Mrs. Zinnatul Ara & ors Vs. Government of the People’s Republic of Bangladesh, 2009, (AD)

 Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Md. Tafazzul Islam J

Md. Abdul Matin J

Md. Abdul Aziz J

Mrs. Zinnatul Ara and others………………….Petitioners.

Vs.

Government of the People’s Republic of Bangladesh, represented by Secretary, Ministry of law, Justice & Parliamentary Affairs, Bangladesh Secretariat, Ramna, Dhaka and others….    Respondents.

Judgment

April 29, 2009.

Lawyers Involved:

Mohsine Rashid, Senior Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record.

Nurul Islam, Advocate-on-Record-For the Respondent No.4

Not represented- Respondent Nos.1-3.

Civil Petition for Leave to Appeal No. 524 of 2009.   

(From the judgment and order dated 01.02.2009 passed by the High Court Division in Writ Petition No. 7492 of 2005).

Judgment

 Md. Tafazzul Islam J.- This petition for leave to appeal is directed against the judgment and order dated 1.2.2009 of the High Court Division passed in Writ Petition No. 7492 of 2005 discharging the Rule.

2. Facts, in brief, are that the petitioners filed the above writ petition calling in question the provisions section 12(3) of the Artha Rin Adalat Ain, 2003, the notice for auction sale of the properties of the petitioners published in the Daily Jugantor on 20.7.2005 and also all subsequent actions taken by Eastern Bank Limited, the respondent No.3, pursuant to the said auction notice and then Rule was issued upon the respondents and moreover all further actions pursuant to the auction notice published on 20.7.2005 was stayed for a period of 3 months and the said order of stay was also subsequently extended from time to time; then on 28.2.2007 the matter of extension stay came up for hearing before the High Court Division but since in the meantime Emergency was proclaimed in the country the hearing of the Rule was “stand over” but on 23.9.2008 the respondent No.3 Bank, inspite of the above order of “stand over” most illegally executed a sale deed in favour of the auction purchaser and that the petitioners, having no hand for such “stand over”, had no fault at all and that after the lifting the emergency, the High Court Division heard the Rule and on conclusion of hearing deferred the delivery of judgment to enable the petitioners to settle the matter with the auction purchaser by amicable settlement by way of giving him solatium and then the petitioners, through their learned Advocate, wrote a letter dated 28.12.2008 to the auction purchaser offering him 25% solatium on the auctioned value for such amicable settlement and the auction purchaser, who at that time came to Bangladesh from U.S.A, received the said letter but made no communication and then the petitioners and their learned Advocate also personally approached the auction purchaser and offer him 25% solatium as the auctioned property was the only homestead of the petitioners and they inherited it from their predecessor but the auction purchaser declined to settle the dispute upon taking 25% solatium and then the High Court Division, discharging the Rule.

3. The learned counsel for the petitioner submits that the High Court Division without at all considering the facts and circumstances, the issues involved and also misconstruing the provisions of forfeiture of the earnest money in case of failure of the auction purchaser to deposit balance 75% amount within 10 days from the acceptance of the auction tender as provided in section 33(2) of the Artha Rin Ain, 2003, discharged the Rule and that in the facts and circumstances of the instant case the High Court Division ought to have disposed of the Rule by awarding 25% solatium on the auctioned value to the auction purchaser as offered by the petitioners and that this Division, to do complete justice under Article 104 of the Constitution, may pass necessary order by awarding 25% solatium on the auctioned value to the auction purchaser as the auctioned property is only homestead of the petitioners.

4. As it appears the High Court Division discharged the Rule holding that admittedly the auction purchaser, the respondent No.4, has already got the sale deed in respect of his auction purchased property executed and registered from the respondent No.3 bank and in view of the above, in terms of the provisions of subsection (8) of section 12 of the Artha Rin Adalat Ain 2003, the purchase by the auction purchaser can not be questioned now for the reason that 75% of the balance money has not been deposited within the time as specified in subsection (2) of section 33 of the above Ain and further though on 12.10.2005 the auction purchaser was directed to deposit the consideration money but on 19.10.2005 an order of stay was passed by the High Court Division in the present writ petition stopping all further actions pursuant to the impugned auction and that even if the submission of the petitioner that there had been illegality in the auction sale as the auction purchaser failed to deposit the consideration money within the time limit specified in subsection (2) of section 33 of the Artha Rin Adalat Ain, but in view of provision of subsection (8) of section 12 of the Artha Rin Adalat Ain, 2003 the above purchase by the auction purchaser cannot be questioned and moreover on the prayer of the writ petitioners the delivery of judgment was kept pending for long period to enable the petitioners to arrive at an amicable settlement with the auction purchaser out of court but the petitioners failed. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegality or infirmity in the above decision so as to call for any interference.

The petition is dismissed.

Ed.

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