Case No: Civil Petition for Leave to Appeal Nos. 622 and 623 of 2004
Judge: Amirul Kabir Chowdhury ,
Court: Appellate Division ,,
Advocate: Mr. Abdul Wadud Bhuiyan,Mr. Abdur Razzaq,,
Citation: 59 DLR (AD) (2007) 6
Case Year: 2000
Appellant: Bangladesh Agricultural Development Corporation
Respondent: Artha Rin Adalat and others
Subject: Artha Rin,
Delivery Date: 2006-06-29
Syed JR Mudassir Husain, CJ.
MM Ruhul Amin, J.
A Kabir Chowdhury, J.
Bangladesh Agricultural Development Corporation (BADC)
Artha Rin Adalat and ors
June 29, 2006.
There being specific remedy in the statute for filing appeal against the judgment and decree of the Artha Rin Adalat in the present case the defendant not availing of the aforesaid remedy cannot maintain the writ petitions.
Cases Referred To-
Zahirul Islam vs National Bank Ltd and others 46 DLR (AD) 191; Gazi M Towfie vs Agrani Bank and others 54 DLR (AD) 6.
Abdul Wadud Bhuiyan, Senior Advocate (MA Sobhan, Advocate with him) instructed by Nurul Islam Bhuiyan, Advocate-on-Record—For the Petitioner (In both the petitions).
Abdur Razzaq, Senior Advocate, instructed by AKM Shahidul Huq, Advocate-on-Record—For Respondent No. 2 (In both the cases).
Not represented—Respondent Nos. 1 & 3 (In both the cases).
Civil Petition for Leave to Appeal Nos. 622 & 623 of 2004.
(From the judgment and order dated 20-3-2004 passed by the High Court Division in Writ Petition Nos.3260 and 3261 of 2001).
1. Civil Petition for Leave to Appeal No. 622 of 2004 has been filed at the instance of the writ petitioner-Bangladesh Agricultural Development Corporation (BADC) 49-51. Krishi Bhaban, Dilkusha Commercial Area, Motijheel, Dhaka represented by the Chairman against the judgment and order dated 20-3-2004 passed by a Division Bench of the High Court Division in Writ Petition No. 3260 of 2001 heard analogously with Writ Petition No. 3261 of 2001 discharging the Rules in both the writ petitions.
2. Civil Petition No. 623 of 2004 has been filed by the aforesaid writ petitioner Bangladesh Agricultural Development Corporation (BADC) represented by its Chairman against the aforementioned judgment and order dated 20-3-2004. This judgment governs both the petitions.
3. Writ Petition No. 3260 of 2001 giving rise to Civil Petition No. 622 of 2004 was filed by the writ petitioner against the judgment and decree passed by the learned Subordinate Judge, Artha Rin Adalat No.3, Dhaka dated 5-5-2000 in Money Suit No. 109 of 1998 while Writ Petition No. 3261 of 2001 was filed calling in question the judgment and decree dated 7-11-1999 passed by the leaned Subordinate Judge, Artha Rin Adalat No.2, Dhaka in Money Suit No. 109 of 1998.
4. The facts, in brief, are that the respondent No. 2 Pubali Bank Limited, Motijheel Branch, Dhaka instituted Money Suit No. 109 of 1998 against the petitioner Bangladesh Agricultural Development Corporation, in short, BADC, and Ministry of Finance, represented by the Secretary, Bangladesh Secretariat, Dhaka claiming a sum of Taka 53,44,55,437. It was stated in the plaint that the defendant No.1 i.e. the petitioner opened letter of credit (LC) for importing TSP fertilizer from Belgium worth Taka 19,78,62,294 which on the prayer of the petitioner was enhanced to Taka 20,56,99,094/05 in Bangladesh currency and that according to the terms of the LC the petitioner was to release the shipping documents on payment of the banks dues and that on receipt of the shipping documents the plaintiff respondent informed the defendant petitioner by letters dated 25-3-1991, 9-4-1991 and 24-4-1991 to release the documents on payment of bank dues but to no effect and that the defendant without knowledge of the plaintiff on the basis of undertaking in favour of the customs authority released the goods and in two installments deposited Taka 6 crore in their account maintained with the plaintiff bank and that thereafter the plaintiff bank made repeated demands but on various pretexts the outstanding amounts of the bank have not been paid and the plaintiff bank also made correspondence with the respondent No.3, Ministry of Finance claiming the money but the plaintiff-respondent did not receive any money. The defendant-petitioner, from time to time, requested the plaintiff bank for time to make arrangement for payment of the money but to no effect. The plaintiff bank after adjustment of the amount deposited by the defendant in its account made a detailed account in the matter and up to 20-2-1998 a sum of Taka 53,44,55,437 was found due from the defendants on account of the bank's dues including the interest and the plaintiff bank being unable to realise the amount instituted aforesaid Money Suit No. 109 of 1998.
5. Money Suit No. 109 of 1998 was filed by the plaintiff respondent No.1 against the aforesaid defendant-petitioner and the respondent No. 2 stating, inter alia, that the defendant petitioner used to enjoy cash credit facilities from the plaintiff bank for Taka 10 crore which was renewed lastly on 22 November 1989 and the defendant-petitioner enjoyed the privilege and that on 31-12-1989 the term of the aforesaid credit facilities expired and that pursuant to counter finance scheme Bangladesh Bank deducted Taka 9 crore on January 1990 from the amount kept by the plaintiff bank with Bangladesh Bank and the counter finance scheme being cancelled the plaintiff bank became entitled to Taka 9,11,13,707 from the defendants and accordingly, the plaintiff bank informed the defendant to make payment of the amount and in view of default by the defendant in making payment of the amount, the plaintiff bank issued letters to the defendant petitioner claiming the amount with interest @ of 16% per annum but to no effect and that in this way the plaintiff bank became entitled to get a sum of Taka 17,38,81,625 against the defendant petitioner and all attempts to realise the dues being proved futile the aforesaid money suit was filed against the defendant-petitioner and the respondent No. 2.
6. Both the suits were contested by the defendant-petitioner filing written statements denying material allegations made in the plaints.
7. The learned Subordinate Judge and Artha Rin Adalat decreed both the suits against the defendant-petitioner and the respondent No.2 for the amounts claimed with interest of 16% per annum. Calling in question the legality of the aforesaid judgments and decrees in both the suits Writ Petition Nos. 3260 of 2001 and 3261 of 2001 were filed by the petitioner before the High Court Division. A Division Bench of the High Court Division after hearing the parties discharged the Rules.
8. Hence are these petitions.
9. Mr. Abdul Wadud Bhuiyan, learned Counsel appearing for the petitioner in both the petitions placed the impugned judgment of the High Court Division and other materials on record and referring to the judgment of the High Court Division submits that BADC has been found technically liable for the loan and it was, in fact, the responsibility of the Ministry of Finance to come to the rescue and that BADC appears to have been burdened with the judgment and decree for no fault of its own and so, according to the learned Counsel, the High Court Division committed an error of law is dismissing the Rules.
10. He further submits that the Artha Rin Adalat and the High Court Division found that the Ministry of Finance took the responsibility to repay the loan to the plaintiff bank and, as such, the judgment of the Artha Rin Adalat to decree the amount also against the defendant petitioner is without jurisdiction.
11. Mr. Abdur Razzaq learned Counsel appearing for the respondent in both the petitions, on the contrary, submits that the defendant-petitioner cannot deny responsibility of being the loanee and thus cannot absolve its responsibility of paying the dues of the plaintiff bank. There is, therefore, according to the learned Counsel, no error in the judgment passed by the Artha Rin Adalat and in such view of the matter the High Court Division in correct assessment of the materials on record legally passed the impugned judgment.
12. He challenges strenuously the very maintainability of the writ petition against the judgment and decree of the Artha Rin Adalat.
13. We have considered the submissions made at the Bar and perused the materials on record.
14. Admittedly, the respondent No.1 filed money suits against the defendant-petitioner and the respondent No. 3. It is also not denied that the petitioner as the defendant contested the suits filing written statement and the suits were decreed on 26-2-2000 and 28-10-1999 respectively under section 7 of the Artha Rin Adalat Act, 1990, there is provision for preferring appeal against the judgment of Artha Rin Adalat under section 7 of the Ain which runs as under:
তবে শর্ত থাকে যে, অর্থ ঋণ আদালতের কোন অন্তর্বর্তী আদেশের বিরুদ্ধে কোন আপিল দায়ের করা যাইবে না ।”
15. It appears that without preferring any appeal as provided by law, the defendant petitioner chose the forum of the High Court Division to file writ petition under Article 102 of the Constitution. In this connection Article 102 (2) reads as follows:
(a) on the application of any person aggrieved, make an order
(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; or
16. It thus appears that any person may move the High Court Division under Article 102 of the Constitution if any other equally efficacious remedy is not available in the law of the country. But on perusal of section 7 quoted above it appears that there is equally efficacious remedy available to the Defendant-petitioner and either in the writ petition or in these petitions before us nothing has been mentioned what prevented the defendant-petitioner from preferring the appeal as provided by law.
17. In this connection the decision in the case of Zahirul Islam vs National Bank Limited and others reported in 46 DLR (AD) 191 may be referred to. In the said case the petitioner moved the High Court Division under Article 102 of the Constitution challenging the judgment and decree of Artha Rin Adalat on various grounds including the ground that the suit was barred by limitation and also the judgment was passed in excess of jurisdiction. The Appellate Division held—
18. In the aforesaid case the defendant's plea was stronger than the plea taken in the instant case. Still it appears that the High Court Division as well as the Appellate Division rejected the plea.
19. The decision in the case of Gazi M Towfie vs Agrani Bank and others reported in 54 DLR (AD) 6 further strengthens the view that there being special provision for appeal in the Artha Rin Adalat Act, 1990 no application under Article 102 lies against the judgment and order of the said Adalat. It has been thus settled long back that the writ petition is not proper course for challenging the judgment of Artha Rin in view of provision for filing appeal being provided in the statute.
20. In view of the decisions quoted above we are led to irresistible conclusion that there being specific remedy in the statute for filing appeal against the judgment and decree of the Artha Rin Adalat in the present case the defendant not availing of the aforesaid remedy cannot maintain the writ petitions. Since we find that the writ petitions were not maintainable we do not like to embark upon other submissions made on behalf of the defendant-petitioner touching the merits of the cases.
21. Before we part with we like to put it on record that in spite of the fact that the law in the matter has been settled long back petitions are unnecessarily filed under Article 102 of the Constitution challenging the judgment of the Artha Rin Adalat without making any case covered under the aforesaid Article not to speak of any ground touching fundamental rights of the petitioner. As a result, the superior Courts are wastage of public time which should be discouraged by all concerned including the learned members of the Bar, who are as well officers of the Court.
22. We have perused the impugned judgment. There is no error.
The petitions are therefore dismissed.