Al-Helal Rice Mills Ltd. Vs. Bangladesh Shilpa Rin Sangstha, 51 DLR (AD) (1999) 51

Case No: Civil Petition for Leave to Appeal No. 34 of 1997

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: AKM Nazrul Islam ,Mr. S K Sinha,,

Citation: 51 DLR (AD) (1999) 51

Case Year: 1999

Appellant: Al-Helal Rice Mills Ltd.

Respondent: Bangladesh Shilpa Rin Sangstha

Subject: Business and Commercial Law,

Delivery Date: 1998-03-31

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
Md. Abdur Rouf, J.
Bimalendu Bikash Roy Choudhury, J.
 
Al-Helal Rice Mills Ltd.
………..Petitioner
Vs.
Bangladesh Shilpa Rin Sangstha
..………Respondents
 
Judgment
March 31, 1998.
 
The Bangladesh Shilpa Rin Sangstha Order, 1972
Article 34
The alleged decision of the Civil Court as to the certificate proceeding may or may not be correct but, the same does not bind the BSRS not to have recourse to article 34 on the basis of the liability of the petitioner as claimed by it…..(5) 
 
Lawyers Involved:
S K Sinha, Advocate, instructed by Md. Sajjadul Haq, Advocate-on- Record— For the Petitioner.
AKM Nazrul Islam, Advocate instructed by Sharifuddin Chaklader, Advocate-on-Record— For the Respondent.
 
Civil Petition for Leave to Appeal Criminal Appeal No. 34 of 1997
(From the Judgment and order dated 19-1-97 passed by the High Court Division in Criminal Appeal No. 877 of 1994).
 
JUDGMENT
ATM Afzal CJ.
 
1.         The petitioner Company, an admitted loanee of the respondent Bangladesh Shilpa Rin Sangstha, filed Writ Petition No. 604 of 1998 requiring the respondent to show cause as to why the purported action of the respondent for selling Al-Helal Rice Mill under article 34 of the Bangladesh Shilpa Rin Sangstha (BSRS) Order, 1972 until the determination of the actual amount of the liabilities in pursuance of tender notice published in the issue of “Bhorer Kagoj” dated 4-2-98 should not be declared to have been made without lawful authority and be of no legal effect, etc. A writ Bench, by the impugned order dated 1st March 1998 summarily rejected the writ petition and further imposed a cost of Taka 3,000.00 upon the petitioner. Now this petition for leave to appeal from the said order.
 
2.         The petitioner, inter alia, alleged in its writ petition that the respondent filed certificate case No.127 of 1990 for realisation of the principal amount claiming Tab 2,619 million with local currency of Taka 0,500 million with interest. The petitioner disputed the amount claimed by the respondent and instituted Tide Suit No. 44 of 1990 in the Court of Subordinate Judge, Moulvi Bazar for declaration that the certificate case was null and void, etc. The said suit was decreed on 31-3-94 holding that the dues of the respondent Bank was in serious dispute. The respondent, in the meantime, instituted Miscellaneous Case No. 260 of 1992 under article 33 of the BSRS Order before the Second Artha Rin Adalat, Dhaka claiming the same amount loan as principal amount of Taka 3,111 million with accrued interest. The said case is still pending and the petitioner instituted Title Suit No.5 of 1994 in the First Court of Subordinate Judge, Moulvi Bazar claiming a damage of Taka 1 crore against the respondent. At that stage, the respondent attempted to sell the petitioner’s Mill under article 34 of the BSRS Order, 1972 and published tender notice for sale. On an application filed by the petitioner the trial Court by order dated 7-10-1995 granted temporary injunction in Title Suit No.5 of 1994 restraining the respondent from selling the Mill The respondent moved the High Court Division against the said order of injunction in FMA No.23 of 1996 and the order was maintained whereupon the respondent prayed for leave to appeal before the Appellate Division against the order of the High Court Division and leave was granted on 4-6-97 and the operation of the order of injunction was stayed.
 
3.         The respondent made the advertisement for sale of the petitioner’s Mill fixing, 4-3-98 the date for sale. The petitioner then finding no other alternative moved the High Court Division in writ jurisdiction but has been summarily refused as already stated before.
 
4.         Mr. S K Sinha, learned Advocate for the petitioner, submits only one point for our consideration and that is, that the claim made by the respondent having remained disputed, no proceeding could be taken under article 34 of the BSRS Order, 1972 and, as such, the advertisement for sale of the petitioner’s Mill was without any lawful authority.
 
5.         We find it difficult to accept the submission of the learned Advocate because there is nothing in article 34 or in any other provision of the BSRS Order to show that it is only in respect of a claim admitted by the loanee that the authority is entitled to proceed under the relevant provisions of the order for realization of the dues. Mr. Sinha submitted that the Suit filed by the petitioner challenging the certificate proceeding was decreed on the ground that the claim made by the respondent was in serious dispute and, as such, the liability referred to in article 34 being in dispute the sale notice was without jurisdiction. The alleged decision of the Civil Court as to the certificate proceeding may or may not be correct but, in our opinion, the same does not bind the BSRS not to have recourse to article 34 on the basis of the liability of the petitioner as claimed by it.
 
6.         Mr. Sinha finally submits that in any case the imposition of the heavy cost upon the petitioner was not justified and the same may be set aside for ends of justice. Mr Nazrul Islam, learned Advocate entering Caveat for the respondent, opposed the prayer of Mr Sinha submitting that the writ petition filed by the petitioner had no merit at all because the petitioner had gone to the Civil Court trying to resist the sale notice issued under article 34 and obtained an order of injunction against the respondent, but this Division has already stayed the operation of the said injunction order in the appeal taken by the respondent against the said order.
 
7.         It appears that the petitioner filed the writ petition on a fresh cause of action when the date of sale of the petitioner’s mill was set down on 4-3-98. It cannot be said that the petitioner could not file the writ petition because the order of injunction passed by the trial Court has been stayed by us. Further the High Court Division has not assigned any reason for imposing a heavy cost of Taka 3,000.00. We think it was not quite proper to award such a big amount as cost, particularly, when it was an ex parte hearing. That part of the order imposing cost is set aside.
 
The petition, however, is dismissed.
 
Ed.