IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
WRIT PETITION NO. OF ______
IN THE MATTER OF:
An application under Article 102 of the Constitution of the People’s Republic of Bangladesh
AND
IN THE MATTER OF:
Mr. X
Son of Late Y
House No. 68, Block No. F
Road No. 7
Banani
Dhaka-1213
PETITIONER
-Versus-
1. Judge, Artha Rin Adalat No. 3
Dhaka
2. Eastern Bank Limited
Principal Branch and
Head Office
Jiban Bima Bhaban
10, Dilkusha Commercial Area
P.S. Motijheel
Dhaka
RESPONDENTS
AND
IN THE MATTER OF:
Order No. 21 dated 25.06.2005 passed by the Artha Rin Adalat No. 3, Dhaka in Artha Rin Suit No. 182 of 2004 not allowing the application of the petitioner filed under Order XIV, Rules 5 and 2 read with section 151 of the Code of Civil Procedure, 1908 and section 57 of the Artha Rin Adalat Ain, 2003 for framing and trial of additional legal issue (Annexure “A”)
To
Mr. Justice Syed J. R. Mudassir Husain, the Chief Justice of the Supreme Court of Bangladesh and his companion Justices of the said Hon’ble Court
The humble petition of the petitioner above named most respectfully –
S H E W E T H:
1. That the petitioner is a reputed businessman of the country carrying on different businesses including the business of construction of mainline gas pipelines.
2. That the respondent No. 1 is the Artha Rin Adalat No. 3, Dhaka which has passed the impugned order. The respondent No. 2 is a scheduled bank in Bangladesh having its Principal Branch and Head Office at Motijheel, Dhaka.
3. That this petition is filed against Order No. 21 dated 25.06.2005 passed by the Artha Rin Adalat No. 3, Dhaka in Artha Rin Suit No. 182 of 2004 not allowing the application of the petitioner filed under Order XIV, Rules 5 and 2 read with section 151 of the Code of Civil Procedure, 1908 and section 57 of the Artha Rin Adalat Ain, 2003 for framing and trial of legal issue i.e. whether the respondent No. 2 having no title deed in its possession, there can be any equitable mortgage in favour of the respondent No. 2.
Certified copy of Order No. 21 dated 25.06.2005 passed by the Artha Rin Adalat No. 3, Dhaka in Artha Rin Suit No. 182 of 2004 is annexed herewith and marked as Annexure “A”.
4. That while acting as the Chairman/Managing Director of Italmontaggi Private Limited in 1981-1985, an Italian company incorporated in Singapore, for construction of Bakhrabad-Chittagong Gas Pipeline, the petitioner opened a Current Account being No. 2832 with Bank of Credit and Commerce International (Overseas) Ltd. (“BCCI”) (incorporated in Cayman Islands) at their Dhaka Branch situated at 10, Dilkusha Commercial Area, Dhaka.
5. That during the course of transaction, the petitioner by letter dated 21.12.1981 addressed to the General Manager of BCCI, Dhaka Branch applied for temporary overdraft limit of Tk. 25,00,000.00 (Taka twenty five lacs) only. On the said application of the petitioner, the BCCI, Dhaka Branch allowed temporary overdraft limit of Tk. 25,00,000.00 (Taka twenty five lacs) only in favour of the petitioner. As security of the said temporary overdraft facility, the petitioner executed Demand Promissory Note, Letter of Continuity and Memorandum of Deposit of Title Deeds dated 21.12.1981 and thereby mortgaged his property measuring 17.5 bighas situated at Joydevpur, Gazipur in favour of BCCI, Dhaka Branch.
Copy of the petitioner’s letter, Promissory Note, Letter of Continuity and Memorandum of Deposit of Title Deeds, all dated 21.12.1981 are enclosed herewith and marked as Annexures “B”, “B(1)”, “B(2)” and “B(3)” respectively.
6. That by letter dated 31.10.1984, the petitioner again applied to BCCI, Dhaka Branch for temporary overdraft facility on various dates i.e. Tk. 5,00,000.00 (Taka five lacs only) on 01.11.1984, Tk. 3,00,000.00 (Taka three lacs) only on 22.11.1984 and Tk. 3,00,000.00 (Taka three lacs) only on 17.12.1984. In the said letter, the petitioner further undertook that he would positively adjust the entire outstanding liabilities of Tk. 27,73,300.00 (Taka twenty seven lac seventy three thousand and three hundred) only as on that date including the temporary overdraft facilities within 30.06.1985 from the earnings of Italmontaggi in Singapore.
Copy of the petitioner’s letter dated 31.10.1984 is enclosed herewith and marked as Annexure “C”.
7. That subsequently, the temporary overdraft facilities were allowed and availed by the petitioner and as per undertaking of the petitioner, the entire outstanding liabilities were adjusted within the stipulated time. Consequent upon adjustment of all outstanding liabilities of the petitioner with BCCI, the BCCI Bank by Certificate of Discharge dated 14.10.1985 unequivocally confirmed that the petitioner has no liability with the said bank and as such was discharged from all liabilities with BCCI including the amount outstanding in the account of the petitioner maintained with BCCI, Dhaka Branch. The original of the said Certificate of Discharge cannot be traced, but the petitioner is in possession of a photocopy of the said Certificate.
Copy of Certificate of Discharge dated 14.10.1985 issued by the BCCI Bank is enclosed herewith and marked as Annexure “D”.
8. That since the liabilities of the petitioner was fully adjusted to the satisfaction of BCCI, the BCCI, Dhaka Branch subsequently returned all the original Title Deeds and supporting documents relating to the mortgaged property to the petitioner.
9. That subsequently, while BCCI, Dhaka Branch was doing business in Bangladesh, the entire operation of BCCI was internationally closed on 05.07.1991 and the operation of BCCI, Dhaka Branch was closed by Bangladesh Bank on 20.08.1991. Thereafter, pursuant to section 77(4) of the Bank Companies Act, 1991, Bangladesh Bank introduced a scheme called Bank of Credit and Commerce International (Overseas) Limited (Re-organization) Scheme, 1992 and established the respondent No. 2 i.e. Eastern Bank Limited to undertake all assets and liabilities of BCCI. Till closing of their business in 1991, BCCI never made any claim whatsoever against the petitioner.
10. That the petitioner subsequently floated a new company, namely Mohona Upashahar Prokalpa Ltd., having objects of developing a new township. In 1996, the petitioner as one of the sponsor Directors of the said company, applied to Islami Bank Bangladesh Limited for credit facilities. However, the petitioner was utterly shocked and astonished when he was informed by letter dated 06.04.1996 of Islami Bank Bangladesh Limited stating that they cannot grant any facility to the company i.e. Mohona Upashahar Prokalpa Ltd. since the petitioner who is a director of the company is an alleged defaulter with the respondent No. 2 i.e. Eastern Bank Limited. Along with the said letter, Islami Bank Bangladesh Limited also enclosed a letter dated 04.03.1996 of the respondent No. 2 stating that the petitioner has huge outstanding liabilities with them.
Copies of letters dated 06.04.1996 and 04.03.1996 of Islami Bank Bangladesh Limited and the respondent No. 2 respectively are enclosed herewith and marked as Annexures “E” and “E(1)”.
11. That immediately upon receipt of the aforesaid information from Islami Bank Bangladesh Limited, the petitioner by letter dated 10.04.1996 addressed to the Executive President of Islami Bank Bangladesh Limited refuted the claim of the respondent No. 2 regarding alleged outstanding liabilities and informed that his liabilities with BCCI were adjusted as back as in 1985 as a consequence of which BCCI issued a Certificate of Discharge dated 14.10.1985 in favour of the petitioner. In the said letter, it was also stated that in a meeting on 07.04.1996 with the Chairman and Managing Director of Eastern Bank Limited, the petitioner informed them of settlement of all his liabilities with BCCI in 1985 and the Certificate of Discharge issued by BCCI thereupon.
Copy of letter dated 10.04.1996 of the petitioner is enclosed herewith and marked as Annexure “F”.
12. That the respondent No. 2, instead of correcting their records, by letter dated 09.04.1996 addressed to the petitioner, claimed adjustment of alleged overdue outstanding liabilities of Tk. 1,04,68,332.75 as on 31.03.1996. In such a situation, having no alternative, the petitioner through his lawyer served Legal Notice dated 21.04.1996 upon the respondent No. 2 advising them not to cause any misunderstanding, confusion and damage to the petitioner’s business by making any false claims. By reply dated 19.05.1996, the respondent No. 2’s lawyer informed that the respondent No. 2 has no record of the Certificate of Discharge and re-iterated the alleged claim of the respondent No. 2. By counter reply dated 30.05.1996, the petitioner’s lawyer again intimated the respondent No. 2 that the petitioner has no outstanding liability with the respondent No. 2 and that the respondent No. 2 should refrain from making baseless and false allegations against the petitioner, failing which legal action would be initiated against the respondent No. 2.
Copy of Letter dated 09.04.1996 of the respondent No. 2, Legal Notice dated 21.04.1996 issued by the lawyer of the petitioner and Reply dated 19.05.1996 of the respondent No. 2’s lawyer are enclosed herewith and marked as Annexures “G”, “G(1)” and “G(2)”.
13. That since the respondent No. 2 continued to make false and illegal claims against the petitioner, on 29.06.1996 the petitioner filed Title Suit No. 5 of 1996 against the respondent No. 2 in the Court of Sub-Judge and Commercial Court No. 1, Dhaka praying inter alia, for permanent injunction against the respondent No. 2 i.e. Eastern Bank Limited from claiming any money from the petitioner in view of the Certificate of Discharge dated 14.10.1985 issued by BCCI.
14. That in Title Suit No. 5 of 1996, although the petitioner filed an application for temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908, there was no injunction or restraining order against the respondent No. 2 from instituting any suit for recovery of alleged outstanding liabilities from the petitioner.
15. That Title Suit No. 5 of 1996 in the Court of Sub-Judge and Commercial Court No. 1, Dhaka was subsequently transferred to the Environment Court, Dhaka and re-numbered as Title Suit No. 23 of 2003. In the said suit, on the date of cross-examination of the petitioner, the petitioner’s lawyer prayed for time as the petitioner could not attend the Court because of urgent pre-occupations. However, inspite of the absence of the petitioner, the learned Court took an adverse presumption under section 114(g) of the Evidence Act, 1872. Subsequently, by Judgement and Decree dated 31.01.2004 and 07.02.2004 respectively the learned Court dismissed the suit.
Copy of Order Sheet of Title Suit No. 5 of 1996 in the Court of Sub-Judge and Commercial Court No. 1, Dhaka (subsequently transferred to the Environment Court, Dhaka and re-numbered as Title Suit No. 23 of 2003) and Judgement and Decree of Title Suit No. 23 of 2003 are annexed herewith and marked as Annexures “H” and “H(1)”.
16. That against Judgement and Decree dated 31.01.2004 and 07.02.2004 passed in Title Suit No. 23 of 2003, the petitioner has filed FAT No. 204 of 2005 in the Hon’ble High Court Division challenging the said Judgement and Decree.
17. That meanwhile after obtaining certified copy of the Judgement and Decree of Title Suit No. 23 of 2003, the respondent No. 2 filed Artha Rin Suit No. 182 of 2004 in the 3rd Artha Rin Adalat, Dhaka against the petitioner praying for the following reliefs:
(a) A simple decree for the sum of Tk. 7,84,17,897.11 (Taka seven crore eighty four lac seventeen thousand eight hundred ninety seven and paisa eleven) only as on 31.03.2004 in favour of the respondent No. 2;
(b) A decree for sale of mortgaged property by auction sale for recovery of outstanding dues.
Copy of plaint of Artha Rin Suit No. 182 of 2004 is annexed herewith and marked as Annexure “I”.
18. That in paragraph 3 of the plaint of Artha Rin Suit No. 182 of 2004, the respondent No. 2 has stated that the petitioner allegedly mortgaged his land measuring 171/2 bighas against security inter alia of overdraft facility of Tk. 25,00,000.00 (Taka twenty five lacs) only and the same was confirmed by execution of memorandum of deposit of title deeds dated 21.12.1981. But the respondent No. 2 has not filed any deeds/documents in the Court regarding the property in question.
19. That in paragraph 5 of the plaint, it is further stated that the credit facilities allegedly availed by the petitioner was renewed on 30.09.1992. It is also stated that the said renewed credit facilities were secured by equitable mortgage over the property which was allegedly confirmed by memorandum of deposit of title deeds dated 30.09.1992. Paragraph 5 of the plaint is quoted below:
“5| weev`x D³ FY m~weav †fvM Kwiqv h_vixwZ cwi‡kva K‡i bvB | weMZ 30/9/92 Bs Zvwi‡L Zvnv‡K cÖ`Ë m~weavwU Zvnvi Av‡e`‡bi wfwˇZ bevqb Kiv nq| D³ FY m~weav weMZ 30/9/92 Bs Zvwi‡L 1,25,82,010.10 (UvKv GK †KvwU cuwPk j¶ weivwk nvRvi `k Ges `k cqmv) gvÎ bevqb m~weav D³ weev`x †fvM K‡i| GB g‡g© D³ weev`x weMZ 30/9/1992 Bs Zvwi‡L bevqbK„Z UvKv cwi‡kv†ai wbwg‡Ë cÖwgRix †bvU, †jUvi Ae G¨v‡ib&R‡g›U, †jUvi Ae M¨vivw›U Ges cybivq †g‡gvivÛvg wW‡cvwRU Ae UvB‡Uj wWW m¤úv`b Kwiqv mg~`q FY cwi‡kv†ai AsMxKvi K‡i|”
However, no sanction advice relating to the alleged renewal of the loan by the respondent No. 2 or deeds/documents relating to the property in question or Memorandum of Deposit of Title Deeds dated 30.09.1992 or any other date executed in favour of the respondent No. 2 have been filed in the Court. It is further submitted that on 30.09.1992 there was no existence of BCCI.
20. That for creation of equitable mortgage, it is essential to deposit the original deeds/documents relating to the mortgaged property along with supporting papers/documents as per section 58(f) of the Transfer of Property Act, 1882. The petitioner maintains that he never mortgaged any property in favour of the respondent No. 2 as security of any renewed credit facility or any other facility on 30.09.1992 or on any other date. It is contended that the respondent No. 2 has made up a false and fabricated story only to harass the petitioner by filing the suit.
21. That in such circumstances, the petitioner filed an application on 30.01.2005 in the 3rd Artha Rin Adalat, Dhaka under Order XI, Rule 14 read with section 151 of the Code of Civil Procedure, 1908 and section 57 of the Artha Rin Adalat Ain, 2003 for direction upon the respondent No. 2 to produce (i) all original deeds/documents relating to the petitioner’s property which was allegedly mortgaged with the respondent No. 2 and (ii) original Memorandum of Deposit of Title Deeds dated 30.09.1992. The respondent No. 2 did not file any objection to the said application.
Copy of the application filed on 30.01.2005 by the petitioner in Artha Rin Suit No. 182 of 2004 in the 3rd Artha Rin Adalat, Dhaka is enclosed herewith and marked as Annexure “J”.
22. That the application for production of documents was heard by the respondent No. 1 on 10.02.2005 and by an Order of the same date, the respondent No. 1 allowed the application and issued direction upon the respondent No. 2 to produce the relevant documents to the petitioner. On 05.03.2005, the respondent No. 2 filed originals of some documents that were earlier filed along with the plaint. But they failed to produce (i) any deeds/documents relating to the petitioner’s property which was allegedly mortgaged with the respondent No. 2 and (ii) any Memorandum of Deposit of Title Deeds dated 30.09.1992.
Certified copy of Order dated 10.02.2005 passed in Artha Rin Suit No. 182 of 2004 by the 3rd Artha Rin Adalat, Dhaka is enclosed herewith and marked as Annexure “K”.
23. That since the respondent No. 2 failed to produce the documents as per direction of the Court, on 16.03.2005 the petitioner filed another application under Order XI, Rule 21 read with section 151 of the Code of Civil Procedure, 1908 and section 57 of the Artha Rin Adalat Ain, 2003 for dismissal of the suit for want of prosecution. The respondent No. 2 did not file any objection to the said application.
Certified copy of the application filed on 16.03.2005 by the petitioner in Artha Rin Suit No. 182 of 2004 in the 3rd Artha Rin Adalat, Dhaka is enclosed herewith and marked as Annexure “L”.
24. That by Order dated 05.04.2005, the respondent No. 1 rejected the application filed by the petitioner for dismissal of the suit for want of prosecution without any specific grounds. By the same Order, the respondent No. 1 accepted the written statement, which was filed by the petitioner on 30.03.2005.
Copy of Order dated 05.04.2005 and the Written Statement filed in Artha Rin Suit No. 182 of 2004 in the 3rd Artha Rin Adalat, Dhaka are enclosed herewith and marked as Annexures “M” and “M(1)”.
25. That the learned Court fixed 28.04.2005 for framing of issues. On the said date, the petitioner suggested the following issues legal and factual issues:
(i) Whether the respondent No. 2 having no title deed in its possession, there can be any equitable mortgage in favour of the respondent No. 2.
(ii) Whether in the absence of any mortgage, the suit is barred by the law of limitation.
(iii) Whether the petitioner having repaid the loan in 1985, there is any cause of action to file the suit.
(iv) Whether any loan was sanctioned by the respondent No. 2 in favour of the petitioner in 1992.
(v) Whether the suit filed by the respondent No. 2 is maintainable in its present form and manner.
(vi) Whether the respondent No. 2 is entitled to the reliefs as prayed for.
On 28.04.2005, the petitioner also filed an application under Order XIV Rule 2 of the Code of Civil Procedure, 1908 for trying and disposal of the following legal issues suggested by the petitioner:
(i) Whether the respondent No. 2 having no title deed in its possession, there can be any equitable mortgage in favour of the respondent No. 2.
(ii) Whether in the absence of any mortgage, the suit is barred by the law of limitation.
Certified copy of application dated 28.04.2005 filed in Artha Rin Suit No. 182 of 2004 in the 3rd Artha Rin Adalat, Dhaka is enclosed herewith and marked as Annexure “N”.
26. That while framing the issues of the suit, the respondent No. 2 did not consider the issues suggested by the petitioner. On 15.05.2005, the following issues were framed by the respondent No. 2:
1. gvgjvwU eZ©gvb AvKv‡i I cÖKv‡i Pwj‡Z cv‡i wK bv|
2. weev`x ZcwQj ewY©Z m¤cwË ZrKvjxb e¨vsK Ae †µwWU GÛ Kgvm© B›Uvib¨vkbvj (IfvimxR) wjwg‡UW, XvKv-Gi wbKU BKzB‡Uej eÜK ivwLqv FY MªnY KwiqvwQj wKbv|
3. ev`x e¨vsK KZ…©K cÖ`Ë wnmve-weeibx mwVK Av‡Q wKbv|
4. ev`x e¨vsK weev`xi weiƒ‡× cÖv_x©Z AvKv‡i cÖwZKvi cvB‡Z cv‡i wKbv|
Certified copy of the issues framed by the respondent No. 2 in Artha Rin Suit No. 182 of 2004 is annexed herewith and marked as Annexure “O”.
27. That in the Artha Rin Suit, the claim of the respondent No. 2 is that the petitioner has availed loan from the respondent No. 2 i.e. Eastern Bank Limited on 30.09.1992 and the same was allegedly secured by equitable mortgage by way of execution of memorandum of deposit of title deeds dated 30.09.1992. The said claim of the respondent No. 2 has been categorically denied by this petitioner in his written statement. Moreover, the petitioner has not produced any sanction advice, deeds/documents in connection with the loan or mortgage till date, despite direction of the respondent No. 1 vide Order dated 10.02.2005.
28. That in view of the claim of the respondent No. 2 and the denial of the petitioner, in order for the Court to come to a correct and judicious conclusion, it is essential to frame an additional legal issue as to whether there is any valid mortgage in favour of the respondent No. 2.
29. That the petitioner, therefore, filed an application on 18.06.2005 in Artha Rin Suit No. 182 of 2004 under Order XIV, Rules 5 and 2 read with section 151 of the Code of Civil Procedure, 1908 and section 57 of the Artha Rin Adalat Ain, 2003 for framing of additional issues and for trying and disposal of the legal issues postponing trial of the other factual issues.
Certified copy of application dated 18.06.2005 in Artha Rin Suit No. 182 of 2004 is annexed herewith and marked as Annexure “P”.
30. That by the impugned Order dated 25.06.2005, the respondent No. 1 has only framed the second issue suggested by the petitioner as additional issue. The respondent No. 1 has not framed the first additional legal issue suggested by the petitioner i.e. whether the respondent No. 2 having no title deed in its possession, there can be any equitable mortgage in favour of the respondent No. 2. The next date of the suit has been fixed by the respondent No. 1 on 24.07.2005 for peremptory hearing.
31. That the cause of action of the suit as stated in paragraph 9 of the plaint arose on 30.09.1992 when the petitioner allegedly availed loan from the respondent No. 2. But in support of the alleged loan, the respondent No. 1 has not submitted a single document. No sanction advice, memorandum of deposit of title deeds or title deed of any property of the petitioner has been filed in the Court by the respondent No. 2 despite direction of the respondent No. 1 dated 10.02.2005. Since the suit is for recovery of money by sale of mortgaged property, it is essential to frame the legal issue as to whether there is any valid mortgage in favour of the respondent No. 2 and to try the said legal issue before trial of other factual issues. In not framing the said additional legal issue, the respondent No. 1 has acted illegally and arbitrarily causing irreparable loss to the petitioner. For ends of justice, the respondent No. 1 ought to have framed the additional legal issue suggested by the petitioner as to whether there is any valid mortgage in favour of the respondent No. 2 and to try the said legal issue.
32. That the second issue framed by the learned Court is as under:
“2. weev`x ZcwQj ewY©Z m¤cwË ZrKvjxb e¨vsK Ae †µwWU GÛ Kgvm© B›Uvib¨vkbvj (IfvimxR) wjwg‡UW, XvKv-Gi wbKU BKzB‡Uej eÜK ivwLqv FY MªnY KwiqvwQj wKbv|”
Since the cause of the action of the suit as mentioned in the plaint arose on 30.09.1992 regarding loan allegedly availed by the petitioner from the respondent No. 2 i.e. Eastern Bank Limited, the issue as framed by the Court is redundant. Moreover, in 30.09.1992 there was no existence of BCCI. The issue that ought to have been framed by the respondent No. 1 is whether the petitioner mortgaged his property as security of any loan availed from the respondent No. 2 i.e. Eastern Bank Limited. Thus, the respondent No. 1 committed illegality in misconstruing the cause of action of the suit and the issues that requires to be framed.
33. That the petitioner submits that the respondent No. 1 has acted illegally, arbitrarily and unlawfully in failing to consider that the additional legal issue suggested by the petitioner i.e. whether there is any valid mortgage in favour of the respondent No. 2 can be ascertained as per section 58(f) of the Transfer of Property Act, 1882.
34. That the respondent No. 1 has acted illegally, arbitrarily and unlawfully in failing to consider that upon framing and trial of the additional legal issue suggested by the petitioner, the suit may be disposed of without trying the other factual issues.
35. That the respondent No. 1 has acted illegally and arbitrarily in failing to consider that if the legal issue suggested by the petitioner is not framed and tried, and the suit is decreed in favour of the respondent No. 2, as per provision of the Artha Rin Adalat Ain, 2003 the petitioner will have to deposit 50% of the decretal amount for filing appeal for a loan which was never availed by him and against which no security document or deeds/documents relating to any property of the petitioner have been submitted by the respondent No. 2. It is therefore essential that a direction be issued by this Hon’ble Court to the respondent No. 1 to frame the additional legal issue as suggested by the petitioner and to try the said legal issue.
36. That in such circumstances, the petitioner begs to file this writ petition for the following amongst other –
G R O U N D S
I. For that the impugned Order No. 21 dated 25.06.2005 passed by the respondent No. 1 in Artha Rin Suit No. 182 of 2004 is illegal, arbitrary and passed in a capricious manner without considering the facts of the suit.
II. For that the respondent No. 1 has committed illegality in not considering that since the suit is for recovery of money by sale of mortgaged property, it is essential to frame the additional legal issue i.e. whether there is any valid mortgage in favour of the respondent No. 2 and to try the said legal issue before trial other factual issues.
III. For that the respondent No. 1 has acted illegally and arbitrarily in not framing and trying the additional legal issue suggested by the petitioner and in failing to consider that the cause of action of the suit arose on 30.09.1992 when the petitioner allegedly availed loan from the respondent No. 2 and the respondent No. 2 failed to submit a single document in support thereof, despite direction dated 10.02.2005 of the respondent No. 1.
IV. For that the respondent No. 1 has committed illegality in not framing the additional legal issue and trying the same and in failing to consider that no sanction advice, memorandum of deposit of title deeds dated 30.09.1992 or title deed of any property of the petitioner has been filed in the Court by the respondent No. 2 despite direction of the respondent No. 1 vide Order dated 10.02.2005.
V. For that the respondent No. 1 has acted illegally, arbitrarily and unlawfully in failing to consider that upon framing and trial of the additional legal issue suggested by the petitioner, the suit may be disposed of without trying the other factual issues.
VI. For that the respondent No. 1 acted illegally and unlawfully in framing the issue i.e. “weev`x ZcwQj ewY©Z m¤cwË ZrKvjxb e¨vsK Ae †µwWU GÛ Kgvm© B›Uvib¨vkbvj (IfvimxR) wjwg‡UW, XvKv-Gi wbKU BKzB‡Uej eÜK ivwLqv FY MªnY KwiqvwQj wKbv|” whereas the cause of the action of the suit as mentioned in the plaint arose on 30.09.1992 regarding loan allegedly availed by the petitioner from the respondent No. 2 i.e. Eastern Bank Limited and not from Bank of Credit and Commerce International (Overseas) Limited, Dhaka and as such the issue framed by the respondent No. 1 is redundant.
VII. For that the respondent No. 1 committed illegality in misconstruing the cause of action of the suit and the essential legal issue that requires to be framed and tried in the suit.
VIII. For that the respondent No. 1 acted illegally, arbitrarily and unlawfully in failing to consider that the additional issue suggested by the petitioner i.e. whether there is any valid mortgage in favour of the respondent No. 2 is a legal issue which can be ascertained as per section 58(f) of the Transfer of Property Act, 1882.
IX. For that the respondent No. 1 has acted illegally and arbitrarily in failing to consider that if the legal issue suggested by the petitioner is not framed and tried, and the suit is decreed in favour of the respondent No. 2, as per provision of the Artha Rin Adalat Ain, 2003 the petitioner will have to deposit 50% of the decretal amount for filing appeal which is impossible for the petitioner to deposit.
X. For that the impugned order is otherwise bad in law, illegal, arbitrary and unreasonable.
37. That it is submitted that the petitioner has no other equally efficacious remedy. It is further submitted that unless the impugned Order in not allowing the application of the petitioner filed under Order XIV, Rules 5 and 2 read with section 151 of the Code of Civil Procedure, 1908 and section 57 of the Artha Rin Adalat Ain, 2003 for framing and trial of the additional legal issueis not declared by this Hon’ble Court to have been issued without lawful authority and of no legal effect, the petitioner will suffer irreparable loss and injury.
Wherefore, it is humbly prayed that your Lordships would graciously be pleased to:
(a) Issue Rule Nisi calling upon the respondents to show cause as to why Order No. 21 dated 25.06.2005 issued by the respondent No. 1 in Artha Rin Suit No. 182 of 2004 (Annexure “A”) in not allowing the application of the petitioner filed under Order XIV, Rules 5 and 2 read with section 151 of the Code of Civil Procedure, 1908 and section 57 of the Artha Rin Adalat Ain, 2003 for framing and trial of the additional legal issuei.e. whether the respondent No. 2 having no title deed in its possession, there can be any equitable mortgage in favour of the respondent No. 2 shall not be declared to have been issued without lawful authority and of no legal effect and why direction should not be issued upon the respondent No. 1 to frame and try the said legal issue before trial of other factual issues, and after hearing the parties and cause shown, if any, make the Rule absolute;
(b) Pending hearing of the Rule, stay further proceedings of Artha Rin Suit No. 182 of 2004 pending before the 3rd Artha Rin Adalat, Dhaka;
(c) Cost of the proceeding be awarded in favour of the petitioner; and
(d) Pass such other or further order or orders as may be deemed fit and proper.
And for this act of kindness the petitioner as in duty bound will ever pray.
AFFIDAVIT
I, _____________________, son of _________________________ of ____________________________, aged about ___________ years, by occupation a _____________, by faith a ____________, nationality Bangladeshi by birth, do hereby solemnly affirm and say as follows:
1. That I am the petitioner and acquainted with the facts and circumstances of the present case and competent and authorised to swear this Affidavit.
2. That the statement of facts made in this petition are true to my knowledge and matters of records, which I verily believe to be true and the rests are submission before this Hon’ble Court.
| Prepared in my office: | ||
| DEPONENT | ||
| Advocate | The deponent is known to me and identified by me. | |
| Solemnly affirmed before me by the said deponent on this the ____________ day of ______________ at _______ a.m. | Advocate | |
| Commissioner of Affidavits
Supreme Court of Bangladesh High Court Division |