Case No: Civil Petition for leave to Appeal No. 886 of 2003
Judge: Amirul Kabir Chowdhury ,
Court: Appellate Division ,,
Advocate: Mr. Giashuddin,,
Citation: 15 BLT (AD) 2007 75
Case Year: 2007
Appellant: M/s. Karnaphuli Traders
Respondent: Artha Rin Adalat and others
Subject: Artha Rin,
Delivery Date: 2006-03-09
Syed J. R. Mudassir Hussain, CJ.
M.M. Ruhul Amin, J.
Amirul Kabir Chowdhury, J.
M/s. Karnaphuli Traders
Joint District Judge, First Artha Rin Adalat and others
March 09, 2006.
Constitution of Bangladesh, 1972
Artha Rin Adalat Ain, 2003
Decree holder Bank instituted Mortgage execution case and the Bank being failed to realize the entire decretal amount in open auction the Bank entered into private negotiation and agreed to sell the mortgaged property to the petitioner and accordingly the petitioner paid 10 % on account of advance out of total consideration money but the Bank did not execute the deed of sale in favour of the petitioner and cancelled the agreement for sale and as such the petitioner filed a petition before the executing Court.
Giashuddin, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record - For the Petitioner.
Not Represented – The Respondent.
Civil Petition for leave to Appeal No. 886 of 2003.
(From the judgment and order dated 12.03.2003 passed by the High Court Division in writ petition No. 4853 of 2002)
1. At instance of the petitioner Messers Karnaphuli Traders this petition has been preferred seeking leave to appeal against the judgment and order dated 12.03.2003 passed by the High Court Division in writ petition No. 4853 of 2002 rejecting the petition summarily.
2. The City Bank Limited hereinafter referred to as the Bank, the respondent No. 2 instituted Mortgage Suit No. 11 of 1996 against the respondent No. 3 (defendant) for realizing Tk. 21,34,822.87. The Trial Court decreed the suit. Thereafter the decree holder bank instituted Decree Execution case No. 1 of 1998 for executing the decree for an amount of Tk. 26,21,899.97 i.e. for decretal amount of Tk. 21.34,822.87 with interest at the rate of 15% per annum with costs. In the Decree Execution case No. 1 of 1998 sale proclamation was issued by the court repeatedly for selling the mortgaged property and the bids offered were not satisfactory. The decree holder bank filed petition before the executing court about private quotations received from parties offering bids of various amounts. The petitioner Messers Karnaphuli Traders hereinafter referred to as the petitioner offered bid of Tk. 11,75,000/- and the Board of Directors approved sale of the schedule properties in favour of the petitioner for selling the property at a sum of Tk. 11,75,000/- by taking permission from the court. During pendency of the aforesaid mortgage execution case Other Suit No. 22 of 1998 was filed by some 3rd parties claiming their title over the property and for declaring that the mortgage suit was illegal and for a declaration that the publication of writ of auction and notification in question are illegal and the matter reached the High Court Division in first appeal No.171 of 1981 wherein stay order was granted and the matter was ultimately disposed of by the High Court Division on 24.10.2001.
3. The respondent No. 2, the Bank however proceeded with the mortgage execution case. The respondent No. 2, the Bank being failed to realize the entire decretal amount in open auction the Bank entered into private negotiation and agreed to sell the mortgaged property to the petitioner at a consideration of Tk.11,75,000/- in 1990 and accordingly the petitioner paid 10% on account of advance out of total consideration money by S.D.R. No.436756 dated 26.07.1999 but the bank, the respondent No.2 did not execute the deed of sale in favour of the petitioner and cancelled the agreement for sale and as such the petitioner filed a petition before the Executing Court. But it has been rejected by the court on 08.06.2002 observing, inter-alia, that there is no scope for private negotiation in mortgage execution case.
4. Challenging the aforesaid order the petitioner moved the High Court Division in its writ jurisdiction in Writ Petition No.4853 of 2002. A Division bench of the High Court Division by the impugned judgment and order rejected the application summarily.
5. Hence is this petition.
6. In support of the petition Mr. Giashuddin, learned Advocate submits, inter-alia, that regard being had to the provision of Section 5 of the Artha Rin Adalat Ain 1990, in short, the Ain, the High Court Division ought to have allowed the application of the petitioner entertaining the private negotiation brought about by the petitioner with the respondent No. 2, the Bank and the High Court Division disregarding this aspect of the case committed error.
7. We have considered the submissions made by the learned Advocate and perused the materials on record.
8. It appears that the High Court Division considering the provision of Order 21 of the Code of Civil Procedure and also the provisions of Section 5 of the Ain came to the decision that the private negotiation claimed by the petitioner cannot be allowed in the mortgage execution case.
9. It appears further that the agreement purported to have been executed between the petitioner and the bank has already been cancelled and the advance money also has been returned to the petitioner.
10. In such view of the matter we are of the view that the petitioner's application has legally been rejected by the respondent No. 1, the Artha Rin Adalat and the High Court Division in its turn came to a correct view in rejecting the application summarily. The impugned order does not, therefore, call for any interference.