Janata Bank Ltd. Dhaka Vs. Bangladesh and others [4 LNJ (2015) 541]

Case No: Writ Petition No. 4369 of 2013

Judge: Mohammad Ullah,

Court: High Court Division,,

Advocate: Ms. Halima Ferdous,Mr. Shaheen Ahmed,,

Citation: 4 LNJ (2015) 541

Case Year: 2015

Appellant: Janata Bank Ltd. Dhaka

Respondent: Bangladesh and others

Subject: Artha Rin, Writ Petition,

Delivery Date: 2015-04-24


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Shamim Hasnain, J
And
Mohammad Ullah, J


 
Judgment on
24.05.2015
  Janata Bank Ltd., Head Office, 110, Motijheel Commercial Area, Dhaka, represented by the Deputy General Manager, Janata Bank Ltd. Local Office-1, Dilkusha, Dhaka
…Petitioner
Versus
Government of Bangladesh represented by the Secretary, Ministry of Finance and Planning, Secretariat Building, Ramna, Dhaka and others.
. . . Respondents
 

Artha Rin Adalat Ain (VIII of 2003)
Section 28 (2) and (3)
The rights of the decree-holder in accordance with the statute has apparently been extinguished as a legal consequence of the special provision of limitation incorporated therein. Since the first execution case was time barred under the special provision of limitation as provided for in sub-section (2) of section 28 of the Ain, the second execution case if continued, will render the aforesaid provisions nugatory. It is possible that under sub-section (3) of section 28 of the Ain, a second execution case can be maintained when it is filed within one year from the date of rejection or disposal of the first execution case, however that course is available only when the first execution case is rejected for reasons other than the ground of limitation. If the second execution case is continued after rejection of the first execution case on the point of limitation it will defeat the special provision of limitation as contemplated in the statute. . . . (10)

Constitution of Bangladesh, 1972
Article 102
It appears from the materials on record that there was a gross negligence of the concerned officials of Bangladesh Krishi Bank Limited in not preferring the execution case in time and as such an appropriate direction should be given by this Court to the authority concerned of the Bangladesh Krishi Bank Limited. Accordingly, the Managing Director, Bangladesh Krishi Bank Limited is directed to find out who were involved in such negligence through an inquiry and to realize the decreetal amount with interest from the person or persons concerned, liable for such negligence. The Managing Director of the bank is also directed to initiate a departmental proceeding against the person or persons who were involved in such gross negligence, if the same has not been done in the meantime.  . . . (12)

Dr. Md. Asauddllah Vs. Sonali Bank Limited and others, 62 DLR 474 ref.
 
Ms. Halima Ferdous, Advocate
… For the Petitioner.
Mr. Shaheen Ahmed, Advocate
…For the respondent no.3.
 
Writ Petition No. 4369 of 2013
 
JUDGMENT
Mohammad Ullah, J.

On an application under Article 102 of the Constitution this Rule Nisi was issued at the instance of the petitioner-Janata Bank Ltd., Head Office, Dhaka calling upon the respondent No.1, Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Finance and Planning, Secretariat Building, Ramna, Dhaka, respondent No.2, Learned Judge, Artha Rin Adalat No.2, Dhaka, respondent No.3,  Bangladesh Krishi Bank Ltd. principal branch at Krishi Bank Bhaban, 83-84 Motijheel, Dhaka, and respondent No.4, Md. Asraf  Ali Talukder Proprietor of M/S Asraf Ali, Village and Post Office-Rampur Bazar, P.S-Kalihati, District- Tangail, to show cause as to why the order No. 16 dated 09.09.2012 (as contained in Annexure-E) passed by the Artha Rin Adalat No.2, Dhaka in Artha Jari Case No. 205 of 2011 (Second Execution Case ) arising out of Artha Rin Suit No. 182 of 2003 entertaining the second execution case under section 28(4) of the Artha Rin Adalat Ain, 2003 should not be declared to have been passed without lawful authority and of no legal effect.

The short facts, relevant for the purpose of disposal of this Rule, are that the respondent no.3 instituted Mortgage Suit No. 49 of 1992 before the Artha Rin Adalat, 2nd Court, Dhaka impleading the petitioner Janata Bank Limited and another as defendants for realization of Tk. 25,68,852.41 as stood on 31.10.1995. Subsequently on transfer the said suit was registered as Artha Rin Suit No. 182 of 2003. Thereafter, after hearing the parties and on consideration of the materials on record the Adalat decreed the suit vide judgment and decree dated 10.02.2005 and the decree was drawn up and signed on the same day. Being aggrieved by the aforesaid judgment and decree dated 10.2.2005, the Janata Bank Limited, as appellant preferred Artha Rin Appeal No. 04 of 2005 before the learned District Judge who transferred the appeal  to the learned Additional District Judge, 2nd Court, Dhaka for disposal. The Additional District Judge, 2nd Court, Dhaka after hearing the parties dismissed the appeal on 19.11.2009 with certain modifications of the said judgment and decree. The plaintiff decree-holder thereafter filed Execution Case No. 59 of 2011 on 01.03.2011 to materialize the decree before the Artha Rin Adalat, Second Court, Dhaka. The Adalat after hearing the parties and on consideration of the materials on record rejected the application for execution filed by the decree-holder Krishi Bank  vide judgment and order dated 15.6.2011 on the point of limitation since the execution case was not filed within 1(one) year from the date of decree as per the provisions of section 28(2) of the Artha Rin Adalat Ain, 2003 Thereafter, the decree-holder preferred Second Execution Case No. 205 of 2011 on 01.08.2011 before the Artha Rin Adalat, 2nd Court, Dhaka. The petitioner as judgment-debtor contested the execution case and filed an application contending, inter alia,   that the first execution case having been rejected on the point of limitation, there was no question of filing the second case for execution of the decree. The Executing Court after hearing the parties rejected the application of the petitioner judgment-debtor and registered the second execution case vide order dated 09.09.2012 (“the impugned order”). Being aggrieved by and dissatisfied with the aforesaid order dated 09.09.2012 the petitioner approached this Court and obtained the present Rule as stated above. At the time of issuance of the Rule this Court vide order dated 13.05.2013 stayed further proceedings of Artha Jari Case No. 205 of 2011 then pending before the Artha Rin Adalat, 2nd Court, Dhaka for a period of 6(six) months and subsequently on 05.05.2015 the order of stay was extended for a further period of 6(six) months.

This Rule is contested by respondent no. 3 Bangladesh Krishi Bank Limited through Mr. Shaheen Ahmed, learned Advocate who filed affidavit-in-opposition.

Ms. Halima Ferdous, learned Advocate appearing on behalf of the petitioner submits that the impugned order suffers from gross illegality inasmuch as the first execution case having been rejected on the point of limitation, the institution of the second execution case does not arise. The learned Advocate submits further that since the first execution case was barred by the law  of special limitation under section 28(1) and (2) of the Artha Rin Adalat Ain, 2003, continuation of the proceedings of  the second execution case is liable to be declared to have been proceeded without lawful authority and  of no legal effect. 

In controverting the submissions of the learned Advocate for the petitioner, Mr. Shaheen Ahmed, learned Advocate for the respondent-bank refers to the express provisions of sub-section(3) of section 28  and submits that when the first execution case is rejected on the point of limitation or disposed of on different pretext, a second execution case can be continued and proceeded if it is filed within 1(one) year from the date of rejection of the first execution case in accordance with sub-section (3) of section 28 of the Artha Rin Adalat, 2003.

The learned Advocate seeks to rely on a decision in the case of Dr. Md. Asauddllah vs Sonali Bank Limited and others reported in 62 DLR 474.

We have heard the learned Advocates for both the parties, perused the materials on record including the writ petition and the annexures thereto and the affidavit-in-opposition as filed by the respondent no. 3.

At first let us see the relevant provisions of law on the issue. Section 28 of the Artha Rin Adalat Ain, 2003 has authorized the Adalat to deal with execution proceedings which runs as follows:

“২৮ (১) ঝবন কভলভঢ়তঢ়ভষশ অদঢ়, ১৯০৮ এবং ঝবন ইষধন ষপ ইভৎভর ঙক্ষষদনধয়ক্ষন, ১৯০৮ এ ভিন্নতর  যে বিধানই থাকুক না  কেন, ডিত্র্রীদার, আদালত­যা­গ ডিত্র্রী বা আ­দশ কার্যকর করি­ত ইচ্ছা করি­ল, ডিত্র্রী বা আ­দশ প্রদত্ত হওয়ার অনুর্ধ ১(এক) বৎস­রর ম­ধ্য ধারা ২৯ এর বিধান সা­প­ক্ষ জারীর জন্য আদাল­ত দরখাস¹ দাখিল করিয়া মামলা করি­বz
(২) উপ-ধারা (১) এর বিধা­নর ব্যত­য়, ডিত্র্রী বা আ­দশ প্রদা­নর পরবর্তী ১(এক) বৎসর অতিবাহিত হইবার প­র জারী জন্য দা­য়রকৃত  কোন  মামলা তামাদি­ত বারিত হই­ব এবং অনুরূপ তামাদি­ত বারিত মামলা আদালত কার্যা­র্থ গ্রহন না করিয়া সরাসরি খারিজ করি­বz
(৩) জারীর জন্য দ্বিতীয় বা পরবর্তী মামলা,  প্রথম বা পূর্ববর্তী জারীর মামলা খারিজ বা নিস্পত্তি হওয়ার পরবর্তী এক বৎসর সময় উত্তীর্ণ হওয়ার প­র দাখিল করা হই­ল, উক্ত মামলা তামাদি­ত বারিত হই­ব; এবং তামাদি­ত বারিত অনুরূপ মামলা আদালত কার্যা­র্থ গ্রহণ না করিয়া সরাসরি খারিজ করি­ব
জারীর জন্য  কোন নতুন মামলা প্রথম জারীর মামলা দাখি­লর পরবর্তী ৬ (ছয়) বৎসর সময় অতিবাহিত হইবার প­র দাখিল করা হই­ল, উক্ত মামলা তামাদি­ত বারিত হই­ব; এবং তামাদি­ত বারিত অনুরূপ মামলা আদালত কার্যা­র্থ গ্রহণ না করিয়া সরাসরি খারিজ হই­ব”

The aforesaid provisions of section 28 of the Artha Rin Adalat Ain, 2003 (“the Ain”) provides for a special law of limitation for the purpose of dealing with execution proceedings. Sub-section (1) of section 28 has imposed a restriction on the decree holder that the execution case shall have to be filed within 1(one) year from the date of decree subject to the provisions of section 29 of the Ain. Section 29 of the Ain gives special latitude for reckoning the time spent in payment of the decretal amount which to be gathered from the context of the decree. Sub-section (2) of section 28 creates an embargo upon the decree-holder providing the consequence that the execution case shall be rejected if it is not filed in strict compliance with the provisions of sub-section (1) of section 28 within one year from the date of the decree, subject to the provision of section 29 of the Ain.  Sub-section (3) of section 28 speaks about filing of second or subsequent execution case fixing a time limit of 1(one) year from the date of rejection or disposal of the first execution case. Sub-section (4) of section 28 is not relevant for our purpose.

In the instant case, the admitted position is that the first execution was not filed within 1(one) year from the date of the decree in  compliance with the provisions of sub-section (1) of section 28 of the Ain and therefore the first execution case was rejected on 15.6.2011 by the Executing Court under sub-section (2) of section 28. The rights of the decree-holder in accordance with the statute has apparently been extinguished as a legal consequence of the special provision of limitation incorporated therein. Since the first execution case was time barred under the special provision of limitation as provided for in sub-section (2) of section 28 of the Ain, the second execution case if continued,  will render the aforesaid provisions nugatory. It is possible that under sub-section (3) of section 28 of the Ain, a second execution case can be maintained when it is filed within one year from the date of rejection or disposal of the first execution case, however that course is available only when the first execution case is rejected for reasons other than the ground of limitation. If the second execution case is continued after rejection of the first execution case on the point of limitation it will defeat the special provision of limitation as contemplated in the statute.

With regard to the decision as referred to by the learned Advocate for the petitioner we find the same not applicable in the context of the facts and circumstances of the instant case and accordingly the same is not discussed.
It appears from the materials on record that there was a gross negligence of the concerned officials of Bangladesh Krishi Bank Limited in not preferring the execution case in time  and as such an appropriate direction should be given by this Court to the authority concerned of the Bangladesh Krishi Bank Limited. Accordingly, the Managing Director, Bangladesh Krishi Bank Limited is directed to find out who were involved in such negligence through an inquiry and to realize the decreetal amount with interest from the person or persons concerned, liable for such negligence. The Managing Director of the bank is also directed to initiate a departmental proceeding against the person or persons who were involved in such gross negligence, if the same has not been done in the meantime.

Having considered the provisions of law, we find substance in the Rule.

In the result, the Rule is made absolute however, there will be no order as to cost.

The impugned order dated 09.09.2012 passed by the Artha Rin Adalat No.2, Dhaka in Execution Case No. 205 of 2011 is declared without lawful authority and of no legal effect and accordingly the proceeding of the Second Execution Case No. 205 of 2011 is hereby declared to have been continued without lawful authority.

Let a copy of this judgment be sent to the Artha Rin Adalat No. 2, Dhaka and and the Managing Director, Bangladesh Krishi Bank Limited, Krishi Bank Bhaban, 83-84 Motijheel, Dhaka.

Ed.