Dr. S. M. Eunus Ali, Free Friday Clinic Vs. Artha Rin Adalat and another, VII (ADC) (2010) 194

Case No: Civil Petition for Leave to Appeal No. 520 of 2009

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. S. N. Goswami,,

Citation: VII (ADC) (2010) 194

Case Year: 2010

Appellant: Dr. S. M. Eunus Ali

Respondent: Artha Rin Adalat and another

Subject: Artha Rin,

Delivery Date: 2009-11-1

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Abdul Matin J
Shah Abu Nayeem Mominur Rahman J
ABM Khairul Haque J
 
Dr. S. M. Eunus Ali, Free Friday Clinic
…...…………..Petitioner
Vs.
Joint District Judge and Artha Rin Adalat, Second Court of Bagerhat and another
……………….Respondents
 
Judgment
November 1, 2009.
 
It appears that the respondent bank already became the owner of all the mortgaged property mentioned in the writ petition after getting a certificate from the court under Section 33(7) of the Artha Rin Adalat Ain, 2003 and the price assessed was at Tk. 8 lacs which was deducted from the claim of the plaintiff bank and therefore the High Court Division committed no illegality in discharging Rule. …. (8)
 
Lawyers Involved:
S. N. Goswami, Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioner
Not represented- the Respondents.
 
Civil Petition for Leave to Appeal No. 520 of 2009
(From the judgment and order dated 03.03.2009 passed by the High Court Division in Writ Petition No. 7366 of 2005)
 
JUDGMENT
Md. Abdul Matin J.
 
This petition for leave to appeal is directed against the judgment and order dated 03.03.2009 passed by the High Court Division in Writ Petition No.7366 of 2005 discharging the Rule against the order vide order No.9 dated 14.09.2005 passed by the learned Judge of the 2nd Court of Artha Rin Adalat at Bagerhat in Artha Jari Case No. 12 of 2005 and Artha Rin Adalat (Md. Abdul Matin J) 195 whereby the warrant of arrest was issued against the judgment debtor petitioner.
 
2. The facts, in short, are that the respondent No.2 in the capacity of the plaintiff institut­ed Artha Rin Case No. 14 of 2003 against the defendant petitioner and defendant respon­dent No.3 before the respondent No.1 for realization of Tk.47,89,412/-. The defendant petitioner filed written statement denying the plaint case. The defence case is that under small  industrial loan BISIC on 18.05.1994 by sanction letter No.94/04 the defendant received Tk.3,92,500/- and the defendant petitioner adjusted the loan of Tk.72,303/- but the plaintiff bank fraudu­lently  created over draft loan (OD) of Tk. 1,65,546/- and when it was detected the plaintiffs authority was offered as loan of Tk.30,00,000/- (thirty lacs) on condition that the loan of Tk. 16,55,546/- will be adjusted and to return rest amount to the petitioner and sanction the same in favour of the defendant petitioner for which the peti­tioner executed collateral security of Tk.33,50,000/- in favour of the plaintiff bank. But the plaintiff did not ultimately materialize the plaintiff bank with ill motive kept petitioner's document in his custody and suppressed the facts and filed the instant suit.
 
3. The plaintiffs examined one witness as P.W.1 on 25.05.2004 and defendant also examine one witness as D.W.1 on 07.06.2004 and that the Court below fixed for judgment on 10.07.2004 and subsequently it was fixed on 25.07.2004. The defendant petitioner on 21.07.2004 filed an application under Order 26 Rule 11 of the Code of Civil Procedure for Commissioner's to examine accounts and the Court below was pleased to reject the same on 25.07.2004.
 
4. The Court below by the impugned judg­ment decreed the suit for realization of Tk.47,89,412/- but on 14.08.2004 the plain­tiff bank filed an application for correction of the judgment dated 25.07.2004 and decree dated 01.08.2004 under Section 152 of the Code of Civil Procedure. The said application was posted for hearing on 17.08.2004 and the Court below allowed the same by Order No.36 dated 17.08.2004 and the Court below amended the judgment and decree to the effect that “বাদীপক্ষ ৩৯, ৮২,০৬২/ (উনচল্লিশ লক্ষ বিরাশী হাজার বাষট্টি) (১৭/৮/০৪ ইং তারিখের ৩৬ নং আদেশ মতে সংশোধিত) টাকা পাইতে হকদার মর্মে ঘোষনা করা হইল এবং বিক্রি ৮,০০,০০০/-(আট লক্ষ) টাকা বাবদ বাদীর বরাবর বন্দকী সম্পত্তি মালিকানা ৩৩(৭) ধারার বিধান অনুসারে বাদীর অনুকূলে বর্তাইবে। প্রতিপক্ষের প্রতি ৩৩(৭) ধারার সার্টিফিকেট ইস্যু করা হউক।“
 
5. As against the order of the Artha Rin Adalat the petitioner filed the writ petition and by the impugned judgment and order the High Court Division discharged the Rule.
 
6. As against the judgment and order of the High Court Division the petitioner has filed this petition for leave to appeal.
 
7. Heard the learned Advocate appearing for the petitioner and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
 
8. It appears that the respondent bank already became the owner of all the mort­gaged property mentioned in the writ petition after getting a certificate from the Court under Section 33(7) of the Artha Rin Adalat Ain, 2003 and the price assessed was at Tk.8 lacs which was deducted from the claim of the plaintiff bank and therefore the High Court Division committed no illegali­ty in discharging the Rule.
 
We find no substance in this petition which is accordingly dismissed.
 
Ed.