Md. Arshad Hossain Chowdhury Vs. Arth Rin Adalat No. 1, Chittagong, 3 LNJ (2014) 488

Case No: Writ Petition No. 5652 of 2013

Judge: Mohammad Ullah,

Court: High Court Division,,

Advocate: Mr. Mahfuzur Rahman Roman,Mr. Md. Nazmul Karim,Mr. Md. Arifur Rahman,,

Citation: 3 LNJ (2014) 488

Case Year: 2014

Appellant: Md. Arshad Hossain Chowdhury

Respondent: Arth Rin Adalat No. 1, Chittagong

Subject: Arbitration, Artha Rin, Writ Petition,

Delivery Date: 2014-05-12


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Sheikh Hassan Arif, J
And
Mohammad Ullah, J.


Judgment on
12.05.2014
  Md. Arshad Hossain Chowdhury
---- Petitioner.
-Versus-
Artha Rin Adalat No. 1, Chittagong and another.
---- Respondents
 

Artha Rin Adalat Ain (VIII of 2003)
Section 22
Chapter 5 has been incorporated in the present Ain, 2003 allowing the parties to ask for amicable settlement under section 22 of the Ain, 2003 and lastly by Act No. 16 of 2010 this mediation process has been amended and make it mandatory for the parties of the suit to go for mediation at a certain stage of the proceeding to decide the dispute between the parties at the intervention of the mediator. When the defendant borrower wants to settle the dispute with the intervention of the mediator in an alternative dispute resolution, in such a situation the plaintiff-Bank should have extended its hand to materialize the intention of the legislature and also for early recovery of its dues from the defaulted borrower without spending much time or money in litigation. The parties of the suit have many options, if they want to settle the dispute in an alternative manner. It is necessary to mention here that in all purposes of mediation or settlement conference or alternative dispute resolution (ADR) Adalat should have taken a vital role to materialize the dispute of the contending parties out of court without expending time and energy unnecessarily. The Adalat concerned is hereby directed to appoint a mediator for holding mediation within 15 (fifteen) working days of receipt of this judgment. In doing so, the parties of the suit are also directed to take positive steps for holding mediation keeping in view of the provision of subsection (5) of section 22 of the Ain, 2003. The concerned Artha Rin Adalat is also directed to proceed with the suit in accordance with law, if the parties of the suit failed to mediate the dispute within 90 (Ninety) days, from the date of appointment of mediator by the Adalat, as provided under section 22(5) of the Ain, 2003. . . . (12, 14, 15 and 17)

Mr. Mahfuzur Rahman Roman, Advocate
… For the petitioner.

Mr. Md. Nazmul Karim and
Mr. Md. Arifur Rahman, Advocates
… For the respondent no. 2.

Writ Petition No. 5652 of 2013
 
JUDGMENT
Mohammad Ullah, J.

On an application under Article 102(2) (a)(ii) of the Constitution of the People’s Republic of Bangladesh, Rule Nisi was issued calling upon the Respondents to show cause as to why the Judgment and Order No. 13 dated 25.4.2013 passed by the Artha Rin Adalat No.1, Chittagong in Artha Rin Case No. 61 of 2012 rejecting the petitioner’s application for mediation should not be declared to have been passed  without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.

By the Rule issuing order dated 20.06.2013, further proceedings of the aforesaid Artha Rin Case was stayed for a period of 3(three) months. It was extended time to time and lastly on 12.01.2014 extended for a further period of 3(three) months  from date.

Short facts, for the disposal of this Rule, are that the respondent no. 2 Eastern Bank Limited, Agrabad Branch, 33, Agrabad Commercial Area, Chittagong, as plaintiff, instituted Artha Rin Suit No. 61 of 2012 before the Artha Rin Adalat, Chittagong against the petitioner and others for recovery of its outstanding dues together with interest thereon of Tk. 16,11,681.89 as on 30.04.2012. The petitioner and other defendants entered appearance in the suit and contested the same by filing written statement denying the material allegations of the plaint.  At one stage of the proceeding, particularly when the suit was fixed for further hearing, the defendants including the petitioner filed an application under section 22 of the Artha Rin Adalat Ain, 2003 for settling the dispute by the intervention of the mediator under the supervision of the Court.  The Artha Rin Adalat, upon hearing the parties and on consideration of the materials on record, by its order dated 25.4.2013, rejected the said application for mediation holding, inter alia, that  without consent of both the parties mediation process would not be fruitful. Moreover, the Court was informed that the plaintiff bank expressed its unwillingness to go with the mediation process. Against the said impugned order dated 25.4.2013, the defendant no. 2 approached this Court and obtained the present Rule and order of stay as stated above.

Mr. Mahfuzur Rahman Roman, learned Advocate appearing on behalf of the defendant-petitioner,  drawing our attention to the provision of section 22 of the Artha Rin Adalat Ain, 2003, submits that  after amending the said provision of law the mediation process was made mandatory for the purpose of resolving the dispute between the parties under the supervision of the Court and as such the impugned order rejecting the application for mediation is illegal, without lawful authority and is of no legal effect.

The learned Advocate for the petitioner submits further that there is no option for the plaintiff-Bank to raise any objection against mediation process and the Court upon its own volition should have exercised the power and sent the matter for mediation in view of the provision of chapter 5 of the Artha Rin Adalat Ain, 2003.

Mr. Nazmul Karim, the learned Advocate appearing on behalf of the respondent no. 2 bank, frankly concedes that the mediation process in view of provision of section 22 of the Artha Rin Adalat Ain, 2003 is a mandatory one and we find him in a difficult position to oppose the Rule.

We have heard the learned Advocates from both the parties, perused the materials on record and other documents including the impugned order as placed before us.

On a plain reading of sub-section(1) of section 22 of the Artha Rin Adalat Ain, 2003, it appears that after filing of the written statement by the defendant, the Court shall send the matter to the parties for the purpose of mediation under the supervision of the Court. Sub-section (6) of Section 22 of the Artha Rin Adalat Ain, 2003 provides that within 10 days from the date of sending the matter in view of the provision of Sub-section (1) of section 22 of the Ain, parties will inform the Court in writing the name of the mediator, but when the parties failed to provide the name of the mediator within the aforesaid 10 days, the Court shall appoint a mediator to resolve the dispute between the parties.

Having read together with the provision of sub-section(1) and sub-section (6) of section 22 of the Artha Rin Adalat Ain, 2003, we find  that this provision made mediation mandatory for the purpose of dispute resolution under the supervision of the Court.

The legislature has incorporated these provisions of mediation or settlement conference or in other words alternative dispute resolution to mediate the dispute or to realize the outstanding dues from the defaulted borrower without unnecessary spending time, energy and money in litigations. In this respect if we look into the preamble of the Ain we will see that the whole purpose of Ain is to realize the unpaid loan given by the financial institution to the borrower for different purposes of their business. The preamble of the Ain reads as follow:

“যেহেতু আর্থিক প্রতিষ্ঠান কর্তৃক প্রদত্ত ঋন আদায়ের জন্য প্রচলিত আইনের অধিকতর সং­শোধন ও সংহতকরন প্রয়োজনীয়, সে­হেতু এতদ্বারা নিম্নরূপ আইন করা হইল”

So, the legislature while incorporating the Ain has given prime consideration for realization of the unpaid loan. Since the whole purpose of enacting the law is for recovery of loan and as such the Artha Rin Adalat Ain, 2003 has been incorporated upon consolidating the law of 1990 and since under the previous law it appeared that by filing suits or execution cases money could be recovered but not in a short span of time and thus the legislature has incorporated the provision of chapter 5 in the new Ain, 2003 for easy recovery of money within a short time and as such alternative dispute resolution has been incorporated in the new Ain for the purpose of realizing money without spending much time and money in litigations.

As such chapter 5 has been incorporated in the present Ain, 2003 allowing the parties to ask for amicable settlement under section 22 of the Ain, 2003 and lastly by Act No. 16 of 2010 this mediation process has been amended and make it mandatory for the parties of the suit to go for mediation at a certain stage of the proceeding to decide the dispute between the parties at the intervention of the mediator.

Adalat is under a statutory obligation of the provision of law that it should send the pleadings to the parties of the suit or their engaged lawyer as soon as filing the written statement by the defendant without any prayer either of the parties of the suit.

Moreover, when the defendant borrower wants to settle the dispute with the intervention of the mediator in an alternative dispute resolution, in such a situation the plaintiff-Bank should have extended its hand to materialize the intention of the legislature and also for early recovery of its dues from the defaulted borrower without spending much time or money in litigation.

Be that as it may we find that the parties of the suit have many options, if they want to settle the dispute in an alternative manner. It is necessary to mention here that in all purposes of mediation or settlement conference or alternative dispute resolution (ADR) Adalat should have taken a vital role to materialize the dispute of the contending parties out of court without expending time and energy unnecessarily.

For the reasons and discussions made herein above and also the relevant law, we are of the view that the Rule has merit and thus the Rule is made absolute, however without any order as to costs. The order dated 25.04.2013 passed by the Artha Rin Adalat, 1st Court, Chittagong in Artha Rin Suit No. 61 of  2012 is hereby declared illegal and is of no legal effect.

The Adalat concerned is hereby directed to appoint a mediator for holding mediation within 15 (fifteen) working days of receipt of this judgment. In doing so, the parties of the suit are also directed to take positive steps for holding mediation keeping in view of the provision of subsection (5) of section 22 of the Ain, 2003. The concerned Artha Rin Adalat is also directed to proceed with the suit in accordance with law, if the parties of the suit failed to mediate the dispute within 90 (Ninety) days, from the date of appointment of mediator by the Adalat, as provided under section 22(5) of the Ain, 2003.

Send copy of this judgment to the 1st Court of Artha Rin Adalat, Chittagong at once.

Ed.