Babul Chandra Sheel Vs. Rupali Bank Ltd. and others, 2 LNJ (2013) 433

Case No: Civil Revision No. 1843 of 2012

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Moudud Ahmed,Mr. Raji Uddin Ahmed,Mr. Tas Miah Prodhan,Mr. S. M. Harmuz Ahmed,Mr. Md. Abul Kalam Patwary,,

Citation: 2 LNJ (2013) 433

Case Year: 2013

Appellant: Babul Chandra Sheel

Respondent: Rupali Bank Ltd. and others

Subject: Artha Rin,

Delivery Date: 2013-06-19

HIGH COURT DIVISION
(CIVIL)
 
Sheikh Abdul Awal, J.

Judgment
19.06.2013
 
Babul Chandra Sheel
. . . Petitioner
Versus
Rupali Bank Ltd and others.
… Opposite parties
 
 
Code of Civil Procedure (V of 1908)
Order XXI, Rule 90
Artha Rin Adalat Ain (VIII of 2003)
Section 33(1)(2)
As there was no allegation of fraud or irregularities in the auction sale process, both the Courts below without existence of the legal requirements as laid down in Order XXI, rule 90 of the Code of Civil Procedure acted illegally in allowing the Misc. Case under the said rule for setting aside the auction sale and the same has occasioned failure of justice.
 
It is clear from the above quoted finding of the Artha Executing Court that there was no fraud or irregularities in the auction sale process and the auction sale of the mortgaged property was held in accordance with law.  The Artha Executing Court after having exhausted all procedure under the Ain confirmed the auction sale by its order dated 19.11.2003.  I do not think therefore that both the courts below made a correct approach to the simple problem. Besides, on top of that admittedly the petitioner offered Tk. 25,000/- per decimal in total Tk. 4,00,000/- for the  suit  land which is 7 (seven)  times more than the Mouza rate under Hath-hazari Sub-registry office, District Chittagong. Both the Courts below  without comparing the bidding price with the Mouza rate of the local sub-registry office came to an erroneous finding that  the highest bidder offered only an amount of Tk. 4,00,000/- which is very low than the existing market price of the valuable mortgaged property  which resulted in the failure of justice. . . . (20)
 
Thus evidently auction sale having taken place and sale having been confirmed by the Artha Rin Adalat after rejecting an application under Order XXI, rule 90 Code of civil Procedure filed by the decree holder bank as there was no allegation of fraud or irregularities in the auction sale process.Under such circumstances both the Courts below without existence of the legal requirements as laid down in  Order XXI, rule 90 of the Code  acted illegally in allowing the Misc. Case under the said  rule  for setting aside the auction sale and the same has occasioned failure of justice. . . . (21)
 
Sonali Bank Vs. Artha Rin Adalat and others, 15 MLR (AD) 21 ref.
 
Mr. Moudud Ahmed with
Mr. Raji Uddin Ahmd and
Mr. Tas Miah Prodhan, Advocates
. . .For the petitioner
Mr. S. M. Harmuz Ahmed, Advocate.
. . .For the opposite party No.1
Mr. Md. Abul Kalam Patwary, Advocate
. . .For the opposite party Nos. 2-4

Civil Revision No. 1843 of 2012
 
JUDGMENT
Sheikh Abdul Awal, J:
 
This Rule was issued calling upon the opposite party No.1 to show cause as to why the judgment and order dated 17.5.2012 passed by the learned District Judge, Chittagong in Miscellaneous Appeal No.28 of 2012 affirming the order No.58 dated 28.4.2010 passed by the learned Joint District Judge, Artha Rin Adalat, Chittagong in Misc. Case No. 04 of 2006 arising out of Artha Rin Jari Case No.183 of 2003  should not be set-aside.
 
The facts leading to the filing of this Revision, in brief, as follows:
         The opposite party No.1, Rupali Bank Limited as plaintiff instituted a mortgage suit being Mortgage Suit No.67 of 1999 before the Artha Rin Adalat-1, Chittagong for realization of its loan of TK. Tk.82,33,209.90 along with interest. The suit was ultimately decreed in favour of the bank. The judgment debtors having failed to pay the decreetal amount  whereupon, the Bank filed Artha Rin Jari Case No. 183 of 2003 for execution of the said decree. Thereafter the decree holder bank in court process floated Tender on 18.10.2003 published in two daily news papers  namely, Daily Khabar and Daily Azadi for auction sale of the immovable mortgaged property mentioned in the schedule and the petitioner and two others participated in the auction sale of the said mortgaged property. Among the other participants one of them offered Tk. 80,000/- and other Tk.1,20,000/- in which the petitioner was selected as the highest bidder in the competitive auction sale on his offer Tk 4,00,000/- (4 Lac) and,  the Artha Rin Adalat on 18.10.2003 accepted the offer of the petitioner being the highest offer and   directed the petitioner to deposit the entire bid  amount and sale fees. The petitioner then deposited the rest of the bid amount and sale fee Tk. 4010. In this backdrop on 28.10.2003 the decree holder Bank filed an application under Order XXI, Rule 90 of the Civil Procedure Code for setting aside the auction sale. The Artha Rin Adalat upon hearing the parties rejected the appli-cation on 28.10.2003 and fixed the next  date on 19.11.2003 for confirmation of the auction sale and the Executing Court  after  considering all the circumstances and evidence on record passed an order on 19.11.2003 confirming the auction sale.
 
In this background opposite party No.1, Rupali  Bank preferred an appeal before this Court  being First Miscellaneous Appeal No. 151 of 2004 against the order dated 19.11.2003 and ultimately, a Division Bench of this Court  disposed of the said  appeal  with the direction to the Artha Rin Adalat  to register the petition filed by the plaintiff bank under order XXI, Rule 90 of the Code of Civil Procedure as Miscellaneous Judicial Case and to dispose of the same after hearing both the sides within 60 days from the date of receipt of the order. The learned Artha Rin Adalat, Chittagong then in compliance of the order of this  Court registered the case as Miscellaneous Case No.4 of 2006, who after hearing both the parties by order dated 28.04.2010  allowed the Misc. Case and thereby set-aside   the auction sale of the mortgaged property.
 
The unsuccessful  petitioner, thereupon, preferred an appeal being Miscellaneous Appeal No.28. of 2012 before the learned District Judge, Chittagong who by  his judgment and order dated 17.05.2012 dismissed the appeal and affirmed the order No.58 dated 28.04.2010 passed by the learned Judge, Artha Rin Adalat, Chittagong in Misc. Case No. 04 of 2006 and the instant Revision applic-ation is directed against that judgment.
 
Mr. Moudud Ahmed, the learned Advocate appearing for the petitioner in the course of his argument upon placing the relevant materials on record including the order dated 19.11.2003 passed by  Artha Rin Adalat confirming the auction sale submits that both the Courts below erred in law in canceling the  auction sale dated 19.11.2003 without properly considering the facts of the case and the case made out by the petitioner and the same has occasioned failure of justice.  He next submits that the impugned judgments of both the   Courts below are perverse being contrary to law, evidence and materials on record inasmuch as  Order XXI, Rule 90 of the Code of Civil Procedure enables the Court  to interfere if fraud or any irregularity found in auction process but in this case there is nothing on record to suggest that any fraud or irregularity took place in auction process  and it is apparent from the record that the Artha Rin Adalat after exhausting all the legal formalities confirmed the auction sale by its order dated 19.11.2003 and as such  the  judgments of both the  Courts below are liable to be set-aside.  Mr. Moudud Ahmed further submits that  both the courts   below having failed to take into consideration that a great fraud has been committed by the judgment Debtor-Opposite party  Nos.3-6 in collaboration with the bank in obtaining a loan amounting to  Tk. 82,33,209.90/- by providing the only security of the schedule property for the aforesaid loan, the petitioner as a bonafide  auction purchaser has purchased the schedule property in the auction sale by offering the highest rate which is 7 (seven) times more than the mouza rate and thereby fell into an error of law resulting in an error in the impugned decision occasioning failure of justice.
 
Drawing my attention  to the  list of  Mouza rate  under Hathazari Sub-registry office as evidenced by "Annexure-D" to the rvisisonal application Mr. Moudud Ahmed argues  that   at the time of the auction sale the Government market value of the lower land (Nal Jomi) at Mouza Mithachora under Hathazari upazila, District Chittagong was Tk. 3499/- per decimal and the petitioner has paid Tk. 25,000/- per decimal in total Tk. 4,00,000/- for the mortgaged    land, that is,   seven times more than the Mouza rate so, the plea as canvassed  by the opposite party No.1, Rupali Bank Limited in collusion with the judgment-debtors that  the auction price of the mortgaged property was shockingly low is untrue and without any legal basis. 
 
Mr. Moudud Ahmed  while elaborating his submission referred to the decision reported in 15 MLR(AD) 21 and submits that  the proposition of law is by now well settled that  execution proceedings ends with the completion of auction process in respect of the mortgaged property and once an auction sale is complete no relief is available against such auction sale  but the mortgagee may proceed against the mortgagor bank for any compensation if it is proved that there was illegality in the auction sale and  in this case it is apparent from the record that the Artha Executing Court   confirmed the auction sale by its order dated 19.11.2003 in accordance with law as there was no  allegation of fraud or irregularities in the auction sale process  but both the Courts below misconceived the facts of the case and the law  bearing on the subject and thereby wrongly set aside the auction sale confirmation order dated 19.11.2003.
 
Mr. S. M. Harmuz Ahmed, the learned Advocate appearing for the opposite party No.1, on the other hand, by filing counter affidavit contested the Rule. He submits that both the Courts below were perfectly justified in setting-aside  auction sale inasmuch as actual price of the mortgaged property is far from Tk. 4,00,000/- and thereupon,  the loan defaulter, the proprietor of M/S N. G. Corporation,  Gobinda Chandra Sarker has signed and submitted an undertaking  on non-judicial stamp of Tk.150/- that if the loan is exempted, he is ready to pay a sum of Tk.40,00,000/- for the schedule property.  Finally, Mr. Harmuz Ahmed submits that the opposite party No.1, Rupali Bank Ltd, Andarkella Branch, Chittagong shall sustain irreparable loss and injury if the petitioner is allowed to purchase the mortgaged property only at Tk.4,00,000/- in the name of the highest bidding as the same is repugnant to the provision of section  33(2) Ga of the Artha Rin Adalat Ain, 2003. The   judgment of both the Courts below are well founded in law and facts and  the same should not be disturbed.
 
Mr. Md. Abul Kalam Patwary, the learned Advocate appearing for the opposite party Nos.2-5 ( judgment debtors) at the very outset adopting the submission of the learned Advocate for the opposite party No.1, Rupali Bank Ltd.  submits that the highest bid money amounting to  Tk. 4,00,000/=  is shockingly low from the actual price of the mortgaged property and opposite party Nos. 2-5  are ready to pay a sum of Tk.40,00,000/- for getting back their  mortgaged property.
 
I have heard the learned Advocates of both the sides and perused the revisional application, judgments of two Courts below, counter affidavit dated 8.12.2012 filed by the opposite party No.1 and counter affidavit dated 10.01.2013 filed by the opposite party Nos.2-5 and other materials on record. Now, to appreciate the submissions of the learned Adv-ocates for the respective parties from a correct angle let me first look  whether Artha Rin Adalat committed any illegality in confirming auction sale by its order dated 19.11.2003.
 
I have carefully examined the materials on record,  it appears that  the decree holder bank in Court process floated Tender on 18.10.2003 published in two Bengali news papers  namely, Daily Khabar and Daily Azadi for auction sale of the immovable mortgaged property as described in the schedule  under the provision of section 33(1) of the Artha Rin Adalat Ain, 2003 in which the petitioner and two others participated in depositing 25% of the bidding money with the quotation in favour of the Court  and among the other participants one of them offered Tk. 80,000/- and other Tk.1,20,000/- and the petitioner was selected as the highest bidder in the competitive auction sale on his offer Tk 4,00,000/ ( 4 Lac) . The  Artha Rin Adalat on  18.10.2003 accepted the offer of the petitioner being the highest offer and  directed the petitioner to deposit the rest of the  bid money  and sale fees. The petitioner then deposited the rest of the amount of Tk. 3,00,000/ and sale fee Tk. 4010 and then on 28.10.2003 the decree holder Bank filed an application under Order XXI, Rule 90 of the Civil Procedure Code for setting aside the sale on the ground that the bidding  amount  is  shockingly low which can not be considered at all a fair  price in view of the existing market price of the mortgaged property. 
 
The Artha Rin Adalat after hearing the parties by its order dated 28.10.2003 rejected the application and fixed the next date on 19.11.2003 for confirmation of the auction sale.  The Artha Rin Adalat after hearing the parties and on considering the materials on record and mouza rate under Hathazari Sub-registry office rejected the application by its order no. 18 dated 28.10.2003 on the finding that there was no illegality or irregularity in auction sale proceedings. It further appears from the Mouza rate   of  Mouza-Mithachhra under the Hathazari Sub-registry office, Chittagong (Annexure-D-1) that the value of low land was Tk.34,900/- per decimal and the petitioner offered Tk.25,000/- per decimal in total 4,00,000/- for the said land which is 7 (seven)  times more than the Mouza rate.
 
On a query by me the learned Advocate for the opposite party-bank has found himself unable to refute the contention raised by Mr. Moudud Ahmed that the petitioner offered Tk.25,000/- per decimal in total 4,00,000/- for the  suit  land which is 7 (seven)  times more than the Mouza rate under Hathazari Sub-registry office and no  illegality or irregularity took place in the  auction sale proceedings. He, however, sought to argue that the courts below were perfectly justified in allowing the Misc. case and setting aside the auction sale. Therefore, I am constrained to hold that the learned judge of the Artha Executing Court on the facts of the case and on consideration of the legal position rightly   confirmed the auction sale after  rejecting  the application under Order XXI,  Rule 90 of the Civil Procedure Code for setting aside the auction sale filed by the decree holder bank.
 
Now, let me look at the more important question whether the Courts  below were   justified in setting aside the auction sale of the mortgaged property on the finding that  the highest bidder  offered only an amount of TK. 4,00,000/- which is  very low than the existing market price of the valuable mortgaged property .
 
To resolve this dispute, provisions of Order XXI, Rule 90 of the Code of Civil Procedure are required to be referred to for having a better view of the dispute in question. Order XXI, Rule 90 of the Code of Civil Procedure   reads as follows:

   “90—(1)  Where any immoveable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it:
   Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.”
 
From the above, it is clear that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
 
As I have already noticed that  the decree holder bank filed an  application under Order XXI,  Rule 90 of the Civil Procedure Code for setting aside the auction sale and the learned Artha Rin Adalat-1, Chittagong  rejected the application on the ground that the auction purchaser is the highest bidder and he deposited the entire bidding  money and sale fees in time and the auction process has been conducted in presence of the decree holder bank and there was no allegation of fraud or irregularities in the auction sale process. Subsequently, the self same ground has been urged before the Artha Rin Adalat, Chittagong by the decree holder bank as was done before the Artha Executing Court  though the learned judge of the Artha Rin Adalat, Chittagong allowed the application of  the decree holder Bank filed under Order XXI, Rule 90 in Misc. Case No.4 of 2006 and set-aside the auction sale of the mortgage property on the findings that  the highest bidder  offered only an amount of TK. 4,00,000/- which is  very low than the existing market price of the valuable mortgaged property and the decree holder Rupali Bank raised objection against accepting such offer due to very low offer.
 
In appeal, the Court of appeal below by the impugned judgment and order dated 17.05.2012 affirmed the said order of the  Artha Rin Adalat, Chittagong  on the finding that there is sufficient materials on record to come to the decision which has been arrived at by the  Court below.
 
On a careful perusal of the entire order sheets of the Artha Executing Court, I find no allegation of fraud or irregularities in  the auction sale process of the mortgage property. The  Artha Rin Adalat, Chittagong on the facts of the case and on consideration of the legal position by its order dated  28.10.2003 rejected the application under Order XXI,  Rule 90 of the Civil Procedure Code for setting aside the auction sale filed by the decree holder bank. A few lines of the said order reads as follows :

         “শুনিলাম। নথিসহ ডিক্রীদার প­ক্ষের দাখিলী দরখাস্ত দেখিলাম। দেখা যাই­তে­­ছ যে, বিগত ১৮/১০/০৩ ইং তারি­খ অত্র জারী মামলার তপশী­লের সম্পত্তি নিলাম বিক্রয়ের দিন ধার্য্য ছিল। উক্ত তারি­খ ৩ (তিন) জন দরদাতা দরপত্র দাখিল করিয়া নিলাম বিক্রয় অংশ গ্রহন ক­রে। তৎম­ধ্যে বাবুল চন্দ্র শীল কর্তৃক দাখিলী ৪,০০,০০০/- টাকার দরপত্র খানি স­র্বোচ্চ হওয়ায় ইহা গৃহীত হয়। বিধিম­ত স­র্বোচ্চ দরদাতা নির্ধারিত সম­­য়র ম­ধ্যে ড়তরন পনন  ও নিলা­মের সমুদয় মুল্য পরি­শোধ করিয়া­ছেন। ধার্য্য তারি­খে নিলাম বিক্রয় কার্যক্রম ডিক্রীদা­রের উপস্থিতিতে সম্পন্ন হইয়া­ছে। নিলাম বিক্রয় কার্যক্রম আইন মোতা­­বক পরিচালিত হওয়ায় উহা­তে কোন অনিয়ম অথবা প্রতারণার উদ্ভব হইয়া­ছে ম­র্মে প্রতীয়মান হয় না বিধায় ডিক্রীদা­রের অত্র দরখাস্ত বি­বেচনার যোগ্য ন­হে। কা­জেই ডিক্রীদা­রের অত্র দরখাস্ত না মঞ্জুর করা হই­ল আগামী ২১/১১/০৩ ইং তারি­খ নিলাম স্থায়ীকরণ (confirm) আ­দেশ প্রচা­রের জন্য দিন ধার্য্য করা হইল।
This finding is one of fact  based on correct evaluation of the facts and materials on record.
 
It is clear from  the above quoted finding of the  Artha Executing Court that there was  no  fraud or irregularities in the auction sale  process  and  the auction sale of the mortgaged property was held in accordance with law.  The Artha Executing Court after having exhausted all procedure under the Ain confirmed the auction sale by its order dated 19.11.2003.  I do not think therefore that both the courts below  made a correct approach to the simple problem. Besides, on top of that admittedly the petitioner offered Tk.25,000/- per decimal in total  Tk. 4,00,000/- for the  suit  land which is 7 (seven)  times more than the Mouza rate under Hathazari Sub-registry office, District Chittagong. Both the Courts below  without comparing the bidding price with the Mouza rate of the local sub-registry office came to an erroneous finding that  the highest bidder offered only an amount of Tk. 4,00,000/- which is very low than the existing market price of the valuable mortga-ged property  which resulted in the failure of justice.
 
Thus evidently auction sale having taken place and sale having been confirmed by the Artha Rin Adalat after rejecting an application under Order XXI, rule 90 Code of Civil Procedure filed by the decree holder bank as there was no allegation of fraud or irregula-rities in the auction sale process.  Under such circumstances both the Courts below without existence of the legal requirements as laid down in Order XXI, rule 90 of the Code acted illegally in allowing the Misc. Case under the said  rule  for setting aside the auction sale and the same has occasioned failure of justice.
 
In the case of Sonali Bank Vs. Artha Rin Adalat and others reported in 15 MLR(AD) 21, it has been held as follows:-

   “We have perused the writ petition as well as the order dated 02.01.2005 and 9.01.2005 passed in Mortgaged Execution Case No.8 of 1995 and the judgment and order passed in the writ petition and considered the submission made by the learned Advocate appearing for the leave petitioner. It appears that the leave petitioner bank is negligent in not informing the executing Court about the fact of restoration of the rule and stay dated 15.6.2006 and that the leave petitioner bank by filing an application on 25.6.2006 prayed for receiving the pay order submitted by the auction purchaser in Court and it appears from the impugned judgment and order passed by the High Court Division that the leave petitioner bank has already encashed the pay order and thereby accepted the auction sale. In view of the provision of law to the effect that once an auction is complete no relief is available against such auction sale but the mortgagee may proceed against the mortgagor  bank for any compensation, if it is proved that there was illegality in the auction sale. In the instant case, it is not such case rather it appears that at the instant of the decree holder bank auction was held and ultimately the decree holder bank has withdrawn the money deposited by the auction purchaser. After the auction process is completed, proceeding with the execution case is redundant.”
 
From the above, I find a clear view of the law as it stands today that once an auction sale is complete no relief is available against such auction sale but the mortgagee may proceed against the mortgagor bank for any compensation, if it is proved that there was illegality in the auction sale.
 
In this case I have already indicated that  the auction purchaser was  the highest bidder,  who deposited the entire bidding  money and sale fees in time as per order of the executing Court and the auction process has been conducted in presence of the decree holder bank and there was  no allegation of fraud or  irregularity or illegality in the auction sale process. Therefore, I am inclined to hold that both the courts below committed wrong  in holding that the highest bidder appellant offered only an amount of TK. 4,00,000/- which was very low than the existing market price of the valuable mortgaged property without comparing the bidding price with the Mouza rate of  the local sub-registry office and  without applying its judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice. The contentions raised by the learned Advocates on behalf of the opposite parties for the aforesaid reasons are of no substance.
 
Incidentally, it may be mentioned that the grievance of Mr. Moudud Ahmed to the effect that both the Courts below having failed to take into consideration that a great fraud has been committed by the judgment Debtor-Opposite Parties Nos.3-6 in collaboration with the Bank in obtaining a loan amount of Tk. 82,33,209.90/- by providing the only security of the schedule  property for the aforesaid loan in the facts and circumstance of the case   does not appear to be without any substance.
 
In view of my discussions made in the foregoing paragraphs it is by now clear that the instant Rule must succeed. 
 
In the result, the Rule is made absolute without any order as to costs. The impugned judgment and order dated 17.5.2012 passed by the learned District Judge, Chittagong in Misc. Appeal No.28 of 2012 and the  order No. 58 dated 28.4.2010 passed  by the  Artha Rin Adalat, Chittagong in Misc. Case No.04 of 2006 are set-aside and the order dated 19.11.2003 passed by the Artha Execution Court  in Artha Rin Jari Case No.183 of 2003 is restored.
 
Let a copy of this judgment be communicated to the Courts concerned at once.
 
Ed.