IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
CIVIL REVISION NO. 893 OF 1994
IN THE MATTER OF:
An application for vacating the order of stay.
A N D
IN THE MATTER OF:
National Credit and Commerce Bank Limited and others
Mr. Justice Mahmudul Amin Choudhury, the Chief Justice of Bangladesh and his companion Justices of the Hon’ble Supreme Court of Bangladesh.
The humble petition on behalf of the plaintiff/opposite-party most respectfully
01. That the plaintiff/petitioner has filed the above revisional petition against order dated 03.02.94 passed by the Subordinate Judge and Artha Rin Adalat, 3rd Court, Chittagong in Other Suit No. 1 of 1994 rejecting the application filed under Order XXXIX, Rule 1 of the Code of Civil procedure for injunction and returning the plaint.
02. That as against the said order the petitioner filed the above revisional petition and the Hon’ble Court vide order dated 10.03.94 was pleased to issue Rule upon the opposite-parties. The Hon’ble Court was also pleased to stay all further proceedings of Mortgage Execution Case No. 5 of 1992 pending in the Court of Subordinate Judge and Artha Rin, 3rd Court, Chittagong for a period of 8 weeks which was subsequently extended till disposal of the Rule.
03. That the brief background of the case is as follows:
a) That the petitioner is the wife of the opposite-party No. 2. Pursuant to application dated 05.01.88 made by the opposite-party No. 2 for Cash credit facilities, the opposite-party No. 1, which is a commercial Bank allowed Cash Credit facility of Tk. 5,00,000.00 only vide Sanction Letter dated 25.02.88. The Loan was valid up to 31.12.89.
b) That as security for repayment of the aforesaid loan, the petitioner who is the wife of the opposite-party No. 2, mortgaged her land measuring 2 ganda, 1 kara situated within District Chittagong, P.S. Kotwali, Mouza Andarkilla, R. S. Khatian No. 1127, R. S. Dag No. 612. The opposite-party No. 2 executed various charge documents against the said credit facility.
c) That the opposite-party No. 1 availed the Cash Credit facility in full, but despite repeated requests and reminders of the opposite-party Bank failed to repay the same within the stipulated period. The opposite-party Bank on various occasions requested the opposite-party No. 2 to adjust his liability. But the said opposite-party No. 2 did not come forward to adjust his liability. Consequently opposite-party Bank through its lawyer served legal notice dated 11.04.90 upon the petitioner and the opposite-party No. 2 to adjust the liability. Unfortunately they failed to adjust the liability except depositing an amount of Tk. 20,000.00 only on 25.10.90.
d) That in such circumstances the opposite-party Bank finding no other alternative was compelled to file Mortgage Suit No. 14 of 1991 in the Court of Subordinate Judge and Artha Rin Adalat, 3rd Court, Chittagong on 22.05.91 for recovery of Tk. 8,36,214.00 only. Summonses were duly served upon the petitioner and the opposite-party No. 1. But none of them appeared in the suit and consequently ex-parte preliminary decree was passed on 20.08.91 in favour of the opposite-party No. 1 (hereinafter referred to as the decree-holder Bank) and against the petitioner and the opposite-party No. 2 (both hereinafter collectively referred to as the judgement-debtors). Subsequently upon an application filed by the decree-holder Bank final decree was passed on 10.02.92.
e) That the decree-holder Bank filed Mortgage Execution Case No. 5 of 1992 on 16.04.92 for execution of the decree to realise the decretal amount by sale of the mortgaged property.
f) That at the fag end of the auction process of the mortgaged property, the petitioner of this Civil Revision filed Other Suit No. 1 of 1994 in the Court of Subordinate Judge and Artha Rin Adalat, 3rd Court, Chittagong impleading the opposite-party Bank as defendant for declaration that the decree in Mortgage Suit No. 14 of 1991 was obtained fraudulently being collusive and as such void.
g) That in the said Other Suit No. 1 of 1994 the petitioner also filed an application under Order XXXIX, Rule 1 of the Code of Civil Procedure for injunction restraining the opposite-party Bank from proceeding with the Execution Case.
h) That the application for injunction was heard by the learned Subordinate Judge and Artha Rin Adalat on 03.02.94. After hearing, the learned Court was pleased to reject the application. The learned Court was also pleased to return the plaint. Against the said order this Civil Revision was filed whereupon Rule was issued by this Hon’ble Court and further proceedings of the Mortgage Execution Case No. 5 of 1992 was stayed.
04. That it is submitted that the impugned order has been passed by an Artha Rin Adalat constituted under Artha Rin Adalat Act, 1990. In accordance with section 6 read with section 7 of the Artha Rin Adalat Act the order passed by an Artha Rin Adalat cannot be challenged in any Court. Since Artha Rin Adalat Act is a special law and it provides that the order passed by an Artha Rin Adalat cannot be challenged in any Court, a revisional petition under section 115(1) of the Code of Civil Procedure is not maintainable. Revision of an order passed by an Artha Rin Adalat is barred because the Artha Rin Adalat Act being a special legislation setting up a special Court the remedies will follow as provided therein.
05. That the issue whether an order passed by an Artha Rin Adalat is amenable to the revisional jurisdiction of the High Court Division has been tested by this Hon’ble Court on several occasions. Although at the beginning of enactment of the Artha Rin Adalat Act the said issue was not settled. But after the decision of the Hon’ble Appellate Division in the several cases reported in 46 DLR (AD) page 174, 52 DLR (AD) page 76 and 53 DLR (AD) page 9, it is now well settled that revisional petition does not lie against an interlocutory order passed by an Artha Rin Adalat. Following the decision of the Appellate Division the High Court Division in several cases rejected revisional petition filed against orders passed by Artha Rin Adalat.
06. That it is further submitted that it is settled that the execution proceedings pending in a Special Court cannot be stayed. As such the learned Court below has committed no error of law in rejecting the application for injunction and there is no failure of justice.
07. That it is further submitted that an Artha Rin Adalat being a Special Court constituted under Artha Rin Adalat Act, 1990 is not the proper forum for filing any suit which does not come within the purview of section 5 of the Artha Rin Adalata Act, 1990. Other Suit No. 1 of 1994 which was filed by the petitioner of this Civil Revision which was not a suit for recovery of loan by a Financing Institution as defined by section 2 of the Artha Rin Adalat Act, 1990 and as such the said suit does not come within the purview of section 5 of the said Act and therefore cannot be filed in Artha Rin Adalat. As such the learned Court below committed no illegality in returning the plain.
08. That the petitioner with an intention to delay the realisation process of the opposite-party Bank has filed this revision and the said petitioner has partially succeeded by obtaining an order of stay from this Hon’ble Court.
09. That the order of stay passed by the Hon’ble Court is adversely affecting the interest of the opposite-party Bank. It is submitted that because of the order of stay the said Bank is being deprived of realising its legitimate dues, which is in fact depositors’ money.
10. That in such circumstances this application has been filed for vacating the order of stay. Unless the order of stay is vacated the opposite-party Bank will suffer irreparable loss because the realisation process of its legitimate dues have been stayed by the order of stay. As such for ends of justice the order of stay may be vacated.
11. That this applicant is filed bona-fide.
Wherefore it is most humbly prayed that your Lordships would graciously be pleased to vacate the order of stay passed earlier by this Hon’ble Court and/or pass such other or further order or orders as your Lordships may deem fit and proper.
And for this act of kindness the applicant as in duty bound shall ever pray.
I, ______________________, son of late ________________________, ____________ officer, National Credit and Commerce Bank Limited, Head Office, 7-8 Motijheel Commercial Area, P.S. Motijheel, Dhaka-1000, aged about ____ years, by faith Muslim, nationality Bangladeshi, profession service, do hereby solemnly affirm and declare as follows:
1. That I am the __________ Officer of the opposite-party Bank holding Power of Attorney and acquainted with the facts and circumstances and competent to swear this Affidavit.
2. That the statements of facts made in this application are true to the best of my knowledge and belief and rests are submissions 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 aforesaid deponent this the ____th day of February, 2001 at ______ a.m.||ADVOCATE|
Commissioner of Affidavits
Supreme Court of Bangladesh
High Court Division