Abu and others Vs. Bangladesh and others, (Md. Rezaul Hasan, J.)

Case No: Writ Petition No. 1639 of 2006

Judge: Md. Rezaul Hasan, J And Kashefa Hussain, J

Court: High Court Division,

Advocate: Mr. Md. Mijanur Rahman, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2016

Appellant: Abu and others

Respondent: Government of Bangladesh and others

Subject: Constitution of Bangladesh

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Rezaul Hasan, J

And

Kashefa Hussain, J

 

Judgment on

08.08.2016

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Abu and others

. . . Petitioners

-Versus-

Government of Bangladesh and others

... Respondents

Constitution of Bangladesh, 1972

Article 31

Bangladesh House Building Finance Corporation Order, 1973 (P.O. No.7 of 1973)

Article 27(7)

We find prima-facie that, the District Judge has not at all arrived at any finding either as to the ‘principal sum’ due or as to the interest payable therefore. Non-compliance of above referred mandatory provisions of law, which are pre-conditions to have authority to pass the impugned judgment and order, is bound to render the same ultra-virus the authority of the District Judge as well as it amounts to violation of the fundamental right of the petitioner, to be treated in accordance with law, as guaranteed by Article 31 of the Constitution.           . . .(13)

Artha Rin Adalat Ain (VIII of 2003)

Section 19

The trial courts must remember that an ex-parte judgment and decree has the same force as one passed on contest. Hence, a case filed for recovery of any loan amount, or any other case, should not be dealt with in a manner as if the courts were doing a routine job. The judgment itself must prima facie show that the judge concerned has applied his mind to the facts and circumstances of each case and that he has not acted mechanically. The trial court shall also keep in mind that the fact of hearing a matter ex-parte does not mean that it shall not have to frame issues or that the burden of proof, that rests upon the plaintiff, has been discharged because the matter is being heard exparte. Similarly the trial court can not admit into evidence any document or fact not proved, before it, according to the procedure governing the proof of facts and documents etc. in order to ensure justice to all parties to the case, do hereby declare that the all court deciding a recovery case ex-parte or in default of written statement, should ensure the following:

(i). Loan application has been filed and proved, (ii). The sanction letter has been filed and proved, (iii). The fact and manner of disbursement of the loan has been proved, (iv). The statement of account has been proved, (v). The mortgage deed and other charge documents, if any, have been filed and proved, in the manner prescribed by law, (vi).  The letter of continuity and the deed of further charge, if any, has been filed and proved, (vii). The loan reschedulement advice, if any, has been filed and proved, (viii). The demand notice, claimed to have been issued, is filed and proved, (ix). The principal sum actually disbursed and the rate of interest has to be shown separately in the schedule to the plaint, (x). That the loan is not time barred, (xi). Any other issue that the trial court may consider relevant according to the facts of each case and (xii). The proof of issuance of summons, etc. . . . (15 and 16)

Constitution of Bangladesh, 1972

Article 31

The impugned judgment and decree passed by the trial court depicts a clear case of lack of jurisdiction to pass the impugned judgment and decree, though it had jurisdiction to initiate the proceeding by entertaining the plaint. Besides, this is a clear case of non-application of mind, acting mechanically and in violation of the procedural law, hence in violation of Article 31 of the Constitution.    . . . (17)

Mr. Md. Mijanur Rahman, Advocate

- - - For the petitioners

Mr. Anup Kumar Saha, Advocate

- - - For the Respondent Nos.2-3

JUDGMENT

Md. Rezaul Hasan, J: Let the supplementary affidavit sworn on 27.02.2006 do form part of the main petition.

2.             This Rule Nisi has been issued under Article 102 of the Constitution of the People’s Republic of Bangladesh calling upon the respondents to show cause as to why the judgment and order dated 12.03.2003 passed by the Respondent No. 4, learned District Judge, Mymensingh in Miscellaneous Case No. 63 of 2002, as evidenced by Annexure-C to the writ petition should not be declared to have been issued without lawful authority and is of no legal effect and or such other or further order or orders passed as this Court may seem fit and proper. 

3.             Facts leading to issuance of the Rule, in brief, are that the father of the petitioners, in order to construct 4 storied building, took loan from the respondent No. 3, amounting to Tk. 5,61,000.00, on 26.06.1979, but the said amount was not sufficient to complete the construction. Accordingly the father of the petitioners had applied to the respondent No. 3 for additional amount of Tk. 1,10,000.00 for completion of the building, but the respondent No. 3 ultimately refused to give the said money to father of the petitioners. A copy of the loan sanction dated 26.06.1979, Mortgage deed, application for additional amount were annexed to the petition. That, father of the petitioners, due to political disturbance and adverse business climate started facing financial difficulties and could not maintain the repayment schedule. Placed in such situation, father of the petitioners approached the concerned Bank for further time for the repayment of the loan liabilities. The matter of repayment of loan liabilities remain pending with the bank for a long period. The petitioners very recently got information from different sources that the Bank filed a case in the court on District Judge, Mymensingh and, on search, the petitioners found that a Miscellaneous Case No. 63 of 2002 was filed for the realization of Tk. 14,39,369.31, with interest. The petitioners managed to obtain a photocopy of the plaint. The petitioners were not aware of the suit. Hence they could not appear or contest in the said case and the judgment and decree was passed ex-partee. At the instance of the Bank an execution case, being  No. 07 of 2004, has been initiated in the court of District Judge, Mymensingh, on 26.02.2004 and in the said Execution Case, at the instance of the Respondent Bank, an order for auction sale of the petitioners mortgaged property was issued. At this stage the petitioner has moved this writ petition and obtained the instant Rule.

4.             The respondent No. 3, House Building Finance Corporation (HBFC), contested the Rule by filing an affidavit in opposition, mainly denying the allegations made in the writ petition and further stating that, father of the petitioners took loan of Tk. 5,61,000.00 form Respondent No. 3, at the interest of Tk. 5% per annum, which was subsequently increased to Tk. 7 ½ % per annum, vide loan case No. 823(Multi) and he mortgaged 0.132 acres of land in favour of Respondent No. 3, vide Mortgage Deed No. 14229 dated 20.08.1979. The petitioners were to pay the loan amount with interest in monthly installments of Tk. 3098.75/-, within 25 years, and repayment of the monthly installment started from 01.03.1981. Thus the petitioners were supposed to pay the entire loan amount with interest on or before 01.03.2006, but subsequently the loan was re-schedule on 20.04.1995 and the monthly installment was increased to Tk. 7,145.16/- and the last date of repayment was extended to 01.03.2011. But the Loan Account Statement (provisional) for the Financial Period 2014-2015 shows that the petitioners were liable to pay Tk. 22,25,874.85/- to the Respondent No. 3, as on 30.06.2015. It is to be mentioned here that the petitioners are also liable to pay the cost of Miscellaneous Case No. 63 of 2002, Execution Case No. 7 of 2004 and of this writ petition in the additional to the aforesaid amount as per provision of Clause – 24 of the Mortgage Deed No. 14229 dated 20.08.1979. It has been submitted that, the District Judge, Mymenshingh has passed the impugned judgment and order dated 12.03.2003 in accordance with law and the same is proper and correct and it does not call for interference by this court.

5.             This matter came up in the cause list, for hearing, on 03.08.2016 and 08.08.2016. Today is fixed for judgment, but none appeared on behalf of the petitioner to press the rule.

6.             Since the questions of law and jurisdiction are involved in this case, we have, therefore taken this Rule for disposal on merit instead of dismissing the Rule for default.

7.             Learned Advocate Mr. Anup Kumar Saha appeared for the respondents No. 2 and 3. He mainly submits that the loan liability of the petitioner has been admitted in the writ petition itself. He further submits that the original loanee Md. Amsor Ali died on 09.02.2003 and the present petitioner Abu and others were substituted in the Miscellaneous Case No. 63 of 2003, filed before the District Judge, Mymensingh,  as per provision of Article 27 of House Building Finance Corporation Order 1973. The petitioners were thus aware of the said Miscellaneous Case No. 63 of 2003, but they did not contest and an ex-parte judgment and order was passed on 12.03.2003 by the District Judge in  the said Miscellaneous Case. Thereafter, the execution case No. 07 of 2004 has been filed for implementation of the judgment and decree dated 12.03.2003. He next submits that, the predecessor of the writ petitioners had mortgaged the property and the building constructed thereon, vide register deed No. 14229 dated 20.08.1979. This is also admitted, he adds. Therefore, the District Judge has passed an order to put the mortgaged property to auction sale. But, the petitioner has come before this court and obtained the instant Rule by suppressing the material facts. Since then, he continues, this matter is pending as because the petitioner has resorted to the dilatory tactics in order to frustrate the execution proceeding. He concludes that this petition has been filed for collateral purpose and the Rule is liable to be discharged on the ground of default.

8.             We have heard the learned Advocate, appeared for the respondent Nos. 2 and 3, perused the writ petition along with the supplementary affidavit and the affidavit in opposition as well as the documents annexed. We have also consulted the relevant law.

9.             Facts leading to issuance of the Rule has been narrated before, in brief.

10.         We have gone through the impugned judgment and order dated 12.03.2003, which is annexure- C to the writ petition. It is pertinent quote the impugned judgment and order No. 7 dated 12.03.2003. The said judgment and order reads as follows:

­Sm¡ SS Bc¡ma, juje¢pwqz

­j¡L¡Ÿj¡ ew  63/2002 ¢jp ­Lpz

h¡wm¡­cn q¡ES ¢h¢ôw g¡Ceɾp L­f¡Ñ­lne-- fСbÑ£z

he¡j

1(L) Bh¤ Nw                           ----- fТafrz

Ef¢ÙÛa:- Se¡h nq£c¤‹¡j¡e, ®Sm¡ SSz

---7----

12/3/03

Aœ ¢jp j¡jm¡ HLalg¡ öe¡e£l SeÉ ¢ce d¡kÑÉ B­Rz fСb£fr 1Se p¡r£l q¡¢Sl¡ ¢cu¡­Rz fСbÑ£ L¡NS¡¢c c¡¢Mm L¢lu¡­Rz e¢b HLalg¡ n§e¡e£l SeÉ mJu¡ qCmz fСbÑ£f­rl 1ew p¡r£ ®j¡: n¢gL¥m Cpm¡j Hl qmg¡­¿¹ Sh¡eh¢¾c NËqe Ll¡ quz ¢a¢e ®lq¡e c¢mm fÐc:ew -1 ¢qp¡­h fÐj¡e L­lez

fСbÑ£f­rl p¡r£l Sh¡eh¢¾c Hhw e¢b­a pwl¢ra L¡NS¡¢c fkÑ¡­m¡Qe¡ L¢lm¡jz fСb£f­rl ®j¡LŸj¡ fÐj¡¢Za qCu¡­Rz

    AaHh, Cq¡C

    B­cn

    ­k, Aœ ¢jp ®j¡LŸj¡ HLalg¡ p§­œ j”¤l quz fСbÑ£fr fТaf­r ¢hl¦­Ü 14,39,369/31 (®Q±Ÿmr EeQ¢õn q¡S¡l ¢aena Eepšl V¡L¡ HL¢œn fup¡) V¡L¡ h¡hc ®j¡LŸj¡l ¢X¢œ²l a¡¢lM qC­a Bc¡u L¡m fkÑ¿¹ 7% q¡l p¤­c ¢X¢œ²fСç quz

    fТafr ¢Xœ²£l pj¤cu V¡L¡ AcÉ a¡¢lM qC­a 30(¢œn) ¢c­el j­dÉ clM¡Ù¹L¡l£  hl¡h­l fÐc¡e L¢l­he; AeÉb¡u fСbÑ£fr ¢Xœ²£l pj¤cu V¡L¡ Bc¡ma ®k¡­N Bc¡u L¢lu¡ mC­a f¡¢l­hez Bj¡l Sh¡e£­a ¢m¢Ma J pw­n¡¢da:

ü¡x/- nq£c¤‹¡j¡e                                                   ü¡x/- nq£c¤‹¡j¡e

­Sm¡ SS, juje¢pwq                                                               ­Sm¡ SS,

12/3/2003                                                                                juje¢pwq

12/3/2003

11.         10. Admittedly this Miscellaneous Case has filed under Article 27(1) of the BHBFC Order 1973 (P.O. No. 7 of 1973) Clause (7) of Article 27 of BHBFC Order, 1973 reads as follows:

         “(7) when passing his order under clause (5) or (6), the District Judge shall

(a)                      Record his finding as to the amount due by the borrower to the Corporation, and the interest payable thereon;

(b)                      ……………

(c)                      ……………

(emphasis added)

12.         11. Having considered the impugned judgment and order dated 12.03.2003 in the light of the mandatory provisions of clause (a) of Sub-Article 7 of Article 27, quoted hereinabove, we find that the District Judge did no record any finding, in the impugned judgment and order dated 12.03.2003, as regards ‘the amount due’ by the borrower to the corporation or ‘the interest payable’ thereon. Provisions of clause (a) of Article 27(7) clearly requires judicial mind to be applied to the facts and circumstances of the case filed under Article 27 (7) (a) of Bangladesh House Building Finance Corporation Order 1973 and to arrive at findings (1) as to the principal amount due by the borrower and (2) as to the interest payable by him. The District Judge is, as such,  was under the statutory duty to calculate and ascertain the principal sum as well as the interest due thereon, separately, and then to sum up the total outstanding due to the lender corporation.

(emphasis added)

13.         12. But in the instant case, we find prima-facie that, the District Judge has not at all arrived at any finding either as to the ‘principal sum’ due or as to the interest payable therefore. Non-compliance of above referred mandatory provisions of law, which are pre-conditions to have authority to pass the impugned judgment and order, is bound to render the same ultra-virus the authority of the District Judge as well as it amounts to violation of the fundamental right of the petitioner, to be treated in accordance with law, as guaranteed by Article 31 of the Constitution.

14.         13. It is also to be recorded here that, we have come across, as a hearing Bench, several ex-parte decrees passed under the special laws, vi3 Bangladesh House Building Finance Corporation Order 1973 and Artha Rin Adalat Ain 2003. Similar provisions for filing Miscellaneous Case were kept as B.S.R.S and B.S.B Orders of 1972. We have noticed that all most all ex-parte judgments are passed in a slipshod manner as has been passed in the aforesaid Miscellaneous Case No. 63 of 2002. Hence, out of our anxiety, we are inclined to ensure that the fundamental right of the party, to be treated in accordance with law as guaranteed under Article 31 of the Constitution, is upheld.

15.         14. The trial courts must remember that an ex-parte judgment and decree has the same force as one passed on contest. Hence, a case filed for recovery of any loan amount, or any other case, should not be dealt with in a manner as if the courts were doing a routine job. The judgment itself must prima facie show that the judge concerned has applied his mind to the facts and circumstances of each case and that he has not acted mechanically. The trial court shall also keep in mind that the fact of hearing a matter ex-parte does not mean that it shall not have to frame issues or that the burden of proof, that rests upon the plaintiff, has been discharged because the matter is being heard exparte. Similarly the trial court can not admit into evidence any document or fact not proved, before it, according to the procedure governing the proof of facts and documents etc.

16.         15. We therefore, in order to ensure justice to all parties to the case, do hereby declare that the all court deciding a recovery case ex-parte or in default of written statement, should ensure the following:

(i)           Loan application has been filed and proved,

(ii)         The sanction letter has been filed and proved,

(iii)       The fact and manner of  disbursement of the loan has been proved,

(iv)        The statement of account has been proved,

(v)          The mortgage deed and other charge documents, if any, have been filed and proved, in the manner prescribed by law,

(vi)         The letter of continuity and the deed of further charge, if any, has been filed and proved, 

(vii)      The loan reschedulement advice, if any, has been filed and proved,        

(viii)    The demand notice, claimed to have been issued, is filed and proved,

(ix)        The principal sum actually disbursed and the rate of interest has to be shown separately in the schedule to the plaint,

(x)          That the loan is not time barred,

(xi)        Any other issue that the trial court may consider relevant according to the facts of each case, and

(xii)      The proof of issuance of summons, etc.

17.         16. In view of the above discussion we are constrained to hold that the impugned judgment and decree passed by the trial court depicts a clear case of lack of jurisdiction to pass the impugned judgment and decree, though it had jurisdiction to initiate the proceeding by entertaining the plaint. Besides, this is a clear case of non-application of mind, acting mechanically and in violation of the procedural law, hence in violation of Article 31 of the Constitution.

18.         17. I has to recorded been recorded here that the law declared by this Division in binding us all subordinate courts, as declared in Article 111 of the Constitution and confirmed in 63 DLR(AD) 57: State Vs. Muktar Khan.    

ORDER

19.         The impugned judgment and order dated 12.03.2003 passed by the learned District Judge, Mymensingh, in Miscellaneous Case No. 63 of 2002 is hereby quashed. In consequence, the auction sale is also quashed. 

20.         However, since the trial court has jurisdiction to proceed with this case, therefore, we do hereby remand back this case to the District Judge, Mymensingh, for fixing a date for hearing afresh, after issuance of summons upon the writ petitioners (i.e. the defendants/respondents before the trial court).

21.         Bangladesh House Building Finance may, if so advised, file an application for amendment of the plaint upon calculating the principle sum and the interest due (uptodate), which the court below should consider.

22.         The rule is disposed of with the directions given above.

23.         The order of stay granted at the time of issuance of the Rule is hereby vacated. 

24.         Let a copy of this judgment and order be sent to the court concerned.

Ed. 


Writ Petition No. 1639 of 2006