Query b: How long will it take to complete the money suit? How long will it take to complete the execution case? Please describe the detailed procedure that has to be followed.
Please note that in accordance with section 5 (1) of the Artha Rin Adalat Ain 2003 (“Act”), all suits relating to the recovery of loans granted by any financial institutions or banks as listed in section 2 (ka) of the Act, shall have to be filed in the Artha Rin Adalat. And any suit filed under the Act shall be registered in the name of Artha Rin Suit.
Section 5 of the Act provides that:
“(1) Notwithstanding anything contained in any other law, all suits relating to recovery of loans of financial institutions shall have to be filed in the Artha Rin Adalat and shall be disposed of by the said Adalat.
(8) Suits filed under this Act shall be registered in the name of “Artha Rin Suit”
The detail procedure of the suit along with the time schedule, from institution till decree has been passed is stated in following sections:
Section 6 – Trial Process
“(1) In the proceedings relating to trial or disposal of any suit filed in the Artha Rin Adalat under this Act, the provisions of the Code of Civil Procedure, 1908 shall, subject to not being inconsistent with the provisions of this Act, be applicable.
(2) Any suit under this Act shall be filed by financial institution by submitting a plaint, an affidavit in support of the statements of the plaint and related documentary evidence shall be annexed, ad valorem court fees payable with the plaint shall have to be paid and if the plaint is in order, it must be registered serially in the concerned register of the Court.
(3) The defendant can oppose the suit filed by financial institution under this Act by submitting a written statement, an affidavit in support of the statements of the written statements and related documentary evidence shall be annexed and the submitted written statement shall be put in the case file.
(4) In the disposal of suits under this Act, affidavits attached in accordance with the provisions of sub-sections (2) and (3) shall be deemed to be substantial evidence, and in case of ex parte hearing or immediate disposal of any suit, the Court shall, without examining any witnesses, upon examination of the plaint along with affidavit or written statement along with affidavit and related documentary evidence, pronounce judgment or order.”
Section 7 – Rules regarding Service of Summons
“Notwithstanding anything contained in any other act still in force, in order to be served by registered post by the process server of the court, the plaintiff shall submit all process fees in order to serve summon with the plaint and the court shall immediately take steps to serve those together and if it never returns or returns without being received within 15 (fifteen) working days of the summons being issued, then the court shall within the next 15 (fifteen) working days, issue summons in accordance with Rule 20 of Order 5, Code of Civil Procedure, 1908.”
Section 10 – Time limit for submitting Written Statement
“(1) Subject to the provisions of sub-section (2), the Artha Rin Adalat shall not accept any written statement filed by the defendant after 40(forty) days from the date of appearance of the defendant, and in such case, the Court shall immediately dispose of the suit ex parte.
(2) Notwithstanding the provision of sub-section (1), the Court may increase the above-mentioned time limit for a maximum period of 20(twenty) days on condition that the defendant pays for expenses an amount, not less than Tk. 2000.00 and not more than Tk. 5000.00.”
Section 11 – Additional Statement against Written Statement
“If the plaintiff financial institution intends to file additional statement in reply to the written statement submitted by the defendant, subject to permission of the Court, the plaintiff shall submit the same within 15(fifteen) days of submission of the written statement.”
Section 15 – Provisions relating to Oral or Written Arguments
“(2) Subject to the provisions of sub-section (3), if any party or parties so wish, on notifying the Court in writing immediately after completion of examination of witnesses and upon supplying a copy thereof to the other party or parties, may submit written arguments within 5 (five) days, but there shall be no scope for replying to the written arguments.”
Section 16 – Provisions relating to Delivery of Judgment
“(1) The Court shall deliver judgment of the suit within maximum 10 (ten) days after completion of examination of witnesses, but if the party or parties submit written arguments under section 15(2) or the Court hears to oral arguments under sub-section (3), the Court shall deliver judgment within maximum 10 (ten) days from the date of submission of written arguments or hearing of oral arguments.
(2) If the Court, in the judgment or order, does not fix a longer time limit for repayment of the decretal amount by installments, it shall direct the defendant to repay the decretal amount within a time not exceeding 60 days.”
Section 17 – Provision for Time Limit for Disposal of Suit
“(1) Suits filed under this Act has to be disposed of within the maximum period of 30(thirty) days from the date of service of summons if the defendant does not appear even after service of summons, and if the defendant appears and files written statement, subject to the provisions of sub-section (2), within 90(ninety) days from the date of filing written statement.
(2) Notwithstanding the provisions as contained in sub-section (1), if the Court fails to dispose of the suit within the fixed time limit of 90(ninety) days, it may, on recording appropriate reasons, extend the time limit for a further period of maximum 30(thirty) days.”
The relevant provisions specifying the time period for filing execution case is contained in section 28 and 29 of the Act.
Section 28 – Time Limit for submitting Suit for Execution
“(1) Notwithstanding anything contained to the contrary in the Limitation Act, 1908 and the Code of Civil Procedure, 1908, if the decree-holder intends to execute the decree or order through Court, it shall, subject to the provisions of section 29, file suit for execution by submitting application within 1 (one) year from the passing of the decree or order.
(2) In contravention of the provisions of sub-section (1), on expiration of 1 (one) year after passing decree or order, any suit filed for execution shall be barred by limitation and the Court shall summarily dismiss such suit.
(3) The second or subsequent suit for execution, if filed after one year from the date of disposal or dismissal of the first or previous suit for execution, shall be barred by limitation; and the Court shall, summarily dismiss such suit which is barred by limitation.
(4) If any new suit for execution is filed after expiration of the next 6(six) years from the date of filing of the first suit for execution, such suit shall be barred by limitation; and the Court shall, summarily dismiss such suit which is barred by limitation.”
Section 29 – Special provision regarding Time Limit
“If the Court, during delivery of judgment, fixes any time limit for repaying the decretal amount at one time or in installments, the time limit mentioned in section 28(1) shall be effective after expiration or ineffectiveness of such time limit.”
Please note that although the statute expressly mentioned specific time periods for disposal of the artha rin suit, it may takes more time to dispose of the suit. The duration of the Suit may extend depending upon the complicacy of the suit and factual disruption that may arise during different stages of the proceeding.
Query:C Can we file money suit against the guarantors for attaching personal properties/shares who have given their personal guarantees? What is the procedure and how much time will it take to complete the entire process? Do we have to file a separate case for this or it can be associated with the money suit filed against the client?
Please note that provision for filing Artha Rin Suit against the guarantors of the principal debtor has been made in Section 6 of the Act.
Section 6 states as follows:–
“(5) In case of filing suits by financial institutions against the principal debtor, if there is any third party mortgagor or third party guarantor related to the loan, they shall be made defendant; and the judgment, order or decree passed by the Court shall be effective against all the defendants jointly and severally and suit for execution of decree shall be conducted at the same time against all the defendants-debtors:
Provided that in case of recovery of loan by execution of decree, the Court shall firstly, attach the property of the principal debtor-defendant and thereafter, as far as possible, the property of the third party mortgagor and third party guarantor respectively.”
In accordance with the above provision of law, it appears that if there is any guarantor present who has provided any guarantee in relation to the loan granted to the principal debtor, they shall be made party as defendant in the same suit that will be filed against the principal debtor and any judgment, order or decree passed by the Court shall be effective against all the defendants jointly and severally. No separate suit for such is required.
SCB may apply for an attachment of the property of the guarantor at the time of filing an execution case for execution of the decree passed in the Artha Rin Suit. However, if it appears that there is a possibility that the guarantor is about to dispose/remove whole or part of his property, it may apply for an attachment of the property while the Artha Rin Suit is still pending before the court. However, please note that in accordance with the provision of section 6 (5) of the Act, in case of recovery of loan by execution of decree, the Court shall firstly, attach the property of the principal debtor-defendant and thereafter as far as possible, the property of the third party mortgagor and lastly third party guarantor.
Should you require any further assistance, feel free to contact us.
For: “The Lawyers & Jurists”