Case No: Civil Appeal No. 6 of 1988
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: TH Khan,Mr. Shaheed Alam,Mr. M.H. Khondkar,,
Citation: 41 DLR (AD) (1989) 109
Case Year: 1989
Appellant: Abdul Jalil
Respondent: Bangladesh House Building Finance Corporation
Subject: Monetary Compensation,
Delivery Date: 1988-8-21
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
Bangladesh House Building Finance Corp. and another
August 21, 1988
The entire balance amount of loan having been paid in full by the appellant and no outstanding claim remain with HBFC and such payment being made with concurrence of this court, on the contrary the auction purchaser having deposited full amount of consideration relying on validity of such auction, has been an innocent sufferer for laches of the appellants. In such position respondent no. 2, the auction purchaser is entitled to compensation of Tk. 75,000/- to be deposited with the District Judge within 2 months, in default the auction purchaser is entitled to interest on the amount at the rate 9% till realisation……………(9 & 10)
M.H. Khondker, Senior Advocate, A. F. Mohammad Ali, Advocate with him, instructed by Sharifuddin Chaklader, Advocate-on-Record—For the appellant.
Shahid Alam, Advocate, instructed by Syed Sakhawat Ali, Advocate-on-Record—For the respondent No. 1.
T.H. Khan, Senior Advocate, M.A. Wahab Miah, Advocate with him, instructed by Md. Altab Hossain, Advocate-on-Record—For the respondent No. 2.
Civil Appeal No. 6 of 1988
A.T.M. Afzal J.
This appeal by leave is from an order dated 27 October, 1987 passed by a Division Bench of the High Court Division, Dhaka rejecting the revisional application of the appellant under section 115 of the Code of Civil Procedure summarily.
2. Facts of the case, briefly, are that respondent No. 1 Bangladesh House Building Finance Corporation(hereinafter referred to as (HBFC) instituted on 4th December 1985 Miscellaneous case No. 233 of 1985 in the Court of District Judge, Comilla under Article 27 of the Bangladesh House Building Finance Corporation Order, 1973 (P.O. No. 7 of 1973) against the appellant and his son for an order for sale of the scheduled mortgaged properly for realisation of the outstanding debt of Tk. 6, 83,657/70. The said Misc. Case was allowed ex-parte with cost on 3.5.1986. The appellant alleged that he came to know about the same on 20.6.1986. On 26.6.86, he filed an application under Order 9, rule 13 C.P.C for setting aside the ex-parte order whereupon Misc. Case No. 143 of 1986 was registered.
3. In the meantime steps were, however, taken for putting the mortgaged property to sale and 14.9.87 was actually fixed for auction sale of the property. The appellant by filling an application on 12.9.87 stated that he had paid certain amounts in partial satisfaction of the claim of the H.B.F.C. with an understanding that the balance would be paid within December 1987 after which date the petitioner would have no objection in putting the mortgaged property to auction sale. He, therefore, prayed for time up to 31st December 1987 for payment of the entire claim of the H.B.F.C and further prayed for postponing the sale due to be held on 14.9.87 till 31.12.87.
4. The learned District Judge passed an order on 13.9.87 postponing the sale subject to the payment of Tk. 1 lac by the next day i.e. 14.9.87 and the entire balance amount by 10.11.87. In case of failure, however, the order said the sale as scheduled would take place.
5. The appellant moved the High Court Division in revision against the said order and could obtain an order of stay initially but ultimately by the impugned order, the learned Judges rejected the revision petition summarily as already stated.
6. Being aggrieved thereby the appellant filed petition for leave to appeal before this Division on 14.12.87. He also obtained an order of stay on 1.11.87 for further proceeding of Misc. Case No. 233 of 1985 till 22.11.87. This stay order has been extended from time to time and leave was actually granted on 20th June, 1988. It appears from the copy of the order sheet of Misc. Case No. 233 of 1985 that the auction sale took place on the appointed date i.e. 14.9.87 and Respondent No. 2 was the highest bidders at Tk. 10, 10,010/-(Taka Ten lacs ten thousand and ten) which was accepted. Respondent No. 2 deposited the entire amount in two instalments but further proceeding in the matter was stayed by the High Court Division.
7. As the leave petition was pending for hearing, we granted the prayer for extension of stay from time to time on the assurance given by the appellant that he would repay the loan of the H.B.F.C in instalments as undertaken by him (before us). The appellant has filed an affidavit sworn on 20th June 1988 stating that by 14.6.88 he has deposited Tk. 7,80,600/- to the credit of the H.B.F.C and thus he has fully paid all the loan accounts of the H.B.F.C. We have also seen an affidavit by the H.B.F.C sworn by its regional Manager on 14 August 1988. It has been stated therein that the loan of the appellant with the H.B.F.C stands fully paid off and has been received by the H.B.F.C in full satisfaction and the appellant has nothing due to the H.B.F.C on that account of loan. The respondent has prayed for disposing of the appeal as this court may deem fit and proper.
8. But before disposing of the appeal we have to advert to an application filed by the respondent No. 2 (auction-purchaser) praying for payment of compensation and interest. He has stated that he has no residential house in Comilla town, that with the hope that the property put up for court sale would be free from defect, he participated in the auction and procured the big amount of Tk. ten lac ten thousand and odd with great difficulty and enduring much hardship which was deposited in court and that he fondly looked forward to having a residential house of his own. He has further stated that the amount lying in deposit for nearly a year would earn an interest of more than Tk. 1 lac. All told he has made a prayer for compensation of an amount of over Tk. 5 lacs to be paid by the appellant for the sake of even-handed justice.
9. The appellant, although in default in paying back the loan of the H.B.F.C, has had to deposit more than Tk. 7 lacs within 6 months of our granting permission in that behalf. He did this obviously to save his homestead and to avoid the agony of deprivation of a place to live in. At the same time, we can see the frustration caused to respondent No. 2 of not having the house for which he has mustered all his resources and made the big investment with great expectation. The setting aside of the sale will set everything at naught So having considered the case of both the parties, we think that it is just and proper that the appellant should be made to pay some compensation to the respondent No. 2 as he has been an innocent sufferer for the laches of the appellant. Considering all aspects of the matter we arc of the view that the appellant shall pay an amount of Tk. 75, 000/- to the respondent No. 2 as Solatium.
10. Now that the entire claim of the H.B.F.C has been satisfied all proceedings in Misc. Case 2337 85 after the passing of the exparte order on 3.5.86 including the auction sale, that under Order 9, rule 13 C.P.C and the impugned order of the High Court Division have became otiose and arc accordingly set aside.
The appeal is allowed subject to the following terms; The appellant shall deposit Tk. 75, 0007-(Taka seventy five thousand) to be paid to the respondent No. 2 (Auction purchaser) in the court of the District Judge, Comilla within two months from date, failing which the aforesaid amount will be realised from the appellant with interest @ 9% (nine) till realisation as money decree. Respondent No. 2 shall be permitted to withdraw the amount already deposited by him in connection with the auction sale as also the amount of Tk. 75,000/- to be deposited by the appellant. Parties will bear their own cost.