Mohamad Hasan Chowdhury Vs. The Judge Artharin Adalat No. 1, Chittagong and others 2017 (1) LNJ 65

Case No: Writ Petition No. 4801 of 2013

Judge: Muhammad Khurshid Alam Sarkar. J.

Court: High Court Division,

Advocate: Mr. AY Mosiuzzaman, Mr. Abu Hanif,

Citation: 2017 (1) LNJ 65

Case Year: 2016

Appellant: Mohamad Hasan Chowdhury

Respondent: The Judge Artharin Adalat No. 1, Chittagong and others

Subject: Artha Rin

Delivery Date: 2017-02-18

 

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J

Judgment on

22.05.2016

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Mohammad Hasan Chowdhury

. . . Petitioner

-VERSUS-

The Judge Artharin Adalat No. 1, Chittagong and others

. . . Respondents.

Artha-rin Adalat Ain (VIII of 2003)

Section 41

The reason for inscribing the above stringent provisions in the Ain, 2003 is to oblige the loanees to make payment of their loan in time and, thereby, warn them not to be a defaulter. If a loanee defaults to make payment and the Bank, upon institution of a suit for recovery of money, obtains a decree from the Adalat, in that event, a precondition has been put upon the loanees with an aim to discourage the defaulters not to play dilatory tactics in execution of the decrees by preferring meritless appeals. All that the Legislature intended is to minimise the abuse of the process of the Court in the garb of preferring frivolous appeal, for, without depositing money the unscrupulous litigants were approaching the appellate forum indiscriminately without being considerate as to the situation that they are compelling the Courts to engage in the fruitless matters.    ...(17)

Constitution of Bangladesh, 1972

Article 102

Artharin Adalat Ain (VIII of 2003)

Section 41

In this case, the main objection of the petitioner is that the Adalat has not deducted the price of undelivered 20,430 bags out of 1,40,036 bags and the other objection is that the Adalat ought to have adjudicated upon the suit keeping itself confined within the terms of the Sharia banking. The first issue is a factual issue and if the Adalat, for argument’s sake, is taken to have committed an error in examining the said fact, it cannot be a ground for invoking writ jurisdiction, for, the said error cannot be termed to be ex-facie illegal or without jurisdiction. The petitioner will have ample opportunity to show the error, if any, to the appellate Court which, for all the practical purpose, is better equipped than the writ Court to remedy the petitioner. In order to do the justice to the oppressed petitioner in some of the rarest cases, this Court, having found the writ petitioner to be a bonafide one, entertained the writ petitions without asking for depositing 50% of the decreetal amount.        . . . (18)

Constitution of Bangladesh, 1972

Article 102

This Court is always ready and happy to entertain a writ petition bypassing the appellate forum (save and except the forum excluded by the Constitutional provisions such as forum under Article 117 of the Constitution) if a petitioner comes with clean hand whose approach appears to the Court to be bonafide and who is truly in need of protection of this Court.                   . . .(20)

Constitution of Bangladesh, 1972

Article 102

While in a score of decisions of our Apex Court it has been held that no writ petition lies against a post-decree judgment or order, which has also been reiterated in the recent cases of (i) Sonali Bank Ltd Vs Asha Tex International 20 BLC 185 and (ii) Osman Gazi Chowdhury Vs Artharin Adalat 2016 (1) LNJ 167, the writ petitioner’s option of invokation of writ jurisdiction is nothing but simply a deliberate step of abusing the process of this Court and, thus, this Court is of the view that the petitioner deserves to be slapped with an exemplary costs of Taka One Lac and the writ petition is not maintainable. . . . (22 to 24)

Osman Gazi Chowdhury Vs Artharin Adalat 2016 (1) LNJ 167, Sonali Bank Ltd Vs Asha Tex International 20 BLC 185, Osman Gazi Chowdhury Vs Artharin Adalat 2016 (1) LNJ 167, ref.

Mr. AY Mosiuzzaman, Senior Advocate with

Mr. Zulfiqur Bulbul Chowdhury, Advocate

…. For the petitioner

Mr. Abu Hanif, Advocate

…. For respondent No. 2

JUDGMENT

Muhammad Khurshid Alam Sarkar, J:

Rule was issued calling upon the respondents to show cause as to why the judgment and decree dated 28.03.2013 (annexure-H) delivered by Artharin Adalat no. 1, Chittagong (respondent no. 1) in Artharin Suit no. 73 of 2007 shall not be declared to have been passed without any lawful authority and is of no legal effect and why the Artharin Suit no. 73 of 2007 shall not be tried afresh upon deciding the issues as raised by the petitioners and/or pass any other order or direction as this Court may deem fit and proper.

2.          Succinctly, the facts of the case, as stated in the writ petition, are that the Social Investment Bank Ltd, which has been renamed as Social Islami Bank Ltd (hereinafter referred to as ‘the Bank’ or respondent no. 2), as plaintiff, instituted Artharin Suit no. 73 of 2007 on 30.10.2007 for recovery of Tk. 1,59,38,436.42 averring, inter alia, that on the prayer of the writ petitioner, the Bank sanctioned Murabah (post import) loan of an amount of Taka 1,48,41,504.78 through four investment accounts by sanction letters dated 25.09.2004, 23.11.2004, 29.12.2004 and 30.07.2005. Thereafter, the Bank and the writ petitioner had entered into a tripartite agreement with a third party godown-keeper (defendant no. 3) for storing the imported goods in his godown with the responsibility of releasing and delivering the goods on the approval/release order by the Bank, but the godwon-keeper, ignoring the terms and conditions of the contract, delivered the imported goods to the writ petitioner without the approval of the Bank. The godown-keeper submitted the statement of stock report only after the Bank’s persistent request and, on inspection by the Bank officials, the said stock report was found false. The writ petitioner sold out the goods from the godown without the permission of the Bank and, for this reason, the Bank filed criminal case against the writ petitioner and the godown-keeper. The dates of repayment of loan were on 25.07.2006, 23.09.2006, 20.09.2006 and 31.12.2006 but the writ petitioner defaulted to repay the loan amount which stood at Taka 1,59,38,436.22 as on the date of filing of the suit.

3.          The writ petitioner contested the suit by filing written statement having categorically denied all material allegations of the Bank. Writ petitioner’s case in a nutshell is that the writ petitioner initially agreed to procure poultry feed of Taka 1 crore and it was enhanced upto Taka 3 crore and from 20.08.2001 to 10.04.2005, a total of 49 L/C’s were opened by the Bank in the name of the writ petitioner. Out of the above L/Cs, Bank completed the sale of commodities covered by 6(six) L/Cs on effecting delivery of shipping documents causing delivery of commodities on deferred payment basis and, on the basis of shipping documents, title and possession of imported commodities passed to the writ petitioner who became absolute owner of the same on payment of necessary government dues and expenses. Since 2002 to 2005, 1,40,036 bags of meat, bone meal and fish meal were stored in the godown. Besides, 1298 jumbo bags of aforesaid poultry feed, covered by 4 L/Cs, were also stored in the said godwon. The Bank delivered only 469 jumbo bags out of 1298 jumbo bags on receipt of full price. The Bank, as the seller cum-custodian of the saleable articles, did not take care of the same as it converted the 829 jumbo bags into 17100 small bags, each of 50-60 kgs, behind the back of the writ petitioner. Reason for repacking has never been explained by the Bank to the writ petitioner. After repacking, total quantity stood at 1,57,136 bags including the 17100 converted bags. As per calculation of the Bank, out of the above quantity, 1,36,706 bags were delivered to the writ petitioner on receipt of full sale price and, thus, completed the sale purchase transaction in this behalf. No delivery at any time was effected by the Bank L/C-wise or MPI account-wise. The Bank made illegal claim against the L/C No. 1203/04/01/0530 dated 12.06.2004, L/C No. 1203/04/01/0609 dated 04.07.2004, L/C No. 1203/04/01/0870 dated 13.09.2004, L/C No. 1203/ 04/01/0232 dated 19.03.2005 which were opened through MPI A/C nos. 813, 832, 852 & 855. The actual sale price shown by the Bank is Taka 1,18,45,048/- and inclusive of the profit charged in MBE/MB attained at Taka 1,50,81,820/- or 1,62,41,687.50 has never been explained to the writ petitioner, and the claim made by the Bank vide its letter dated 03.07.2006 and legal notice dated 20.03.2007 were fraudulent. The Bank’s procuring costs i.e. the bill of exchange value, L/C fees, L/C commission were borne by the writ petitioner and since the Bank has retained 20430 bags in its possession, no question of default in payment by the writ petitioner arises. The Bank’s entitlement for claiming unpaid sale price for aforesaid quantity comes only when the Bank would deliver the goods on credit or without receipt of sale price. So, the claim of the Bank against the undelivered quantity by their letters dated 03.07.2006 and 15.01.2007 or any amount against the MPI Account Nos. 813, 832, 852, 955 is illegal, unauthorized and beyond their lawful right and the writ petitioner is not bound to pay the sale price without getting delivery of 20430 bags of meat and bone meal. By the letters dated 28.06.2006 and 15.01.2007, the Bank admitted that 16978 bags of 50-60 kgs’ and 2514 bags of 50 kgs are in stock in the godown. The writ petitioner is still in the dark regarding whereabouts of the undelivered quantity. The writ petitioner on 13.02.2007 replied to the Bank’s letters dated 16.05.2006, 28.05.2006, 03.07.2006 and 15.01.2007. Although the Bank issued delivery order on receipt of full price, it did not deliver 938 bags. The writ petitioner properly intimated the fact to the Bank and also filed GD entry as to non-delivery of goods by the Bank. Therefore, no liability arises for the writ petitioner to make payment against the undelivered quantity of 20430 bags inclusive of 938 bags.

4.          The Bank intentionally avoided delivery of the 20430 bags to the writ petitioner. In the premises, the writ petitioner filed Other Class Suit No. 06 of 2007 on 05.04.2007 against the Bank with a prayer for declaration and compensation of Taka 1,21,88,747.90 narrating the facts stated in the written statement of the Artharin Suit No. 73 of 2007. The Bank by taking the advantage of harsh provisions of Artharin Adalat Ain, 2003 (shortly, Ain, 2003) managed to record the evidence of the plaintiff-Bank’s witness and defendant-writ petitioner’s witness quickly in the Artharin Suit No. 73 of 2007. The writ petitioner then filed an application on 02.05.2010 under Section 12(b) of the Ain, 2003 to decide the issue as to the non-delivery of the goods to the writ petitioner. However, when the Adalat without disposing of the said application proceeded with hearing on 03.05.2010 and fixed 11.05.2010 for judgment, on the writ petitioner’s insistence, the Adalat fixed 16.06.2010 for judgment. Thereafter, on the writ petitioner’s prayer, 04.07.2010 was fixed for further argument and then 27.07.2010 was fixed for judgment. At this juncture, the writ petitioner filed the writ petition no. 4691 of 2010 before the High Court Division wherein vide order dated 26.07.2010 Rule Nisi was issued along with an order of Stay, but after hearing, the Rule was discharged vide judgment and order dated 22.02.2012, with the observations that the writ petitioner’s case shall be considered by the Adalat at the trial.

5.          On 15.01.2013 the writ petitioner filed an application to return the plaint on the ground that the suit was not filed in accordance with the provisions of Section 2 and 8 of the Ain, 2003 and the same was rejected vide order no. 61 dated 20.03.2013.        The writ petitioner filed another application to deduct the amount of interest of Tk. 37,79,035.92 from the claimed amount of Tk. 1,59,38,436.42 on the ground that the Bank is not entitled to calculate interest within the purview of Sharia Law. The Bank having filed written objection on 24.03.2013 prayed for rejection of the above application. The trial Court, having kept the previous application dated 02.05.2010 and 20.03.2013 with record, without assigning any reason pronounced judgment on 28.03.2013. The writ petitioner then moved this Court challenging the said judgment and decree and hence this Rule.

6.          Respondent no. 2 (the Bank) is contesting the instant Rule by filing an affidavit-in-opposition contending, inter-alia, that the writ petitioner’s loan of Tk.1,48,41,594.78 (One crore forty eight lacs  forty one thousand five hundred ninety four Taka and seventy eight paisa) is an admitted fact and the figure stood with interest at Tk. 1,59,38,436.42 at the time of institution of the suit. The claims of the writ petitioner with regard to non-delivery of 20,430 bags and also non-delivery of goods against a payment of Taka 8 lacs are concocted, false and fabricated. The true history is that all the goods have been delivered to the writ petitioner and 20,430 loose bags, which the petitioner is claiming not to have been delivered in his favour, actually has been taken out by the writ petitioner from the godown in collusion with godown-keeper without the prior approval of the Bank.

7.          Mr. AY Mosiuzzaman, the learned Senior Advocate, takes us through the impugned judgment and decree dated 28.03.2013 and submits that the trial Court exceeded its jurisdiction in decreeing this suit on the basis of interest inasmuch as the Islami banking does not work for earning interest. In elaborating his above count of argument, he submits that in Sharia Banking there must be a declared purchase price as well as the sale price in each of the Investment Sanction Advice and, accordingly, an agreed profit would be evident from each of the transaction. In other words, he adds, there would be no interest. He contends that the Bank added profit on compound basis at monthly rate and inflated the sale price at Taka 29,51,361.39 and the same is beyond the tenets of Islam and, according to him, the trial Court tried the suit without lawful authority, because the Adalat has been vested with the authority to try transaction dispute of the Sharia banking for recovery of principal amount and its profit, but not for recovery of any interest of Sharia Banking transaction dispute. Mr. Mosiuzzaman contends that while it is an admitted fact that from the 136706 bags of poultry feed, 20430 bags poultry feed were kept under the control of the Bank, as confirmed by the Bank by its 7 (Seven) letters, the trial Court ought to have considered it and accordingly the price of the said stored goods was liable to be deducted. He then contends that the Bank had also received Taka 8,00,000/- (eight lac) for price of 938 bags of poultry feed and had issued 5(five) delivery orders but did not affect delivery of those 938 bags to the petitioner and submits that the said amount of eight lacs is also liable to be subtracted from the decretal amount. As the Bank failed to deliver the 938 bags, it is liable to refund all the money received from the writ petitioner together with 15% compensation for its failure to deliver 938 bags, Mr. Mosiuzzaman submits. He argues that as a Sharia banker, the Bank failed to complete sale, purchase and transaction by effecting delivery and cannot claim money against it. He submits that sale of the same goods cannot be shown to have been sold twice and, hence, profit cannot be earned more than once on the self-same article already sold. In the garb of Sharia banking, he alleges, the Bank has been conducting jewish banking to earn interest terming it as profit. He then refers to the judgment and order dated 22.02.2012 passed by the High Court Division in writ petition no. 4691 of 2010 and submits that although there was a direction upon the trial Court to consider the issues raised by the writ petitioner, the trial Court deliberately disregarded the direction of the High Court Division and therefore the decree is, as per him, liable to be set aside.

8.          With regard to issue of non-preferring appeal, the learned Advocate for the petitioner submits that a decree of an Artharin Adalat may be challenged by invoking writ jurisdiction if the decree is a nullity because of passing the decree by a Court which lacks jurisdiction or if the trial Court acts beyond its jurisdiction or if the decree is passed applying the law maliciously against a party. In support of his arguments on the issue of maintainability of this writ petition, he refers to the case of National Engineers Vs Jubak Housing Ltd 67 DLR (AD) 176 and the case of Abdul Hamid Vs Artharin Adalat 68 DLR 148.

9.          By placing the above submissions, the learned Advocate for the petitioner prays for making the Rule absolute.

10.      Mr. Abu Hanif, the learned Advocate appearing for respondent no. 2 takes us through the impugned judgment and decree and submits that the DW-1 in his deposition has categorically admitted to the fact that the writ petitioner has received the entire goods which were imported through L/Cs opened by the Bank. He further submits that the writ petitioner inspite of enjoying all the opportunity to present their oral and documentary evidences before the trial Court has hopelessly failed to substantiate his claim that 20,430 bags goods have not been delivered to him or no goods were delivered against the payment of Tk. 8 lacs. Mr. Hanif then contends that previously the writ petitioner had invoked the writ jurisdiction by filing writ petition no. 4691 of 2010 and after obtaining Rule and Stay therein the writ petitioner wasted 2 (two) years time, for, the said writ petition was  filed just before one day of pronouncement of the judgment. In elaborating the above contention, he contends that previously the Artharin Adalat had fixed 27.07.2010 for pronouncement of judgment and just before one day, on 26.07.2010, this writ petitioner, by filing writ petition no. 4691 of 2010, obtained an order of Stay on the proceedings and, that is how, the petitioner managed to kill 2 years time in delivering the judgment and subsequently following the discharge of the above Rule, the Adalat passed the judgment of this suit on 28.03.2013 which has now been challenged in this petition. He alleges that after obtaining the present Rule Nisi together with an interim order of Stay, the writ petitioner adopted the same tactic and did not take  any step to get this Rule heard and only when the Bank took steps for hearing of this case, the same is taken up for hearing.

11.      Finally, Mr. Hanif, the learned Advocate for the Bank refers to the case of Osman Gazi Chowdhury Vs Artharin Adalat 2016(1) LNJ 167 and submits that the present Rule is liable to be discharged only on the ground of maintainability of the writ petition inasmuch as according to the provisions of Section 41 of the Artharin Adalat Ain, 2003, the petitioner was statutorily required to prefer an appeal upon depositing 50% of the decretal amount within 60 (sixty) days from the date of passing the decree by the Adalat.

12.      By making the above submissions, the learned Advocate for the Bank prays for discharging the Rule with exemplary costs.

13.      We have heard the learned Advocate for the petitioner and the learned Advocate for the Bank (respondent no. 2), perused the writ petition and affidavit-in-opposition together with the annexures thereto. We have also considered the relevant laws and decisions placed before us by the parties.

14.      Since the issue of maintainability of this writ petition has been raised by the learned Advocate for the Bank, this Court is duty bound to deal with, at first, the maintainability issue before embarking upon the other issues involved in this Case.

15.      In order to have a proper resolution on the issue of maintainability of this writ petition, it would be profitable if the provisions of Section 41 of the Ain, 2003 is looked at. It runs as follows;

41| (1) gvgjvi †Kvb c¶, †Kvb A_© FY Av`vj‡Zi Av‡`k ev wWwµ Øviv ms¶z× nB‡j, hw` wWµxK…Z UvKvi cwigvY 50 (cÂvk) j¶ UvKv A‡c¶v AwaK nq, Zvnv nB‡j Dc-aviv (2) Gi weavb mv‡c‡¶, cieZx© 60 (lvU) w`e‡mi g‡a¨ nvB‡KvU© wefv‡M, Ges hw` wWµxK…Z UvKvi cwigvY 50 (cÂvk) j¶ UvKv A_ev Z`&A‡c¶v Kg nq, Zvnv nB‡j cieZ©x 30 (wÎk) w`e‡mi g‡a¨ †Rjv RR Av`vj‡Z Avcxj Kwi‡Z cvwi‡eb|

(2) AvcxjKvix, wWµxK…Z UvKvi cwigv‡Yi 50% Gi mgwcivY UvKv ev`xi `vexi AvswkK ¯^xK…wZ¯^iƒc bM` wWµx`vi Avw_©K cÖwZôv‡b A_ev ev`xi `vwe ¯^xKvi bv Kwi‡j, RvgvbZ¯^iƒc wWµx cÖ`vbKvix Av`vj‡Z Rgv Kwiqv D³iƒc Rgvi cÖgvY `iLv¯— ev Avcx‡ji †g‡gvi mwnZ Av`vj‡Z `vwLj bv Kwi‡j, Dc-aviv(1) Gi Aaxb †Kvb Avcxj Kvh©v‡_© M„nxZ nB‡e bv| (underlined by us)

16.      From a plain reading of the above provisions of Ain, 2003 it appears that any party to an Artharin suit may prefer an appeal against the order/decree passed by the Adalat subject to depositing 50% of the decreetal amount within the prescribed time. It is clear from the above provision that the Legislature has made the above provision of (i) depositing of 50% of the decretal amount and (ii) approaching the appellate Court within the stipulated time with a purpose to deal with the affairs of the defaulters in a strict manner.

17.      The reason for inscribing the above stringent provisions in the Ain, 2003 is to oblige the loanees to make payment of their loan in time and, thereby, warn them not to be a defaulter. If a loanee defaults to make payment and the Bank, upon institution of a suit for recovery of money, obtains a decree from the Adalat, in that event, a precondition has been put upon the loanees with an aim to discourage the defaulters not to play dilatory tactics in execution of the decrees by preferring meritless appeals. All that the Legislature intended is to minimise the abuse of the process of the Court in the garb of preferring frivolous appeal, for, without depositing money the unscrupulous litigants were approaching the appellate forum indiscriminately without being considerate as to the situation that they are compelling the Courts to engage in the fruitless matters.

18.      In this case, the main objection of the petitioner is that the Adalat has not deducted the price of undelivered 20,430 bags out of 1,40,036 bags and the other objection is that the Adalat ought to have adjudicated upon the suit keeping itself confined within the terms of the Sharia banking. The first issue is a factual issue and if the Adalat, for argument’s sake, is taken to have committed an error in examining the said fact, it cannot be a ground for invoking writ jurisdiction, for, the said error cannot be termed to be ex-facie illegal or without jurisdiction. The petitioner will have ample opportunity to show the error, if any, to the appellate Court which, for all the practical purpose, is better equipped than the writ Court to remedy the petitioner. In order to do the justice to the oppressed petitioner in some of the rarest cases, this Court, having found the writ petitioner to be a bonafide one, entertained the writ petitions without asking for depositing 50% of the decreetal amount.

19.      Also, the failure of the Adalat, for argument’s sake, to interpret the term ‘loan’ in the context of transaction between the writ petitioner and an Islami Bank can hardly attract the ratio or principles laid down by this Court in the exceptional cases.

20.      This Court is always ready and happy to entertain a writ petition bypassing the appellate forum (save and except the forum excluded by the Constitutional provisions such as forum under Article 117 of the Constitution) if a petitioner comes with clean hand whose approach appears to the Court to be bonafide and who is truly in need of protection of this Court.

21.      In this case, we find that the petitioner’s only motive is to abuse the process of this Court by obtaining Rule and Stay one after another. Previously, the petitioner tried to delay the disposal of the suit by filing a frivolous writ petition in the year 2010 and after squandering 2 (two) year time, he again filed the instant writ petition in the year 2013. It is apparent on the record that in the last three years, the petitioner did not take any step to get this Rule disposed of and even after fixing the date for hearing this Rule, the petitioner tried in so many ways on numerous occasions to delay the hearing. The learned Advocate for the petitioner was allowed to make his submissions as lengthy as he wished and eventually when he was informed that this Court is going to discharge the Rule on its maintainability ground and the petitioner may take the opportunity of filing an appeal before this Court even being out of time relying on the ratio of the case of Osman Gazi Chowdhury Vs Artharin Adalat 2016 (1) LNJ 167, the petitioner opted to receive a detailed judgment. The petitioner’s above attitude amply suggests that he is adamant to kill further time of the Apex Court even at the expense of paying exemplary costs.

22.      While in a score of decisions of our Apex Court it has been held that no writ petition lies against a post-decree judgment or order, which has also been reiterated in the recent cases of (i) Sonali Bank Ltd Vs Asha Tex International 20 BLC 185 and (ii) Osman Gazi Chowdhury Vs Artharin Adalat 2016 (1) LNJ 167, the writ petitioner’s option of invokation of writ jurisdiction is nothing but simply a deliberate step of abusing the process of this Court and, thus, this Court is of the view that the petitioner deserves to be slapped with an exemplary costs. 

23.      In the light of the ratio laid down in the aforesaid judgments, we hold that the present writ petition is not maintainable.

24.      In the result, the Rule is discharged with a cost of Taka 1,00,000/- (One lac) to be paid by the petitioner in the national exchequer by way of submitting Treasury Challan within 30 (thirty) days. The order of stay granted at the time of issuance of the Rule is hereby vacated.

         Let a copy of this judgment be sent to the Artharin Adalat No. 1, Chittagong at once.

Ed.