ?????? ?????? ????????? ?????? (Sale) ?? ????????? ????????? (Foreclosure) ????????? The Transfer of Property Act, 1882 (Act No. IV of 1882) ?? Section 67 ???? ??? The Code of Civil Procedure, 1908 (Act No. V of 1908) ?? Order XXXIV ?? ????? ??????? ??? ?????? ????? (Mortgage suit) ????? ????? ??????, ???? ?????? ?? ????? ???? ?????????? ???? ?? ??????? ????? ????? ????; ??? ????? ???????? Code of Civil Procedure, 1908 ?? ????????? ?? ????? ???????????? ????, ????? ?????, ???????? ??????? ???????? ?????

?) ?????? (?) ?? ???? ?????? ?????????? ?????? ???????? ????? ????????? ????????? (Foreclosure) ????????? ???? ?????? ????? (Mortgage suit) ????, ????????? ??? ???????? ????? ?????? ??????? ?????? ???????? ?????? (Preliminary decree) ???? ??? ???????? ??? ???????? ?? ???????? ???????? ?????? ????? ?????? ??????? ?????? ??????? ?????? (Final) ?????? ?????

?) The Transfer of Property Act, 1882 ???? ???????? ??????? ???? ??? ???? ??????? ???? ????? ??????? ??? ?? ???? (?) ?? ???? ?????? ?????  ?????????, ?? ????? ???? ????? ??? ??? ??????, ????? ?????? ??????? ?????? ???? ?????? ???????????? ????? ????????? ????????? (Foreclosure) ???????? ?????? ?????? ???? ????; ??? ???? ??????? ????? ??????? ?????? ?????? ???????? ??????? ???????????? ????? ?????? ???? ?????? ???? ???????? ??????  ??????? ?????? ?????? ???? ????, ??? ?????? ??????? ? ???? ??? ???? ???? ??? ????? ???? ????????? ?????????? ?????? ?????? ?????? (Right to redeem) ??????-??????? ???????? ?

9. Further to appreciate aforesaid provi­sions having regard to the facts and cir­cumstances of the instant case we need to look into the prayer portion of the plaint as filed in the Artha Rin Suit No.56 of 2004, which is as under:

“???? ???? ????? ????? ????????? ?? ??,

(?) ???? ?????? ??????? ??? ?????? ???? ????????? ??/??/???? ?? ??????? ????? ??????? ??,??,??,???/- ???? ??? ??/??/???? ?? ????? ???? ??????? ??? ??????? ??.?% ???? ????? ???? ?????? ????????? ???????? ???????? ?????? ???? ;

(?) ???????? ?????? ????? ??????? ???????? ????????? ???? ?????? ????? ?????? ???? ????????? ???????? ???? ?? ?????? ???????? ???????? ??????? ???? ??????? ????? ?????? ??????? ?????? ????;

(?) ?????? ??? ????? ??????? ??? ?????? ???? ???????? ?????? ?????

(?) ???? ?????????? ?? ?? ?? ???????? ????? ????? ????? ?????? ???? ?????? ??????? ????? ???

10. It appears from the prayer portion, quoted above, that the respondent-bank has prayed for a personal decree in prelim­inary form and further prayed for sale of the mortgaged property in case of default on the part of the judgment debtor in satisfying the decree, to be passed. Thus the suit as framed and filed can not be said to attract Section 5(3) of the Ain but the same attracts Section 5(4) of the Ain and therefore a decree passed in preliminary form after sale of the mortgage property automatically becomes a final decree. Thus we do not find any substance in the submissions of the learned Advocate that the decree, being passed in preliminary form, cannot be put into execution for realization of decreetal amount by sale of the mortgage property, before Making the decree final, and hence the decree is bad in the eye of law.

11. The submission of the learned Advocate as to filing of the suit without complying with Section 12(6) of the Ain is bad in the eye of law inasmuch as the amount claimed in the suit has not been fixed in accordance with the provision of said Sub-Section 6. Section 12(3) provides that without taking step for sale of the mortgage property no suit can be filed but averment has been made in the plaint of the suit that the Bank has taken steps for auc­tion sale of the mortgaged at least on two occasions, which attempts failed at the instance of the judgment debtors. It appears that the respondent-bank took steps for auction sale of the mortgage national prop­erty by publication of the auction notice in the national dailies and the judgment-debtors by filing writ petition stopped the sale of the mortgaged property through auction and thus the suit as framed and filed is in accordance with law.

12. The learned Advocate has given much stress on the provisions of Section 47 and Section 1(3) of the Ain. Section 1(3) pro­vides that:

“?? ????? ???? ?? ? ?? ?? ????????? ??? ???? ????? ???????? ???? ??? ???? ????? ???? ???? ????? ??? ?? ????? ???? ??????? ?????

and Section 47 provides that:-

“??? ???? ????? ???????????- (?) ???????? ??????? ???? ??? ??? ?? ???????? ????? ???????? ????????? ???????? ????? ????? ?? ???, ?? ????? ???? ????? ??????? ????????, ??? ?????? ?????????? ??? ?? ????????? ??????? ??? ???? ??? ??? ??? ???? ???? ????? ?? ?????? ?????? ???????? ???? ?????? ???? ??? ?? ??????? ???% (???+???)=??? ????) ?? ?????? ???

?) ??-???? (?) ?? ?????? ??? ??? ?? ??????? ???% ?? ???? ?????? ???? ????? ?????? ?????????? ???????

(?) ?? ????? ????? ?? ?? ??? ???? ????? ?? ???? ?? ??????? ????? ??? ???? ???? ??, ??? ?????? ??????????, ????? ?????, ?? ???? ??????? ????? ???????, ?? ????? ????? ?????? ????? ??????”?

13. In Section 1(3) the word “???????” has been specifically Mentioned and it con­tains that except Sections 46 and 47, all other Sections of ‘the Ain’ were to become effective from 1st May, 2003 and that Section 47(3) provides that the said Section 47 is to come into force one year after the said ‘Ain’ comes into force. In the said Section 47(3) the words “????” and “???????” appear. The word “???????” means to become effective i.e. coming into force. The word “????” as per diction­ary meaning (Samsad’s Bengali to English Dictionary published by Sahitta Samsad, Calcutta, India) in English, is ‘operative’, ‘in force’ and the word “”????” means in English language is to put into force. We required the learned Advocate to provide us with the meaning of the word “????” in English language and also to place before us any material showing the English meaning of the word “????” but he sub­mitted that he could not find the same. Thus we take English meaning of the word (????) as ‘operative’ or ‘coming into force as per the aforementioned Dictionary. The Artha Rin Adalat Ain has been promulgated (???? ??????) on 10.03.2003 and by Section 1(3) the said Ain was made effective “???????/???? from 1st May, 2003 except it’s Sections 46 and 47, Which were made effective from the dates mentioned in the respective sections. Section 47 provides that the said section would come into force one year after the ‘Ain’ becomes effective or comes into force. The Artha Rin Adalat Ain consists of 60 sections and out of those 60 sections, 58 sections came into force with effect from 01.05.2003 as mentioned in Section 1(3) and the rest two sections i.e. Sections 46 and 47 came into force on the dates mentioned in the respective sections. The date 10.03.2003 is the date of promulga­tion (???? ????) of the law and the date mentioned in Section 1(3) of the Ain are the dates on which the said law came in-to force or became effective. In the premises we are of the view that Section 47 became effective one year after the date on which the Artha Rin Adalat Ain came into force, which is on 01.05.2003, and thus the pro­visions of Section 47 came into force with effect from 1st May, 2004. Hence the suit in reference filed on 20.04.2004, the leave petitioner and for that matter the borrower company and or its Director, are not enti­tled to get benefit of Section 47 of the Artha Rin Adalat Ain. Thus we do not find any merit in the leave petition.

Accordingly, the application for leave to appeal is dismissed.

Ed.

Source: VI ADC (2009) 865

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