Supreme Court
Appellate Division
(Civil)
Present:
MM Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Abdul Matin J
M/s International Trade Promotors………………………Petitioners
Vs.
The Judge, Artha Rin Adalat No. 1 Dhaka and others………..Respondents
Judgment
July 2, 2008.
Lawyers Involved:
T. H. Khan, Senior Counsel, instructed by Md. Ibrahim Khalil, Advocate-on-Record-For the Petitioners.
Aftab Hosssain, Advocate-on-Record- For Respondent No. 3.
Syed Mahbubur Rahman, Advocate-on-Record-For Respondent No. 2.
Not represented- Respondent No.1.
Civil Petition for leave to Appeal No. 42 of 2008.
Judgment
Md. Tafazzul Islam J.- This petition for leave to appeal is directed against the judgment and order dated 4.12.2007 of the High Court Division passed in Writ Petition No.5344 of 2005 disposing of the Rule directing the learned Judge of the Artha Rin Adalat No.1, Dhaka for passing necessary orders for setting aside the auction sale and for holding fresh auction of the mortgaged properties provided the petitioners pay the respondent No.3, the auction purchaser, interest at the rate of 12%, on the amount of money which the respondent No.3 deposited in the Court with effect from the date of deposit, and also providing default clause.
2. Facts, in brief, are that Agrani Bank, the respondent No. 2 filed Title Suit No.227 of 1991 in the Artha Rin Adalat No.1, Dhaka, the respondent No.1, for realization of the outstanding loan of Tk. 17,86,393.38 from the petitioners and the suit was decreed ex parte on 28.5.1992; the respondent No.2, on 29.9.1994, filed Execution Case No.85 of 1994 and then auction notice was published in the newspapers fixing the date of auction of the mortgaged properties on 18.7.2005; four bidders participated in the above bid and ultimately the respondent No.3 came out as the highest bidder and by order dated 18.7.2005 the Artha Rin Adalat accepted the highest bid of the respondent No. 3 for Tk. 35,01,000/- and directed him to deposit the above amount within ten days; after passing of the above order dated 18.7.2005 the respondent No. 2 as well as the petitioners on 19.7.2005, filed two separate applications before the execution Court praying for setting aside the auction sale alleging that the price which was accepted was shockingly low but the execution Court, by order dated 19.7.2005 rejected those applications; the petitioners then preferred Writ Petition No. 5344 of 2005 and obtained Rule and the respondent No.3 by filing affidavit-in-opposition opposed the Rule while the respondent No.2 supported the Rule. The High Court Division, after hearing, by the impugned order disposed of the Rule with the directors as above and also holding that in case of the failure of the petitioners to comply with the same the Artha Rin Adalat will make the auction sale in question absolute and take other necessary steps for delivery of possession of the auctioned property in favour of the respondent No. 3.
3. Records show that before the High Court Division both the learned advocates for the petitioners as well as Agrani Bank, the respondent No.2 submitted that the auctioned property comprises 5 kathas of land situated at the Indira Road Dhaka with a multi-storied building situated thereon and the actual value of the same is much higher than the auction price accepted by the execution Court and the learned advocate of the respondent No.2 also submitted that apart from the loan, in respect of which the above suit was decreed, the petitioners also took other loans from the respondent No.2 against mortgage of the above property and the outstanding dues on account of those loans now stand at about Tk. 8 crores and that if the above property is sold at the shocking low price, the respondent No.2 will not be able to realize major of its outstanding loan. The learned Advocate of the respondent No.3, however submitted that the respondent No.3 is a bonafide purchaser and that he purchased the above property on taking loan from the other financial institution at high interest and that if the auction sale is set aside after about two and half years of the auction purchase the respondent No.3 will suffer huge loss. As it appears in the background of the above submissions, the High Court Division disposed of the Rule with the directions stated above.
4. 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.