Khaled Jamel Ahmed Adel and another Vs. Artha Rin Adalat No. 3, Dhaka and others (F.R.M. Nazmul Ahasan)

HIGH COURT DIVISION

(Original Jurisdiction)

Constitution of Bangladesh, (V of 1908)

Order XXXVIII, Rule 5

Artha Rin Adalat Ain (VIII of 2003)

Section 12(3)

It appears that the Dutch Bangla Bank Ltd. in compliance with the provisions of section 12 (3) of the Artha Rin Adalat Ain, 2003 published auction notice and the Bank requested the petitioner to execute the mortgage deed but the petitioner did not do the same . On the contrary the petitioner borrower was trying to transfer the schedule properties in order to defeat the decree that might be passed in the Artha Rin Adalat suit and hence the learned judge of the Artha Rin Adalat has rightly  passed the impugned order for attachment of the sched-uled properties before judgment under Order XXXVIII, Rule 5 of the Code.    …(16, 18 & 19)

Mr. Moudud Ahmed with

Mr. A.M. Mahbub Uddin, Advocates

….For the Petitioners .

Mr. Rokon Uddin Mahmud with

Mr.Md. Ashraf Uddin Bhuiyan, Advocates

….For the Respondents.

Judgment

F.R.M. Nazmul Ahasan, J:

This Rule Nisi obtained under Article 102 of the Constitution of the People’s Republic of Bangladesh calls upon the respondents to show cause as to why the impugned order dated 16.02.2010 passed by the respondent No. l, in Artha Rin Suit No. 89 of 2009), allowing the application for attachment before the judgment, filed (writ petition) should not be declared to have been passed without lawful authority and is of no legal effect.

1. 2.           The short facts relevant for disposal of this Rule are as under:

        The Respondent No. 2, Dutch Bangla Bank Limited (shortly, the Bank), as plaintiff, filed a Artha Rin Suit being No.89 of 2009 stating, inter alia, that during the course of business on 06.10.1997 the defendant No. l,    Company opened an account being Current    Account No. 10123004826 with the plaintiff Bank in the name of defendant No.l, Company “K & K Tops Textile Mills Ltd.” for its business purposes. Subsequently,   the   said   account number has been renumbered as 0101110000004092; that thereafter, at the request of the defendant No. 1, Company Bank sanctioned a letter of Credit Limit of Tk.90.00 million for opening irrevocable letters of Credit for import of Raw Materials and loan against Trust Receipt for retiring documents under the Letters of Credit vide its Sanction Letter No. DBBL/ LO/CO/3.03.01/97 dated 21.08.1997 in favour of the defendant No.l Company; that the Bank renewed and enhanced the facilities from time to time; that thereafter, the Bank re-arranged the aforesaid facilities in the manner such as reduction of regular Letter of Credit limit from Tk.300.00 million to Tk.270.00 million and allowing free option for opening sight and nuance letter of credit, LTR sub limit, Encash-ment of FC FUND / Term Deposit that has been built up over the period for adjustment of LTR outstanding and conversion of remaining liabilities into a term loan amount of Tk. 108.77 for adjustment purpose within a period of 5 years on 31.03.2004 which was duly accepted by the defendant. The said credit facilities sanctioned in favour of the Company were secured by the securities/charge documents executed by the defe-ndant Company. In addition to the charge documents the Company mortgaged its landed property by mortgaged deed No. 8385 dated 15.10.1997 along with a registered power of attorney being No. 8386 dated 15.10.1997 empowering the plaintiff to sell the mortgaged property. The defendant Nos. 2 and 3 created equitable mortgaged on their landed property as collateral security against the aforesaid credit facilities by way of depositing title deeds dated 02.02.2000 and 17.02.2004.

1. 3.           Thereafter, on 19.10.2009 the Bank filed an application under Order XXXVIII, Rule 5 read with Section 151 of the Code of Civil Procedure for attachment of the schedule property before judgment stating, inter alia, that the plaintiff Bank filed the Artha Rin Suit for recovery of an amount of Tk.42,64,85,629.13. At the time of creating equitable mortgage of the schedule properties the defendants on several occasions promised to execute registered mortgage deed. The plaintiff for the assistance of the business of the Company disbursed the Credit facilities relying on the promise of the defendants but they failed to fulfill their commitment. The plaintiff has reliably learnt that having knowledge of the filing of the suit, defendants are trying to transfer the property.
2. 4.           Thereafter, on 05.01.2010 the defendant Nos.2 and 3 filed a written objection against the aforesaid application stating, inter alia, that the said properties have more value than the amount claimed by the plaintiff Bank. Besides that the plaintiff carried out valuation survey on the said properties by its own effort. But the plaintiff did not mention how the Bank calculated the said loan accounts, stating clearly the amount of the interest of each force loan created or letter of credit facility. Moreover, the total value of the said properties are about 100.00 crore as per the present market value.
3. 5.           Thereafter, on 02.02.2010 the petitioners as defendant Nos. 2 and 3 filed a written statement stating, inter alia, that the claim of the Bank is wrongly calculated; that plaintiff Bank sanctioned only Tk. 9(nine) crore; that on several occasions the defendant No. 2 personally requested the plaintiff Bank through several letters to waive 100% interest from insertion of loan created and allowed time period of l(one) year to adjust the liabilities and the defendant No.l Company requested the Bank to adjust the loan by selling the defendants mortgaged property including the stock inside the building on 17.03.2008 and the defendant Nos.1-3 requested the Bank to arrange a meeting with a view to discuss and resolve the matter amicably but the petitioner did not response.
4. 6.           On 16.02.2010, the learned Judge of the Artha Rin Adalat after hearing, allowed the application under Order XXXVIII, Rule 5 read with Section 151 of the Code of Civil Procedure and attached the scheduled properties.
5. 7.           Thereafter, petitioner preferred this Writ Petition before this Court and obtained the present Rule Nisi.
6. 8.           & . Respondent No. 2 (Bank) contested the rule by filing an affidavit-in-opposition contending, inter alia, that the learned Judge of the Adalat after proper consideration of the application filed by the Bank allowed the application and passed an order of attachment of the schedule property. It is further contended that the petitioners have been given ample time to adjust the outstanding dues but the petitioners have not taken any positive steps even after repeated requests and appeals vide a series of letter from the respondent Bank and miserably failed to adjust the rest of the outstanding dues with the respondent Bank; thereafter, the Bank on 11.01.2009 published auction notice in “The Financial Express” and on 09.02.2009 published auction notice in the “Daily Prothom Alo”, under section 12 of the Artha Rin Adalat Ain, 2003. Since, there was no suitable participants, the mortgaged properties could not be sold; that the Bank has positive information that the Petitioner Barrower was trying to dispose of the schedule properties in order to defeat the decree which might be passed in the Artha Rin Suit and the learned Judge of the Adalat by his order dated 19.10.2009 issued show cause notice upon the defendant petitioners and, as such, the allegations made in the Writ Petition is not true that no show cause notice was served upon the petitioners; that the petitioners have preferred this Writ Petition only with a view to transfer of the schedule properties. As such, the Rule is liable to be discharged.
7. 9.           Mr. Moudud Ahmed with Mr. A.M. Mahbub Uddin, the learned Advocate appearing on behalf of the petitioners submits, that the learned Judge of the Artha Rin Adalat without complying with the provision of order XXXVIII, rule 5 of the Code of Civil Procedure passed the impugned order for attachment of the schedule properties. He further submits that the Bank sanctioned the loan of Tk.9.00 (nine) crore only but the Bank filed the Artha Rin Suit claiming Tk.42,64,85,629.13 which is much more than three times of the principal amount and so, is a violation of Section 47 of the Artha Rin Adalat Ain, 2003. He next submits that the learned Judge of the Adalat passed the impugned order without issuing any show cause notice upon the defendant petitioner as to why he should not furnish security which is required under order XXXVIII, rule 5 of the Code of Civil Procedure and as such, the impugned order should be declared to have been passed without lawful authority and is of no legal effect. He next submits that the plaintiff Bank neither mentioned the particulars of the properties mentioned in the schedule including the value of the properties nor the learned Artha Rin Adalat directs the parties otherwise as per clause 2 of rule 5 under order XXXVIII of the Code of Civil Procedure and as such the impugned order should be declared to have been passed without lawful authority and is of no legal effect. Finally, he submits that some valuable landed properties with building thereon and equipments inside the building are on mortgaged in favour of the bank and a power of attorney was also executed and registered empowering the bank to sell the properties but the Bank without complying with Section 12 of the Ain filed the Artha Rin Suit. Thus, the impugned order dated 16.02.2010 passed by the learned Judge of the Artha Rin Adalat is liable to be declared to have been passed without lawful authority and is of no legal effect.
8. 10.       In reply, Mr. Rokon Uddin Mahmud, the learned Advocate for the respondent No.2 appearing with Mr. Md. Ashraf Uddin Bhuiyan, has taken us through the affidavit in opposition and submits, that the petitioner borrower availed the loan facilities but despite repeated requests, remainders failed to repay the loan; that the Bank thereafter, requested the defendants to execute a mortgaged deed but the defendant petitioner without doing so tried to transfer the schedule properties and finding no other alternative Bank filed the Artha Rin Suit for recovery of the outstanding dues of Tk.42,64,85,629.13 and thereafter, filed an application for attachment of the schedule properties before judgment under order XXXVIII, rule 5 of the Code of Civil Procedure. He next submits that the petitioner obtained the Rule by suppressing material facts and making incorrect statement that Section 12 of the Artha Rin Adalat Ain was not complied with. He further submits that in fact auction notice published on 11.01.2009 in the Financial Express and on 09.02.2009 in the daily Prothom Alo. He further submits that the learned Judge of the Artha Rin Adalat issued show cause notice upon the defendants and thereafter, on hearing the application filed by the bank passed the impugned order. He lastly submits that it is evident that the petitioner by suppressing the aforesaid facts and making false statement in the Writ Petition obtained the present Rule, which is liable to be discharged.
9. 11.       We have heard the learned Advocates for both the sides, perused the Writ Petition, the affidavit-in-opposition and the impugned order and other materials on record.
10. 12.       Admittedly, upon request of the petitioner, the Bank opened an Account with its principal Branch being Bank Account No. 10123004826 dated 06.10.1997 in the name of the petitioner company i.e. K & K Tops Textile Mills Limited. Thereafter, at the request of the Bank, the petitioner disbursed and aggregate the loan facilities of Tk.34,08,19,287.95 only and enhanced and renewed the loan from time to time and the petitioner Company repaid Tk. 11,75,96,631.74 out of their total outstanding liabilities of Tk.42,64,85,629.13; that the said credit facilities sanctioned in favour of the defendants No. l Company were secured by several charge documents.
11. 13.       In addition to the above mentioned charge documents, the defendant No. l mortgaged its landed property measuring 2.35 acres situated within District-Mymensingh, P.S and Sub-Registry Office-Valuka, Mouza-Kathali and 0.50 acres situated within District-Mymensingh, P.S and Sub-Registry Office- Valuka, Mouza-Kathali along with building thereon and all machinery and equipments installed thereon by way of executing a mortgaged deed being No.8385 dated 15.10.1997 along with a registered power of attorney being No.8386 dated 15.10.1997 empowering the plaintiff Bank to sell the mortgaged properties in favour of the plaintiff Bank. The defendant Nos.2 & 3 described in the plaint in the schedule-B(2) & B(3) of the schedule of the property as collateral security against the aforesaid credit facilities by way of executing a memorandum of deposit of title of deeds dated 02.02.2000 and 17.02.2004 and deposited the title deeds to the plaintiff Bank, when the defendants failed to repay the aforesaid outstanding loan facility; that the Bank on several occasions requested the defendants to execute a registered mortgaged deed of the schedule property mentioned in the schedule-B(2) & B(3) but the defendants failed to do so. Eventually, the suit was filed for recovery of loan.
12. 14.       In the Suit, Bank filed an application under order XXXVIII, rule 5 read with Section 151 of the Code of Civil Procedure for attachment of the schedule property before judgment. It appears from the order sheet annexed with the affidavit-in-opposition that on 19.10.2009 the learned Judge of the Adalat issued show cause upon the defendant Nos.2 and 3 and thereafter, defendant Nos.2 and 3 filed written objection against the application filed by the Bank (annexure-C to the Writ Petition) stating that due to non-cooperation and negligence of the plaintiff Bank the defendant Nos.2 and 3 failed to get loan facilities from other Banks as all deeds of personal properties of the defendants in custody of the plaintiff Bank and as such the defendant Nos.  2 and 3 failed to carry out the project and pay back the loan to the Bank on time.
13. 15.       Thus the submission of the learned Advocate for the petitioner that no show cause notice was served upon the petitioner is not true.
14. 16.       It further appears from the annexures-2(A) and 2(B) to the affidavit-in-opposition that auction notice was published under Section 12(3) of the Artha Rin Adalat Ain, 2003 in the Financial Express on 11.01.2009 and in the daily Prothom Alo on 09.02.2009. Thus, the argument advanced by the learned Advocate for the petitioner that no auction notices was published and no step was taken under Section 12(3) of the Ain before filing of the Suit, is also not true.
15. 17.       For proper appreciation, let us consider the impugned order which is quoted blow:
16. 18.        We have considered the findings of the learned Judge, it transpires that the Bank requested the petitioner to execute a mortgage deed but he did not do so; that the Bank had a positive apprehension that the petitioner-borrower was trying to transfer of the schedule properties in order to defeat the decree which might be passed in the Artha Rin Suit.
17. 19.       From the discussions made above and on consideration of the documents on record and the impugned order, we are of the opinion that the learned Judge of the Artha Rin Adalat after proper consideration of the cases of the respective parties and following the provisions of order XXXVIII, rule 5 of the Code of Civil Procedure, properly and lawfully passed the impugned order. Thus, we find no illegality in the impugned order passed by the learned Judge of the Adalat.
18. 20.       Thus, the Rule has no merit.
19. 21.       In the result, the Rule is discharged without any order as to costs.
20. 22.       The order of stay granted earlier by this Court stands vacated. Communicate the order to the respondent No. 1 at once.

Ed.