Korea Bangladesh Food Products Limited Vs. National Bank Limited and others

Korea Bangladesh Food Products Limited (Petitioner)

Vs.

National Bank Limited and others (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md. Hassan Ameen J

Judgment

February 7, 2008.

Lawyers Involved:

M. G. Bhuiyan, Advocate-on-Record-For the Petitioner.

Zainul Abedin, Senior Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-Record-For the Respondent No. 1.

None represented- Respondent Nos. 2-9.

Civil Petition for Leave to Appeal No. 478 of 2007.

(From the judgment and order dated the 14th February, 2007 passed by the High Court Division in First Miscellaneous Appeal No.234 of 2005 with Civil Rule No.822 (P.M.) of 2005).

Judgment

                Mohammad Fazlul Karim J. – At the instance of the petitioner, this petition for Leave to Appeal is directed against the judgment and order dated 14.02.2007 passed by the High Court Division in First Miscellaneous Appeal No. 234 of 2005 heard with Civil Rule No. 822 (F.M.) of 2005 dismissing the appeal discharging the Rule.

2. The facts of the case, in short, are that the plaintiff, National Bank Limited, with M/S. Arena Industries Limited, instituted the suit for realization of TK.7,75,50,600. 00. The suit was decreed against the judgment-debtor. Accordingly, the decree holders filed Artha Rin Execution Case No.65 of 2005 in the Artha Rin Adalat No.3, Dhaka. The petitioner who is the judgment-debtor filed Miscellaneous Case No. 24 of 2005 under Order 21 and Rule 90 of the Code of Civil Procedure alleging material irregularity and fraud in conducting and publishing the sale proclamation and fraud in conducting the same. The judgment-debtor claimed that no notice under Section 33(1) of the Artha Rin Adalat Ain, 2003 was served upon him. So, the subsequent steps taken under Section 33(4) of the Artha Rin Adalat Ain, 2003 was illegal. Further the valuation of the mortgaged properties has been assessed at a shockingly low rate. The plaintiff bank assessed the valuation at TK.10 crore. But it has been sold in auction at TK.7, 75, 50,600.00. The Artha Rin Adalat did not consider the objections raised by the judgment-debtor in his Miscellaneous case and the same has been dismissed illegally.

3. The Miscellaneous appeal has been contested alleging that the petitioner was a defaulter and had full knowledge of the auction proceeding. Though he entered into appearance but he did not take any step for satisfaction of the decretal amount. The executing Court served the notice properly by complying the provision of Rule 66 of the Order 21 of the Code of Civil Procedure. The valuation of the auctioned property has been properly assessed on proper investigation. The auction-purchaser has prayed for the dismissal of the appeal for non-compliance of the provision of Section 41(2) of the Artha Rin Adalat Ain, 2003.

4. Mr. M. G. Bhuiyan, learned Advocate-on-Record, appearing for the petitioner submitted that the order dated 27.09.2005 passed in Miscellaneous Case No.24 of 2005 arising out of an execution proceeding is not subject to the special provision for disposal of the appeal under Section 41 of the Artha Rin Adalat Ain, 2003. Section 41 provides that an aggrieved party by an order of the Adalat may prefer an appeal depositing requisite amount of money before filing appeal based on the amount of the decree which must mean that the order or the decree appealed against must arise out of the suit and it is a settled principle of law that an execution proceeding is not a suit; that Section 26 of the Artha Rin Adalat Ain applies the Code of Civil Procedure to all proceedings under Artha Rin Adalat Ain, 2003 unless it can be shown that a particular provision of CPC is repugnant to the Ain and that the provisions of Order 21 Rule 90 and Rule 66 of the Code of Civil Procedure are complementary but not contrary to the provision of Section 33 of the Ain, 2003 which provides for the procedure for sale proclamation in Money Execution Case No.65 of 2005 which did not give the value of all three properties, specially the value of the land measuring 3 bigha 4 katha in Tejgaon and the building thereon and the land measuring 6 katha 4 chhatak 35 square feet in Banani Commercial Area and the four storied building thereon by giving separate valuation for each while the executing Court in order No.6 dated 29.06.2005 had refused to accept the earlier auction on the ground that the 3 schedules did not show the valuation of the three properties separately and yet the same executing Court did not hesitate to accept the faulty proclamation;, that it is well settled principle of law that in an auction sale the probable market value of the property is to be given in the proclamation but in the instant case the executing Court itself noted that the auction price was low because no separate valuation of the properties was given. The learned Advocate further submitted that the same executing Court on 29.06.2005 held that the auction value of TK.7,75,00,600.00 offered by respondent No.2 Was inadequate but on 28.08.2005 accepted the value of TK.7,75,50,600.00 offered by the same buyer as adequate on the ground that this valuation was more than the decretal amount being TK.7,67,11,845.00 but in effect the sale amount is less than the decretal amount as the judgment and decree dated 22.11.2004 carried an interest from the date of filing of the suit to realization at the rate given in Section 50(2) of the Artha Rin Adalat, 2003 that the application to set aside the auction sale was made under Order 21 Rule 90 of the Code of Civil Procedure read with Section 33(2) of the Ain, 2003 which provides that if the price is exorbitantly low then the Court may cancel the sale and in the instant case admittedly the same executing Court having held only two months back that the price of TK.7,75,00,600.00 was a low figure and should be rejected, no further proof is needed to show that the sale amount being only TK.50,000.00 more than the earlier bid was a low price.

5. Mr. Zainul Abedin, learned Counsel, appearing for the respondent No. 1 submitted that the present Miscellaneous Appeal related to the judgment and decree of the Artha Rin Adalat and the same is guided by the provision of Section 41(2) of the Artha Rin Adalat Ain, 2003. Referring to Section 41(2) of the Artha Rin Adalat Ain, 2003 he submitted that 50% deposit of the decretal amount is mandatory. Without such deposit and endorsement in the memo of appeal, the appeal can neither be registered nor the memo of appeal could be accepted. So, the learned Counsel submitted that violation of that provision leads to rejection, of the memo of the appeal which ought to have been done at the initial stage. He finally submitted that the present appeal is not maintainable.

6. It appears from the record that the memorandum of appeal filed on 19.03.2003 being not accompanied with proof of deposit of 50% of the decretal amount nor such deposit being made within statutory period of 30 days, the High Court Division committed error in passing order dated 29.03.2005.

7. The High Court Division observed that the Artha Rin Adalat Ain, 2003 is guided by the principles’ of the Code of Civil Procedure whereby 50% deposit of the decretal amount to prefer an appeal is not mandatory. It found that the Artha Rin Adalat Ain, 2003 is a special enactment. Therefore, the principles of the Code of Civil Procedure cannot override the provisions of the Artha Rin Adalat Ain, 2003. As there is the mandatory provision to deposit 50% of the decretal amount to prefer appeal the present appeal is not at all maintainable and practically there is no appeal in the eye of law.

8. It appears from the record that in course of appeal the defendant was negotiating with the bank and the purchaser to sell the auction property and the defendant will pay up the entire decretal amount at a time to the bank and he will also pay to the auction purchaser the amount together with interest. Thus, the High Court Division showed unwillingness to accept his submission  to dispose of this Miscellaneous appeal as the provision for filing the appeal has riot been complied with. It further appears from the record that in the absence of 50% of the decretal amount deposit to prefer this appeal there is no ‘existence of appeal in the eye of law.

In view, of the above, we find no substance in the submission of the Advocate for the petitioner.

Accordingly, the petition is dismissed.

Ed.

Source: 13 MLR (AD) (2008) 253

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