M.M. Steel Mills Ltd & anr Vs. Judge, First Artha Rin Adalat, Ctg & anr, 2009

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Shah Abu Nayeem Mominur Rahman J

M/S M.M. Steel Mills Limited and another…………….Petitioners

Vs.

The Judge, First Artha Rin Adalat, Chittagong and another…………Respondents

 Judgment

April 27, 2009.

Lawyers Involved:

Kamal-ul-Alam, Advocate instructed by Md. Toufiq Hossain, Advocate-on-Record-For the Petitioners.

Md. Nawab Ali, Advocate-on-Record-For Respondent No.2.

Not represented-Respondent No.1.

Civil Petition for Leave to Appeal No. 333 of 2008.

(From the judgment and order dated 21.08.2007 passed by the High Court Division in Writ Petition No.7258 of 2007.)

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 21.08.2007 passed in Writ Petition No.7258 of 2007 by the High Court Division summarily rejecting the petition.

2. The Writ Petition No.7258 of 2007 was filed challenging the order No.12 dated 26.06.2007 passed in Artha Rin Execution Case No.08 of 2007 by the Artha Rin Adalat, Chittagong, rejecting the writ peti­tioner’s application filed under Sections 28 and 29 of the Artha Rin Adalat Ain, 2003 for dismissing the Execution Case on the ground of limitation.

3. The Islami Bank Limited as plaintiff filed Artha Rin Suit No.02 of 2005 in the Artha Rin Adalat, Chittagong, against the defendant for recovery of Tk.39,71,334/-contending, amongst others, that the defendant, though enjoyed the loan facili­ties from the bank, failed to repay the same within time or thereafter, inspite of repeated demands made for repayment. The suit was decreed for Tk.39,71,334/- with cost fixing Tk.43,297/-, payable in four equal installments with interest @ 8% p.a. and in case of default of payment of any installment the decree could be satis­fied through execution case. As the defen­dant judgment-debtor failed to make repayment of any installment the decree holder bank filed Artha Rin Execution Case No.8 of 2007 in the Court of Artha Rin Adalat-1, Chittagong. The judgment debtor entered appearance and on 09.05.2007 filed an application under Sections 28 and 29 of the Artha Rin Adalat Ain, 2003 for dismissing the Execution Case asserting to be barred by limitation and that the application was heard on 26.06.2007. The executing Court on hear­ing the contesting parties rejected the application observing, amongst others, that the judgment debtors submitted that in terms of the decree the first installment was to be paid within three months from the date of the decree and as the judgment debtors failed to make the payment within the said period, the execution case, as per Section 28 of the Artha Rin Adalat Ain, 2003, required to be filed within 180 days from the expiry of the last day of the peri­od allowed for payment of the first install­ment and as per Section 29 of the Artha Rin Adalat Ain. 2003 the period is to be counted from the last day of the period allowed for making payment of the defaulted installment, as allowed by the Court, and that in the instant case, the suit was decreed on 26.07.2005 and as such the first installment was due within three months thereafter i.e. within 25.10.2005.

4. But the execution case has been filed on 24.01.2007 i.e. after about 474 days. Therefore the execution as filed is ex facie time barred The Decree holder resisted the application contending, amongst oth­ers, that the learned Court ordered for pay­ment of the decreetal amount in 4 equal installments within one year without spec­ifying the dates for payment of the install­ments and the judgment debtor was allowed to make the payment of the decreetal amount in four installments within the period of One year and as such the installments could be paid even within the last four months of the year or last four days of the year. The court did not specify the period or time-frame on which the installments were to be paid. There is no order for making payment of quarterly equal installments as claimed by the judg­ment debtor-petitioners. The Executing Court accepted the submissions of the decree holder and accordingly rejected the application. However the Executing Court allowed time for payment of the decreetal amount within 20.02.2007. Being aggrieved the judgment debtors filed the Writ Petition No.7258 of 2007 challeng­ing the aforesaid order of rejection in the High Court Division and that the Rule issued therein was heard and disposed of by the impugned judgment and order dated 21.08.2007. On behalf of the writ petitioner it was submitted that the decree in question was passed on 26.07.2005 ordering payment of the decreetal amount in four equal installments within one year and that the judgment debtor-petitioners failed to pay any of the installments and as such the period for payment of the first installment expired with the expiry of three months from the date of passing of the decree, hence the period of limitation for filing execution case started to run from the expiry date of such three months from the date of decree, and that the exe­cution case ought to have been filed with­in six months after the expiry of said three months from the date of the decree and thereby the execution case ought to have been filed within nine months from the date of the decree i.e. within 25.04.2006, whereas the execution case was filed on 24.01.2007 and thus the execution case as filed was barred by limitation and hence the execution case is liable to be dis­missed.

5. The High Court Division on considera­tion of the submissions made by the learned advocate as well as the materials on record/ the provisions of law, the decree passed by the Artha Rin Adalat and the impugned order passed by the execut­ing Court rejected the writ petition sum­marily, observing that: “We have consid­ered that submission of the learned Advocate and gone through the impugned order and other relevant papers annexed to the writ petition. We have examined the decree in question (Annexure-A). The rel­evant portion of this decree reads thus:

“ ?????????? ????????? ???? ??? ???????? ?? ????? ?????  ???? ? ???????? ??????? ? ??? ?????? ??? ???? ?????? ?????? ?????? ???? ??????? ?????? ??? ???? ?????? ?? ??? ???? ?????? ??????? ?????? ??? ???? ?????? ??????????? ?????????? ???? ???? ????????? ???? ??????? ? ??? ?????? ?? ???????? ??????? ????? ???? ???? ??? ??????? ???? ??? ?????? ??????? ????”

From this decree it is very much clear that the Artha Rin Adalat though allowed the writ petitioner to pay the decreetal amount in 4 equal installments within total period of 1 year but did not mention any time limit for payment of any of these installments within that one year time. So, obviously the petitioner could have deposited the 1st installment and also any other installment at any time within that one year. So obviously the limitation for filing the execution case started to run from the date of expiry of this one year time. So, we find that the learned Judge of the Artha Rin Adalat has rightly rejected the petitioner’s prayer for dismissal of the execution case on the ground of limitation.

6. We have perused the leave petition as well as the impugned order. We have also perused the order passed by the executing Court and the contents of the decree, which are annexed to the leave petition. We have also considered the submissions of the learned Advocate appearing for the leave petitioner to the effect that the High Court Division was wrong in not holding that a literal interpretation of the provision for payment of decreetal amount within year in four equal installments, as provid­ed in Section 49 of Artha Rin Adalat Ain, 2003, would mean payment of the decree­tal amount in four quarterly equal install­ments in one year, otherwise the provision of Section 28, 29 and 49(3) of the Artha Rin Adalat Ain, 2003 will became mean­ingless and that the High Court Division was not justified in holding that the decree as passed in the suit directing payment of the decreetal amount in four equal install­ments within one year without mentioning any time-frame as to the mode of payment of the installments and thus holding that the period of limitation for filing execu­tion case will commence from the date of expiry of one year is not proper. The learned Advocate however admitted that in the decree there is no mention of any specific date or period on which the installments were to be paid. Since in the decree no specific date has been men­tioned for payment of the installments and the judgment debtor were allowed to make the payment of the decreetal amount in installments, which is in fact a facility given to the judgment debtor to make the payment of the decreetal amount in part, instead of making the payment of the decreetal amount at a time, and there being no mention of specific dates for payment of the installments the judgment debtors were allowed to make the pay­ment of the decreetal amount within one year in four installments and thus the mode of payment of installments was made flexible. In the premises, in the instant case, we are of the view that the reasons given by the High Court Division, quoted above, are in accordance with law and therefore no interference is called for.

Accordingly, the application for leave to appeal is dismissed.

Ed.

Source : VI ADC (2009) 875

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