The X Trust Petitioner Versus Arab Bangladesh Bank Limited and others Opposite-parties

DISTRICT: DHAKA

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. ______OF _____

The X Trust

Petitioner

Versus

Arab Bangladesh Bank Limited and others

Opposite-parties

COUNTER AFFIDAVIT ON BEHALF OF THE OPPOSITE-PARTY NO. 1

I, A, son of B, aged about ___________ years, Officer of Arab Bangladesh Bank Limited, 14 Mohakhali Commercial Area, Dhaka-1212, by faith Muslim, by nationality Bangladeshi, profession Service, do hereby solemnly affirm and declare as follows:

01. That I am the Officer of the opposite-party No. 1 and Tadbirkar in this case and conversant with the facts and circumstances of the case and competent to swear this affidavit.

02. That I have gone through the revisional petition (hereinafter referred to as “the petition”) whereupon the instant Rule has been issued. Having understood the contents of the said petition I have been advised by my learned lawyer to controvert those statements which are necessary for disposal of the instant Rule and those statements which I do not hereinafter specifically admit shall be deemed to have been denied by the opposite-party No. 1.

03. That it is submitted that in view of the provision of section 115(2) of the Code Civil Procedure [As amended by the Code of Civil Procedure (Third Amendment) Act, 2003] the impugned order having been passed by a Joint District Judge, the instant revision is not maintainable in the High Court Division.

04. That Title Suit No. 105 of 2004 has been filed challenging the judgement and decree passed by the Artha Rin Adalat No. 3, Dhaka in Title Suit No. 116 of 1998 and for declaration that the property in question is free from all encumbrances, etc. It is submitted that the Title Suit No. 105 of 2004 is barred by section 42 of the Specific Relief Act in that in the said suit the petitioner as plaintiff has omitted to seek consequential relief.

05. That it is submitted that in view of the provision of section 20 of the Artha Rin Adalat Act, 2003 the learned Court of Joint District Judge, 1st Court, Dhaka is not competent to pass the decree sought in Title Suit No. 105 of 2004, more so when the petitioner has the forum under section 19 of the Artha Rin Adalat Act, 2003.

06. That in view of the provision of Artha Rin Adlat Act, 2003 and in view of various decisions of this Hon’ble Court, the Artha Rin Adalat being a special Court constituted under a special legislature any proceedings pending before such Court cannot be stayed by a Civil Court with ordinary jurisdiction. As such the learned Court of Joint District Judge, 1st Court, Dhaka has not committed any error of law resulting in an error in the impugned order occasioning failure of justice.

07. That the statements made in paragraph No. 1 of the petition are misconceived. With regard to the statement that the opposite-party No. 1 obtained the decree from the Artha Rin Adalat by suppressing summons, the same are false and fictitious and as such denied by the opposite-party No. 1.

08. That the statements made in paragraph Nos. 2-3 of the petition are matters of record. As such not comment is made.

09. That the statements made in paragraph No. 4-10 of the petition are misconceived and misrepresentation of facts and as such denied by the opposite-party No. 1. Contrary to what has been stated, the 17 decimals of land in question was never sold to the petitioner by Mr. Tariq M. Mazumder. From the title deeds submitted by the petitioner it transpired that Mr. Tariq M. Mazumder mutated his name in the records of rights vide Mutation and Separation Case No. 7954(M)79-80 dated 09.01.80. Whereas the 17 decimals of land purchased by the petitioner on 26.07.86 from Mrs. Rehana Chowdhury and Mr. Mujib Ahmed Chowdhury was acquired by the said sellers from Mr. Tariq M. Mazumdar on 29.04.78, i.e. prior to the mutation of the remaining land in the name of Mr. Tariq M. Mazumdar. It also transpired from the judgement of Title Suit No. 116 of 98 passed by the Artha Rin Adalat, 3rd Court that Mr. Tariq M. Mazumdar sold out 33 decimals of land on 29.04.78 to one Mrs. Sultana Chowdhury. If the aforesaid lands (17 decimals and 33 decimals) are different lands then the entire 50 decimals of land was sold out on 29.04.78. If that is the case then the question of mutation of land by Mr. Tariq M. Mazumdar vide Mutation and Separation Case No. 7954(M)79-80 dated 09.01.80 would not arise. In fact the aforesaid 17 decimals of land is part of the 33 decimals sold by Mr. Tariq M. Mazumdar to Mrs. Sultana Chowdhury and at the time of mortgage with the opposite-party No. 1, Mr. Tariq M. Mazumdar had ownership over the remaining 17 decimals of land which has been foreclosed by the learned Artha Rin Adalat, 3rd Court by its judgement and decree. As such the petitioner cannot have any prima facie case to stay further proceedings of the Execution Case. Hence, the instant Rule is liable to be discharged.

10. That the statements made in paragraph Nos. 11-12 of the petition are misrepresentation of fact and as such denied by the opposite-party No. 1. It is categorically denied that the auction notice published on 13.04.2003 was done by the opposite-party No. 1 with a malafide intention. It is stated that the said notice was published in compliance of the Court’s order. With regard to the Title Suit No. 105 of 2004, it is submitted that the said suit is barred by section 20 of the Artha Rin Adalat Act, 2003 and section 42 of the Specific Relief Act. That being the position, the petitioner cannot have any prima facie case to obtain any equitable relief like an order of stay.

11. That the statements made in paragraph No. 13 of the petition are false, fictitious and concocted and as such denied by the opposite-party No. 1. Contrary to what has been alleged, it is apparent from the records that out of the 50 decimals of land, an area of 33 decimals of land was sold out by Mr. Tariq M. Mazumdar on 29.04.78. Part of the said 33 decimals of land being 17 decimals of land was subsequently purchased by the petitioner on 26.07.86. As such the remaining land measuring 17 decimals was retained by Mr. Tariq M. Mazumdar and the same was mortgaged with the opposite-party No. 1. Accordingly, the learned Artha Rin Adalat released the 33 decimals of land and dismissed the suit against Mrs. Sultana Chowdhury and the petitioner being the owners of the said 33 decimals of land. Therefore, the question of fraudulent mortgage does not arise. Hence the Rule is liable to be discharged.

12. That the statements made in paragraph No. 14 of the petition are false and frivolous and as such denied by the opposite-party No. 1. In this connection it is submitted that summons was duly served upon the petitioner. It is further submitted that, even if the suit was disposed off ex-parte without serving any summons upon the petitioner, the proper remedy of the petitioner lies in filing application for setting aside the ex-part decree.

13. That the statements made in paragraph Nos. 15-17 of the petition are misrepresentation of both law and facts and as such denied by the opposite-party No. 1. In this connection it is submitted that no illegality was committed by the learned Artha Rin Adalat in passing the judgement and decree. With regard to the power of the Court under Order XXI, Rule 29 of the Code of Civil Procedure, it is submitted that the said power of the Court is available only when both the suits or proceedings are pending before the same Court. But in the instant case, Title Suit No. 105 of 2004 is pending in the Court of Joint District Judge, 1st Court, Dhaka while the Artha Jari Case No. 89 of 2003 is pending in the Artha Rin Adalat, 3rd Court, Dhaka. It is further submitted that the settled principle of law laid down by the highest Court of the country is that Artha Rin Adalat being a special Court established under special legislature, any proceeding pending in the said Court cannot be stayed by a Civil Court of ordinary jurisdiction. As such the Rule is liable to be discharged.

14. That the statements made in paragraph No. 18 and the ground set out in the petition are baseless and untenable. As such the Rule is liable to be discharged.

15. That it is submitted that the impugned order has not resulted in an error in the decision occasioning failure of justice. In such situation it is not a proper case for inference by this Hon’ble Court. As such the order passed by the learned Court below should not be disturbed and therefore, the Rule is liable to be discharged.

16. That under the above circumstance your Lordships may be pleased to discharge the Rule and/or pass such further order or orders as the court may deem fit and proper.

17. That the statements of facts made above are true to the best of my knowledge and belief and the rest 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 on this the _____________day of _____________. ADVOCATE

Commissioner of Affidavits

Supreme Court of Bangladesh

High Court Division

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