S. Co. Power Plant Ltd. Vs. Government of Bangladesh and oth­ers, VII ADC (2010) 299

Case No: Civil Petition for Leave to Appeal No. 297 of 2009

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. Shamim Khaled Ahmed,,

Citation: VII ADC (2010) 299

Case Year: 2010

Appellant: S. Co. Power Plant Ltd.

Respondent: Government of Bangladesh and oth­ers

Delivery Date: 2009-10-29

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin, CJ.
Mohammad Fazlul Karim, J.
Md. Joynul Abedin, J.
Shah Abu Nayeem Mominur Rahman, J.
 
S. Co. Power Plant Ltd., represented by its Managing Director Md. Sirajul Haque and another
……......Petitioners
Vs.
Government of Bangladesh and oth­ers
............Respondents
 
Judgment
October 29, 2009.
 
The High Court Division committed no mistake in law in holding that since the properties were moveable and hypothecated to the bank there was no necessity of obtaining any prior order of sale from the Adalat before making the sale. We therefore find no reason to interfere with the same. …… (6)
 
Lawyers Involved:
Rafiqul Islam Miah, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For the Petitioners.
Shahmim Khaled,Advocate, instructed by Abu Siddique, Advocate-on-Record-For Respondent Nos. 5-6.
Not Represented-For Respondent Nos.1-4, 7-8.
 
Civil Petition for Leave to Appeal No. 297 of 2009.
(From the judgment and order dated 20.11.2008 passed by the High Court Division in Writ Petition No. 5778 of 2008.)
 
JUDGMENT
Md. Joynul Abedin J.
 
1.         This petition for leave to appeal is directed against the judgment and order dated 20.11.2008 passed by a Division Bench of the High Court Division in Writ Petition No. 5778 of 2008 discharg­ing the rule.
 
2.         The short fact is that the petitioners filed the aforesaid writ petition and obtained rule Nisi calling upon the respondents to show cause why the order dated 6.7.2008 attach­ing the property of the petitioners by the Artha Rin Adalat and the proceeding of the execution proceeding in Artha Rin Execution Case No. 471 of 2008 should not be declared without lawful authority on the following averments. The writ petitioner No.1, a private limited company, obtained loan from respondent No.3, Hong Kong and Shanghai Banking  Corporation Limited amounting to Tk. 14,85,00,442/- with an annual interest at the rate of 15%. The Company failed to repay the outstanding loan amount to respondent No.3 bank. Therefore, the bank, as plaintiff, filed Artha Rin Suit No. 94 of 2007 before the Artha Rin Adalat No.4, Dhaka impleading the petition­ers as defendants for recovery of Tk. 1,61,01,30, 305.28 due as on 8.8.2007 with interest and other charges by sale of mort­gaged and hypothecated properties in favour of the bank. The suit was contested by the defendant-petitioners and it was decreed by the judgment and decree dated 2.3.2008. The judgment debtor-petitioners failed to repay the decreetal amount whereupon the bank filed Artha Rin Execution Case No. 471 of 2008 and obtained the order of attachment from the Adalat.
 
3.         Respondent Nos. 5 and 6 contested the rule by filing an affidavit-in-opposition and supplementary affidavits-in-opposition sup­porting the impugned order contending, inter alia, that the petitioners were not per­sons aggrieved within the meaning of Article 102 of the Constitution inasmuch as the impugned order was not passed in violation of any law as the properties in respect of which impugned order was passed were hypothecated moveable properties and they were liable to auction-sale without interfer­ence of the Adalat for adjustment of the dec­reetal amount and thus the rule was liable to be discharged.
 
4.         The High Court Division after hearing discharged the rule holding that the impugned order of attachment of moveable properties was lawful. The petitioner thus being aggrieved filed this civil petition for leave to appeal.
 
5.         Mr. Rafiqul Islam Miah, the learned Counsel for the petitioners submits that the learned Judges of the High Court Division committed illegality in failing to take into consideration that respondent Bank on 20.6.2008 filed an application under Order 21, Rule 43 of the Code of Civil Procedure for attachment of the immovable property of the petitioner com­pany and the judgment debtor petitioner company also filed a written objection which was allowed and as such before haring the matter no order of attachment could be passed, so the impugned order of attachment dated 6.7.2008 was totally ille­gal and without lawful authority and was of no legal effect. The learned Judges of the High Court Division discharges the rule without considering this point result­ing in an error in the decision occasioning failure of justice. He lastly submits that the learned Judge of the High Court Division in their impugned judgment and order has observed that as the machinery is hypothecated to the bank it (bank) could have sold it out directly for realization of the decreetal amount which is totally ille­gal as hypothecation has been made to adjust the decreetal amount and not to sell the machinery without following proper and legal procedure of sale to fulfill malafide intention of the officer of the respondent bank. In fact respondent bank was liable to follow the provisions as laid down under section 33(1) of the Artha Rin Adalat Ain, 2003 providing for fair and justified process of sale of hypothecated goods. But the respondent bank without following the provisions of law and even without following of the order and direc­tion of the Adalat to follow the provisions of section 33, with mala fide intention hur­ried to take possession of the plant and machinery for removing the same from the factory premise even without having any order from the Adalat. But the learned Judge of the High Court Division failed to consider this aspect of the case and dis­charged the rule illegally occasioning fail­ure of justice.
 
6.         We have heard the learned counsel and perused the connected papers including the impugned judgment. We do not find any substance in the points raised. The High Court Division committed no mis­take in law in holding that since the prop­erties were moveable and hypothecated to the bank there was no necessity of obtain­ing any prior order of sale from the Adalat before making the sale. We therefore find no reason to interfere with the same.
 
7.         The petition is accordingly dismissed.
 
Ed.