Case No: Civil Revision No. 1568 of 2016
Judge: Kashefa Hussain, J
Court: High Court Division,
Advocate: Mr. Khalequzzaman Masud, Adv. Mr. Md. Faruk Hossain, Adv.,
Citation: 2018(2) LNJ
Case Year: 2017
Appellant: M/S Jimtaj Agro Products
Respondent: Assistant Manging Director, Janata Bank Limited, Kushtia Corporate Branch, Kushtia
Subject: Artha Rin Adalat Ain
Delivery Date: 2017-05-06
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
M/S Jimtaj Agro Products
. . . Petitioner
Assistant Manging Director, Janata Bank Limited, Kushtia Corporate Branch, Kushtia
. . . Opposite Party
Artha Rin Adalat Ain (VIII of 2003)
Sections 34 and 44
A mere perusal of section 34 of the Ain reveals that the very nature of an order under section 34 is an interlocutory order depending on the facts and circumstances. According to the provisions of Section 44 of the Artho Rin Adalat Ain, 2003, Revision or Appeal is not maintainable and cannot be entertained against any interlocutory order passed by any Artho Rin Court under the provisions of section 44 of the Ain. . . . (15 and 17)
Mr. Khalequzzaman Masud, Adv.
. . . For the Petitioner
Mr. Md. Faruk Hossain, Adv.
. . . For the Opposite party
Kashefa Hussain, J. Rule was issued in the instant Civil Revisional Application calling upon the opposite party to show cause as to why the orders dated 14.02.2016 and 28.02.2016 passed by the learned Joint District Judge, 1st Court, Kishtia in Artha Jari Case No. 12 of 2014 rejecting the application dated 10.02.2016 filed by the petitioner under section 51 read with Order XXI rule 37 of the Code of Civil Procedure for setting aside the order of detention in civil prison of the petitioner and the application dated 10.02.2016 filed by the petitioner under section 12(6) read with section 57 of the Artha Rin Adalat Ain, 2003 for adjustment of decreetal amount after vesting the title of the mortgage property in favour of the Bank and to release the petitioner respectively should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.
2. Facts relevant for disposal of the Rule inter-alia is that the plaintiff opposite party filed Artha Rin Case No. 12 of 2014 in the court of 1st Artha Rin Adalat, Kushtia against the defendant petitioner for realization of outstanding dues of taka 1,27,27,938/-.
3. The case of the plaintiffs, in short, is that the defendant petitioner is a businessman who deals in paddy and rice. The defendant opened a current account with the plaintiff bank being current account No. 5160. In the course of transaction in the said account a good relationship developed between the parties, the defendant applied on 11.07.2010 for a cash credit loan of Taka 1(one) crore. The defendant petitioner executed all the charge documents against the above loan and the petitioner under took to pay back the entire loan by 31.08.2011. The defendant petitioner in total paid back a sum of Taka 4,50,000/- and as such the outstanding dues of the petitioner to the Bank is Taka 1,27,27,938/-.
4. The defendant petitioner contested the suit by filing written statement wherein the defendant denied all the material allegations made in the plaint and contended inter-alia that due to fall of price of rice the petitioner sustained a heavy loss in his business and hence he could not pay back the loan in due time and prayed for waiving the interest and also prays to allow the petitioner to pay back the loan by installments.
5. The Trial Court decreed the suit according to section 13 of the Artha Rin Adalat Ain, 2003 directing the defendant petitioner to pay 1,27,27,938/- within 30 days from the date of decree by its judgment and decree dated 05.02.2014.
6. The defendant petitioner did not pay decreetal amount within the time limit prescribed by the trial court and hence the plaintiff bank for realization of the decreetal amount filed Artha Jari Case No. 12 of 2014. The plaintiff bank also filed an application under section 33(1) for permission for publication of the advertisement in the newspaper for auction of the mortgage property. The Trial Court directed the plaintiff to make advertisement in the daily newspaper for auction of the mortgage property fixing 09.10.2014 for submission of news paper.
7. On 09.10.2014 the plaintiff filed a copy daily “Be¾cl h¡S¡l” prayed for time to file the copy of daily “pjL¡m”. The Adalat fixed 19.11.2014 for filing the copy of the newspaper and for return of proclamation of sale. On 23.01.2015 the plaintiff bank filed an application under section 34(1) of the Artha Rin Adalat Ain, 2003 for issuance of warrant of arrest against the defendant petitioner and accordingly the trial court issued warrant of arrest. On 03.02.2016 the police arrested the defendant petitioner and produced the petitioner before the Adalat. The Adalat sentenced him to suffer civil imprisonment for a period of 6(six) months and sent him to jail. The plaintiff bank in para No. 7 of his plaint has stated that- “08z h¡c£ hÉ¡wL Hl ¢eLV håL£L«a “M” agp£m h¢ZÑa ÙÛ¡hl pÇf¢šl j§mÉ 1,57,90,000/- (HL ®L¡¢V p¡a¡æ mr eîC q¡S¡l) V¡L¡ d¡kÑÉ Ll¡ B‡Rz”
8. In pursuance of the statement of the bank, the defendant petitioner filed an application on 10.02.2016 under section 12(6) read with section 57 of the Artha Rin Adalat Ain, 2003 to meet up the claim of the bank inasmuch as the bank has admitted in its plaint that the value of the4 mortgaged property is Taka 1,57,90,000/- which is more than the claim of the bank and the decreetal amount.
9. On 10.02.2016 the defendant petitioner filed another application under section 51 read with order 21 rule 37 of the Code of Civil Procedure for setting aside the order of arrest and detention of the defendant petitioner in the Civil jail inasmuch as the trial court without assigning any reason and without affording a opportunity the defendant himself and without issuing any show case notice has passed the order of arrest.
10. The Adalat upon hearing the parties was pleased to reject both the application by the impugned order dated 14.02.2016 and order dated 28.02.2016 and against which the defendant petitioner preferred the instant Civil Revisional Application before us.
11. No one appears for the petitioner while the opposite party was represented by Learned Advocate Mr. Md. Faruk Hossain.
12. Learned Advocate for the opposite party submits that this Civil Revisional application is not maintainable since the provisions of the Artha Rin Adalat Ain, 2003 does not allow any appeal or revision against any interlocutory order passed by any Artha Rin Court. He draws our attention to section 44 of the Artha Rin Adalat Ain, 2003 which provisions he asserts, expressly debar any appeal or revision against any interlocutory order passed by any Artha Rin Court. He further persuades that the Artha Rin Adalat Ain, 2003 is a special law and the provisions of the Code of Civil Procedure may not prevail over express provisions of the Ain. He further submits that order of warrant of arrest under section 34 is an interlocutory order and therefore no appeal or revision may be entertained against such an order or orders in accordance with the provisions of section 44 of the Artha Rin Ain,2003. In support of his argument he cites a decision of our Apex Court reported in 53 DLR(AD) 2001 page-9 in the case of Hosneara Begum Vs Islami Bank where our Apex Court held the principle that:
In a case where a statute bars entertainment of a revision the exercise of supervisory power under Article 109 of the Constitution is not available.
13. Relying on his submissions and the decisions of our Apex Court cited by him, Learned Advocate for the Opposite Party concludes by reiterating that the Rule not being maintainable bears no merits and therefore the order by the learned Courts below being correctly given the Rule ought to be discharged for ends of Justice.
14. We have heard the learned Advocate for the opposite party perused the materials on record, the relevant law of the provisions of Artha Rin Ain including the decision cited before us by the learned Advocate for the opposite party. Upon perusal of the materials on record read along with Section 44 of the Ain, we find force in the submissions of the learned Advocate for the opposite party. Section 44 of the Ain expressly debars any appeal or revision against any interlocutory order passed by an Artho Rin Court.
15. A mere perusal of section 34 of the Ain reveals that the very nature of an order under section 34 is an interlocutory order depending on the facts and circumstances.
16. We are also in respectful agreement with the decision of our Apex Court in the 53 DLR case cited before us and which is binding upon us.
17. Further, it has also been found in other decisions of this court, that according to the provisions of Section 44 of the Ortho Rin Adalat Ain, 2003, Revision or Appeal is not maintainable and cannot be entertained against any interlocutory order passed by any Ortho Rin Court under the provisions of section 44 of the Ain. Therefore, taking into consideration the facts and circumstances and especially the provisions of section 44 of the Artha Rin Ain which debars any appeal or revision against any interlocutory orders we find no merit in the Rule.
18. In the result, the Rule is discharged without any order as to costs.
19. The order of stay granted earlier by this court is hereby vacated.
20. Communicate this Judgment and order at once.
Civil Revision No. 1568 of 2016