Panama Hilli Port Link Limited Vs. Infrastructure Development Company Limited and others 2017 (2) LNJ 13

Case No: Writ Petition No. 9126 of 2013

Judge: Mahmudul Hoque. J.

Court: High Court Division,

Advocate: Khandaker Mahbub Hossain, Mr. Md. Mizanur Rahman Khan,

Citation: 2017 (2) LNJ 13

Case Year: 2015

Appellant: Panama Hilli Port Link Limited

Respondent: Infrastructure Development Company Limited and others

Subject: Writ Jurisdiction

Delivery Date: 2017-08-14

 

HIGH COURT DIVISION

 

(SPECIAL ORIGINAL JURISDICTION)

 

 

 

Zubayer Rahman Chowdhurty, J.

And

Mahmudl Hoque, J.

Judgment on

29.06.2015

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Panama Hilli Port Link Limited, House No.16, Road No. 36, CWN(C) Gulshan -2, Dhaka-1212 and another                                                             

...Petitioners.

-Versus-

Infrastructure Development Company Limited UTC Building , (Level-16), 8, Panthapath, Kawranbazar, Dhaka-1215  and others.

... Respondents

 

Artha Rin Adalat Ain (VIII of 2003)

 

Section 12

 

From a perusal of provisions in Section 12 of the Ain, it appears that though there is a provision for selling the mortgaged property before filing of the suit the said provision of Section 12(3) of the Ain is not mandatory, it is directory. It is in this Court’s view that non-compliance of the provisions of section 12 of the Ain cannot be a bar in instituting a suit in the Artha rin Adalat for recovery of loan against the borrower and the guarantor. In the event of noncompliance of section 12(3) of the Ain an alternative provision has been provided in section 12(6) and as such the ground taken by the Petitioner is not at all sustainable in la     . . . (8)

 

Artha Rin Adalat Ain (VIII of 2003)

 

Section 7(3)

 

From a plain reading of the provision of section 7(3) of the Ain is also not mandatory. Moreover, in the present case as it appears from the Orders sheet the present Petitioner as Defendant appeared in suit and took time to file written statement more than once. Therefore, ground of not-compliance of the provisions relating to service of summons is not at all entertainable at this stage as the petitioners by their act and conduct have waived the said irregularities whatever in service of summons.        . . . (9)

 

Constitution of Bangladesh, 1972

 

Article 102

 

It is true that the powers conferred upon the High Court under Article 102 of the Constitution are discretionary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere asking of it particularly in view of the existence of efficacious alternate remedy. The constitutional Court should insist upon the party to avail of the same instead of invoking the extraordinary Writ Jurisdiction of the Court. It is the duty of the Court to see that alternate remedy is first followed.      ...(14)

 

Constitution of Bangladesh, 1972

 

Article 102

 

This Court in the exercise of its Writ Jurisdiction is not required to sit on qppeal over the Judgment and Decree of the Artha Rin Adalat unless it could be shown that the Adalat had acted without jurisdiction or made any finding upon no evidence or without considering any material evidence/ facts or that it had acted mala fide or in violation of any principle of natural Justice.   . . .(15)

 

Constitution of Bangladesh, 1972

 

Article 102

 

Under Article 102 since its inception it has been recorded that the sound and settled principle of law is that wherever alternate and efficacious remedy is available it should be availed of before Writ Jurisdiction is sought to be exercised. In our opinion therefore, this Rule Nisi is liable to be discharged for availability of alternate remedy of appeal.    . . . (16)

 

 

 

Lindsay Petroleum Company Vs. Prosper Armstrong Hurd, (1874) 5 PC 221; Md. Shahabuddin Khan Vs. Bangladesh, represented by the Secretary Ministry of Law, Justice and Parliamentary Affairs and others, 28 BLD (HC) 294; Shitalakhaya Ice and Cold Storage Pvt. Ltd. Vs. Artha Rin Adalat No.1, Dhaka and others, 64 DLR 487; Zahirul Islam Vs. National Bank Limited and others, 46 DLR (AD), 191; Gazi M.Towfic Vs. Agrani Bank and others, 54 DLR (AD) 6 and Bangladesh Agricultural Development Corporation Vs. Artha Rin Adalat and others, 59 DLR (AD) 6 ref.

 

Mr. Khandaker Mahbub Hossain  with

 

Mr. M.Taha Molla                

 

...For the Petitioners.

 

Mr. Md. Mizanur Rahman Khan

 

... For Respondent No.1

 

Mr. Khan Mohammad Shameem Aziz with

 

Mr. Wayesh Al- Haroni and

 

Mr. Mohammad Bulbul Ahmed

 

... For the Respondent No.3.

 

JUDGMENT

 

Mahmudul Hoque,J: In this application under Article 102 of the Constitution the Rule Nisi was issued calling upon the Respondents to show cause as to why the impugned proceeding in Artha Rin Suit No. 63 of 2011 disposed of exparte on 27.6.2013 by Judge , Artha Rin Adalat No.4, Dhaka (Annexure-L) should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other order or further order or orders as to this Court may seem fit and proper.

 

2.              Facts relevant for disposal of this Rule, in brief, are that the  Respondents Bank as Plaintiff instituted  Artha Rin Suit No. 63 of 2011 for recovery of Tk.18,25,21,844.00  against the present Petitioners and others  in the Artha Rin Adalat No.4, Dhaka stating ,inter alia,  that at the request of the defendant No.1 company  the plaintiffs financial institutions  collectively sanctioned a term loan of Tk.11,35,00,000.00 to the Defendant No.1 company against various Securities out of which the Defendants enjoyed and availed of Tk= 11,21,47,500/-. As per terms of the facility agreement the principal amount to be paid by 18 quarterly  instalments  of Tk.62,30,417 each with effect from  15.3.2007. The Defendants having failed to pay the outstanding instalment, requested the Plaintiffs for restructuring  the existing repayment arrangement and accordingly rearrangement was done by mutual agreement on 6.9.2007. As per said arrangement the principal instalments to be repaid by 21 quarterly instalments of Tk. 56,80,263/- with effect from on 15.6.2008.  But the Defendants again failed to repay the outstanding dues. For such failure of the Defendants the outstanding dues stood at Tk.12,55,15,946.00. Inspite of repeated  demands made by the Plaintiffs, the Defendants  failed to liquidate the outstanding  liability, resultantly said liability of the Defendants stood at Tk.18,25,21,844.00 as on 15.3.2011. The Plaintiffs instituted the instant Artha Rin Suit  against the Defendants  for recovery of the said loan. Before filing of the suit the Plaintiffs  tried to sell the mortgaged property through auction but failed  because of the property mortgaged with the Plaintiffs are lease hold property.

 

3.            The Defendant No.3 contested the suit by filing written statement and the Defendant No.2 though appeared in suit ultimately did not file written statement and contested the suit. The Artha Rin Adalat heard the suit and decreed the same against the Defendant No.3 on contest and ex parte against  the other Defendants by its  Judgment and Decree dated 27.6.2013. It is further stated that the Petitioner no. 2 was not aware of the filing of Artha Rin Suit No. 63 of 2011 as there was no service of summon upon him. The Petitioner came to know about the Impugned Judgment and Decree  on 30.7.2013 and on search it has come to the notice of the Petitiners that the Respondents Bank obtained the decree by suppressing summons and without compliance of the provisions contained in Sections 7 and 46 of the Ain and in connivance with the Defendant No.3 in suit. At this stage the Petitioner moved this Court challenging the validity of the Judgment and Decree passed in Artha Rin Suit No. 63 of 2011 by filing this application and obtained  the present Rule and Order of Stay.

 

4.            The Respondent Nos. 1 and 3  contested the Rule. Among them only Respondent No.1 filed an Affidavit-in-Opposition  denying all the material allegations made in the writ petition contending, inter alia, that the Petitioner No.1 company obtained a term loan  from the Plaintiff financial institutions and failed to make payment of the said loan as per terms and conditions of the agreement. Inspite of repeated request and demand made by the Respondent-Bank, the Petitioner and others having failed to pay the outstanding dues, the Respondents as Plaintiffs instituted Artha Rin Suit against the Petitioners and others for recovery of the loan  and the said Suit was decreed on contest against the Defendant No.3 and ex parte against other defendants in suit. The Petitioner No.2 appeared in the suit and took several adjournments for filing written statement but ultimately did not file written statement and refrained himself from contesting the suit for the reason best known to him. It is also stated that the statements made in the writ petition are incorrect, misleading and misinterpretation of law and facts. It is also stated  that the Plaintiffs at the time of filing of the Suit submitted talabana (requisites) for the purpose of service upon  the defendants as per provisions of law and alternatively published notice in the Dailies as  per provisions of Section 7 of the Artha Rin Adalat Ain, 2003 (“Ain”). There was no violation of any provisions of law as alleged by the Petitioners and the Artha Rin Adalat upon compliance of necessary provisions of law and procedure legally decreed the suit and it is open for the Petitioner as Defendants in suit to prefer appeal against the Judgment and Decree of the  Artha Rin Adalat under Section 41 of the Ain. Since there is provision of appeal against the Judgment and Decree of the Artha Rin Adalat  the instant Writ Petition is not maintainable  in law and as such the Rule Nisi is liable to be discharged.

 

5.            Mr. Khandaker Mahbub Hossain, Senior Advocate with Mr. M.Taha Molla, the learned Advocate appearing for the Petitioners submit that the Bank as Plaintiff instituted the suit without selling the mortgaged property under Section 12 of the Ain, as such the suit is not maintainable in law. It is also argued that the plaint in suit was not presented upon compliance of section 7(3) of the Ain enclosing a proforma notification to be published  in the dailies as such the suit was filed in violation of the said provision of the Ain. Mr. Hossain further submits that the suit was not filed within  the time fixed under Section 46 of the Ain, as such the suit was barred by limitation . Finally Mr. Hossain submits that the Artha Rin Adalat in passing the Impugned Judgment and Decree acted mala fide and passed the Impugned Judgment and Decree in violation of law and principle of natural Justice.

 

6.            Mr. Md. Mizanur Rahman with Mr. Md. Bulbul Ahmed, the learned Advocates appearing for the Respondent Nos. 1 and 3 respectively submit that the plaint in suit was filed upon compliance of the provisions of the Ain and there was no violation of any provisions of law and as such the allegation of the Petitioners regarding service of summons  and non-compliance  of provision of law is untrue, mis-leading and wholly misconceived. Referring to the Orders Sheet  of the Artha Rin Suit No. 63 of 2011 Mr. Mizanur Rahman submits that it would be evident from the orders that the summons were duly served upon the Petitioner No.2 who appeared in suit  as recorded in Order No. 4 dated 23.8.2011. It is also argued that the present Petitioner No.2 as Defendant No.2 in suit sought time to file written statement by filing applications on 24.10.2011 and 23.11.2011 and the said applications were allowed by the Adalat with costs. It is also submited that the Adalat referred the matter for mediation but the mediation process failed. Thereafter, the Adalat framed issues and proceeded with the hearing and finally decreed the suit against the Defendants and as such there was no violation of any provision of law. Mr. Rahman finally submits that there is an efficacious remedy in the form of appeal for the present Petitioner under Section 41 of the Ain against the Judgment and Decree  of the Artha Rin Adalat. But the present Petitioners without taking recourse under Section 41 of the Ain  moved before this Court by filing  this  Writ Petition  under  Article 102 of the Constitution of the People’s Republic of Bangladesh and as such the present Writ Petition is not maintainable in law.

 

7.            Heard the learned Advocates for the parties, perused the application, Supplementary Affidavit, Affidavit-in-Opposition and the annexures annexed thereto.

 

8.            In the instant Rule the Petitioner firstly raised  a question that the Plaintiffs  have filed the Artha Rin Suit for recovery of the loan  without  compliance  of the provisions as contained in Section 12  of the Ain which provides that the financial institutions  shall not file suit for recovery of the loan without selling the mortgaged property and making adjustment of the sale proceeds  with the claim or taking any step to sell the mortgaged property. From a perusal of provisions in Section 12 of the Ain, it appears that though there is a provision for selling the mortgaged property before filing of the suit the said provision of Section 12(3) of the Ain is not mandatory, it is  directory. It is in this Court’s view that non-compliance of the provisions of section 12 of the Ain can not be  a bar in  instituting a  suit  in the Artha Rin Adalat for recovery of loan against the borrower  and the gurantor. In the event of  non-compliance of Section  12(3) of the Ain an alternative provision has been provided in Section 12(6) and as such the ground taken by the Petitioner is not at all sustainable in law. Secondly, the Petitioner raised  a question of non-supply of a proforma notice with the plaint in suit by the plaintiffs  at the time of filing of the suit under Section 7(3) of the Ain for the purpose of publication in the news paper. To appreciate the point raised, Section 7(3) of the Ain may be looked into  which runs thus:-

 

7z pje S¡l£ pÇf¢LÑa ¢hd¡ex

 

(1).................................

 

(2).................................

 

(3) S¡a£u °c¢eL f¢œL¡u ¢h‘¡fe fÐL¡­nl j¡dÉ­j pje S¡l£l BN¡j hÉhÙÛ¡ ¢qp¡­h h¡c£ Bl¢S c¡¢M­ml pju Bc¡m­a Bl¢Sl p¢qa HL¢V ej¤e¡ ¢h‘¡fe c¡¢Mm L¢l­he, Hhw Bc¡ma f§hÑha£Ñ Ef-d¡l¡l ¢hd¡e Ae¤k¡u£ LlZ£u qC­m, Eš² ¢h‘¡fe¢V fЭu¡Se£u pw­n¡de h¡ f¢lhaÑe p¡­f­r, a¡vr¢ZLi¡­h S¡l£Ll­Zl ¢e¢jš fЭu¡Se£u hÉhÙÛ¡ L¢l­he z

 

9.            From a plain reading of the provisions  quoted above this Court finds that the aforesaid provisions in Sub-section 7(3) is also not mandatory. Moreover, in the present case as it  appears from the Orders sheet the present Petitioner  as Defendant  appeared in suit and took time to file written statement more than once. Therefore,  ground of non-compliance of the provisions relating  to service of summons is not at all entertainable at this stage as the petitioners by their act and conduct have waived the said irregularities whatever have had in the process of service of summons. In this regard the Case of Lindsay Petroleum Company Vs. Prosper Armstrong Hurd (1874) 5 PC 221 may be referred to, wherein Sir Barnes Peacock has observed that:

 

“Where it could be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or has by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, Lapse of time and delay are most material.”

 

10.        Thirdly, the Petitioner raised a point that the suit was not filed within one year from the date of default in payment of 10% of the loan amount by the borrower as per Section 46 of the Ain. In the case of Md. Shahabuddin Khan Vs. Bangladesh, represented by the Secretary Ministry of Law, Justice and Parliamentary Affairs and others reported in 28 BLD (HC) 294 and Shitalakhaya Ice and Cold Storage Pvt. Ltd. Vs. Artha Rin Adalat No.1, Dhaka and others reported in 64 DLR 487, it has been held that:

 

“the provisions of Section 46 of the Ain so far it relates to the question of filing the suit by the Bank or financial institution  against the borrower  within specified time  is  directory not at all mandatory. Therefore, in any view of the matter the suit is not barred by limitation and it can not be  equated with the analogy  of Section 28 of the Ain.”

 

11.        In view of the above, non-compliance of the provisions  of Section 46 it can not be  said that the suit is barred by limitation.

 

12.        In the instant Rule the Petitioners challenged the validity and propriety of the Judgment and Decree passed by the Artha Rin Adalat in Artha Rin Suit No. 63 of 2011.

 

13.        In the case of Zahirul Islam Vs. National Bank Limited and others reported in 46 DLR (AD), 191, Gazi M.Towfic Vs. Agrani Bank and others reported in 54 DLR (AD) 6, Bangladesh Agricultural Development Corporation Vs. Artha Rin Adalat and others reported in 59 DLR (AD) 6. It has been held that:

 

“Since special provisions for appeal has been made against the judgment  and decree passed by the Artha Rin Adalat no application under Article 102 lies against such  judgment and decree.”

 

“Therefore, the suit against the petitioner was barred by limitation and in excess of the Court’s jurisdiction  are matters to be agitated in appeal and not under the writ  jurisdiction.” (Per Mustafa Kamal,J:)

 

14.        It is true that the powers conferred upon the High Court under Article 102 of the Constitution are discretionary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere asking of it  particularly in view of the existence of efficacious alternate remedy. The constitutional Court should insist upon the party to avail of the same instead of invoking the extraordinary Writ Jurisdiction of the Court. It is the duty of the Court to see that alternate remedy is first followed.

 

15.        This Court in the exercise of its Writ Jurisdiction is not required to sit on appeal over the Judgment and Decree of the Artha Rin Adalat unless it could be shown that the Adalat had acted without jurisdiction or made any finding upon no evidence or without considering any material evidence/facts or that it had acted mala fide or in violation of any principle of natural Justice.

 

16.        From the aforesaid discussion based on the Judgment of the Supreme Court it will be clear that through out during the subsistence of Article 102 since its inception it has been recorded that the sound and settled principle of law that whatever alternate and efficacious remedy available it should be availed of before a Writ Jurisdiction is sought to be exercised. In our opinion therefore, this Rule Nisi is liable to be discharged for availability of alternate remedy of appeal. 

 

17.        In view of the decisions referred hereinabove the remedy lies for the Petitioner in appeal only as the grounds agitated in the instant Writ Petition are the matters to be looked into by the Appellate Court sitting in appeal.

 

18.        For the reasons stated hereinabove this Court finds no mala fide in the proceedings in Artha Rin Suit No. 63 of 2011 and in the Impugned Judgment and Decree passed by the Artha Rin Adalat No. 4, Dhaka and there was no violation of any principle of natural Justice calling for interference and as such we are inclined to discharge the Rule.

 

19.        In the result, the Rule is discharged, without any order as to costs.

 

20.        The Order of Stay granted at the time of issuance of the Rule is hereby recalled and stand vacated.

 

21.        Communicate a copy of this judgment to the Court concerned.

 

Ed.

 

 

 



Writ Petition No. 9126 of 2013.