Md. A. B. Mannaf Sheikh Vs. Artha Rin Adalat, Faridpur and others, 3 LNJ (2014) 695

Case No: Writ Petition No. 8742 of 2011

Judge: Mahmudul Hoque,Syed Refaat Ahmed,

Court: High Court Division,,

Advocate: Mr. Awsafur Rahman,Mr. Golam Arshed,Mr. Md. Kamruzzaman,,

Citation: 3 LNJ (2014) 695

Case Year: 2014

Appellant: Md. A. B. Mannaf Sheikh

Respondent: Artha Rin Adalat, Faridpur

Subject: Inherent Power of the Court,

Delivery Date: 2014-02-19


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Syed Refaat Ahmed, J
And
Mahmudul Hoque, J.

Judgment on
19.02.2014
 
Md. A. B. Mannaf Sheikh
. . .Petitioner
-Versus-
1st Joint District Judge Court and Artha Rin Adalat, Faridpur and others
. . .Respondents
 
Constitution of Bangladesh, 1972
Articles 42 and 102
Artha Rin Adalat Ain (VIII of 2003)
Section 57
Under our constitutional scheme, this court has no scope to do complete justice as does the Appellate Division. But this court finds that Section 57 of the Act, empowers the Artha Rin Adalat to give adequate relief in cases as in hand, even if it is assumed but not conceded that there is no scope to give the petitioner appropriate relief by the Artha Rin Adalat under the other provision of the Act. Furthermore, in view of the facts and circumstance of this case, the High Court Division is competent enough to give such relief in exercise of its powers under Article 102 of the Constitution as is necessary to safeguard the petitioner’s fundamental right to property under Article 42 of the constitution. . . .(21)

Artha Rin Adalat Ain (VIII of 2003)
Section 44(2)
The impugned orders passed by the court are interlocutory and not final orders and thus no appeal/revision can be taken there from as per provision of Section 44(2) of the Act and, therefore, the present writ is maintainable. . . .(22)

Artha Rin Adalat Ain (VIII of 2003)
Section 57
Since the auction has not yet been confirmed by the executing court and since the mortgaged property is the only homestead of the petitioner as claimed by the petitioner, for protecting the homestead of the petitioner in our considered view, it was a fit case to exercise the powers under Section 57 of the Ain to give adequate relief to the petitioner, but which the Artha Rin Adalat failed to exercise under said section. In these circumstances we are inclined to dispose of this Rule with the direction to the petitioner judgment debtor to pay 10% above the bid money to the auction purchaser and the balance decretal amount along with the other costs to the bank decree holder within 30 days of the receipt of the certified copy of this judgment and order, failing which the auction sale shall stand absolute. . . .(23)

Artha Rin Adalat Ain (VIII of 2003)
Section 22, 33 (5) (7), 38, 45, 49 and 57
Precious opportunities are readily passed over under the Act to mitigate that statute’s obvious harshness as operates against judgment-debtors. This stems, this Court finds, from an ingrained inability to appreciate that the core objective of the Act at debt recovery must not invariably without further qualification entail the acquisition of a defaulter/judgment-debtor’s property. On the contrary there is nothing in the Act that dictates the inevitability of such consequence. Rather, the Act aims expressly to achieve the opposite. Provisions, most notably, in Sections 22, 38, 45, 49 and 57, emphatically attest to that statutory intent. But undue conservatism per se or misconceived reservations either to explore avenues of equitable alternative amicable settlement processes endorsed by the Act itself or to exercise its inherent jurisdiction, for reasons not entirely evident to this Court, operate regrettably to bind the Adalat’s hand as it were. In that context, the Adalat has instead grown so complacently used to a selective and preferential reliance of certain provisions of the Act, that the said Act, particularly through over-subscription to the provisions of Sections 33(5) and 33(7), is inappropriately seen as pandering to the acquisitive tendencies of decree-holder banks and financial institutions rather than to facilitating the full recovery of their loans.  There is seen, therefore, a failure by the Adalat to strike an essential balance between financial interests of financial institutions and the fundamental proprietary interests of judgment-debtors that clearly is the Act’s objective and purpose. Such abdication of statutory authority and jurisdiction by the Adalat as a matter of course has led to the above-referred provisions being relegated by disuse to the unavoidable status as dead letters of the law in stark discordance with clear legislative intent to the contrary. This Court is of the view, therefore, that such a situation needs to be addressed and redressed urgently. It is with that intent that this Judgment and Order is particularly being communicated to the concerned Artha Rin Adalat. . . .(29)

Mr. Awsafur Rahman, Advocate with
Mr. M.G. Mahmud Shahin and
Mr. M. Shaheedul Islam
… For the petitioner

Mr. Md. Kamruzzaman, Advocate with
Mr. Nur-A-Alam
… For the respondent No.2 Bank

Mr. Golam Arshed with
Mr. Md. Rafiqul Imam, Advocate                                    
… For respondent No. 3
 (Auction purchaser)

Writ Petition No. 8742 of 2011
 
JUDGMENT
Mahmudul Hoque, J:

On an application under Article 102 of the Constitution of Bangladesh this  Rule Nisi has been issued at the instance of the petitioner calling upon the respondents to show cause as to why the impugned orders, dated 03.10.2011 and 9.10.2011 passed by the respondent No.1 , 1st Joint District Judge  Court and Artha Rin Adalat, Faridpur in Artha Rin Execution Case No.1 of 2010, allegedly rejecting the application dated 26.9.2011 and 27.9.2011 filed by the petitioner for staying the auction process and accepting  the auction bid of one Khaja Abdus Sattar (Annexure-B)  should not be declared to have been passed without lawful authority and is of no legal effect , and/or why such other or further order or orders as this Court may deem fit and proper, should not be passed.

Facts of the petitioner’s case, in brief, are that the respondent No.2 Bank as plaintiff instituted Artha Rin Suit No. 13 of 2007 before the Artha Rin Adalat, Faridpur, against the petitioner for recovery of Tk. 3,90,882/-  granted as loan. The said Artha Rin suit was heard ex parte in the absence of the petitioner and the respondent No.1, Court decreed the suit ex parte in favour of the respondent No. 2 Bank by its judgment and decree dated 12.5.2009 and by the said decree the petitioner was directed to make payment of the decretal amount to the Bank  within 40 days from the date of the order. The petitioner having failed to repay the same, the respondent No.2 Bank put the said decree into execution by filing Artha Rin Execution Case No. 1 of 2010 in the Court of Artha Rin Adalat, Faridpur on 4.2.2010. The petitioner on coming to know about the filing of the Execution case filed an application on 29.9.2010 seeking time to pay the Bank’s dues stating that the petitioner earlier paid Tk.50,000/-before the Artha Rin Adalat which was fixed for hearing amongst other dates and finally on 20.6.2011. But on the date fixed the said application was rejected by the court refusing time to the petitioner to make payment of the outstanding dues to the bank.  Thereafter the petitioner again deposited Tk.50,000/- with the respondent No.2 Bank towards repayment of the loan  on 26.9.2011 and filed an application before the Artha Rin Adalat praying for three months time  to pay the rest of the amount. On the following date on 27.9.20112 the petitioner filed another application before the executing Court praying for stay of the auction process and also to be granted time for repayment of the loan. The Artha Rin Adalat after hearing the application mentioned above rejected the same by its order dated 3.10.2011 observing that the petitioner is unnecessarily delaying the disposal of the execution case and proceeded to hold the auction on 3.10.2011. Subsequently, the Artha Rin Adalat accepted the auction bid   of one Khaja Abdus Sattar in rejecting the prayer of the petitioner. The Petitioner contends that by this time the petitioner by various installments in total deposited Tk. 1,15,000/- with the respondent No. 2, Bank. At this stage the petitioner moved this court by filing this appli-cation under Article 102 of the Constitution of the Peoples Republic of Bangladesh and obtained the present rule and stay. Further case of the petitioner is that after acceptance of the auction bid the petitioner filed an application  before the Artha Rin Adalat  under Order 21, Rule 89 of the Code of Civil Procedure (“Code”) on 16.11.2011 by depositing  5% of the bid money for payment to the auction purchaser praying for allowing the petitioner to get the mortgaged property released/redeemed upon payment to the bank the outstanding dues. But the court fixed on 20.11.2011 for hearing the application allowing time to the decree holder to file written objection. On 20.11.2011 the petition was heard and upon hearing the Artha Rin Adalat rejected the same, not on merit but only observing that since the matter is pending before the High Court Division the petition is not at all considerable at this stage. Thereafter the petitioner filed another application on 04.1.2012 under Order 21, Rule 89 of the Code praying for setting aside the auction sale. The said petition was heard on 5.1.2012 and after hearing, the court rejected the same as the proceeding has been stayed by the High Court Division in this instant application.

On the other hand, the respondent No.2 Bank and auction purchaser as added respondent No.3 contested the rule by filing separate affidavits-in-opposition. The case of the respondent No.2 Bank, in short, is that the petitioner was granted a loan of Tk. 2,00,000/- on 11.8.2002 and against the loan the petitioner executed relevant charge documents, promissory note and created mortgage of his landed property as security  by a deed of mortgage No. 5026 and also executed  a power of  attorney on 4.8.2002 authorizing the Bank  to sell the mortgaged property. The petitioner, however, failed to pay the outstanding dues within the stipulated time inspite of repeated demands and reminders of the Bank. The Bank finding no alternative was compelled to sell the property under Section 12 of the Artha Rin Ain, 2003 (“Act”) and published tender notice in “The Daily Jugantor” on 19.8.2005. But no bidder participated in the tender. As a result” the Bank filed the Artha Rin Suit No. 13 of 2007 before the Artha Rin Adalat, Faridpur. The Artha Rin Adalat decreed the suit against the petitioner on 18.5.2009. The petitioner having failed to repay the total amount as per decree passed by the Adalat, the respondent Bank put the decree into execution by filing Execution Case No. 1 of 2010 in the Artha Rin Adalat. In the process of execution the mortgaged property was put into auction by the court  and in the auction  sale, the intended buyers  submitted “Sealed quotation “ and amongst the bidders the bid of respondent No.3 become highest and upon compliance of relevant provision of law the respondent No.3’s bid was accepted by the Adalat. Thereafter entire bid money has been deposited by the respondent No.3 to the Court and as such there has been no irregularity and illegality in holding auction of the mortgaged property. Hence, the Respondent’s submit, the present rule is liable to be discharged.

The added respondent No.3, auction purchaser’s case, in short, is that the respondent no. 3 is a lawful purchaser of the mortgaged property in auction and he has paid the entire bid money and as such has acquired the lawful right in the purchased property. The respondent no. 3 affirms that he has participated in the auction and has become the highest bidder. The court accepted his bid by its order dated 09.10.2011. Submitting that there is no illegality in the impugned order passed by the court, the respondent No. 3 stresses that the petitioner had remedy against the auction held under Rules 89 and 90 of Order 21 of the Code but he having failed to avail the same this petition is not tenable in law and the Rule is liable to be discharged.

Mr. Awsafur Rahman, the learned advocate appearing for the petitioner submits that on 26.09.2011 the date fixed for holding auction, the petitioner appeared in court and filed  an application praying 3 months’ time to pay the bank’s dues stating that he has paid 50,000/- to the bank out of the decretal amount. The said application was kept in file and the court fixed 03.10.2011 for hearing and order. On the following day the petitioner again filed an application praying for time to pay the decretal amount and staying execution proce-edings stating the situation and expressing his willingness to liquidate the bank’s outstanding dues. The court kept the same in record and fixed 03.10.2011 for hearing the same and upon hearing rejected the same stating that the petitioner with an intention to cause delay in disposing the case filed the application. By its order dated 03.10.2011 the Court fixed date on 09.10.2011 for hearing the decree holder bank giving it an opportunity to raise objections, if any, regarding auction and for order. On that date the petitioner filed an application praying stay of the execution proceedings which was rejected by the Court on the ground that a similar application filed by the petitioner had already been rejected on 03.10.2011. Conseq-uentially, the Court accepted the bid of the respondent no. 3 auction purchaser given that his bid was found to be the highest and directed the respondent no. 3 to pay the balance bid money by 20.10.2011.

 It is also argued that the decree was passed ex parte and the petitioner had no knowledge about filing of the suit but he only came to know when auction notice was published in the daily news paper. It is also submitted that the petitioner availed loan of TK. 2,00,000/- out of which the petitioner paid TK. 1,15,000/- to the bank on different dates. Had the court allowed time to the petitioner, the petitioner would have been able to make payment of the balance amount to the bank and as such the impugned orders are bad in law. He further submits that the property in question is the homestead of the petitioner and the petitioner will be homeless if the property is sold by the bank. It is noted that in addition to the applications of 16.11.2011 and 4.1.2012, the petitioner filed an application on 13.02.2012 seeking a direction upon the bank to accept the balance decretal amount from the petitioner. Upon hearing the court rejected the said application as the Execution proceedings has been stayed by this Court. Mr. Rahman, therefore, referring to the various applications and orders of the Artha Rin Adalat annexed to the petition, supplementary affidavit and affidavit-in-opposition submits that the petitioner from the date of auction onwards approached the court in various ways to get the property released upon payment of the balance outstanding dues to bank. Referring to the provisions of Sections 38,45,49 and 57 of the Act and Order 21, Rule 89 of the Code he further argued that the court had ample scope to consider the prayer and approach of the petitioner under Sections 38 and 45 of the Act, by referring the matter to the parties for compromise, or by allowing the petitioner to make instalment payments under Section 49 of the Act, or under Section 57 of the Act by directing the bank to accept the balance amount from the petitioner. Indeed, the court could have also proceeded under Order 21, Rule 89 the Code by setting aside the sale upon acceptance of 5% interest above the bid money. He also submits that though the bid has been accepted by the court, sale has not yet been confirmed and the bid money not withdrawn by the bank and as such the execution proceedings is still pending. Under these circumstances, it is argued, the dispute can still be settled under Sections 38 and 45 of the Act or by passing an appropriate order for ends of justice under Section 57 of the Act. But the court below without appreciating all these avenues and ignoring the provisions of law most illegally rejected the applications of the petitioner and accepted the bid of the added respondent no. 3. In support of his submissions Mr. Rahman referred to the judgment of Abdul Momen Bhuiyan and others -versus- District Judge, Dhaka and others dated 17.11.2013 passed by the Appellate Division in Civil petition for leave to Appeal No. 2228 of 2011. It suffices to note at this point that the Appellate Division’s order as is reproduced later in this judgment is clearly indicative of the need for the Artha Rin Adalat to actively pursue these avenues available under the existing law and, thereby, arrive at a fair and just resolution of the dispute between the parties. 

Mr. Kamruzzaman, learned advocate appearing for the respondent no. 2, in bank opposing the Rule submits that the petitioner has availed of the loan facilities from the bank but failed to repay the loan within time notwithstanding of repeated requests and demands of the bank. The bank tried to sell the mortgaged property through auction under Section 12 of the Act but failed as no bidder was found. Thereafter, the bank filed Artha Ain Suit before the Artha Rin Adalat for recovery of the loan against the petitioner. Said Artha Rin Suit was decreed ex parte against the petitioner giving him 40 days time to pay the decretal amount but  the petitioner failed to pay the money within the said period. Resultantly, the bank filed Artha Jari case and put the decree into execution. The court upon compliance of all relevant provisions of the Act published auction notices in the dailies for sale of the mortgaged property. In the auction three bidders participated and among the bidders the quotation of respondent no. 3 being found highest the court accepted the same with the consent of the bank. There was no illegality in the orders passed by the Adalat. The petitioner got sufficient time to make payment of the decretal amount. But he by filing various applications tried to drag the disposal of the case. It is contended, therefore, that the petitioner in reality is not at all willing to pay the decretal amount. He further submits that the petitioner has no way to get the sale set aside according to law and prays for discharging the rule.

Mr. Md. Golam Arshed, the learned advocate appearing for the added respondent no. 3 auction purchaser submits that the respondent no. 3 as highest bidder purchased the mortgaged property and paid entire amount of bid money and the court accepted the bid and as such he has acquired a right in the property. He further submits that the mortgagor Judgment debtor had two options under Rules 89 and 90 of Order 21 of the Code to get the sale set aside by depositing the decretal amount and 5% above the bid money or by filing an application under Rule 90 on the ground of fraud, and illegality, or could claim compen-sation against the bank. But the petitioner failed to take such steps and as such the petitioner has no scope presently to get the sale set aside. In support of his submissions Mr. Arshed referred to the case of M. Karunakara Menon and another -Vs- M. Krishna Menon and 4 others reported in 39 ILR (Madras),  429, Banesa Bibi -Vs- Senior vice President and others reported in 63 DLR (AD) 160, M/S. Antibiotic Stores and others -Vs- Artha Rin Adalat, Dhaka and others reported in 8 MLR (AD) 01, M/S Janapriya  Rice Mills Ltd. -Vs- Bangladesh reported in 17 BLD (HCD) 63, Govt. of Bangladesh and another -Vs- Sheikh Hasina & Another reported in 16 BLT (AD)- 233, and Md. Junnur Rahman -Vs- Bangladesh Shilpa Rin Sanstha reported in 17 BLD (HCD)-489.

Heard the learned advocates for the parties, perused the petition, affidavits-in-opposition along with the Annexures appended thereto. Before going through the merit of the rule it would be expedient to look into the relevant provisions of law regarding auction sale and settlement of dispute upon compromise. Sections 38 and 45 of the Act deal with the settlement of dispute through mediation or compromise at any stage of the proceedings and runs thus:
৩৮। (১) এই আইনের অধীন অর্থ ঋণ আদালত মামলায় প্রদত্ত ডিত্রুীর ধারাবাহিকতায় জারী কার্যত্রুম অব্যাহত থাকার যে কোন পর্যায়ে পক্ষগণ মধ্যসহতার মাধ্যমে জারী মামলার বিষয়বসও নিষ্পত্তি করিয়া আদালতকে অবহিত করিতে পারিবে ।
(২) উপ-ধারা (১) এর অধীন মধ্যসহতার ক্ষেত্রে ধারা ২২ এর উপ-ধারা (২), (৩) ও (৪) এ উল্লিখিত বিধান অনুসরণ করিতে হইবে ।
(৩) আদালত, উপ-ধারা (১) এর অধীন অবহিত হইলে এবং নিষ্পত্তির বিষয়ে সমওষ্ট হইলে, উত্তু জারী মোকদ্দমা চূড়ামতভাবে নিষ্পত্তি করিয়া আদেশ প্রদান করিবে ।
৪৫। (১) (****) এই আইনের কোন কিছুই, বিচার কার্যত্রুমের পরবর্তী যে কোন পর্যায়ে, কোন মামলার আপোষ নিষ্পত্তি করা হইতে পক্ষগণকে বারিত করিবে না ।
(২) উপ-ধারা (১) এর অধীনে প্রদত্ত মামলার আপোষ নিষ্পত্তির সুযোগ এই আইনে মামলা নিষ্পত্তির জন্য ব্যবসিহত অন্যান্য পদ্ধতি এবং নির্ধারিত সময়সীমার হানি বা ব্যত্যয় ঘটাইতে পারিবে না ।

Both the Sections above quoted provide provisions and avenues for the court as well as for the parties to the proceedings to get the dispute settled through mediation and compromise at any stage of the proceedings. In the instant case the execution process is not yet complete. So avenues remain open for the parties to the litigation to get the dispute settled upon taking recourse to the provisions of Sections 38 and/or 45 of the Act.
 
Section 49 of the Act deals with the power of the court to allow instalments to the Judgment debtor and runs thus:
৪৯। (১) উপ-ধারা (৩) এর বিধান সাপেক্ষে অর্থ ঋণ আদালত, বিবাদী-দায়িকের আবেদনের প্রেক্ষিতে বা স্বীয় উদ্যোগে উপযুত্তু মনে করিলে, ডিত্রুীকৃত টাকা ১ (এক) বৎসরে ৪ (চার)টি সমকিসিততে পরিশোধের জন্য দায়িককে সুযোগ প্রদান করিতে পারিবে ।
(২) বাদী-ডিত্রুীদার সম্মত থাকিলে, উপ-ধারা (৩) এর বিধান সাপেক্ষে, ডিত্রুীকৃত টাকা ৩ (তিন) বৎসরে ১২ (বার)টি সমকিসিততে পরিশোধের জন্য আদালত, দায়িককে সুযোগ প্রদান করিতে পারিবে ।
(৩) উপ-ধারা (১) বা (২) এ উল্লিখিত কোন একটি কিসিত বকেয়া হওয়া মাত্রই সমুদয় বকেয়া তখনই পরিশোধিতব্য হইবে এবং তদউদ্দেশ্যে জারী কার্যকর যথাবিধি অনুসৃত হইবে ।   
This section authorizes the court to allow the judgment debtor to pay the decretal amount by four instalments within one year or by twelve installments within three years if decree holder gives consent.
 
Section 57 of the Act empowers the court to pass any order for the purposes of securing justice and runs as follows;
৫৭। এই আইনের অধীন অভিপ্রেত ন্যায় বিচারের উদ্দেশ্য সাধনকল্পে অথবা আদালতের কার্যত্রুমের অপব্যবহার রোধকল্পে প্রয়োজনীয় যে কোন পরিপূরক আদেশ প্রদানে আদালতের সহজাত ক্ষমতা কোন কিছু দ্বারা সীমিত করা হইয়াছে বলিয়া গণ্য হইবে না ।
This section speaks that nothing in the Act shall limit the power of the court in passing any order which, in the opinion of the court, is just and practicable for securing ends of justice.
 
Apart from this, the provisions in Order 21, Rule 89 of the Code in allowing for a sale to be set aside runs as follows;
R.89. Application to set aside sale on deposit.(1) Where immovable property has been sold in execution of a decree, any person, whose interest has been affected by such sale (provided that such interest has not been voluntarily acquired by him after such sale), may apply to have the sale set aside on his depositing in Court, Said Rule 89 of Order 21 gives the judgment debtor an opportunity to get the sale set aside upon payment of 5% above the bid money and payment of the decretal amount within a specified time. Mr G. Arshed relied upon the judgment in the Karunakara holding that,
       “Order XXI, rule 89, Civil Procedure Code, is in the nature of an indulgence to judgment-debtors; and a judgment-debtor who wishes to take advantage of the provisions must strictly comply with the same, by paying all the amounts so directed by the rule, less any amount that may have been paid by himself, and he cannot take credit for any amount paid by a co-judgment-debtor who has not Joined him in the application; and according to the rule, credit can be taken only for any amount that may have been actually or constructively received by the decree-holder and not for one which, having been deposited would have been received by him, had he been minded to do so.
We are in complete agreement with the above observations regarding the circumstances under which sale may be set aside by invocation of the process under Order 21, Rule 89.
 
Section 26 of the Act also provides that notwithstanding anything which is not repugnant to the Act relating to the execution of the money decree, the provisions of the Code of Civil Procedure shall be applicable under the Act. But from the said provision it is obvious that   when necessary provisions are already in the Act, the provisions of the Code, would not normally be applicable.

Admittedly the execution proceedings is still pending. In view of the provisions contained in Sections 38 and 45 of the Act the dispute between the parties can be settled or resolved through mediation and compromise. The petitioner, in fact has taken no step for such mediation and compromise, but filed an application seeking time to pay the bank’s dues and for stay of the auction proceedings. Objecting to the perceived dilatory tactic of the petitioner, the Court refused to allow time and/or instalment payments by exercising power under Section 49. Therefore, in rejecting the application of the petitioner the Court instead of extending its hand, indeed, narrowed its power in discharging justice.

It is also noted that the petitioner filed an application on 16.11.2011 under Order 21, Rule 89 of the Code praying for release of the mortgaged property upon payment of 5% interest above the bid money within time as provided by law which was heard on 20.11.2011 and upon hearing the court below vide Order no. 26 of 20.11.2011 rejected the same holding that the petitioner having already filed this writ petition the petition cannot be considered at this stage, the fact of which is reflected in the Rule issuing order of this court. This Court is of the view that the court below ought to have disposed of the application on merit in view of the   provisions of Order 21 Rules 89 and 92 (2) of the Code of Civil Procedure, but in not disposing the matter on merit in the light of the provisions of law virtually abdicated its power conferred by law. It is also noted that the petitioner again filed an application on 04.01.2012 for direction upon the bank to accept the balance decretal amount from the petitioner and to set aside the auction sale upon receipt of 5% interest above the bid money. The court after hearing the said application on 05.01.2012 rejected the same vide its order no. 28 dated 05.01.2012. All these attempts of the petitioner primarily shows his willingness to pay the outstanding dues to the bank.

It appears from the available papers in file that the auction was held on 28.09.2011 and accepted on 09.10.2011. The petitioner filed applications praying for time on 26.09.2011, 27.09.2011 and 09.10.2011 to pay the decretal amount which were rejected by the court. In this regard, the court below could have allowed the application at least under Section 57 of the Act as the statutory recognition of its inherent power to do so.  

Messrs Kamruzzaman and Golam Arshed giving emphasis on Section 33 of the Act and Order 21, Rule 89 of the Code argued that the petitioner after holding auction had the option to get the sale set aside by filing application alongwith the deposit of 5% interest above the bid money for payment to the auction purchaser and the decretal money for payment to the decree holder but the petitioner has failed to do so and as such there is no scope left for the petitioner to get the sale set aside at this stage  other than claiming compensation against the bank. But it appears to the Court from the Order Sheets of the court below that the petitioner repeatedly approached it to allow time at the first instance and urged upon the court to release the property upon depositing 5% interest above the bid money and sought a direction upon the bank to accept the balance decretal money at the latest. All those efforts of the petitioner prove to be futile. Had it been considered by the court at the 1st instance the matter would have been settled long ago.

From the papers available in record, it appears that the sale is yet to be confirmed as contemplated in Rule 92(1) of the Order 21 of the Code. Admittedly in the instant case the sale has not yet been confirmed. Nor has it became absolute as no formal order of confirmation of sale has been passed by the court below. In paragraph 2 of his supplementary affidavit, the petitioner has stated that he already paid Tk. 1,15,000/- to the bank out of the decretal amount of  TK. 4,60,735/-. It is evident furthermore that the auction purchaser added respondent on. 3 deposited the balance auction money amounting to TK. 5,10,000/- on 16.10.2011. 

Mr. Rahman the learned advocate for the petitioner further submits that in a similar situation our Appellate Division passed a judgment in CPLA No. 2228 of 2011 in the case of Abdul Momen Bhuiyan and other -Vs- District Judge, Dhaka & others wherein it has been held that:

“In several cases including the cases of Ganyson Ltd. and another vs. Sonali Bank and other, (1985) 37 DLR (AD) 42 and AFM Naziruddin Vs. Mrs. Hameeda Banu (1993) 45 ALR (AD) 38, this Division previously exercised the power of doing complete justice under Article 104 of the constitution. The subject matter of the instant case represents on occasion to and demands exercise of this by this Division for the purpose of protection of the dwelling house of the petitioners. The petitioners stated to have paid the entire dues payable to the HBFC. Admittedly, the auction purchaser, respondent no. 3 deposited Tk. 75,25,000/- on 22.06.2010 and he should be compensated by the petitioners to retain their valuable house situated at Mirpur, Dhaka. Therefore, the petitioners are directed to pay Tk. 12,00,000/- (twelve lac) to the auction purchaser (respondent no. 3) as compensation within 45 days”.    

Under our constitutional scheme, this court has no scope to do complete justice as does the Appellate Division. But this court finds that Section 57 of the Act, empowers the Artha Rin Adalat to give adequate relief in cases as in hand, even if it is assumed but not conceded that there is no scope to give the petitioner appropriate relief by the Artha Rin Adalat under the other provision of the Act. Furthermore, in view of the facts and circumstance of this case, the High Court Division is competent enough to give such relief in exercise of its powers under Article 102 of the Constitution as is necessary to safeguard the petitioner’s fundamental right to property under Article 42 of the constitution.

It is also noted that the impugned orders passed by the court are interlocutory and  not final orders and thus no appeal/ revision can be taken therefrom as per provision of Section 44(2) of the Act and, therefore, the present writ is maintainable.

Given that facts and circumstances of the present case, since the auction has not yet been confirmed by the executing court and since the mortgaged property is the only homestead of the petitioner as claimed by the petitioner, for protecting the homestead of the petitioner in our considered view, it was a fit case to exercise the powers under Section 57 of the Ain to give adequate relief to the petitioner, but which the Artha Rin Adalat failed to exercise under said section. In these circumstances we are inclined to dispose of this Rule with the direction to the petitioner judgment debtor to pay 10% above the bid money to the auction purchaser and the balance decretal amount along with the other costs to the bank decree holder within 30 days of the receipt of the certified copy of this judgment and order, failing which the auction sale shall stand absolute.

Before parting  with, this court observes that since the Artha Rin Adalat Ain, 2003 is a special law and some latitude is being given to the judgment debtor to get the dispute settled through mediation or compromise and an extensive power has been given to the court to secure justice under sections 38,45,49 and 57 of the Act, the Artha Rin Adalat ought to have acted following the provisions contained  in law as observed  above by this court in supersession of the other provisions contained in any other law as per Section 3 of the Act. But to our utter surprise we see that the Artha Rin Adalat almost in every case is reluctant to extend its hands to help the litigants taking recourse to the above mentioned sections of the Ain making them virtually ineffective.

It is also noted that the intention of the legislature is to recover money not to sell or own the property of the mortgagor making them homeless. Keeping in mind the intention of legislature the Artha Rin Adalat can pass any order for the purpose of securing justice considering facts and circumstances of each individual case.

With the above observations and directions the Rule is disposed of however without any order as to costs.

Order of stay granted at the time of issuance of Rule is hereby recalled and stand vacated.

Communicate a copy of the judgment to the court concerned.

Syed Refaat Ahmed, J:

Concurring as I do with the findings and observations of Mahmudul Hoque, J. above, I feel nevertheless the necessity to emphasize the point made by him as to the need to apply the Artha Rin Adalat Ain, 2003 (“Act”) in light of its true ambit and purport. This necessarily entails a balancing of all Act’s provisions applicable in each given case and aiming at achieving the best possible practicable solution for the ends of justice. In that regard, it is this Court’s view that the statutorily designated court, i.e. the Artha Rin Adalat consistently appears to shy away from giving a beneficial interpretation to the Act. Thereby, precious opportunities are readily passed over under the Act to mitigate that statute’s obvious harshness as operates against judgment-debtors. This stems, this Court finds, from an ingrained inability to appreciate that the core objective of the Act at debt recovery must not invariably without further qualification entail the acquisition of a defaulter/judgment-debtor’s property. On the contrary there is nothing in the Act that dictates the inevitability of such consequence. Rather, the Act aims expressly to achieve the opposite. Provisions, most notably, in Sections 22, 38, 45, 49 and 57, emphatically attest to that statutory intent. But undue conservatism per se or misconceived reservations either to explore avenues of equitable alternative amicable settlement processes endorsed by the Act itself or to exercise its inherent jurisdiction, for reasons not entirely evident to this Court, operate regrettably to bind the Adalat’s hand as it were. In that context, the Adalat has instead grown so complacently used to a selective and preferential reliance of certain provisions of the Act, that the said Act, particularly through over-subscription to the provisions of Sections 33(5) and 33(7), is inappropriately seen as pandering to the acquisitive tendencies of decree holder banks and financial institutions rather than to facilitating the full recovery of their loans.  There is seen, therefore, a failure by the Adalat to strike an essential balance between financial interests of financial institutions and the fundamental proprietary interests of judgment-debtors that clearly is the Act’s objective and purpose. Such abdication of statutory authority and jurisdiction by the Adalat as a matter of course has led to the above-referred provisions being relegated by disuse to the unavoidable status as dead letters of the law in stark discordance with clear legislative intent to the contrary. This Court is of the view, therefore, that such a situation needs to be addressed and redressed urgently. It is with that intent that this Judgment and Order is particularly being communicated to the concerned Artha Rin Adalat.

        Ed.