Shahidullah (Md) Vs. Eastern Bank Ltd. and others

Case No: Civil Revision No. 3901 of 1999.

Judge: Md. Fazlul Haque,

Court: High Court Division,,

Advocate: HR Sharif,Abul Hasnath,,

Citation: 54 DLR (2002) 41

Case Year: 2002

Appellant: Shahidullah (Md)

Respondent: Eastern Bank Ltd. and others

Subject: Property Law,

Delivery Date: 2001-03-22

Shahidullah (Md) Vs. Eastern Bank Ltd. and others
 54 DLR (2002) 41
 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Md. Fazlul Haque J
NK Chakravartty J
 
Shahidullah (Md)……Petitioner
Vs.
Eastern Bank Ltd. and others………..Opposite Parties

 
Judgment
March 22, 2001.

Artha Rin Adalat Ain (IV of 1990)
Sections 6 & 7
Code of Civil Procedure (V of 1908)
Section 115
The High Court Division is not vested with the revisional jurisdiction against any order passed by the Artha Rin Adalat.

Cases Referred To-
46 DLR (AD) 174; 52 DLR (AD) 76; 53 DLR (AD) 9.

Lawyers Involved:
HR Sharif Advocate—For the Petitioner.
Abul Hasnath with MGH Ruhullah, Advocates —For Opposite Party No. 1.

Civil Revision No. 3901 of 1999.
 
Judgment
                  
Md. Fazlul Haque J.- This Rule is directed against the Judgment and Order dated 19-10-99 passed by the Subordinate Judge and Artha Rin Adalat No. 1 Dhaka allowing the Miscellaneous Case No. 40 of 1999 filed by the plaintiff-opposite party No. 1 under section 151 of the Code of Civil Procedure restoring the Title Suit No. 139 of 1999 arising out of Title Suit No. 32 of 1995) to its original file and number.

2. The short facts for the purpose of disposal of this Rule are that the opposite party No. 1 as plaintiff instituted Title Suit No. 32 of 1995 in the Court of Subordinate Judge, 3rd Court & Artha Rin Adalat, Dhaka against the opposite party Nos. 2 and 3 and the present petitioner. The plaintiff is the bank. The opposite party No. 2 was the importer/exporter in ready-made garments. The plaintiff found that the opposite party No. 2 was credit worthy and granted him back to back credit and CC limit facilities. The opposite party No. 2 on behalf of International Corporations of Saudi Arabia opened a LC for an amount of US $ 32,000 and requested the plaintiff bank for an advance of 60% of the LC amount which was allowed by the plaintiff. On 1-11-88 the opposite party No. 2 opened another LC with the plaintiff bank and commitment was made to make equitable mortgage of immovable property located at plot No. 46, Road 9D, Sector No. 5 of the Uttara Model Town as collateral security an amount of US $ 11,899,12 worth of back to back LC but the opposite party No. 2 did not comply with the formalities of equitable mortgage. The opposite party No. 2, in fact, failed to carry out the contract with the said International Corporations of Saudi Arabia and the LC was cancelled. Consequently, a liability of Taka 6,28,950 was credited with the bank as on 28-5-89. The plaintiff bank repeatedly requested the defendant No. 2 for repayment of the said amount but the opposite party No. 2 did not take any steps either to pay or to make arrangement for liquidating the said amount. There was another similar liability of Taka 21,93,701,95 as on 31-12-94. Be that as it may, the plaintiff bank filed the aforesaid suit in the Subordinate Judge and Artha Rin Adalat No. 3 for recovery of Taka 21,93,701,95 with 20% interest.

3. The opposite party Nos. 2 and 3 did not contest the suit though the opposite party No. 3 filed written statement and denied that he was a borrower of the loan as alleged by the plaintiff bank. Ultimately, when the suit came up for hearing it was transferred to the Court of Subordinate Judge and Artha Rin Adalat No. 1 and was re-numbered as Title Suit No. 139 of 1999. It appears that the Title Suit No. 139 of 1999 was dismissed for default by order dated 26-4-99. The plaintiff (opposite party No. 1 herein) filed miscellaneous case being Miscellaneous Case No. 40 of 1999 in the said court under Order 9, rule 9 of the Code of Civil Procedure.

4. On 1-7-99 the learned Subordinate Judge dismissed the said miscellaneous case as being not maintainable on a technical ground that the said miscellaneous case under Order 9, rule 9 of the Code of Civil Procedure was not signed by the Officer of the Bank.

5. On 29-7-99 the plaintiff bank again filed an application under section 151 of the Code of Civil Procedure praying for restoration of the Miscellaneous Case No. 4 of 1999.

6. The present petitioner filed written objection to the petition filed by the opposite party No. 1 bank. Be that as it may, the learned Artha Rin Adalat allowed the prayer of the plaintiff-opposite party No. 1 bank and restored the suit to its original file and number.

7. Mr. Md. Shahidullah, the respondent No. 3 petitioner being aggrieved with the judgment and order dated 19-10-99 moved this court and obtained the present Rule.

8. Mr. HR Sharif, the learned Advocate appearing on behalf of the petitioner submits that the learned Subordinate Judge and Artha Rin Adalat committed an error of law in allowing the said miscellaneous case under Order 9, rule 9 of the Code of Civil Procedure and illegally restored the Title Suit No. 139 of 1999. The learned Advocate further submits that since the miscellaneous case was once dismissed for default, the learned Court had no jurisdiction to restore the same under section 151 of the Code of Civil Procedure.

9. Mr. Abul Hasnat, the learned Advocate appearing on behalf of the plaintiff bank submits that this Court does not have jurisdiction to entertain a revisional application under section 115 of the Code of Civil Procedure against any order passed by the Court of Subordinate Judge and Artha Rin Adalat. The learned Advocate submits that there is a clear bar in section 6 of the Artha Rin Adalat Ain that no Court shall raise any question in respect of any order passed by the Court of Artha Rin Adalat subject to section 7 of the Artha Rin Adalat Ain, Section 7 of the said Ain provides for an appeal against the judgment and decree passed by the Artha Rin Adalat.

10. We have heard the learned Advocate and perused the application as well as the counter affidavit filed by the plaintiff opposite party No. 1. We have also considered the decision referred to by the learned Advocate appearing on behalf of the plaintiff opposite party No. 1 bank reported in 46 DLR (AD) 174, 52 DLR (AD) 76 and lastly, a decision reported in 53 DLR (AD) 9. The consistent view that has been taken by the Appellate Division is that the High Court Division is not vested with the revisional jurisdiction against any order passed by the Artha Rin Adalat. This is now a settled law and we have no option but to follow the same. Accordingly, we are of the view that this revisional application is not at all maintainable and the Rule is liable to be discharged.
Accordingly, the Rule is discharged without any order as to costs.

11. The order dated 14-11-99 staying all further proceedings of Title Suit No. 139 of 1999 pending in the Court of Subordinate Judge and Artha Rin Adalat No. 1, Dhaka is hereby vacated.
The suit shall proceed in accordance with law and the same shall be disposed of expeditiously, preferably within three months from the date of receipt of the copy of this judgment.
Ed.