Re: Legal Opinion on foreclose of leased assets A/c. M/s. Company 1
We refer to your letter dated 27.09.2006 on the above subject.
Artha Jari Case No. 202/2005 filed against Mr. X, Proprietor of Company 1 and 02 others has been disposed off by the Court issuing Certificate of Possession for mortgaged land measuring 27 decimal in favour of GSP finance Company (Bangladesh) Limited under section 33(5) of the Artha Rin Adalat Ain, 2003 (the ‘Certificate’). According to the Certificate, GSP can recover its dues by selling the certificate land following the provisions provided under section 33 (1), (2), (3) and (4) of the Artha Rin Adalat Ain, 2003. It is stated in the section 33(9) of the said Act that in case of vest of possession and enjoyment right of land upon the decree holder the execution case shall be deemed to be finally disposed off subject to the provision provided under section 28 of the Act. In view of the above Artha Jari Case No. 202/2005 shall be deemed to be finally disposed off subject to the section 28 of Artha Rin Adalat Ain.
The section 28 of the Arha Rin Adalat Ain, 2003 deals with only the limitation period for filing execution (Artha Jari) case. As per this section, second execution (Jari) case to be filed within one year of disposed off the first execution (Jari) case otherwise filing of further execution (Jari) case shall be barred by law of limitation. In view of the above, it is clear that Artha Jari (execution) Case No. 202/2005 has been finally disposed off.
We are of the opinion that without failing to sell the certificate land following the provisions under section 33 (1), (2), (3) and (4), GSP cannot file second execution (Jari) case and until it files second execution (Jari) case, no further property of Judgment Debtors or under possession of them can be sold to recover the decretal amount.
In such situation GSP may arrange auction at least two times to sell the certificate land, in case of failing of the auctions, GSP may file second execution (Artha Jari) case within one year of issuance of the Certificate. And in the second Artha Jari case it may file an application to the Court for permission to sell the leased assets to recover the decretal amount.
For: “The Lawyers & Jurists”