X Transport Services Limited and others Versus Uttara Bank Limited

DISTRICT: DHAKA

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. 1518 OF 2000

IN THE MATTER OF:

An application for vacating the order of stay.

A N D

IN THE MATTER OF:

X Transport Services Limited and others

DEFENDANTS

/PETITIONERS

Versus

Uttara Bank Limited

PLAINTIFF

/OPPOSITE-PARTY

To:

Mr. Justice Latifur Rahman, 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

SHEWETH:

01. That the defendants/petitioners have filed the above revisional petition against order No. 92 dated 23.03.2000 passed by the Subordinate Judge and Additional Artha Rin Adalat, 1st Court, Dhaka in Title Suit No. 268 of 1998 rejecting the application under Order XI, Rule 14 of the Code of Civil Procedure.

02. That as against the said order the petitioner filed the above revisional petition and the Hon’ble Court vide order dated 23.04.2000 was pleased to issue Rule upon the opposite-party. The Hon’ble Court was also pleased to stay all further proceedings of Title Suit No. 268 of 1998 till disposal of the Rule.

03. That the Title Suit No. 268 of 1998 was filed by the opposite-party, a commercial bank, against the petitioners and 7 others for recovery of Tk. 1,02,38,632.25 only by sale of mortgaged properties. The petitioner No. 2 was made defendant No. 4 in the said suit. Brief facts of the case is as follows:

a) That pursuant to application dated 23.11.85 made by the petitioner No. 1 through its Managing Director (defendant No. 2 in the suit) the opposite-party Bank allowed Cash Credit facility of Tk. 40,00,000.00 only vide Head Office Sanction Advice dated 29.04.86. Subsequently at the request of the petitioner No. 1 vide letter dated 02.11.86 the opposite-party Bank sanctioned additional loan of Tk. 12,50,000.00 only on 02.02.87.

b) That the repayment of the aforesaid loans were secured as follows:

i) Hypothecation of six Ships, three Flats (cargo vessels) and five Barges owned by the petitioner Company

ii) Mortgage of land measuring 0.41 acres or 41 decimals owned by the petitioner No. 2 and three others

iii) Land measuring 1 Bigha 2 Kathas, 3 Chhattak at Dhanmondi owned by the Managing Director of the petitioner Company.

c) That the aforesaid mortgagors also executed personal guarantees in favour of the opposite-party Bank. In addition, the petitioner No. 1 executed various charge documents against the said credit facilities.

d) That the defendants 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 including 28.04.87, 15.06.87 and 02.02.88 requested the petitioner Company to adjust its liabilities. The petitioner on various occasions including on 16.02.88, 27.08.88 and 04.03.90 made commitments to adjust its liabilities, but failed to keep the commitments. Consequently opposite-party Bank through its lawyer served legal notice dated 14.04.90 upon the petitioner Company and the mortgagors and guarantors to adjust the liabilities. The petitioner Company and the mortgagors and guarantors were also warned that if they would fail to comply with the request, legal action would be initiated against them. Even after receiving the legal notices they did not adjust their liability.

e) That in such circumstances the opposite-party Bank finding no other alternative was compelled to file Title Suit No. 13 of 1991 in the Court of Subordinate Judge and Artha Rin Adalat, 3rd Court, Dhaka for recovery of the dues. The said suit subsequently transferred to the Subordinate Judge and Additional Artha Rin Adalat, 1st Court, Dhaka and renumbered as Title Suit No. 268 of 1998.

f) That on 23.03.2000 at the fag end of the hearing of the suit and after long 10 years of filing of the suit the petitioners filed an application under Order XI, Rule 14 of the Code of Civil Procedure for production of certain documents, which were completely irrelevant for disposal of the suit. That the said application was heard by the learned Court on the same day. After hearing, the learned Court rejected the application. Against the said order the petitioners filed the instant revisional petition whereupon the Hon’ble Court has been pleased to issue Rule.

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 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. Now it is well settled that no revision lies against an order passed by Artha Rin Adalat. 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 case of Sultana Jute Mills Limited and others versus Agrani Bank and others reported in 46 DLR (AD) page 174, it is now well settled that revisional petition does not lie against an 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. The Hon’ble High Court Division discharged the Rules in civil revision Nos. 2038 of 1994, 3542 of 1994, 117 of 1995, 1322 of 1995 and 4205 of 1997 reported in 50 DLR page 623, 50 DLR page 431 and 51 DLR page 237.

06. 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.

07. 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 from realising its legitimate dues, which is in fact depositors’ money.

08. 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.

09. That this applicant is filed bonafide.

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.

AFFIDAVIT

I, ________________, son of late ___________________, Assistant General Manager, Uttara Bank Limited, Local Office, 129/130 Motijheel Commercial Area, P.S. Motijheel, Dhaka-1000, aged about 55 years, by faith Muslim, nationality Bangladeshi, profession service, do hereby solemnly affirm and declare as follows:

1. That I am the Assistant General Manager 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 31st day of January, 2001 at ______ a.m. ADVOCATE
Commissioner of Affidavits

Supreme Court of Bangladesh

High Court Division

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