Appellate Division Cases
Mohd. Junayed Quader ……………………………………………Petitioner
The learned Artha Rin Adalat No.4. Dhaka and others…………. Respondents
Syed J. R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhurv J
M. A. Aziz, J
DATE OF JUDGMENT 2nd March 2005
The Artha Rin Adalat Ain,2003, Sections 33 (1) to (5)
Sale having been not taken place there were attempts for putting the property to sale on repeated dates and the date of sale was lastly shifted to 01.12.2003 when the respondent No.3 offered Tk. 6.07,00,000/which was accepted by the court and the said respondent deposited 25% of the bid money and at that stage the petitioner challenged the impugned order and so the sale could not be finalized. There is according to him no illegality in the sale (4)
That in a duly held auction the respondent No.3 contested the bid and being the highest bidder already deposited 25% of the bid money amounting to Tk.1,51,75,000/- and as a result of dilatory tactics adopted by the petitioner the said respondent is going to suffer seriously for no fault of him and as such the petition in liable to be dismissed (5)
Mainul Hosein, Senior Advocate, instructed by Md. Aftab Hossain. Advocate-on-Record For the Petitioner Shamim Khaled Ahmed. Advocate, instructed by Md. Abu Seddique. Advocate-on-Record For Respondent No.2 Ozair Farooq. Senior Advocate, instructed by
A. S. ‘M. Khalequzzaman, Advocate-on-Record For Respondent No.3 Not represented Respondent No.l
1. Amirul Kabir Chowdhury J : Mohd. Junayed Quader, the petitioner seeks leave to appeal against the judgment and order dated 01.11.2004 passed by the High Court Division in Writ Petition No. 7354 of 2003 discharging the rule. The petitioner filed above writ petition stating, inter alia, that he is lessee of the property situated at plot No.4, Block No.NW(F). Gulshan Model Town, P.S Gulshan, Dhaka and that the respondent No.2 Janata Bank filed Title Suit No.217 of 1993 for realisation of its dues and obtained preliminary decree on 05.09.1999 and final decree on 17.07.2000 and thereafter filed Execution Case No. 150 of 2000 renumbered as 1210 of 2003 pending before the Artha Rin Adalat No.4, Dhaka and Firstly 09.09.2003 was fixed for auction/tender of the property, the price was quoted at Tk.2.97.00.000/- and that subsequently fresh tender/auction was fixed for 17.09.2003 where the price of the property went up to Tk.5,26.00.000/- and on both the occasions the bids were rejected being inadequate and thereafter tender was invited for the 3rd time for auction sale of the property to be held on 20.11.2003 and on this date the price increased to Tk. 6.03.00,000/- and that 29.12.2003 was fixed for auction sale for the fourth time wherein the price went up to Tk.6.06,00.000.- and the bid was again rejected being inadequate nd then auction date was fixed for 01.12.2003 wherein the quoted price of the property went up to Tk. 6,07,00.000/which was accepted by order No.45 dated 01.12.2003 hereinafter referred to as the impugned order. The petitioner stated further that under Section 33 of the Artha Rin Adalat Ain. 2003 hereinafter referred to as the Ain invitation for bids/tender for sale of property may be made only twice but in the instant case bids were placed at least five times md thus there has been violation of provision of the Ain and hence in the writ petition he challenged the aforesaid impugned order. After hearing the parties the High Court Division by the impugned judgment and order discharged the rule. Hence is this petition.
2. In support of the petition Mr. Mainul Hosein, learned counsel submits, inter alia, that the High Court Division misinterpreted the law and thus fell in error by concluding that the provisions of Section 33(1) to (4) were fully complied with, inasmuch as the auction sale in question was wholly without jurisdiction as the learned Artha Rin Adalat could invite bids for sale of the property and hold auction only twice, after which it must vest the right of enjoyment of the property with the decree-holder in terms of Section 33(5) of the Artha Rin Adalat Ain, 2003 which was not followed in the case of the petitioner.
3. He further submits that the High Court Division erred in law in holding that the Artha Rin Adalat can shift dates for selling the property, inasmuch as the Artha Rin Adalat has on jurisdiction for shifting the date after bids have already been submitted, in contravention of Section 33 of the Artha Rin Adalat Ain. 2003.
4. Mr. Shamim Khaled Ahmed, learned Counsel apperaing on behalf of the respondent No.2 submits, inter alia, that the procedure as laid down under Section 33 of the Ain has been complied with as revealed in the order dated 23.08.2003 and that sale having been not taken place there were attempts for putting the property to sale on repeated dates and the date of sale was lastly shifted to 01.12.2003 when the respondent No.3 offered Tk. 6.07,00.000/- which was accepted by the court and the said respondent deposited 25% of the bid money and at that stage the petitioner challenged the impugned order and so the sale could not be finalized. There is according to him no illegality in the sale.
5. Mr. Ozair Farooq. learned Counsel, appearing on behalf of the respondent No.3 opposes the petition submitting, inter alia, that in a duly held auction the respondent No.3 contested the bid and being the highest bidder already deposited 25% of the bid money amounting to Tk. 1.51.75,000/- and as a result of dilatory tactics adopted by the petitioner
the said respondent is going to suffer seriously for no fault of him and as such the petition
in liable to be dismissed.
6. We have heard the learned Counsel appearing for the parties and perused the impugned
judgment and order and the provisions of the Ain in question.
7. The submissions made on behalf of the petitioner deserve consideration.
8. Leave is granted to consider the same.
9. Security of Tk.l000/-is to be deposited within one month.
10. Preparation of paper book is dispensed with as prayed for.
11. Stay granted earlier be further extended till hearing of the appeal
12. The petitioner is directed to make the appeal ready for expeditious hearing.
Source: III ADC (2006) 825