Legal Opinion regarding Sale of Mortgaged Properties, A/C. M/S. Company 1.

Mr. Z

Address….

Dear Sir,

Re:        Legal Opinion regarding Sale of Mortgaged Properties, A/C. M/S. Company 1.

We refer to your letter dated August 27, 2005 regarding the captioned subject.

We have perused the contents of your letter along with the record of the Artha Jari Case No. 112 of 2005.

It appears that, the decree holder Bank i.e. The Trust Bank Limited, Principal Branch (the “Bank”) filed Artha Jari Case No. 112 of 2005 on 16.05.2005 in the Artha Rin Adalat, 2nd Court at Dhaka to execute the decree passed in Artha Rin Suit No. 79 of 2004 for realisation of Tk. 1,38,53,942.00 (Tk. one crore thirty eight lac fifty three thousand nine hundred forty two) as on 30.04.2005 along with interest as per terms of the decree, by sale of the mortgaged properties.

Next date of the above Artha Jari Case has been fixed for filling of paper cutting on 11.09.2005 of the show cause Notice to the judgment debtors as to why the decree shall not be execute against them. In such a situation, you have sought our opinion whether the Bank can sell (through private sale) the mortgaged properties during the pendency of the Artha Jari Case No. 112 of 2005.

Our Opinion:

Bank is not the owner of the property, but has obtained a decree for sale of the mortgaged property. Any sale in execution of a decree must be made in compliance with the procedure laid down in section 33 of the Artha Rin Adalat Ain, 2003. However, if the property cannot be sold in the first auction, the Bank as decree-holder has the option to acquire the ownership of the property under section 33(7) of the said

Act, whereupon the Bank as owner of the property may sell the property in any manner it wishes.

Please note that if the Bank wishes to acquire the ownership under section 33(7) of the said Act, it has to make application for the same after the first auction, but before the publication of notice for the second auction. Once the notice for the second auction is published and the property is not sold through auction, the Court will have to hand over the possession of the property to the Bank under section 33(5) of the said Act and there will be no scope of acquiring ownership of the property.

If you have any further query, please do not hesitate to contact the undersigned.

Thanking you.

Yours faithfully,

 

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For: “The Lawyers & Jurists”