Artha Rin Adalat Ain [VIII of 2003]
Section 2(Ga) (2) and 2(Ga)(3)- Whether the excess of profit allegedly withdrawn fraudulently against MTDR accounts by the petitioner in collusion with the defendant No. 2, a junior officer of the Bank can be treated as loan and realised through the Court under the Artha Rin Adalat Ain, 2003. The High Court Division noticed that the suit has been filed for realisation of the excess profit fraudulently withdrawn by the petitioner in collusion with the defendant No. 2, a junior officer of the bank against his MTDR accounts along with profit/compensation thereon. Therefore, admittedly, the petitioner did not receive any loan from the bank, which is regulated in accordance with the Islamic Shariah inasmuch as the bank did not invest nor did grant any financial favour or facilities to the petitioner, rather the petitioner invested certain amounts of money through the said Mudaraba Term Deposit Receipt (MTDR) accounts maintained with the bank for profit. Since the bank did not invest nor did grant any financial favour or facilities to the petitioner, the excess profit allegedly withdrawn by the petitioner from his MTDR accounts does not attract the clause 'ইসলামী শরীয়া মোতাবেক পরিচালিত আর্থিক প্রতিষ্ঠান কর্তৃক বিনিয়োগকৃত অর্থ বা অন্য যে কোন আর্থিক আনুকূল্য বা সুযোগ-সুবিধা, যে নামেই অভিহিত হউক না কেন of section 2(Ga) (1) or the clause 'ইসলামী শরীয়া অনুযায়ী পরিচালিত আর্থিক প্রতিষ্ঠান কর্তৃক বিনিয়োগকৃত অর্থ এর উপর বৈধভাবে আরোপিত সুদ, দণ্ড সুদ বা মুনাফা বা ভাড়া' of section 2(Ga) (4) of the Ain. Neither the remaining parts of sections 2(Ga)(1) and 2(Ga) (4) nor sections 2(Ga) (2) and 2(Ga)(3) of the Ain relate to the transaction under the MTDR scheme. Accordingly, there was no transaction of loan between the respondent bank and petitioner. Kazi Mohammad Mofizur Rahman -Vs. Artha Rin Adalat and others (Spl. Original) 15 ALR (HCD) 243-257
Sections 2(ga), 5: Definition of "rin, and suit for realisation of money:
Artharin Adalat has no power to entertain suit for realisation of money: We have already seen that the four corners of the plaint of the Suit, it has not been mentioned that due to negotiation, the amount defalcated/misappropriated by the petitioner has to be treated as a loan and under section 5(1) of the Ain, Artha Rin Adalat has exclusive jurisdiction relating to realization of loan money (Rin) only. Thus, the suit which has been filed by the Bank for recovery of money and not a suit for recovery of loan Rin) as defined in section a) of the Air as quoted hereinbefore. Therefore, the learned Judge of the Artha Rin Adalat had no Jurisdiction to entertain the record sent from the High Court Division and re-number it as Artha Rin suit... (Para 13). Nurul Islam Vs. Judge, Artha Rin Adalat S CLR (2017) HCD-122.
Section 2-After enactment of the Act of 2003 all the execution cases arising out of the decree relates to a financial institution are liable to be transferred to the Artha Rin Adalat. The entire proceeding is illegal and without lawful authority. Shamsul Islam (Md) vs Sonali Bank, 66 DLR 222. Section 2-The Court is definitely permitted to look at the definition of loan in the Ain when the Bank Company Act is silent on the definition of loan. IFIC Bank Ltd vs Beximco Holdings Ltd, 57 DLR 154.
Section 2-A subordinate Judge acting as an Artha Rin Adalat cannot entertain such an application directly, [The Bangladesh Shilpa Rin Sangstha Order, 1972 (PO 128 of 1972)] Bangladesh Shilpa Rin Sangstha vs Fashion Wear Limited, 6 BLT (AD) 124.
Section 2-Bangladesh Krishi Bank is a juristic person that can sue and be sued in its name and as such in absence of Bangladesh Krishi Bank as defendant the suit against its employee is not maintainable. Manager, Bangladesh Krishi Bank vs Nurul Islam, 20 BLD 179 52 DLR 434.
Section 2-Bank's jurisdiction to sell mortgaged property of the borrower directly under Article 34 of the order. [The Bangladesh Shilpa Bank Order, 1972 (PO 129 of 1972)]. Fairtech Limited vs Bangladesh Shilpa Bank Ltd. 10 BLD (AD) 226-42 DLR (AD) 216
Section 2-To attract the jurisdiction of the Artha Rin Adalat the plaintiff must be a financial institution as contemplated under section 2 of the Artha Rin Adalat Ain because it is only such a financial institution which is entitled to a suit before the Adalat for realisation of any advance made to any party as a loan. The Artha Rin Adalat is a Civil Court of defined nature and limited jurisdiction and it does not enjoy all the powers of the Code of Civil Procedure, section 151- Artha Rin has wrongly assumed jurisdiction and is illegally proceeded with a suit-The High Court Division may act under section 151 CPC. Kazi Jawaherul Islam vs Standard Co-operative Credit Society Limited, 18 BLD 310-50 DER 333.
Section 2-The obligation of repayment of was defined in Section 2(Kha) of the Ain is of the one who has availed the same from financial institution as well as of the one who either facilitated the one to avail or secured repayment of the And only these categories are to be held responsible in case of default in the repayment of the amount became due as against the availed from financial institution. Sonali Bank vs D. Serajul Hoque Chowdhury, 1 ADC (2004) 394 = 9 BLC (AD) 256.
Section 2(Ka)(4)-On the question of removal the name of Bangladesh House Building Finance Corporation from the definition clause of Artha Rin Adalat Ain, 2003, it is found that the Appellate Division pronounced the judgment on 22-7-1996 i.e. long before coming into force of Artha Rin Adalat Ain, 2003. It is very unfortunate that Ministry of Law, Justice and Parliamentary Affairs still did not act as per the decision of 49 DLR (AD) 80 and 47 DLR 158 thereby causes hindrance in the matter of administration of justice. It is expected that in no time Ministry of Law, Justice and Parliamentary Affairs will act as per the aforesaid decisions and delete House Building Finance Corporation from section 2 Ka(4) of Artha Rin Adalat Ain, 2003. Begum Shirin Akhtar vs Bangladesh House Building Finance Corporation, 16 BLC
Section 2(Ka)(4)-Appeal shall lie both against the decree or order passed by the Adalat in a proceeding and the impugned order has been passed in execution proceeding by the Adalat; appeal could have been brought by the aggrieved party and there is no scope for challenging the same invoking the writ jurisdiction. Rupali Bank Limited Dhaka vs Artha Rin Adalat Dhaka,21 BLC 136
Section 2(Kha)-Money deposited with a bank is a debt to the depositor and creates a relationship of debtor and creditor between the banker and the Attracting the prevision of section 2(Kha) of the Artha Rin Ain. The suit filed by the plaintiff in the Artha Rin Adalat for realizing the said debt which is a "loan" under section 2(Kha) is quite maintainable. Saudi Bangladesh Industrial and Agricultural Investment Company Ltd vs Eastern Bank Ltd, 5 BLC (AD) 51.
Section 2(Kha)-It cannot be said that defendant Nos.3 and 4 obtained loan from the Bank or received any financial facilities from the Bank and that they are also not the guarantors in respect of the loan made available by the defendant Nos. 1 and 2. Sonali Bank vs Md. Sirajul Hoque Chowdhury, 14 BLT (2006) AD 128-9 BLC (AD) 256.
Sections 2(Kha) and 5-Artha Rin Adalat only deals with the realisation of loan money-Artha Rin Adalat has committed a serious illegality in coming to a conclusion that the petitioner has already obtained the amount by practising fraud, forgery and in a deceitful manner when a criminal case was in progress and the petitioner was in jail, hajat, the Artha Rin Adalat should not have entertained such suit without any clear materials that this money in question did constitute a loan money. Harunur Rashid vs Subordinate Judge, Bogra, 50 DLR 170.
Sections 2 (Kha) and 5(1)-Only those suits which are concerned with the realisation of "loan" as defined in the Act and as disbursed by the financial institution can be filed in the Artha Rin Adalat, no other kind of suit. Sultana Jute Mills Ltd. vs Agrani Bank, 46 DLR (AD) 174.
Sections 2(Kha) and 5(1)-This Court established under a special Law cannot travel beyond the parameter set by the Act itself to adjudicate the claim of any claimant who does not come within the definition of financial institution to realise any claim which is not a debt within the meaning of the Act. Pubali Bank Ltd vs Md Mamunur Rahman, 54 DLR 458.
Sections 2 (Kha) and 5(1)-Jurisdiction of Artha Rin Adalat was created with particular objective, mainly for recovery of bank dues. To achieve the purpose, Artha Rin Adalat was made deemed to be a civil court but not a full- fledged civil court with all powers and jurisdiction of a civil Court. It is a civil Court of defined and limited jurisdiction. Al Baraka Bank Bangladesh Ltd. vs Rina Alam,. 56 DLR 588.
Section 2(Ga) "The definition clearly indicates that any amount taken from the condition of repayment in whatever name this may be termed comes within the definition of "" Alco Hygienic Products Ltd. vs. Islami Bank 47 Ltd. 47 DLR 264.
Section 2(Ga)-The suit has been not for realization of any loan money from the who was admittedly not a loanee, but he misappropriated the bank money. By no stretch of imagination the suit comes within the provision of Artha Rin Ain. Agrani Bank, Janna Branch, Manikganj vs. AFM Enamul Haq, 50 DLR 173.
Section 2(Ga)- Whether Cash assistance can be treated as loan-Held: The High Court Division on consideration of the Provision of law section 5(GaGa) and the decision of the High Court division in DLR 104 together with the definition of the word "indemnity" in the Contract Act, 1872 and "loan" as defined in the Artha Rin Adalat Ain, 2003 together with the undertaking-cum- declaration held that the latter came within the ambit of a "contract of indemnity" as defined in section 124 of the Contract Act inasmuch as the money of 'cash assistance' given to the company product to the said indemnity falls within the definition of 'Rin' as defined in section 2(Ga) of Artha Rin Adalat Ain, 2003 as the cash assistance' was undoubtedly a "আর্থিক আনুকূল্য বা সুযোগ সুবিধা” inasmuch case' same was recorded pursuant to the "undertaking-cum-indemnity. In view of the above, we find no substance in the submission of the learned Advocate for the petitioners [Mr. Justice Mohammad Fazlul Karim] Md. Shafiul Azam vs Bangladesh, represented by the secretary, Ministry of Finance, Government of Bangladesh. 11 (2008) BSCD 13.
Section 2(Ga)- Under a Lease Agreement if any outstanding remains due to the non-payment of rent, there will be rent liability and not loan liability and thus in this case, lease will not be considered as a Rin and the Artha Rin Adalat does not have the appropriate jurisdiction to decide matter. Anudip Autos Ltd vs Ministry of Law Justice and Parliamentary Affairs, 19 BLC 610.
Section 2(Ga)- The money was disbursed and they are to return the money which they were paying but failed. In case it is lease agreement then the Adalat has no jurisdiction to entertain the suit. Anudip Autos Ltd vs Ministry of Law Justice and Parliamentary Affairs, 19 BLC 610.
Section 2(Ga)- Sonali Bank disputed the issuance of L/C in question making the L/C a disputed question of fact which cannot be resolved in writ petition rather such disputed question can only be determined by adducing evidence in a civil Court. Sonali Bank Limited vs Bangladesh, 68 DLR 545
Section 2(Ga) (4)- The rate of interest is subject to control or review by the central bank of the country to ensure that it is justified by the forces of demand and to provide healthy competitiveness amongst the banks and the financial institutions. The mechanism of money market which is controlling the banks and the financial institutions are also subject to payment of compound interest to the respective depositors. All these are there to ensure protection to the borrowers as they desire and deserve and at the same time to achieve and maximise social welfare and basic values of life. In that view of the matter, it cannot be said that inclusion of "interest" in section 2(Ga)(4) is against the spirit of Articles 8(1) and 20(2) of the Constitution. Angels Corporation (Pvt) Ltd vs Bangladesh, 59 DLR 601.
Sections 2(Ga)(4) and 50(1)-In pursuance of section 2(ga)(4) as well as section 50(1) of the Ain the legislature has given clear mandate enabling the respondent bank to claim interest forming part of the principal amount provided it is agreed in the contract of loan. In recovering "interest" the respondent Bank does not act contrary to the principles of social and economic justice as enshrined under Article 8(1) of the Constitution. Angels Corporation (Pvt) Ltd vs Bangladesh, 59 DLR 601.
Section 2ka-Whether a suit for establishment of title in respect of a property against which a decree has been passed by the Artha Rin Adalat Ain is maintainable of against a person, who has allegedly created some papers and mortgaged the property with a bank and also against the mortgage bank.
The Appellate Division held that it is a special law and this law shall prevail over any other law and for the purpose of realization of FY by a financial institution, the suit shall be filed and adjudicated upon by the Artha Rin Adalat constituted under the said Ain. These provisions do not prohibit specifically or impliedly a citizen to establish his title to in a civil court in respect of any property which has been mortgaged with a financial institution. The provisions of the Code of Civil Procedure will be applicable in filing and adjudicating upon a suit under the Artha Rin Adalat Ain, if those provisions are not inconsistent with the provisions of the Ain. In filing a suit against the principal debtor, the financial institution may Implead the third party mortgagor or the third party guarantor, if he is involved in the "FY". These are three persons against whom a suit of the nature can be filed seeking relief. There is no scope under the scheme of the Ain to implead in the category of defendants other than those mentioned above or any third party can add as defendant. The judgment, order or decree of the Artha Rin Adalat can be jointly and severally executable. The execution proceeding shall be proceeded against all judgment debtors subject to the condition that the Adalat shall execute the decree against the principal debtor and subsequently, against the third party mortgagor or the third party guarantor for the recovery of the loan, as the case may be. There is a second proviso providing that if the third party mortgagor or third party guarantor repays the total amount of dues, the decree can be transferred in their favour and that they also can realize the total amount against the principal debtor. Md. Sekandar Vs. Janata Bank Ltd. 9 ALR (2017)(1)-AD-81.
Section 2(ga)-Section 2(ga) of the has made it clear that any type of financial facility will be treated as loan. Anudip Autos Ltd vs Ministry of Law, Justice and Parliamentary Affairs (Civil) 22 BLC (2017)-4D-430
(1) Section 2(Ka)(4) Appeal shall lie both against the decree or order passed by the Adalat in a proceeding and the impugned order has been passed in execution proceeding by the Adalat appeal could have been brought by the aggrieved party and there is no scope for challenging the same invoking the writ jurisdiction. Rupali Bank Limited Dhaka vs Artha Rin Adalat Dhaka (Spl. Original) 21 BLC (2016)-HCD-136
(la) Section 2-After enactment of the Act of 2003 all the execution cases arising out of the decree relates to u financial institution are liable to be transferred to the Artha Rin Adalat. The entire proceeding is illegal and without lawful authority. Shamsul Islam (Md) Vs. Sonali Bank (Civil) 66 DLR (2014)-HCD-222.
(2) S. 2(Ga)-The High Court Division became surprised noticing that how a Subordinate Judge deal with some irrelevant facts on the basis of un-corroborative oral evidence of Dw.1 giving a go by to the admitted documentary evidence namely, original deed of mortgage property, loan sanction letter, mortgage deed and power of attorney, in fact there is nothing on record to suggest that the defendant No. 1 in the facts and circumstances of the case made a scapegoat or he did not receive any loan amount from the bank. The reasons given by the trial court for passing the decree in favour of the defendant Noure not sustainable either in law or on facts. The impugned judgment and decree of the Arta Rin Adalat insofar as it relates to defendant No. I is set aside and the suit is decreed. Rupali Bank Vs. Md. Komoruddin @ Kamar and others, 2 LNJ (2013)-HCD-232
Necessary parties in suit for recovery of loan-Shareholder of a company is not liable for repayment of loan and as such is not necessary party. The Chairman or the directors who executed the charge documents and mortgaged property as security against the loan are necessary parties in a suit for recovery of the loan. The Chairman it did not execute any charge document or stood as guarantor, is not necessary party merely by reason of his being the Chairman. Bakul Akter (Mrs.) Vs. Bangladesh and others. 15 MLR (2010) 225-226
Article 102-Writ petition is held not maintainable against stay of all actions for registration of two buses purchased by the loan of the bank-The impugned action of BRTA croped up out of the proceedings relating to suit for recovery of loan. The High Court Division held the writ petition not maintainable. The Appellate Division also concurred with the impugned decision of the High Court Divison. Monir Hossain Vs. The Artha Rin Adalat No. 4 Dhaka and others, 15 MLR (2010) 236-240
Article 2(ga)(4)The rate of interest is subject to control or review by the central bank of the country to ensure that it is justified by the forces of demand and to provide healthy competitiveness Amongst the banks and the financial institutions. The mechanism of money market which is controlling the banks and the financial institutions are also subject to payment of compound interest to the respective depositors. All these are there to ensure protection to the borrowers as they desire and deserve and at the same time to achieve and maximise social welfare and basic values of life. In that view of the matter, cannot be said that inclusion of interest in section 2(ga)(4) is against the spirit of Articles 8 (1 and 2002) of the Constitution. Angels Corporation (Pvt) Ltd Vs Bangladesh (Spl. Original), 39 DLR (2007) HCD-601
(6) Section 2(ga)(4) & 50(1)- In pursuance of section 2(ga) (4) as well as section 50(1) of the Ain the legislature has given clear mandate enabling the respondent bank to claim interest forming part of the principal amount provided it is agreed in the contract of loan. In recovering "interest" the respondent Bank does not act contrary is the principles of social and economic justice us enshrined under Article 8 (1) of the Constitution. Angels Corporation (Pvt) Lid Vs. Bangladesh (Spl. Original), 39 DLR (2007)-HCD 601
Section-2(Kha)-From the averments made in the plaint it is seen that Cash-Credit (hypothecation) and Cash-Credit (pledge) facilities were allowed to the defendant Nos. and 2. It also appears from the averments made in the plaint and the papers placed on the record that said loans were given to the defendant Nos. 1 and 2 to enable them to lift the fertilizer which they have purchased in advance from the defendant Nos. 3 and 4 who got the allotment of the fertilizer from defendant No. 7. In our opinion upon making advance sale of the fertilizer, the defendant Nos. 3 and 4 had hardly anything to do except facilitating the defendant Nos. and 2 to lift the fertilizer, which the defendant Nos. 3 and 4 did as regard the fertilizer in question. From the papers on the record it is seen that the defendant Nos. 3 and 4 to make the agreement of advance sale fruitful they did, everything to enable the Bank and the defendant Nos. 1 und 2 to lift the fertilizer from Respondent No. 7-Held; In the background of the materials on record and the discussions made hereinbefore in our view it cannot be said that defendant Nos. 3 and 4 obtained loan from the Bank or received any financial facilities from the Bank and that they are also not the guarantors in respect of the loan made available by the defendant Nos. 1 and 2. Sonali Bank Vs Md. Sirajul Hoque Chowdhury & Ors 14 BLT (2006)-1D-128
See BSCD Vol XI Page-13 Same BSCD Vol. IX Page-30.
Section 2 read with Banking Companies Act, 1991
Section 5-Whether a guarantor would be come a defaulter within the meaning of the Bank Company Act. A defaulter shall mean a person or institution that obtained advance or loan or interest thereupon which becomes"মেয়াদোত্তীর্ন" within the meaning as notified by the Bangladesh Bank and already expired six months. The what is popularly known loan has not been defined in the Bank Company Act but exhaustibly defined by Clause (খ) of section 2 of the Ain as quoted above. Such definition includes Amongst other a guarantor of a loan. It is true clause (ছ) of section 5 of the Bank Company Act defines a (দেনাদার) that is a debtor which includes a "জামিনদার" that is a guarantor and in the definition of defaulter in said clause (গগ) of section 5 such guarantor is not mentioned. Use of the word guarantor in such definition of a defaulter is not at all necessary. When a guarantor is clearly intended to be covered by the sweep of the above definition of a defaulter non-mention of the word "জামিনদার" does not make any difference. IFIC Bank Lid & Ors Vs. M/s. Beximco Holding Ltd & Ors 13 BLT (HCD) 23
(Kha) (Definition of ঋণ)- The definitions clearly indicates that any amount taken from the bank on condition of repayment in whatever name this may be termed comes within the definition ঋণ. Alico Hygienic Products Lid Vs Islami Bank Bangladesh Lid 47 DLR (1993)-HCD-264
Res-judicata (Artha Rin Adalat and Money Suit-S.ll of CPC) Bangladesh Krishi Bank Order-1972 (Po, 27 of 1972)-Rule-2(4):
Bangladesh Krishi Bank is a juristic person that can sue and be sued in its name and as such in absence of Bangladesh Krishi Bank as defendant the suit against its employee is not maintainable. Manager, Bangladesh Krishi Bank Vx Al-haj Md Nurul Islam, 20 BLD (2000)-HCD-179
Section 2(Ga)
Whether Cash assistance can be treated as loan.
Held: The High Court Division on consideration of the Provision of law in section 5(Ga Ga) and the decision of the High Court Division in 57 DLR 104 together with the definition of the word "indemnity" in the Contract Act. 1872 and "loan" as defined in the Artha Rin Adalat Ain, 2003 together with the undertaking-cum-declaration held that the latter came within the ambit of a "contract of indemnity as defined in section 124 of the Contract Act inasmuch as the money of 'cash assistance given to the company product to the said indemnity falls within the definition of "Rin' as defined in section 2(Ga) of Artha Rin Adalat Ain, 2003 as the cash assistance was undoubtedly a "“আর্থিক আনুকূল্য বা সুযোগ সুবিধা” inasmuch as the same was recorded pursuant to the "undertaking-cum-indemnity. In view of the above, we find no substance in the submission of the learned Advocate for the petitioners. Mr. Justice Mohammad Fazlul Karim Md Shafiul Azam Vs Bangladesh, represented by the Secratury Ministry of Finance Government of Bangladesh. 11 BSCD 2008 Page 13
Section (2) & 41(1)-Under section 41 any party in order to prefer an appeal against any order or decree of the Artha Rin Adalat is required to file the said appeal within 30 days and deposit 50% of the decretal amount and submit with the memorandum of appeal the proof of such deposit and in the absence of submitting such proof with memorandum of appeal no appeal filed under section 41(1) shall be accepted for any action. If the provisions of sub-section (1) of section 41(1) and (2) of the said section are read meticulously it is shall be crystal clear that filing of appeal under Sub-section (1) is subject to fulfilment of the requirement of sub-section (2) of the Ain and both the provisions are therefore conjunctive and nee disjunctive at all and the law being a special law there is no way out to escape the limitation. Peninsular Shipping Service Limited Vs: M/s. Faruque Paint and Varnish Manufacturing Co, Ltd and others, Civil Appeal No. 126 of 2006. 9 BSCD-1992-2006, 26 BLD (AD) 172
Sections 2 (Kha) & 5(1)-Only those suits which are concerned with the realisation of "loan" as defined in the Act and as disbursed by the financial institution can be filed in the Artha Rin Adalat, no other kind of suit. Sultana Jute Mills Ltd. Vs. Agrani Bank Ltd Civil Appeal No. 7 of 1994, 9 BSCD-1992-2006, 46 DLR (AD) 172
Section 2 (Kha)-It is difficult to read in the definition of "GZ" as in section 2(kha) of the Ain that in the background of particuler transaction one of the party to the transaction obtains loan to discharge his obligation to the other party, the party towards whom the loance has discharged his obligation would also be considered a loance of the Bank being the beneficiary. Sonali Bank Vs. Md Sirajul Hoque Chowdhury and others, Civil Appeal No. 90 of 1998, 9 BSCD 1992-2006, 25 BLD (AD) 1.
(Loan to fictitious persons). Bank employee misappropriate money-on enquiry it was found the persons named in the list are all fictitious persons. The suit has been filed not for realisation of any los money from the defendant who was admittedly not a loance, but he misappropriated the bank money. By no stretch of imagination the suit comes within the provision of Artha Rin Ain.
-Conversion of money suit in to Artha Rin Adalat Suo Moto is illegal-the case is sent back on remand for fresh trial. Agrani Bank Vs AFM Enamul Huq, 51 DLR (1999)-HCD-186
Ss. 2 (Kha) and 5. (Criminal Case).
Artha Rin Adalat only deals with the realisation of loan money. -Artha Rin Adalat has committed a serious illegality in coming to a conclusion that the petitioner has already obtained the amount by practising fraud, forgery and in a deceitful manner when a criminal case was in progress and the petitioner was in Jail, Hajat, the Artha Rin Adalat should not have entertained such suit without any clear materials that this money in question did constitute a loan money. Harumur Rashid Vs. Subordinate Judge, Bogra 50 DLR (1998)-HCD-170
Sections 2(Ka), (Kha) & 5(1), (4), (5)-The counterclaim of the defendants is not entertainable as only the financial institution can institute the suit in the Court of Artha Rin Adalat for recovery of loan. Uttara Bank Ltd. Vs. All and Co, and anothr (Civil). 55 DLR (2003)-156
Sections 2(Kha) & 5(1) Jurisdiction of Artha Rin Adalat was created with particular objective, mainly for recovery of bank dues. To achieve the purpose, Artha Rin Adalat was made deemed to be a civil court but not a full-fledged civil court with all powers and jurisdiction of a Civil Court. It is a civil Court of defined and limited jurisdiction. Al Baraka Bank Bangladesh Ltd. Vs. Rina AlAin and another 56 DLR (2004) Page 588
Section 2(kha)-Definition of loan-In a suit instituted in Artha Rin Adalat for recovery of foun money the loanee and the guarantor are the necessary parties. The parties which are not necessary can be struck off under Order 1. rule 10(2 of the Code of Civil Procedure. 1908. Sonali Bank Vs. D. Serajul Hoque Chowdhury and others. 9 MLR (2004) (AD) Page 270-275.
Section 2 The obligation of repayment of as defined in Section 2(kha) of the Ain is of the one who has availed the same from financial institution as well as of the one who either facilitated the one to avail or secured repayment of the and only these categories are to be held responsible in case of default in the repayment of the amount became due as against the ঋণ availed from financial institution... (11). Sonali Bank Vs. Md. Sirajul Hoque Chowdhury (Md. Ruhul Amin, J) (Civil). I ADC (2004) 394.
Section 3-Artha Rin Adalat Ain being a special law is directed towards special objects, special measure i.e. speedy realization of the loan money from the borrower and gives rise to special cause of action and self provides for the method of enforcement of rights conferred by that Act. Rex Apparels (Private) Limited vs Bangladesh, 21 BLC 395.
Artha Rin Adalat Ain (VIII of 2003).
Section 3-Artha Rin Adalat Ain being a special law is directed towards special objects, special mensure Le speedy realization of the loan money from the borrower and gives rise to special cause of action and self provides for the method of enforcement of rights conferred by that Act. Rex Apparels (Private) Limited vs Government of the People's Republic of Bangladesh (Spl Original) 21 BLC (2016)-HCD-395.
(la) Ss. 3 and 66-The trial Court is the competent Court to determine its jurisdiction to try a particular case. Saiful Islam Jitu (Md) Vs. State (Criminal), 65 DLR (2013)-HCD-234
Sections 3 and 5(1)-A financial institution may institute a suit in connection with realization of loun in the Artha Rin Adalat under the Act and by reason of the proviso to section 5(1) the special provision or procedure for realisation of loan provided in the law by which the financial institution is established will not be affected. The option is with the financial institution either to bring a suit under section 5(1) of the Ain or take recourse to the special procedure provided in the relevant law. Dr. Md. Asadullah Vs. Sonali Bank Ltd. (Civil), 60 DLR (2010) 474.
Sections 3, 26, 30 & 34- It cannot be said that Order XXI, rule 37 of the Code is identical with the provision laid down in section 34 of the Ain of 2003. Moreover, the notice as required under Order XXI. rule 37 of the Code is also not indispensable, rather it was followed by a proviso where the Court preserved the power not to issue such notice if it comes within the knowledge that in order to cause delay the judgment-debtor has been adopting dilatory tactics. Moreso, the said provisions stands for money decree passed in a Money Suit but not in a suit for recovery of bank loan which may also be called a money decree for which special law exists for the said purpose e.g. Act VIII of 2003. Accordingly, the said provision of the Code as to issuance of show cause notice cannot be allowed to be implemented alone leaving the provision laid down therein in order to issue a warrant of arrest against the judgment-debtor under section 34(1) of the Artha Rin Adalat Ain, 2003. ABM Shirajum Monir Vs. Subordinate Judge (Spl. Original), 14 BLC (2009) HCD 716
Artha Rin Adalat Ain (VIII of 2003)
Sections 3, 5, 20 and 26
Sections 3 and 26 of the Ain have given overriding effect of the provisions of the Ain in case of inconsistency with any other law or provisions of the Code. Section 20 of the Ain has made any claims unentertainable by any court, which has been lodged ignoring provisions of the Ain which, under section 5, has given exclusive jurisdiction to the Adalat to entertain all suits regarding realisation of loans.....(4.47). [73 DLR 554]
Section 3-The "deeming clause"-Special forum-In enacting special statutes legislature employs deeming clause as a legal fiction. The function of the court is to find out the limitation of this legal fiction-Artha Rin Adalat-Special Forum The nature and function of Artha Rin Adalat coupled with power and authority clearly indicate that it is a special forum of limited jurisdiction and not an ordinary civil court. Sultan Alam @SA Bada Vs. Rupali Bank, 1994 BLD 295: 46 DLR 292.
Sections 3 and 5(1)-A financial institution may institute a suit in connection with realization of loan in the Artha Rin Adalat under the Act and by reason of the proviso to section 5(1) the special provision or procedure for realization of loan provided in the law by which the financial institution is established will not be affected. The option is with the financial institution either to bring a suit under section 5(1) of the Ain or take recourse to the special procedure provided in the relevant law. Dr Md Asadullah vs Sonali Bank Ltd, 62 DLR 474.
Sections 3, 26 and 34 The provision of warrant of arrest has been specifically incorporated by the legislature in order to ensure speedy recovery of long standing dues which remained unadjusted by the loan defaulters using the language "ডিক্রির টাকা পরিশোধে বাধ্য করার প্রয়াস হিসেবে With the object to circumscribe said defaulted culture of the borrowers some deterrent provisions like sections 19, 41, 42, 44, including 34, have been incorporated in the Act VIII of 2003 which is absolutely within the wisdom and domain of the legislature. ABM Shirajum Monir vs Subordinate Judge, 14 BLC 716.
Sections 3, 26, 30 and 34-Since the word "fa" (directly) has been used in section 34(10) of the Ain, it cannot be interpreted that prior show cause notice is necessary as the meaning of section 34(10) would be nugatory is such a case. Thus, the provisions of section 51 and Order XXI, rule 37 of the Code are in conflict with the provisions of section 34(1)(9)(10) of the Ain. Under section 26 of the Ain the provision of the Code is applicable so far as it is not inconsistent with the provisions of the Ain which includes the provisions of section 34 of the Ain. Moreover, under section 30 of the Ain special provision has been made for publishing notice after filing of the execution case under certain circumstances. From the sub-sections (9) and (10) of section 34 of the Ain, there is nothing to show that there is any scope of issuing any show cause notice before issuing warrant of arrest rather it appears that warrant of arrest may be issued directly. What is not in the law itself, cannot be imported in the law by way of interpretation. Manik K Bhattacherjee vs Artha Rin Adalat, 16 BLC 195.
Sections 3, 26, 30 and 34-It cannot be said that Order XXI, rule 37 of the Code is identical with the provision laid down in section 34 of the Ain of 2003. Moreover, the notice as required under Order XXI, rule 37 of the Code is also not indispensable, rather it was followed by a proviso where the Court preserved the power not to issue such notice if it comes within the knowledge that in order to cause delay the judgment-debtor has been adopting dilatory tactics. Moreso, the said provision stands for money decree passed in a Money Suit but not in a suit for recovery of bank loan which may also be called a money decree for which special law exists for the said purpose e.g. Act VIII of 2003. Accordingly, the said provision of the Code as to issuance of show cause notice cannot be allowed to be implemented alone leaving the proviso laid down therein in order to issue a warrant of arrest against the judgment-debtor under section 34(1) of the Artha Rin Adalat Ain, 2003. ABM Shirajum Monir vs Subordinate Judge, 14 BLC 716.
Section 4(4), 4(7) 5(1), 5(5), 5(6):Code of Civil Procedure, 1908
Order-1. Rule-10
As per provisions of Section 5 of the Artha Rin Adalat Ain, 2003 any suit for recovery loan of any financial institution shall be filed and tried by Artha Rin Adalat. Section 5t1) of the Artha Rin Adalat Ain provides that notwithstandine anything contained in any other provisions of law and subject to the provisions of Sub-Sections (5) and (6), any suit for realization of any loan shall be filed in the Artha Rin Adalat established, created or feemed to have been created and that the suit shall be disposed of in the aforesaid Adalat. The learned Additional District Judge cannot be a Judge of Artha Rin Adalat as per provisions of Sub Sections (4) and (7) of Section 4 of the aforesaid Ain, 2003. One Bank Ltd. & Ors. v. Chava Developer (PVT) Ltd. & Ors. 36 BLD (2016)-AD-101
(1) Sections 4(4)(7) and 5(1)(5)(6) The order of attachment before judgment passed by the learned Additional District Judge acting as a Judge of Artha Rin Adalat without having any power and jurisdiction being coram non judice has been passed without lawful authority and jurisdiction. One Bank vs Chaya Developer (Civil) 21 BLC (2016)-AD-203
(la) Section 4, 6(5)-Under the Artha Rin Adalat Ain, 2003 the District Judge has neither any authority to appoint the Judge for Artha Rin Adalat nor any Judge either below or above the rank of Joint District Judge can ever be entitled to be appointed as a Judge of the said Court and that it is only the Government in consultation with the Supreme Court can appoin the Judge for the said Court from those Judge belonging to the rank of Joint District Judge.....(8) 12 ADC (2015)-Page 60.
(2) Section 4, Sub-Section 2 & 3 The actions of the Government are made in the name of the President and notwithstanding the provision authorising the Government to make appointment of the learned Judges of the Adalat and constitute the said Court, the Government have taken the decision under order of the President and there is nothing wrong in the impugned legislation and that the Artha Rin Adalat hus been legally constituted and the suit has been legally proceeded with. A.R.A. Jute Mills Limited Vs. Janata Bank and others (Md. Ruhul Amin, J) (Civil) 3 ADC 2006 Page 684.
(3) S. 4 and 5(3) Decree having been passed under the Ain and the Ain being a special law, the provisions of the Ain shall be applicable in this case....(16) Filing of the execution case after the preliminary decree was in accordance with law....(19)
The provisions of the Code is not applicable since there are specific provisions on execution of a decree in the Ain as discussed in the forging paragraphs. Therefore, we are of the view that the principle of those referred decisions are not applicable here...(20).
In absence of any other property mortgaged by the principle debtor in favour of the Bank. the mortgaged property of the petitioner judgment debtor is to be sold to realize the decretal amount...(27). Mohammad Mukshed All Vs. Artha Rin Adalat, 3 TLR (2013)-Page-75.
Artha Rin Adalat Ain (VIII of 2003)
Sections 4(7) and 41-For the purpose of functioning of Adalat to be more particular to hold the trial jurisdiction lies with the Joint District Judge. Section 41 of Ain clearly says that the District Judge and the Additional District Judge are the appellate authority to dispose of the appeal against the judgment and order passed by the Joint District, Judge in the capacity of Artha Rin Adalat. Sheikh Md. Rafiqul Islam Vs. Manager, Uttara Bank Limited (Spl. Original) 66 DLR (2014)-HCD-131.
Sections 4(2), 4(3)-The Judge of the Artha Rin Adalat originally was subordinate Judge, later redesignated as Joint District Judge and that the aforesaid Judge was appointed by the President and the control and discipline of the Subordinate Court as envisaged in Article 116 of the Constitution very much vest in the President and in case of posting, as ir. the present case, the Supreme Court has been consulted und the action in question has been taken with the approval of the President as evident from the gazette notification. A.R.A. Jute Mills Limited Vs. Janata Bank and others, 9 BSCD-1992-2006-Page-31. Civil Petition for Leave to Appeal No. 993 of 2004. Same 26 BLD (2006) AD-97.
Section 4(2)(3)--The actions of the Government are made in the name of the President and notwithstanding the provision authorising the Government to make appointment of the learned Judges of the Adalat and constitute the said Court, the Government have taken the decision under order of the President and there is nothing wrong in the impugned legislation and that the Artha Rin Adalat has been legally constituted and the suit has been legally proceeded with. ARA Jute Mills Limited vs. Janata Bank, 3 ADC (2006) 684 58 DLR (AD) 126.
Sections 4(2), 4(3) The Judge of the Artha Rin Adalat originally was subordinate Judge, later redesignated as Joint District Judge and that the aforesaid Judge was appointed by the President and the control and discipline of the subordinate Court as envisaged in Article 116 of the Constitution very much vest in the President and in case of posting, as in the present case, the Supreme Court has been consulted and the action in question has been taken with the approval of the President as evident from the gazetted notification. 4.R.A Jute Mills Limited vs Janata Bank, 26 BLD (AD) 9758 DLR (AD) 126.
Section 4(3)(5)-About the mode of consultation with the Supreme Court, there is nothing clearly mentioned in sub-section (5) of section 4 of the Artha Rin Adalat Ain, 2003. Since in the Notification dated 1-1-2004, there is clear indication that consultation has taken place with the Supreme Court prior to the transfer and appointment of the named presiding Judges to the Artha Rin Adalats, the Jurisdiction of the Adalats cannot be questioned, as the suits were filed in the respective Adalats after the said notification was issued the proceeding are valid in law. Therefore, there is no legal flaw or defect in the appointment of the Judges of the Artha Rin Adalat and the proceedings of the suit are competent under the law. Idris Miah (Md) vs Bangladesh, 10 BLC 728.
Sections 4(4)(7) and 5(1)(5)(6)-The order of attachment before judgment passed by the learned Additional District Judge acting as a Judge of Artha Rin Adalat without having any power and jurisdiction being coram non judice has been passed without lawful authority and jurisdiction. One Bank Ltd vs Chaya Developer (Pvt) Ltd, 21 BLC (AD) 203.
Section 4(5) read with Order VII, Rule 11, CPC-It appears that the Judge of the Artha Rin Adalat in question is Joint District Judge appointed in the post by transferring him by notification under the Order of the President and in consultation with the Supreme Court and the notification being published in the Gazette. There is thus no substance in the submission of the petitioner as to absence of jurisdiction of the Judge to hold the post. ARA Jute Mills Ltd Vs. Janata Bank, 58 DLR (AD) 126.
Section-4(4), 4(7), 5(1), 5(5), 5(6):Code of Civil Procedure, 1908
Order-1, Rule-10.
As per provisions of Section 5 of the Artha Rin Adalat Ain. 2003 any suit for recovery loan of any financial institution shall be filed and tried by Artha Rin Adalat. Section 5(1) of the Artha Rin Adalat Ain provides that notwithstanding anything contained in any other provisions of law and subject to the provisions of Sub-Sections (5) and (6), any suit for realization of any loan shall be filed in the Artha Rin Adulat established, created or deemed to have been created and that the suit shall be disposed of in the aforesaid Adalat. The learned Additional District Judge cannot be a Judge of Artha Rin Adalat as per provisions of Sub Sections (4) and (7) of Section 4 of the aforesaid Ain, 2003. One Bank Ltd. & Ors. v. Chaya Developer (PVT) Ltd. & Ors. 36 BLD (2016)-AD-101
Sections 4(6) and 19(6)-The expression "s wife were incorporated in section 6(4) of the Ain, 2003 has been used in the context of " কোন মামলা একতরফাসূত্রে বা তাৎক্ষণিক নিষ্পত্তির ক্ষেত্রে" when the word "" (or) would be read as the disjunctive one, an unworkable situation would arise for the Adalat. Because, in that event the Adalat shall have to consider either the plaint only or the written statement only in the backdrop of impossibility of disposal of a suit solely on the basis of written statement. Disposal of a suit solely based on the written statement will render the provisions of section 19(6) of the Ain, 2003 nugatory. If the word "" (or) employed in section 6(4) of the Ain, 2003 is read as a conjunctive word in an exparte disposal situation, it will mean that even if the defendant is absent, the Adalat must consider both the plaint and written statement making the provisions of section 19(1) of the Ain 2003 redundant, for, this section requires exparte disposal (a) in the absence of defendant. Osman Gazi Chowdhury vs Artha Rin Adalat,21 BLC 322.
Sections 4(7) and 41-Artha Rin Adalat can only be constituted by Joint District Judge alone. If due to illness or for any other reason or the court is in vacation the Adalat cannot function with its regular work the District Judge will appoint temporarily a Joint District Judge to continue function of Artha Rin Adalat. For the purpose of functioning of Adalat to be more particular to hold the trial jurisdiction lies with the Joint District Judge. Section 41 of Ain clearly says that the District Judge and the Additional District Judge are the appellate authority to dispose of the appeal the judgment and order passed by the Joint District Judge in the capacity of Artha Rin Adalat Judge. Sheikh Md Rafiqul Islam (Babul) vs Manager, Uttara Bank Limited, 66 DLR 131. Section 5-Adalat cannot entertain any execution case to execute the decree in the preliminary form requiring final decree and, as such, continuation of the execution case is unlawful apparent on the face of record without having any legal sanction. International Tannery vs Judge, Artha Rin Adalat, 17 BLC 380.
Section 4, Sub-Section 2 & 3
The actions of the Government are made in the name of the President and notwithstanding the provision authorising the Government to make appointment of the learned Judges of the Adalat and con- stitute the said Court, the Government have taken the decision under order of the President and there is nothing wrong in the impugned legislation and that the Artha Rin Adalat has been legally consti- tuted and the suit has been legally proceeded with. A.R.A. Jute mills Limited - vs- Janata Bank and others (Md. Ruhul Amin J)(Civil) 3 ADC 684
Sections 4(2) and 4(3) It appears that the Judge of the Artha Rin Adalat in Question is Joint District Judge appointed in the post by transferring him by notification under the Order of the President and in consultation with the Supreme Court and the notification being published in the Gazette. There is thus no substance in the submission of the petitioner as to absence of jurisdiction of the Judge to hold the post. ARA Jute Mills Ltd Vs. Janata Bank and others (Civil), 58 DLR (2006)-AD-126
Artha Rin Adalat Ain, 2003
Section 5 read with
Negotiable Instruments Act, 1881
Section 138
The ensure payment against the loan, the accused petitioner issued 60 post dated cheques in favour of complainant financial institution. The complainant filed the cases under Section 138 of the Negotiable Instruments: Act. Meanwhile, the complainant financial institution instituted Artha Rin Suit for realization of defaulted loans-whether the instant petition of complaint are maintainable.
The High Court Division held that since there is no bar to get the loan amount realized by producing issued cheques for encashment, the instant proceeding were not liable to be quashed.-held: We do not find any illegality in the judgment and order of the High Court Division which calls any interference by this Division. Ehetasamul Haque Vs. The State & Anr, 25 BLT (2017) - AD-247.
Artha Rin Adalat Ain, 2003 (as amended);
Section 5(1) with section 6(5) read with Code of Civil Procedure, 1908
Order XXI rule 54
The provision of order XXI rule 54 are mandatory an attachment order must be strictly proved, mere production of order is not sufficient Industrial Promotion and Development Company of Bangladesh (IPDC) is a financial Institution who instituted Artha Rin Suit and the appellant-Bank Asia Lid, impleaded as defendant No.5, who is the separate banking institution and not a borrower, nor a mortgagor nor a guarantor against the loan availed by the plaintin IPDC, the suit was decreed in favour of IPDC in which the schedule property has been considered us equitable mortgage-IPDC filed execution case wherein filed an application for attachment and obtained attachment order in execution case -IPDC admitted that the attached property prior mortgage in favour of appellant-Bank Asia Ltd. and Bank Asia Ltd. has not been made a party in the application for attachment filed under Order XXI rule 54 and record shows that IPDC without disclosing the fact of filing Transfer Miscellaneous Case obtained an order of attachment-held IPDC failed to show any registered or equitable mortgage in its favour, morcover, the documents of title was not in their custody. In para-30 of their plaint they have admitted that there is no equitable mortgage and they do not have the title documents. Even in its application for attachment. IPDC gave wrong description of the title deed of the property to be attached. Non fulfillment of the mandatory provision of law, the order of attachment is illegal. Bank Asia Limited Vs IPDC of Bangladesh 25 BLT (2017)-HCD-222
Section 5(4) read with Limitation Act, 1908; Article 182(2)
Whether in view of the pending miscellaneous case under order IX Rule 13 of the code of civil procedure for setting aside the ex-parte decree limitation would be saved within the meaning of Article 182 of the Limitation Act, which determines the starting point of limitation.
It appears that an ex-pane final decree was passed on 04.02.1992 against the petitioners. Thereafter. they filed a miscellaneous case under Order IX Rule 13 of the Code of Civil Procedure for setting aside said! ex-parte decree which was ultimately dismissed for default by order dated 26.09.1992. Respondent bank then filed Execution Case No.04 of 1995 on 31.08.1995 Le. after 3(three) years 6(six) months and 26 twenty six) days from the date of final decree. -held: Admittedly, there was no order in the miscellaneous case staying operation of the final decree. The execution case was filed on 31.08.1995 which was beyond the period of 3(three) years from 04.02.1992, the date of final decree. Accordingly, we are of the view that the execution case was burred by limitation. Md. Mohitur Rahman Choudhury Vs. Md. Abdul Kuddus Miah & Ors 25 BLT (2017)-HCD-399.
Section 5(1) (4), 2(kha) (ka) and (5), 6, 7
That the defendant has a right to file a written statement under Order VIII Rule 1. C. P. C as this procedural right is not inconsistent with the Adalat Act, but the defendant has no procedural right to claim a set off or counterclaim under Rule 6 in a suit under the Adalat Act in whatever form, as Rule 6 is inconsistent with the jurisdictional provisions of the Adalat Act. The High Court Division was right in its reasoning that what can- not be done directly cannot be done indirectly. Sultana Jute Mills Ltd. vs Agrani Bank (Mustafa Kamal J)(Civil) 2 ADC 149
Sections 5(2) and 47-A the Court is to act in accordance with the law and a party who goes to Court must also seek justice according to the law in a fair way, but in the instant case, the plaintiff-bank in order to avoid the mandate of the law presented the plaint without complying with the mandatory requirements of the law, such as, without paying the advalorem court fee as provided in section 6(2) of the Ain, and the Adalat illegally entertained the plaint and allowed time to the plaintiff-Bank to pay the deficit court fee after section 47 of the Ain. came into effect. Rupall Bank Ltd. vs Mil Shamser All (Civil): 22 BLC (2017)-AD-424
Constitution of Bangladesh, 1972
Article 102 read with Artha Rin Adalat Ain, 1990
Section 5(1) read with Bangladesh House Building Finance Corporation Order, 1973
Article 27
Jurisdiction-The writ petitioners filed the writ petition after long period of 20 years 1 from the date of judgment and decree- a Division Bench of the High Court Division vide judgment and order made the rule absolute with direction
Held; it is the settled principle of law laid down by the Apex Court of Various Jurisdictions including this Division by a long line of decisions that the question of jurisdiction cannot be conferred to a court if it is found that the court has no jurisdiction to try the suit/case as the case may be. - we are of the view that the High Court Division did not commit any illegality in declaring the judgment and decree dated 08.11.1994 in Miscellaneous Case No.27 of 1994, auction sale dated 11.09.2002 and subsequent auction sale dated 07.07.2010 and sale certificate dated 06.06.2011 in respect of the case property to have been passed and issued without any lawful authority and are of no legal effect. [Para-21 & 22] [31 BLT (AD) (2023) 8]
S. 5(4)-Though the respondent No. 3 was considered highest bidder on 20.10.2011 but there being no formal order accepting the bid. the property was not sold in auction. Therefore, the submission of the learned Advocate for the respondent No.5 that the petitioner has lost his right to redeem the property under -section 5(4) of the Ain, 2003, has no legs to stand...(20) Md. Ezaduzzaman Vs. Judge, Artha Rin Adalat, Faridpur, 3 TLR (2013)-Page 514.
S. 5(4)-Though the respondent No. 3 was considered highest bidder on 20.10.2011 but there being no formal order accepting the bid, the property was not sold in auction. Therefore, the submission of the earned Advocate for the respondent No. 3 that the petitioner has lost his right to redeem the property under section 5(4) of the Ain, 2003, has no legs to stand....(20) Md. Ezaduzzaman Vs. Judge, Artha Rin Adalat, 3 TLR (2013)-Page 405.
S. 5(10) Transfer of the Case.
Mere rejection of the application for adjournment is no ground for transfer of case. Defendant petitioner filed Transfer Miscellaneous Case No. 165 of 2010 before the District Judge. Dhaka contending that he will not get justice in the case pending before the Artha Rin Adalat, as one officer of the plaintiff Bank was found in the chamber of the learned Judge. The learned District Judge refused to accept the uncorroborated apprehension of the petitioner and rejected the petitioners application for transfer of the Artha Rin Adalat suit to another Court. Mere rejection of the application for additional evidence cannot he ground for transfer of a case u/s 5(10) of the Artha Rin Adalat Ain, 2003. The uncorroborated assertion of the petitioner that he will not get justice before the learned Artha Rin Adalt as an officer of the Bunk was found in the chamber of the learned Judge is not enough for transfer of a case. A.M.Zahidul Alam Vs. Janata Bank, 2 ALR (2013)-HCD-25
Artha Rin Adalat Ain [VIII of 2003]
Sections 5(2) & (3) and 34(1)-Before issuing warrant of arrest there should be at least a single attempt for auction of the mortgage property.
The law enjoins when a decree should be passed in preliminary form before passing of the final decree. The decree in question is a money decree which has been drawn up very much in keeping with the said provision of Ain.
The High Court Division observed that admittedly, as it appears from the order dated 07.02.2007 of respondent No. I the Adalat that the Court below in total disregard of section 34(9) of Ain without attempting for any auction sale of the mortgaged property issued the Order of warrant of arrest. The provision is clear that the before issuing warrant of arrest there should be at least a single attempt for auction of the mortgage property. The law is very much settled to that effect. Abdur Razzak -vs- Artha Rin Adalat 65 DLR (AD) 111, Jahangir Chowdhury (MD) -- Judge, Artha Rin Adalat No. 1, Chittagong & others 14 MLR (2009) 293 and Arun Kumar Sutradhar & another -v- The Joint District Judge & Another 31 BLD (2011) 81 are the authorities on the point. Secondly, it has been stated in the petition that in violation of Rule 4(1) of Order XXXIV of the Code of Civil Procedure, the decree was drawn up i.e. to say that there should have been a preliminary decree before final decree. But the argument falls apart as the Ain has specifically made provision in this regard under section 5(2) & (3) of the Ain, 2003. On a plain reading of the said provisions of Ain it is clear that the law enjoins when a decree should be passed in preliminary form before passing of the final decree. The decree in question is a money decree which has been drawn up very much in keeping with the said provision of Ain. Md. Monirul Islam - Vs. Joint District Judge, 1 Court and Artha Rin Adalat, Bhola and others (Spl. Original) 16 ALR (HCD) 69-70
Artha Rin Adalat Ain, 2003 (VIII of 2003)
Section 5 is no bur against a criminal proceeding under the provisions of the Negotiable Instruments Act. 1881. Ehetusamal Haque Vs. The State (Criminal) 3 ALR (2014)-HCD-243
Sections 5(4) and 33(7)
It is clear from the law that until auction sale and final decree, the right to redeem remains intact However, that deeming provision of Section 5(4) may very well be argued to meet its limitation in the circumstances envisaged in Section 33(7) given that the fact or concept of on auction sale does not arise in a Section 33(7) scenario. In that scenario, the very issuance of a Section 33(7) Certificate of Title und its registration thereof may be. construed as in itself tantamounting to a finality, thereby, extinguishing a right of redemption at the point of such issuance. The right to redeem is in fact a substantive right to property which ought not to be extinguished by mere implication given that Section 33(7) remains silent on the extinguishment of the capacity to redeem inherent in any mortgagor. Messrs World Resources Limited Vs. Artha Rin Adalat No. 3 (Spl. Original) 3 ALR (2014)-HCD-446
Section 5(1)
Once a case has already brought under Article 27 of the PO No. 7 of 1973 there automatically arises a bar to transfer the proceedings to the Artha Rin Adalat under the garb of a suit. Proceedings initiated under PO 7 of 1973 at all times remain special in their nature and format and cannot midway, by the device of a transfer to an Artha Rin Adalat, automatically acquire the character and nature of a suit which the Artha Rin Adalat is uniquely equipped to proceed with under section 5(1) of the Act. Ayub Hossain (Md) Vs. Government of Bangladesh (Spl. Original), 66 DLR (2014)-HCD-597.
Section 5- Since the Adalat in question did not have jurisdiction to entertain or to proceed with the upplication the whole proceeding before the Adalat were entertained and continued before the Adalat without jurisdiction and, as such, the same are nullity in the eye of law. Abdul Mukid (Md) Vs. Artha Rin Adalat, Khulna (Spl. Original) 66 DLR (2014)-HCD-211.
Section 5(10)-There is a specific provision for transfer of the Artha Rin case and it has been specifically provides that the Artha Rin Adalat dealt with the matter in accordance with the law Ain, 2003 nor under the any other law. Although the District Judge has the jurisdiction to transfer the Artha Rin cases from one Court to another Court of competent jurisdiction not under the Code but under the provisions of Ain. 2003. SM Sirajul Islam Vs. Janata Bank, WAPDA Branch (Civil), 66 DLR (2014)-HCD-119.
The Artha Rihn Adalat Ain, 2003 (VIII of 2003)
(11) S. 5-Adalat cannot entertain any execution case to execute the decree in the preliminary form requiring final decree and, as such. continuation of the execution case is unlawful apparent on the face of record without having any legal sanction. International Tannery Vs. Judge, Artha Rin Adalat (Spl). 17 BLC (2012)-HCD-380.
Ss. 151/152 of Contract Act. Or. XXIV Rule-11 of CPC.
The plaintiff bank duly took reasonable and proper care for the protection and preservation pledged jute when the looting of the pledged jute took place beyond the control and comprehension of the plaintiff and as such the plaintiff cannot be held liable for the loss of the pledged jute. Reliable Jute Traders Vs. Sonali Bank; 7 BLC (2002)-HCD-16.
Section 5(4)(5)-According to sub-section (4) of section 5 of the Act the Artha Rin Adalat is a civil Court having all the powers and jurisdiction under the Civil Procedure Code, 1908, subject to the provisions of the Act. Sub-section (5) of section 5 thereof makes the provisions of the said provisions of the said Code applicable, notwithstanding anything to the contrary, to the conduct of proceedings in an Artha Rin Adalat, Order 9. Rule 9 is an integral part of the Code. There is no specific bar to an application under Order 9 Rule 9 in the cases under the Act. Islami Bank Bangladesh Limited Vs. Al-Haj Md. Shafiuddin Howlader & anr. 9 BSCD-1992-2006-Page-31. 20 BLD (AD) 162. Civil Appeal No. 10 of 1999
Section 5(4), 33(5) & 57-Held: It appears that the decree of foreclosure in favour of the plaintif attained its finality and the judgment-debtor shall have no right to redeem the said mortgage property. Moreover after issuance of the certificate under Section 33(5) of the Artha Rin Adalat Ain the Court of Arthu Rin Adalat Ain had no power to entertain the application of the appellant invoking Section of the Artha Rin Adalat Ain as such power under Section 57 is only available when the other provisions of the Ain are not exhaustive. In this case after the certificate issued under Section 33(5) of the Ain the decree holder has already sold the suit property in favour of the respondent No. 8, Md. Rafique by registered sale deed and therefore there is no scope interfere with the bonafide purchase for value. Mr. Justice Md. Abdut Matin, Sonali Bank Vs. Mrs. Hazera Islam and others, 12 BSCD-2009/6 ADC 975
Section 5-Held: Decree-holder Bank instituted Mortgage execution case and the Bank being tailed 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: executing court and the High Court Division came to the decision that the private negotiation claimed by the petitioner cannot be allowed in the mortgage execution case, we are of the view that the petitioners 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. Mr. Justice Amirul Kabir Chowdhury. Ms. Karnaphuli Traders Vs. Joint District Judge, First Artha Rin Adalat and others, 10 BSCD-2007-Page-7/15 BLT (AD) 75
Order VII Rule 11
Maintainability of a suit-Question of maintainability in the face of allegation of malafide is a question of fact and the Court ordinarily decides upon it after taking evidence. But where a suit is not initially maintainable, can it be held that the bar becomes inoperative on the allegation of malafide in the plaint-If the answer is in the affirmative, provisions relating to the bar would he rendered nugatory-In view of the express legislative intention a Judge must follow the "hands off doctrine", otherwise choos and anarchy would prevail. Whatever the legislature says, unless it is contrary to the Constitution, its mandate, either express or implied has to be obeyed by the Court-Code of Civil Procedure, 1908 (V of 1908), S. 9. Nur Mohammad and others Vs. Moulw Maimuddin Ahmed and Orr. 6 BLD (1986)-AD-342 17 DLR (SC) 391 Cited
Transfer of Appeal by the District Judges-Whether a District Judge can transfer an appeal preferred to him from a decision of the Election Tribunal. The cumulative effect of the relevant provisions in the Code of Civil Procedure and the Civil Courts Act is that the District Judge as referred to in the Local Government Ordinance has ample authority to transfer such an appeal to any Court subordinate to him. The expression "any" before the expression "appeal in section 24(1) of the Code gives the District Judge an unlettered power of transfer of such appeal to any Court subordinate to him except the Court of the Assistant Judge. Local Government (Union Parishads Ordinance, 1983 (LI of 1983), S. 29(4) Civil Courts Act. 1887 (XII of 1887) S. 22(1). Muhammad Zulfikar Vs. Abul Kalam Chowdhury and others, 10 BLD (1990)-HCD-94 38 DLR (AD) 172, 1956 (SC) 391. Cited
Order VII, Rule 11-It appears that the Judge of the Artha Rin Adalat in question is Joint District Judge appointed in the post by transferring him by notification under the Order of the President and in consultation with the Supreme Court and the notification being published in the Gazette. There is thus no substance in the submission of the petitioner as to absence of Jurisdiction of the Judge to hold the post. ARA Jute Mills Ltd Vs. Janata Bank and others (Civil), 58 DLR (2006)-AD-126.
5(4) of Artha Rin Adalat and S. 24 of CPC-General law cannot be tagged and heard with special law.
The Court below has correctly rejected the application under S. 24 CPC, since the case pending in the Artha Rin Adalat can be heard analogously with any other case filed on any other normal court created by the Civil Courts Act. Ripan Packaging and Accessories Ltd. Vs. Eastern Bank Ltd., 54 DLR (2002)-HCD-31/22 BLD (2002) HCD-127.
To attract the jurisdiction of the Artha Rin Adalat the plaintiff must be a financial institution as contemplated under section-2 of the Artha Rin Adalat Ain because it is only such a financial institutio which is entitled to a suit before the adalat for realisation of any advance made to any party as a loan. The Artha Rin Adalat is a Civil Court of defined nature and limited jurisdiction and it does not enjoy all the powers of the Code of Civil Procedure.
Section 151-Artha Rin has wrongly assumed jurisdiction and is illegally proceeded with a suit-the High Court Division may act u/s. 151 CPC. Kazi Jawaherul Islam Vs. Standard Co-operative Creedit Society Limited 18 BLD (1998)-HCD-310
Section 5(A)-Under section 5(4) of the Ain, Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under the Civil Procedure Code subject to the provision of the Ain. Antibiotic Stores and others Vs. Subordinate Judge and Artha Rin Adalat and another (Civil). 55 DLR (2003)-AD-13
Sections 5(1) (4), 2(kha) (ka) and (5), 6, 7-That the defendant has a right to file a written statement under Order VIII Rule 1, C. P. C as this procedural right is not inconsistent with the Adalat Act, but the defendant has no procedural right to claim as set off or counterclaim under Rul 6 in a suit under the Adalat Act in whatever form, as P e 6 is inconsistent with the jurisdictional provisions of the Adalat Act. The High Court Division was right in its reasoning that what cannot be done directly cannot be done indirectly. Sultana Jute Mills Ltd. Vs. Agrani Bank (Mustafa Kamal, J) (Civil). 2 ADC (2005) 149.
Section 5(3): Decree passed by the Artha Rin Adalat under section 5(3) is final decree and the same is competent to be put in execution: From a plain reading of the above quoted Section 5(3) of the Ain, we find that, in the event of filing of a mortgage suit by a financial institution for foreclosure, only in that case the decree passed by the Court shall be a preliminary decree and in all other cases any suit filed before the Artha Rin Adalat by the bank or financial institutions praying for a decree for recovery of loan, the decree passed by the court in such a suit shall be a final decree. In the present law there is no provision for passing preliminary decree in a suit instituted by the bank for recovery of loan under Section 5(3) of the Ain and as such the decree passed by the court in an Artha Rin Suit is a final decree and the same is legally competent to be put in execution. (Para-16). Ashrafuddin Ahmed Vs. Bangladesh, 2 CLR (2014)-HCD-28
Sections 5(3) and 28(1)-Against the order of injunction dated 13-3-2007 restraining the defendants from holding AGM and from transferring executive power till disposal of the suit, defendant No. 7 filed Miscellaneous Appeal No. 84 of 2007 which was allowed. Against the judgment passed in the Appeal, the plaintiff filed a revisional application before this Court, which issued Rule and stayed the operation of the order passed by the appellate Court in Civil Revision No. 2981 of 2007. The Arbitration Tribunal found that the current Executive Committee of BGMEA had been formed without lawful authority and that since the BGMEA Election and taken place in violation of a Courts order and was illegal, the Executive Committee formed by the Board of Directors pursuant to the BGMEA Election was illegal. This finding is also totally misconceived, because whether the Election had taken place in violation of the Court's order and was illegal, the Executive Committee formed by the Board of Directors pursuant to the BGMEA Election had taken place in violation of the Court's order could not be decided by the Tribunal which even did not have the jurisdiction to say that the BGMEA Election had taken place in violation of the Court's order until the violation case is allowed and the suit is decreed. Had there been and order of injunction restraining execution of the nominations made by BGMEA from being voters of the FBCCI Election, the Tribunal in that event could exclude the voters of the BGMEA. It is contended that the holding of AGM and handing over executive power were not proper during continuance of the order of stay passed by the High Court Division. FR Garments (Pvt) Ltd. Vs. Artha Rin Adalat, Dhaka (Spl. Original). 61 DLR (2009) HCD 223.
Sections 5(4) and 33(7)
It is clear from the law that until auction sale and fimal decree, the right to redeem remains intact. However, that deeming provision of Section 5(4) may very well be argued to meet its limitation in the circumstances envisaged in Section 33(7) given that the fact or concept of on auction sale does not arise in a Section 33(7) scenario. In that scenario, the very issuance of a. Section 33(7) Certificate of Title and its registration thereof may be, construed as in itself tantamounting to a finality, thereby, extinguishing a right of redemption at the point of such issuance. The right to redeem is in fact a substantive right to property which ought not to be extinguished by mere implication given that Section 33(7) remains silent on the extinguishment of the capacity to redeem inherent in any mortgagor. Messrs World Resources Limited Vs Artha Rin Adalat No. 3 (Spl. Original) 3 ALR (2014)-HCD-446
Section 5 is no bar against a criminal proceeding under the provisions of the Negotiable Instruments Act, 1881. Ehetasamul Haque Vs. The State (Criminal) 3 ALR (2014)-HCD-243.
Sections 5(3) and 28(1) Limitation for filing appeal-From a reading of the relevant provisions it is manifest that if a suit is a mortgage suit and brought for foreclosure, in that case, the decree pronounced by the Adalat shall be a preliminary decree and the decrees of the Adalat for recovery of loans in other cases are to be treated final decrees. FR Garments (Pvt) Vs. Artha Rin Adalar, Dhaka (Spl.Original). 61 DLR (2009) HCD-296
Sections 5(GA GA) 27 (Ka Ka)-The Company being a dada efem of the petitioner and Company admittedly being a "rare", the name of the petitioner as director of the company was included in the CIB report in accordance with law. So far the liability of the petitioner as a guarantor for loan is concerned. Mr Hossain admits the liability of the petitioner as a guarantor for the loan. However, his argument is that the petitioner's name as a guarantor cannot be included in CIB report as a "ce w strat". It has already been decided that the name of the petitioner is legally published in the CIB report as a director of the Company. AKM Mayeedul Islam Vs. Bangladesh Bank (Spl. Original). 14 BLC (2009) HCD-636
Sections 5(4), 33(5), 57- Artha Rin Case Petitioners under section 57 of the Artha Rin Adalat Ain, 2003 read with section 151 of the Code of Civil Procedure (2). Sonali Bank, Sadarghat Corporate Branch Vs. Mrs. Hazera Islam (Md. Abdul Matin, J) (Civil). 6 ADC (2009) 975. See BSCD Vol 12 Page-15.
Section 5 Since the Adalat in question did not have jurisdiction to entertain or to proceed with the application the whole proceeding before the Adalat were entertained and continued before the Adalat without jurisdiction and, as such, the same are nullity in the eye of law. Abdul Mukid (Md) vs Artha Rin Adalat, Khulna,66 DLR 211.
Sections 5-Bank guarantee-Bank undertaking to pay on the failure of the contractor to perform his contract-The action against the guarantor not dependent on the action against the contractor. The bank guarantee is a contract distinct and separate from the contract for the performance of which the guarantee is given. Place of swing discussed. Janata Bank Vs. Shampur Sugar Mills Ltd, I BLD (1981) 248.
Sections 5 Only those suits which are concerned with the realisation of as 'Loan' defined in the Act and as disbursed by the financial institution can be filed in the Artha Rin Adalat, no other kind of suit. Sultana Jute Mills Ltd vs Agrani Bank, 46 DLR (AD) 174; 48 DLR 57; Harunar Rashid vs Subordinate Judge, Bogra, 50 DLR 170.
Sections 5-Artha Rin Adalat Ain is meant for realisation of any loan advanced to any party by the financial institution including the present plaintiff Bank. In the instant case the suit has been filed not for realisation of any loan money from the defendant who was admittedly not a loanee but he misappropriated the banks money. By no stretch of imagination the suit comes within the provision of Artha Rin Adalat Ain. Agrani Bank vs AFM Emamul Huq. 50 DLR 173.
Section 5-Artha Rin Adalat and general Law-revisional jurisdiction Section 5 of Artha Rin Adalat-Simultaneous trial-Jurisdiction of Artha Rin Adalat. Admittedly the opposite parties are not financial institution. Accordingly, the Artha Rin Adalat, under the provision of Artha Rin Adalat Act cannot legally pass any order as to how the suits filed under the general law would proceed or otherwise with suits filed in Artha Rin Adalat under the provision of Artha Rin Adalat, obviously if any such order is passed that can not be said to have been passed under the Artha Rin Adalat Act and that order can not get the benefit of S. 5 of the Artha Rin Adalat. United Commercial Bank Ltd. vs. Freshner Bucket and Redging Industries, 5 MLR (2000) 53 BLC 430.
Sections 5 Since it is found that, amount claimed by the plaintiff is not loan within the meaning of section 2(kha) of the Act inspite of the fact that the plaintiff is a financial institution within the meaning of section 2(Ka) of the said Act Artha Rin Adalat has no jurisdiction to entertain and dispose of such a suit. Eastern Bank Limited vs Subordinate Judge, 49 DLR 31.
Section 5(4), 33(5), 57
Artha Jari Case Petitioners under section 57 of the Artha Rin Adälat Ain, 2003 read with section 151 of the Code of Civil Procedure. Sonali Bank, Sadarghat Corporate Branch vs. Mrs. Hazera Islam (Md. Abdul Matin J) (Civil) 6 ADC 975
Sections 5-It is only the financial institutions as defined in section 2(ka) which are entitled to institute a case in the Artha Rin Adalat for recovery of loan as defined in section 2(kha) of the Act and no other person or institution is authorised to file a case before the Artha Rin Adalat. Sonali Bank vs Ali Tannery Lid, 48 DLR 57.
Sections 5-Artha Rin Adalat is not a full-fledged Civil Court with all the powers and jurisdiction of a Civil Court. It is a Civil Court of a defined and limited jurisdiction. Sultana Jute Mills Ltd vs Agrani Bank, 14 BLD (AD) 196 = 46 DLR (AD) 174.
Sections 5-The nature and function of Artha Rin Adalat coupled with power and authority clearly indicate that it is a special forum of limited jurisdiction and not an ordinary civil court. Sultan Alam @SA Badal vs Rupali Bank, 46 DLR 292.
Sections 5 and 2(Kha)-Artha Rin Adalat only deals with the realisation of loan money-Artha Rin Adalat has committed a serious illegality in coming to a conclusion that the petitioner has already obtained the amount by practising fraud, forgery and in a deceitful manner when a criminal case was in progress and the petitioner was in jail, hajat, the Artha Rin Adalat should not have entertained such suit without any clear materials that this money in question did constitute a loan money. Harunur Rashid vs Subordinate Judge, Bogra, 50 DLR 170.
Section 5(1)-Once a case has already been brought under Article 27 of the PO No. 7 of 1973 there automatically arises a bar to transfer the proceedings to the Artha Rin Adalat under the garb of a suit. Proceedings initiated under PO 7 of 1973 at all times remain special in their nature and format and cannot midway. by the device of a transfer to an Artha Rin Adalat, automatically acquire the character and nature of a suit which the Artha Rin Adalat is uniquely equipped to proceed with under section 5(1) of the Act. Ayub Hossain (Md) vs Government of the People's Republic of Bangladesh,66 DLR 597.
Sections 5(1) A financial institution may institute a suit in connection with realization of loan in the Artha Rin Adalat under the Act and by reason of the proviso to section 5(1) the special provision or procedure for realization of loan provided in law by which the financial institution is established will not be affected. The law is with the financial institution either to bring a suit under section 5(1) of the Act or take recourse to the special procedure provided in the relevant law." Dr Md Asadullah vs Sonali Bank Ltd, 62 DLR 474.
Sections 5(1) and 2(Kha)-This Court established under a special Law cannot travel beyond the parameter set by the Act itself to adjudicate the claim of any claimant who does not come within the definition of financial institution to realise any claim which is not a debt within the meaning of the Act. Pubali Bank Ltd. vs. Md Mamunur Rahman, 54 DLR 458.
Section 5(1)(4), 2(Kha)(ka) and 5, 6, 7-That the defendant has a right to file a written statement under Order VIII Rule 1.C.P.C as this procedural right is not inconsistent with the Adalat Act, but the defendant has no procedural right to claim as set off or counterclaim under Rule 6 in a suit under the Adalat Act in whatever form, as Rule 6 is inconsistent with the jurisdictional provisions of the Adalat Act. The High Court Division was right in its reasoning that what cannot be done directly cannot be done indirectly. Sultana Jute Mills Ltd vs Agrani Bank., 2 ADC (2005) 149 = 46 DLR (AD) 174.
Sections 5(2) Hypothecation is a variant of the system of pledge. Pledge is defined by section 172 of the Contract Act as bailment of goods as security for payment of a debt or performance of a promise. The civil law recognises two kinds of pledge, viz. the "pignus" (pawn) in which possession of goods in actually delivered to the creditor or pawnee and "hypotheca" (hypothecation) where possession of the goods pledged remain with the debtor with the obligation as per contract. Under hypothecation a creditor has a right over the goods belonging to the debtor and such right gives the creditor a power to cause the thing to be sold to recover his dues out of the proceeds. It is also an act of pledging goods as securing for a debt or demand without delivery of possession. Consequence is that although the property remains in possession of the debtor, it cannot be transferred without express consent or permission of the creditor. By hypothecation certain rights in movable property are transferred to the creditor. When the goods are handed over to the creditor by way of security, it becomes a pledge. Eastern Bank Ltd vs Sufia Re-Rolling Mills and Steel Ltd, 56 DLR 530.
Sections 5(3) The contention of the learned Advocate of the petitioner that having the first charge over the mortgaged property the petitioner is a necessary party in the subsequent suit filed by the respondent No. 2, is not tenable in the eye of law as in subsequent suit the only issue for adjudication is whether the respondent No. 4 owes any money to the respondent No. 2 and to adjudicate this issue the presence of the petitioner is not necessary at all and the petitioner can make prayer to the Artha Rin Adalat concerned at proper stage for satisfaction of its decreetal amount first from the proceeds of the sale of the mortgaged properties in question and the Artha Rin Adalat concerned may consider that prayer under section 57 of the Artha Rin Adalat Ain, 2003. The City Bank lid va Judge, Artha Rin Adalat, 6 ADC 563; 17 BLT (AD) 209.
Sections 5(3) and 28(1)-Limitation for filing appeal-From a reading of the relevant provisions it is manifested that if a suit is a mortgage suit and brought for foreclosure, in that case, the decree pronounced by the Adalat shall be a preliminary decree and the decrees of the Adalat for recovery of loans in other cases are to be treated as final decrees. FR Garments (Pvt) Ltd vs Artha Rin Adalat, Dhaka, 61 DLR 296.
Sections 5(3) and 28(1) Against the order of injunction dated 13-3-2007 restraining the defendants from holding AGM and from transferring executive power till disposal of the suit, defendant No. 7 filed Miscellaneous Appeal No. 84 of 2007 which was allowed. Against the judgment passed in the Appeal, the plaintiff filed a revisional application before this Court, which issued Rule and stayed the operation of the order passed by the appellate Court in Civil Revision No. 2981 of 2007. The Arbitration Tribunal found that the current Executive Committee of BGMEA had been formed without lawful authority and that since the BGMEA Election had taken place in violation of a Court's order and was illegal, the Executive Committee formed by the Board of Directors pursuant to the BGMEA Election was illegal. This finding is also totally misconceived, because whether the Election had taken place in violation of the Court's order could not be decided by the Tribunal which even did not have the jurisdiction to say that the BGMEA Election had taken place in violation of the Court's order until the violation case is allowed and the suit is decreed. Had there been an order of injunction restraining exclusion of the nominations made by BGMEA from being voters of the FBCCI Election, the Tribunal in that event could exclude the voters of the BGMEA. It is contended that the holding of AGM and handing over executive power were not proper during continuance of the order of stay passed by the High Court Division. FR Garments (Pvt) Ltd vs Artha Rin Adalat, Dhaka, 61 DLR 223.
Section 5(4) Section 5(4) Artha Rin Adalat and section 24 of CPC-General low cannot be tagged and heard with special law. The court below has correctly rejected the under S. 24 CPC since the case pending in the Artha Rin Adalat can be heard analogously with any other case filed on any other normal court created by the Civil Courts Act. Ripan Packaging and Accessories Ltd. vs. Eastern Bank Ltd, 54 DLR 31; 2002 BLD 127.
Section 5(4)(5)-An aggrieved party i.e. a judgment debtor has only the forum, of appeal when a decree is passed either on contest or ex parte. Provisions of the Code of Civil Procedure are applicable subject to the provisions of this special law. MAC, Proprietor Mahatabuddin Chowdhary vs Agrani Bank Thatari Branch, Dhaka,. 47 DLR 233.
Section 5(4)(5)-According to sub-section (4) of section 5 of the Act the Artha Rin Adalat is a civil Court having all the powers and jurisdiction under the Civil Procedure Code, 1908, subject to the provisions of the Act. Sub-section (5) of section 5 thereof makes the provisions of the said provisions of the said Code applicable, notwithstanding anything to the contrary, to the conduct of proceedings in an Artha Rin Adalat, Order 9, Rule 9 an integral part of the Code. There is no specific bar to an application under Order 9 Rule 9 in the cases under the Act. Islami Bank Bangladesh Limited vs Al-Haj Md Shafiuddin Howlader, 20 BLD (AD) 162-52 DLR (AD) 176.
Sections 5(4), 33(5) & 57-Held-It appears that the decree of Foreclosure in favour of the plaintiff attained its finality and the judgment debtor shall have no right to redeem the said mortgage property. Moreover after issuance of the certificate under section 33(5) of the Artha Rin Adalat Ain the court of Artha Rin Adalat Ain had no power to entertain the application of the appellant invoking section 57 of the Artha Rin Adalat Ain as such power under section 57 is only available when the other provisions of the Ain are not exhaustive. In this case after the certificate issued under section 33(5) of the Ain the decree-holder has already sold the suit property in favour of the respondent No. 8, Md. Rafique by registered sale deed and therefore there is no scope to interfere with the bonafide purchase for value. Sonali Bank vs Mrs. Hazera Islam, 6 ADC 975.
Sections 5(4) and 5(5)-The Artha Rin Adalat Ain is a special legislation providing for special measures to realize loans given by financial institutions." Sultana Jute Mills Ltd. vs. Agrani Bank, 14 BLD (AD) 196=46 DLR (AD) 174.
Sections 5(4) and 5(5) The law is now settled that since specific provision 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. Gazi M Towfic vs. Agrani Bank, 54 DLR (AD) 6.
Sections 5(4) and 5(5)-There being specific remedy in the statute for filing appeal against the judgment and decree of the Artha Rin Adalat in the present case the defendant not availing of the aforesaid remedy cannot maintain the writ petitions." Bangladesh Agricultural Development Corporation (BADC) vs Artha Rin Adalat, 59 DLR (AD) 6.
Sections 5(4) and 60(3)-The decree for realisation of money was passed on 10-3-2003 as per provision of the Artha Rin Adalat Ain, 1990. The Execution Case No. 30 of 2004 was filed when the Artha Rin Adalat Ain, 2003 came into effect. From saving clause of section 60(3) of the Artha Rin Adalat Ain, 2003 it appears that the proceeding which was filed under the Artha Rin Ain 1990 but proceeded when the Artha Rin Adalat Ain, 2003 came into force, shall proceed as per provision of the Artha Rin Adalat Ain, 2003 as far as it practical. So, from this provision it appears that the execution case has been proceeding in accordance with law. Shahjahan Mia (Md) vs Government of Bangladesh, 17 BLC 742.
Sections 5 and 7-House Building Finance Corporation-Art. 27 of P.O No. 7/1973 self-contained legislation-No obligation to seek redress under Artha Rin Adalat. One special law cannot over-ride the provision of another special law. Bangladesh House Building Finance Corporation vs Shahid Sarwar Abul Hossain, 9 BLT (2001) 289-6 BLC 751.
Sections 5(6)-In view of the said provisions, the position is that a financial institution may institute a suit in connection with realisation of loan in the Artha Rin Adalat under the Act and by reason of the proviso to section 5(1) the special provision or procedure for realisation of loan provided in law by which the financial institution is established will not be affected. The option is with the financial institution either-to bring a suit under section 5(1) of the Act or take recourse to the special procedure provided in the relevant law. BHBFC vs Jahanara Akhtar, 49 DLR (AD) 80.
Sections 5(6) As far as the present case is concerned the appellant already brought the proceedings under article 27 of President's Order No. 7 of 1973. these proceedings cannot be transferred to the Artha Rin Adalat which has jurisdiction to try a suit and not proceedings under article 27. Notwithstanding the promulgation of the Act, the proceedings under article 27 can continue. BHBFC vs. Jahanara Akhtar, 49 DLR (AD) 80.
Sections 5(10)- Transfer of execution case from one Artha Rin Adalat to another Artha Rin Adalat in the same district has not been interfered with both by the High Court division and the Appellate Division. Uttara Steel Corporation Ltd vs Artha Rin Adalat, 13 MLR (AD) 266.
Section 5(10) read with Section 24, CPC-There is a specific provision for transfer of the Artha Rin case and it has been specifically provided that the Artha Rin Adalat dealt with the matter in accordance with the Ain, 2003 nor under any other law. Although the District Judge has the jurisdiction to transfer the Artha Rin cases from one Court to another Court of competent jurisdiction not under the Code but under the provisions of Ain, 2003. SM Sirajul Islam vs. Janata Bank, WAPDA Branch. 66 DLR 119.
Sections 5(11) For application of the doctrine of constructive res-judicata the conditions amongst others, 'the matter be directly and substantially in issue and has been heard and finally decided' appear to be sine qua. Eastern Bank Ltd vs Sufia Re-Rolling Mills and Steel Ltd, 56 DLR 530.
Sections 5(11)-In order to bring subsequent suit within the mischief of section 11, first and foremost requirement is that the court in which the former suit was pending and/or decided must be competent to try subsequent suit must be of concurrent jurisdiction both in respect of pecuniary jurisdiction and subject. Al Baraka Bank Bangladesh Ltd vs Rina Alam, 56 DLR 588.
Section 6-That cause of action for filing the suit by the appellant has arisen because of the decree passed in Artha Rin Adalat Case No. 55 of 1990 and the execution taken on the basis of the said decree ending in sale of the property of the appellant in auction and purchases thereof by the Respondent No. 3. Md Habibur Rahman vs Uttara Bank Ltd. 3 ADC (2006) 154.
Sections 6, 6(2) & 7(2)-Deposit of 50% of the decretal amount is mandatory. Held-Section 7(2) of the Artha Rin Ain clearly provided for deposit of 50% of the decretal money in the trial court as a mandatory condition precedent of filing an appeal against the judgment and decree of the Artha Rin Adalat and the learned Judges of the High Court Division fell into a serious error of law in directing registration of the appeal without such 'Money' deposit: that the question involved in this petition as to whether furnishing of bank guarantee, in lieu of deposit of decretal 'Money' can be construed as sufficient compliance of the provisions of Section 7(2) of the said Ain and the same is a question of great public importance, particularly, in view of the conflicting decisions given by two Division Benches of the High Court Division on the same question. [Mr. Justice Mohammad Fazlul Karim] The State Bank of India vs Saudi-Bangladesh Industrial and investment Co. Ltd. 6 ADC 37.
Sections 6 and 7-The proceeding initiated by filing a cross-objection is in substance an appeal the respondent is liable to pay necessary court-fee and observe other formalities necessary for preferring an appeal. Cross-objection filed beyond 30 days was rightly rejected. The cited case AIR 1931 Cal. 100 has no relevance. Zahirul Islam vs National Bank Ltd, 46DLR (AD) 110.
Sections 6 and 47-The provision of sub-section (2) of section 6 of the Artha Rin Adalat Ain, 2003 is not a mere guideline and directory. A plaint of an Artha Rin Suit has to be filed along with advalorem court fee.
Held: We do not accept the observation and findings of the High Court Division that the provision of sub-section (2) of section 6 of the Artha Rin Adalat Ain, 2003 is a mere guideline and directory since it has not stated the consequence of non-compliance of this provision of law. There is no scope to argue that a plaint of Artha Rin Suit even if not filed along with the affidavit and the advalorem court fee as mentioned in subsection (2) of section 6 of the Artha Rin Adalat Ain, 2003 can be registered as a Artha Rin Suit. The very language of sub-section (2) of section 6 of the Artha Rin Adalat Ain, 2003, in our opinion, it mandatory that a plaint of a Artha Rin Suit has to be filed along with advalorem court fee. Specially where the question of applicability of section 47 of the Artha Rin Adalat Ain, 2003 comes the provision of sub-section (2) of section 6 has to be followed strictly. Section 47 of the Artha Rin Adalat Ain, 2003 has given the borrowers a special privilege of getting remission of interest exceeding 200% of the principal loan amount and this privilege has been made effective from 1-5-2004. Giving of a liberal meaning to sub-section (2) of section 6 of the Artha Rin Adalat Ain, 2003 will deprive the borrowers of this special privilege which has been granted to them by a statute. MA Bari Talukder vsAgrani Bank, 8 ADC 424.
Sections 6 and 47-There is no scope to argue that a plaint of Artha Rin Suit even if not filed along with the affidavit and the advalorem Court-fee as mentioned in sub-section (2) of section 6 of the Artha Rin Adalat Ain, 2003 can be registered as a Artha Rin Suit. The very language of sub-section (2) of section 6 of the Artha Rin Adalat Ain, 2003, in our opinion, makes it mandatory that a plaint of a Artha Rin Suit has to be filed along with advalorem Court-fee. Specially where the question of applicability of section 47 of the Artha Rin Adalat Ain, 2003 comes the provision sub-section (2) of section 6 has to be followed strictly. MA Bari Talukder vs. Agrani Bank, 8 ADC 424.
Section 6(1)-Artha Rin Adalat shall follow and apply the Code as a Civil Court in exercising its jurisdiction, powers and functions while adjudicating any dispute between the parties before it including execution of its decree insofar as it is not inconsistent with the provisions of section 6(Ka) or any other provisions of the Ain. Section 6(Ka), has excluded the operation of Rules 3, 5, 6, 7, 8 and 9 in matters of execution of any decree. Artha Rin Adalat shall execute its decree applying the provisions of sections 55 and 56 of the Code read with Order XXI and the rules made thereunder except the rules 3, 5, 6, 7, 8 and 9. Application of section 56 of the Code, has not been excluded by section 6(Ka). Sonali Bank Limited vs UT Garments Limited, 67 DLR 265.
Section 6(1) Artha Rin Adalat is a court of limited jurisdiction created for particular purpose-not to try all the intricate issues of civil nature. Per M. Moazzam Husain J (dissenting). Arab Bangladesh Bank Ltd vs Md. Salauddin, 16 BLC 277
Sections 6(1) This provision makes the Code of Civil Procedure applicable to the proceeding of the Artha Rin Adalat, but only if, the Adalat act does not contain anything different. Sultana Jute Mills Ltd vs Agrani Bank, 46 DLR (AD) 174.
Sections 6(2)-When a plaint is rejected for not supplying stamp paper within a time fixed by the court and there is sufficient cause for not supplying the same within the time, restoration of plaint may be ordered on an application under section 151 of the Code of Civil Procedure. Radha Rani Sadhu Kha vs Durga Rani Adhikari, 47 DLR 360.
Sections 6(2)—In this case admittedly, the Bank did not put in deficit Court- fee within the time extended by the Adalat and the Adalat accepted the deficit Court fee by extending time up to 19-5-2003 in exercise of its discretion under section 148, 149 and 151 of the Code, and also in exercise of its discretion under section 57 of the Ain, 2003 which provides similar provision like section 151 of the Code. BR Apparels Ltd vs Bangladesh, 60 DLR 76.
Section 6(4)-Section 6(4) of the Ain, mandates the Adalat to dispose of an Artha Rin suit exparte or instantly by simply considering the plaint (prepared under affidavit) or written statement (made with affidavit) and the documents filed therewith, upon treating all of them as substantive evidence and, thus, pleadings with affidavits is the focal-point of this provision and any formal examination of witnesses has got less emphasis in the Ain, 2003. Osman Gazi Chowdhury vs Artha Rin Adalat, 21 BLC 322.
Section 6(4)-The meaning of the expression " হলফনামাযুক্ত আরজি বা জবাব" employed in section 6(4) of the Ain, is that the plaint (made with affidavit) is fo be considered and where necessary the written statement (made under affidavit) is also to be considered. Hence, in Bangla the following expression "s আরজি এবং যথাযথ ক্ষেত্রে বিবাদীর হলফনামাযুক্ত " would sound more appropriate. Osman Gazi Chowdhury vs Artha Rin Adalat, 21 BLC 322.
Section 6(5)-A guarantor although a debtor, is not crew within the meaning of section 5(Gaga) of the Bank Companies Act, 1991 and therefore, his name cannot be included in the CIB list. Major Monjur Quader (Retd) vs Bangladesh Bank 59 DLR 451.
Section 6(5)-The High Court Division while making the Rule absolute upon setting the order committed illegality by not allowing the developer to be added as a party in the suit under Order I, rule 10 of the Code inasmuch as section 6(5) of the Ain which provides guidelines as to how the defendants can be impleaded in the proceedings of Artha Rin Suit is in conformity with the provisions of the Order. Bank Ltd vs Chaya Developer (Pvt) Ltd, 21 BLC (AD) 203.
Sections 6(5) Unnecessary parties in a Artha suit can well be struck off under Or. I, r. 10(2) of the Code of the Civil Procedure. Sonali Bank vs Sirajul Hoque. 9 MLR (AD) 270 = 9 BLC (AD) 256.
Section 6
That cause of action for filing the suit by the appellant has arisen because of the decree passed in Artha Rin Adalat Case No. 55 of 1990 and the execution taken on the basis of the said decree ending in sale of the property of the appellant in auction and purchases thereof by the Respondent No. 3. Md. Habibur Rahman vs M/S. Uttara Bank Ltd (Md. Ruhul Amin J)(Civil) 3 ADC 154
Section 6
In the background of facts of the case referred to by appellant the Division made therein in our view is not legally sound since evidence as regarded the case of the parties would easily, readily, timely and conveniently available at the place where the goods was delivered i. e. at the port city. Moreover cause of action wholly arose where the goods said to have been delivered after inordinate delay. As has already been mentioned the intent and purport of the pro- visions of section 20 CPC are that suit is to be filed at a place where defendant would be able to defend the suit without undue trouble. Md. Habibur Rahman vs M/S. Uttara Bank Ltd. (Md. Ruhul Amini J)3 ADC 438
Section 6(2)(3)(4)
The court itself can also exercised this provision directing the bank to prepare and produce all the documents before the court with a reasonable time and since as per provisions of sub-section 4 of section 6 of the Ain, for disposal of the suit subject to provision of sub-section 2 and 3 the affidavit filed along with the plaint, may be treat as substantive evidence and the Adalat for disposal of the proceedings without examining the witness may consider the documents filed with affidavit. 73 DLR 176
Sections 6(5)-A suit under the provisions of the Artha Rin Adalat Ain, 2003 a company incorporated under the Companies Act is a juristic person. A share-holder is not the owner of the company or its assets. The company itself owns its properties. A share-holder is only entitled to the dividends, if declared. On winding up however, after payment of its debts, he is entitled to participate in the distribution of its assets. The liability of a share-holder, whether he is the Chairman of the Board of Directors, or a director, is only to the extent of the face value of the shares he holds, nothing more than that. But, if he guarantees repayment of the loan, enjoyed by the company or mortgages his property to the creditor to ensure repayment of the loan by the company to make such repayment, he becomes liable, not as a share-holder but as a guarantor or mortgagor or both as the case may be. Bakul Akter vs Bangladesh, 18 BLT (AD) 282-16 BLC (AD) 4.
Sections 6(5) and 32(1)(2)-From a plain reading of the provisions of sections 32(1)(2) of the Artha Rin Adalat Ain, 2003, it manifests that any third party may submit his claim in any execution case arising out of a decree or an order of the Artha Rin Adalat after making deposit of 25% decretal amount as security otherwise, the Adalat shall reject the claim. Harunur Rashid Bhuiyan vs Pubali Bank Ltd 15 BLC 458.
Sections 6(5) and 57-The provision of section 6(5) of the Artha Rin Adalat Ain, 2003 are applicable only when the properties were mortgaged both by the principal debtor/loance and the third party mortgagor. In the instant case, admittedly no property was mortgaged by the principal debtor-loanee but the property was mortgaged by the petitioner. So, in absence of any other property mortgaged by the principal debtor in favour of the Bank, the mortgaged property of the petitioner-judgment-debtor is to be sold to realise the decretal amount. Therefore, the Adalat was bound to sell the mortgaged property which was included in the schedule of the plaint/decree. Abdus Sattar Miah vs Bangladesh, 14 BLC 412.
Section 6(Ka)-Application of CPC-A woman judgment-debtor-Held: Artha Rin Adalat shall follow and apply the Code of Civil Procedure as a Civil Court in exercising its jurisdiction, powers and functions while adjudicating any dispute between the parties before it including execution of its decree insofar as it is not inconsistent with the provisions of section 6 (Ka) or any other provision of the Artha Rin Adalat Ain. 1990, Section 6 (Ka), in our view, has excluded the operation of Rules 3, 5, 6, 7, 8 and 9 in matters of execution of any decree. In other words, Artha Rin Adalat shall execute its decree applying the provisions of sections 55 and 56 of the Code of Civil Procedure read with order 21 and the rules made thereunder except the Rules 3, 5, 6, 7, 8 and 9. Application of section 56 of the Code, in our view, has not been excluded by section 6 (Ka). Hazera Begum vs Artha Rin Adalat, 11 (2008) BSCD 14.
Section 6(Ka)-In executing the decree Artha Rin Adalat follows the procedure laid down in Code of Civil Procedure and it is settled executing court cannot go beyond the decree. Sonali Bank Limited vs UT Garments Limited, 67 DLR 265.
Artha Rin Adalat Ain, 2003
Sections 5, 6- Counterclaim or separate suit of the loanee- The Artha Rin Adalat was exclusively for the purpose of hearing suits instituted by financial institutions for the recovery of their loans and the rules of procedure were provided in the Ain itself. Therefore, it is the prerogative of the financial institutions and a mandate of the law that all financial institutions shall file suits for recovery of their loans in the Artha Rin Adalat. Such a prerogative cannot be thwarted nor the mandate avoided. Moreover, the exclusivity of the jurisdiction cannot in any way be infiltrated or obfuscated by any counterclaim, set off or separate suit of the loanee. M/S. Motazzerul Islam (Mithu) =VS= ICB Islami Bank Ltd., [9 LM (AD) 255]
Section 6(5)- Third party- A third party is neither a necessary nor a proper party in a suit for realisation of 'FY' against debtors. Therefore, neither section 19 nor section 41 has provided any provision to redress the grievances of a third party in respect of a mortgaged property. If someone takes loan from a bank by mortgaging another's property by way of deceitful means or by resorting to forgery or collusion or by misrepresentation, the Adalat cannot adjudicate the issue. Sub-section (5) of section 6 has specifically provided the parties against whom a suit under the Ain can be filed. Other than those persons, there is no scope under the Ain to implead any person to add as defendant in the suit. Sekandar (Md.) =VS= Janata Bank Ltd., [3 LM (AD) 448]
Section 6(5)- Bank is always at liberty to file the suit for recovery of the loan amount against the principal borrower as well as the guarantor who mortgaged her property as security of the loan- The plaintiff-bank must take step to recover the decretal amount from the principal-debtor, namely, the loanee-company, and in case, the principal debtor failed to satisfy the decretal amount, the decretal amount should be recovered by selling the property of the principal debtor or encashing the FDR pledged to the plaintiff-bank. The plaintiff-bank is always at liberty to file the suit for recovery of the loan amount against the principal borrower as well as the guarantor who mortgaged her property as security of the loan at the same time. ...Agrani Bank =VS= Hosne Ara Begum(Mrs.), [9 LM (AD) 590]
Section 6(5) The plaintiff-bank is always at liberty to file the suit for recovery of the loan amount against the principal borrower as well as the guarantor who mortgaged property as security of the loan at the same time- The Appellate Division held that the High Court Division erroneously came to a finding that the plaintiff-bank must take step to recover the decretal amount from the principal-debtor, namely, the loanee-company, and in case, the principal debtor failed to satisfy the decretal amount, the decretal amount should be recovered by selling the property of the principal debtor or encashing the FDR pledged to the plaintiff-bank. The plaintiff-bank is always at liberty to file the suit for recovery of the loan amount against the principal borrower as well as the guarantor who mortgaged her property as security of the loan at the same time. ......Agrani Bank =VS= Mrs. Hosne Ara Begum & another, [1 LM (AD) 334]
Sections 6(2) and 47-Power to do complete justice-We cannot just be a silent spectator to a glaring prima facie illegality which has came to our knowledge and which does not require any determination of fact and consider it a fit and proper case to invoke Article 104 of the Constitution to interfere with the respective decree of the Adalat passed in the respective suit so far as it relates to allowing the claim of the plaintiff-Bank more than 200% over the principal amount for doing complete justice by ignoring the provision of section 47 of the Artha Rin Adalat Ain, 2003 and following a totally, wrong procedure in entertaining and registering the plaint in violation of section 6(2) of the Ain, 2003. Rupali Bank Ltd vs Md Shamser All (Civil) 69 DLR (2017)-AD-366
Sections 6(5) and 57:
Whether mortgaged property should not be sold out or disposed of before selling the property mortgaged by the borrower of the suit? (Spl. Original). Md. Rafiul Alam Vs. Artha Rin Adalat 9 ALR (2017)(1)-HCD-277
Sections 6(5) and 34:
The Adalat is to proceed against the borrower first and then against the guarantor: The Artha Rin Adalat is to proceed with the case in accordance with law against the principal Judgment debtor first and then against the guarantor. It is found in this regard that the prioritization of liability as emphasized by the petitioner is inherent to Section 6(5) of the Ain. Even though section 6(5) on a simple reading appears to be applicable in-respect of property, the court keeping in mind the intention of the legislature ought to have proceeded with the process of execution following the aforesaid provision of law with respect to issuance of the warrant of arrest and detention of the guarantor in Civil Prison also............Para 19): Robiul Ehsan Khan Vs. Government; 4 CLR (2016)-HCD-234
Sections 6(5) and 57-The provision of section 6(5) of the Artha Rin Adalat Ain, 2003 are applicable only when the properties were mortgaged both by the principal debtor/loance and the third party mortgagor. In the instant case, admittedly no property was mortgaged by the principal debtor-loance but the property was mortgaged by the petitioner. So, in absence of any other property mortgaged by the principal debtor in favour of the Bank, the mortgaged property of the petitioner-judgment- debtor is to be sold to realise the decretal Amount. Therefore, the Adalat was bound to sell the mortgaged property which was included in the schedule of the plaint/decree. Abdus Sattar Miah Vs. Bangladesh (Spl. Original). 14 BLC (2009) HCD-412
Chapter 7 of the Artha Rin Adalat Ain, 2003 comprising sections 40 to 44ka deal with appeals and revisions, and section 40 provides that provisions of the Code of Civil Procedure shall apply in the proceedings of appeal and revision arising out of Artha Rin suits provided those are not inconsistent with any provisions of Artha Rin Adalat Ain.......(7) Nimal Chandra Biswas vs. Sonali Bank. Head Office (Syed Mahmud Hossain J(Civil). 14 ADC (2017)-Page-96
Artha Rin Adalat Ain (VIII of 2003)
Section 6(5) The High Court Division while making the Rule absolute upon setting aside the order committed illegality by not allowing the developer to be added as a party in the suit under Order 1, rule 10 of the Code inasmuch as section 6(5) of the Ain which provides guidelines as to how the defendants can be impleaded in the proceedings of Artha Rin Suit is in conformity with the provisions of the Order. One Bank Ltd vs Chaya Developer (Pvt) Ltd (Civil) 21 BLC (2016)-AD-203
(la) Artha Rin Adalat Ain (VIII of 2003)
Section 6(4)-The meaning of the expression" হলফনামাযুক্ত আরজি বা জবাব employed in section 6(4) of the Am, is that the plaint (made with affidavit) is to be considered and where necessary the written statement (made under affidavit) is also to be considered. Hence, in Bangla the following expression —হলফনামাযুক্ত আরজি এবং যথাযথ ক্ষেত্রে বিবাদীর হলফনামাযুক্ত জবাব” would sound more appropriate. Osinan Gazi Chowdhury vs Artha Rin Adalat (Spl Original) 21 BLC (2016)-HCD-322
Artha Rin Adalat Ain (VIII of 2003)
(lb) Section 6(Ka)-In executing the decree Artha Rin Adalat follows the procedure laid down in Code of Civil Procedure and it is settled executing court cannot go beyond the decree. Sonali Bank Limited vs UT Garments Limited (Civil), 67 DLR (2015)-HCD-265.
Section 6(1)-Artha Rin Adalat shall follow and apply the Code as a Civil Court in exercising its jurisdiction, powers and functions while adjudicating any dispute between the parties before it including execution of its decree insofar as it is not inconsistent with the provisions of section 6(Ka) or any other provisions of the Ain. Section 6(Ka), has excluded the oper ation of Rules 3, 5, 6, 7, 8 and 9 in matters of execution of any decree. Artha Rin Adalat shall execute its decree applying the provisions of sections 55 and 56 of the Code read with Order XXI and the rules made thereunder except the rules 3, 5, 6, 7, 8 and 9. Application of section 56 of the Code, has not been excluded by section 6(Ka). Sonali Bank Limited vs UT Garments Limited (Civil), 67 DLR (2015)-HCD-263.
Artha Rin Adalat Ain, 2003
Section-6(5) Whether a share-holder of a company is a necessary party in the Artha Rin Suit
Held; A company incorporated under the companies Act is a juristic person. A share holder is not the owner of the company or its assets. The company itself owns its property. A share-holder is only entitled to the dividends, if declared. On winding up, however, after payment of its debts, he is entitled to participate in the distribution of its assets It is no doubt, the liability of a, share-holder, whether he is the Chairman of the Board of Directors, or a director, is only to the extent of the face value of the shares he holds, nothing more than that. But a share holder of a company is not a necessary party in the Artha Rin Suit. Mahbub All Vs Artha Rin Adalat & Ors. 23 BLT (2015)-HCD-115
Section 6(5)
An adversely affected person can be added as defendant in Artha Rin suit-It appears that the appellant developer of the Civil Appeal No. 176 of 2011 has been adversely affected by the judgment and order dated 19-01-2011 passed by the High Court Division making the rule absolute insofar as it relates to setting aside of the Order No. 49 dated 19-01-2009 passed by the respondent No. 2 in Artha Rin Suit No. 7 of 2008 without passing any necessary order for making it as an added party in the suit in the category of defendant. There is no provision in the Artha Rin Adalat Ain, 2003 which debars a person adversely affected by the decision in an Artha Rin Suit from being added as a party to the suit. One Bank Ltd. Vs. Chaya Developer (Pvt.) Ltd. And another, (Civil) 4 LNJ (2015)-AD-292
Artha Rin Adalat Ain, 2003 (V of 2003)
Sections 6(5), 32 and 57 an
As the petitioners are neither a principal debtor nor a third party mortgagor or even a third party guarantor as expressed in sub-section (5) of section 6 of the Artha Rin Adalat Ain, 2003, their presence is not necessary for proper and effectual adjudication of the Artha Rin Suit. However, the petitioners may take any other appropriate remedy about their grievances in an appropriate forum in view of Section 32 of the Artha Rin Adalat Ain. 2003 at their own peril. Jewel Rana (Labu) Vs. Artha Rin, Adalat No. 1, Dhaka & ors, (Spl.Original). 4 LNJ (2015)-HCD-24
Artha Rin Adalat Ain 2003 (VIII of 2003)
(6) Section 6(5)-Determination of the necessary party.
The Adalat at the time of passing any judgment or finally disposing of the suit should have to take into consideration of the facts as to whether the plaintiff-financial institution made the defendant/defendants in the Artha Rin Suit in view of the statutory provision of sub-section (5) of section 6 of the Ain, 2003 and also to determine whether the defendant in the Artha Rin Suit is a borrower or mortgagor or guarantor for the purpose of fixing the liability of the loan taken by a company, for different business purpose, from the plaintiff-financial institution. When the Adalat passed the impugned judgment beyond the scope of law as provided for in section 6(5) of the Ain, 2003. then it can be said that the same is without jurisdiction. Mahbub All Vs. The Judge, Artha Rin Adalat-1 (Spl. Original), 4 ALR (2014) (2)-HCD-333
Artha Rin Adalat Ain, 2003 (VIII of 2003)
Section 6(5) Provides that while a decree passed by the Artha Rin Adalat is to be executed through execution process, the Adalat will first attract the properties of the main borrower and then will attract properties of the third party mortgagor and the third party guarantor. A.B.M Liton-VS.- Government of Bangladesh (Spl. Original), 3 ALR (2014)-HCD-238
Section 6(4)-States that the plaint and the documents must be in support of the affidavit.
The Court while deciding a case ex-parte did not explain his satisfaction. Moreover, is has never been stated that the contents made in the plaint and the documents are in consonance and in support with the affidavit. Therefore the affidavit also is not in accordance with law. Since the contents of the affidavit are not specific and not supporting the plaint, the decree as passed is a nullity. Mrs. Nahid Anower Khan Vs Artha Rin Adalat (Spl Originaly 3 ALR (2014)-HCD-241.
Artha Rin Adalat Ain, 2003(VIII of 2003)
Section 6(4)-States that the plaint and the documents must be in support of the affidavit. The Court while deciding a case ex-parte did not explain his satisfaction. Moreover, it has never been stated that the contents made in the plaint and the documents are in consonance and in support with the affidavit. Therefore the affidavit also is not in accordance with law. Since the contents of the affidavit are not specific and not supporting the plaint, the decree as passed is a nullity. Rin Adalat (Spl. Original) Mrs. Nahid Anower Khan Vs. Artha Rin Adalat 3 ALR (2014)-HCD-241
Artha Rin Adalat Ain, 2003 (VIII of 2003)
Show cause to Joint District Judge by the High Court Division.
District Judge opined Sonali Bank being a financial institution all cases relates to such institution is to he transferred to the concerned Artha Rin Adalat but despite recording such order the Joint District Judge. 1st Court Khulna proceeded with the auction in a reckless manner which clearly shows serious illegality and malafide intention. In such circumstances the Joint District Judge, Khulna namely Md. Shofiqur Rahman (where ever he is posted now) is directed to show cause as to why proceeding should not be drawn against him for such negligence within 4 weeks from the date of receipt of this order. The said judge is directed to communicate his reply to this Court through the Registrar of this Court. The Court below is directed tis refund the entire money deposited by the opposite party No. 2 forthwith. Md. Shamsul Islam Vs. Sonali Bank and others, 4 ALR (2014)-HCD-72.
Artha Rin Adalat Ain [VIII of 2003]
Section 6(5) -Since the law itself does not permit the creditor, bank to implead any party other than the persons/entity mentioned in section 6(5) of the Ain so this court cannot go beyond the said ex- press provisions of law. The contention is advanced by the learned counsel for the respondent, bank that section 6(5) is not any conclusive element of impleading anyone apart from those 3 categories, if other person is found to have involvement in availing loan facilities and then he/she will also be impleaded as necessary party and since the present petitioners are admittedly share holders as well as directors of defendant no. 1, company so they are liable to re pay the loan and for that, they have rightly been implead as defendants in the suit, but we are not at one with the submissions, since there has been no avenue in the four corner of Artha Rin Adalat Ain to implead any share holder or director as defendant in any Artha Rin suit.
The very ratio so settled therein the decision cited by the learned counsel for the petitioner reported in 23 BLT (HC) 115 has got every nexus with the instant case as these petitioners admittedly have not furnished any charge documents so invarlably they should not wait up to the final adjudication of a suit and in that regard we find legal force in the submission so made by the leaned counsel for the petitioners because it is not the case of the respondent no. 3 that, the petitioners had ever furnished charge document nor mortgaged any property against the loan as a security of repayment of the loan so they cannot be impleaded as defendant in the plaint of the suit in view of the express provision of section 6(5) of the Artha Rin Adalat Ain. Sing Tel Asia Pacific Investment Pte. Limited, and others. -Vs. Ministry of law, and others. (Spl.Original) 21 ALR (HCD) 62-66
Artha Rin Act [VIII of 2003]
Section 6(5)-No property was admittedly mortgaged by the principal debtor/loanee. Therefore the Artha Rin Adalat is bound to order to sell the mortgaged property which was included in the Schedule of the plaint/decree.
It is now well settled that the company and its directors/shareholders are distinct and separate entities. There is no scope to treat the directors' property as the property of the principal debtor. Both Ka as well as Kha Schedule properties have been mortgaged by third party mortgagors. They should be treated to be at par and the Artha Rin Adalat Committed по mistake in treating both the mortgaged property at par and lawfully included both the properties for auction to adjust the loan amount of the Bank.
The High Court Division hold that the impugned order is lawful and in complete compliance with section 6(5) of the Artha Rin Act 2003 as well as directions given by the High Court Division in various writ petitions. The High Court Division has also considered the submission of Mr. Chowdhury with regard to his argument as to Judgment passed against dead person. This aspect has been resolved by this Division previously and as such the High Court Division does not think it appropriate to reopen the same issue which has been decided earlier by the High Court Division. In such view of the matter, the Atha Rin Adalat was fully justified in passing the order to sell the Ka Schedule property of Sobe the petitioners simultaneously with Kha Schedule property by auction and the impugned Order No. 89 dated 28.04.2011 has been passed with lawful authority. In view of the above, the High Court Division finds no substance in this Rule.. Accordingly the Rule is discharged without any order as to cost. Mr. Jainul Karim. - Vs. Govt. of Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Ramna, Dhaka and others (Spl. Original) 16 ALR (HCD) 180-185
Artha Rin Adalat Ain [VIII of 2003]
Sections 6(5) and 57 read with
Code of Civil Procedure [V of 1908]
Sections 38 and 39 read with Order XXI, rule 30-Whether an Executing Court situated in a particular district can publish notices in the newspaper for the purpose of auction sale of the property situated in any other district of the country.
Whether an Artha Rin Adalat is under a legal obligation to transfer an execution case to another Adalat of the district where the property under auction sale is situated.
The High Court Division held that when a decree is passed by a competent Artha Rin Adalat, the execution case can be instituted in that Court under section 27 of the Ain but if the decree has to be satisfied by way of auction publicity has to be undertaken both at the national and local level where the property is situated and for that purpose, the execution case needs to be transferred to another Court under section 27(1) of the Ain. The word "may" oc- curring in section 39 (1) or the expression, "অন্য যে আদালতে প্রেরণ করে" occurring in sec- tion 27(1) of the Ain expresses an impression about the discretion of the Court where the execution case is instituted. In consideration of the whole scheme of the Ain with regard to territorial limit or jurisdiction of an Artha Rin Adalat over a district and the mandatory re- quirement of local publicity under section 33(1) of the Ain, the High Court Division cannot but to conclude that in relation to an auction sale of the property situated in another district an Artha Rin Adalat is under a legal obligation to send a case to the concerned Adalat of the other district where the property is situated. Md. Rafiul Alam Vs. Artha Rin Adalat. 1" Court, Dhaka and 2 (two) others (Spl. Original) 19 ALR (HCD) 185-189
Artha Rin Adalat Ain, 2003 (VIII of 2003)
Section 6(5)-Provides that while a decree passed by the Artha Rin Adalat is to be executed through execution process, the Adalat will first attract the properties of the main borrower and then will attract properties of the third party mortgagor and the third party guarantor. A.B.M Liton-Vs-Government of Bangladesh (Spl. Original), 3 ALR (2014)-HCD-238.
(12) Ss. 6 and 7 of the Ain, 1990
Artha Rin Adalat Ain, 1990 is a special law and section 6 of the Ain. 1990 expressly bars the jurisdiction of any Court or authority relating to any proceeding, order judgment, decree subject to the provisions of section 7 of the Ain, 1990. In the face of this exclusive bar, Title Suit No. 93 of 2001 filed by the plaintiff-appellant in the fourth Court of Subordinate Judge, Khulna praying for a declaration that the Judgment and decree passed by the Artha Rin Adalat in Artha Ain Suit No. 35 of 1996 is illegal, collusive and not binding upon him, is not maintainable in law. Dhirendra Nath Mondal Vs. Agrani Bank, 2 ALR (2013)-HCD-35.
Ss. 6 and 7-Since Artha Rin Adalat Ain, 1990 is a special statute and section 6 of the Ain, expressly ousted the jurisdiction of any Court of authority relating to any proceeding, order, judgment and decree subject to the provisions of section 7 of the Ain. Dhirendra Nath Mondal Vs. Agrani Bank Ltd. (Civil), 18 BLC (2013)-HCD-301.
Sections 6 & 7-The proceeding initiated by filing a cross-objection is in substance an appeal the respondent is liable to pay necessary court-fee and observe other formalities necessry for preferring an appeal. Cross-objection filed beyond 30 days was rightly rejected. The cited case Air 1931 Cal. 100 has no relevance. Zahirul Islam Vs. National Bank Ltd., Civil Petition for leave to Appeals No. 251 and 318 of 1991, 9 BSCD-1992/46 DER (AD) 116
Section 6(2): Ex parte Decree-Set aside. Held: Since specific provisions are there under section 6(2) of the Artha Rin Adalat Ain. 1990 for setting aside ex parte decree, inherent jurisdiction of the court under section 151 of the Code of Civil Procedure can not be invoked for setting aside the same. Mr. Justice Md. Joynul Abedin, Golden Re-Rolling Industries Ltd. Vs. Subordinate Judge, Artha Rin Adalat No. 1 Dhaka and another, 10 BSCD-2007-Page-8/12 MLR (AD) 234
Against judgment and decree of Artha Rin Adalat two remedies are available- one is appeal before the High Court Division and the other is an application under Order 9, rule 13, C.P.C against expert decree In both the cases the defendant- judgment-debtor must deposit 50% of the decretal amount in the trial court or Bank guarantee of equivalent amount as pre-condition. Except either of the above courses, if a suit is filed in a court of ordinary civil jurisdiction, such a suit being barred by law the plaint thereof is liable to be rejected outright under Order 7, rule 11(d) of the Code of Civil Procedure. Delwar Hossain and others Vs. Janata Bank and others. 9 MLR (2004) (HCD) Page 17-28
Section 6-That cause of action for filing the suit by the appellant has arisen because of the decree passed in Artha Rin Adalat Case No. 55 of 1990 and the execution taken on the basis of the said decree ending in sale of the property of the appellant in auction and purchases thereof by the Respondent No. 3. Md. Habibur Rahman Vs. M/s. Uttara Bank Ltd. (Md. Ruhul Amin, J) (Civil), 3 ADC 2006 154.
Section 6-In the background of facts of the case referred to by appellant the Division made therein in our view is not legally sound since evidence as regarded the case of the parties would easily. readily, timely and conveniently available at the place where the goods was delivered L. c. at the port city. Morcover cause of action wholly arose where the goods said to have been delivered after inordinate delay. As has already been mentioned the intent and purport of the provisions of section 20, CPC are that suit is to be filed at a place where defendant would be able to defend the suit without undue trouble. Md. Habibur Rahman Vs. M/s. Uttara Bank Ltd. (Md. Ruhul Amin, J). BSCD VOL X Page-8/3 ADC (2006) 438
Sections 6(5) and 32(1)(2)-From a plain reading of the provisions of sections 32(1X2) of the Artha Rin Adalat Ain, 2003, it manifests that any third party may submit his claim in any execution case arisen out of a decree or an order of the Artha Rin Adalat after making deposit of 25% decretal amount as security otherwise, the Adalat shall reject the claim. Harunur Rashid Bhuiyan Vs. Puball Bank Ltd. (Civil), 15 BLC (2010) 458.
section 6(5)
This provision is applicable only when the properties were mortgaged both by the principal debtor/loanee and the third party mortgagor. it appears to us that this writ petition is nothing but a cunning device to avoid payment of decretal amount. It be mentioned that the original suit was filed in the year of 1987 and it was decreed against the respondent- judgment-debtors on 22.06.1989 more than 20 years elapsednable but till date the Bank is unable to realize its outstanding dues." ...(17)
Abdus Sattar Miah vs. Bangladesh (M. Enayetur Rahim J) (Civil) 20 ADC 805
Section 6, 6(2) & 7(2):Deposit of 50% of the decretal amount is mandatory.
Held: Section 7(2) of the Artha Rin Ain clearly provided for deposit of 50% of the decretal money in the trial court as a mandatory condition precedent of filing an appeal against the judgment and decree of the Artha Rin Adalat and the learned Judges of the High Court Division fell into a serious error of law in directing registration of the appeal without such Money' deposit: that the question involved in his petition as to whether furnishing of bank guarantee, in lieu of deposit of decretal "Money" can be construed as sufficient compliance of the provisions of Section 7(2) of the said Ain and the same is a question of great public importance, particularly, in view of the conflicting decisions given by two Divisions Benches of the High Court Division on the same question. Mr. Justice Mohammad Fazlul Karlin, The State Bank of India Vs. Saudi-Bangladesh Industrial and Investment Co. Ltd. and another, 12 BSCD-2009-Puge-16/6 ADC 37.
Section 6 (Ka) Application of C.P.C-A woman judgment-debtor Held: Arthu Rin Adalat shall follow and apply the Code of Civil Procedure as a Civil Court in exercising its jurisdiction, powers and functions while adjudicating any dispute between the parties before 1. including execution of its decree insofar as it is not inconsistent with the provisions of section 6 (Ka) or any other provision of the Artha Rin Adulat Ain, 1990, Section 6(Ka), in our view, has excluded the operation of Rules 3, 5, 6, 7, 8 and 9 in matters of execution of any decree. In other words, Artha Rin Adalat shall execute its decree applying the provisions of sections 55 and 56 of the Code of Civil Procedure read with Order 21 and the rules made thereunder except the Rules 3, 5, 6, 7, 8 and 9. Application of section 56 of the Code, in our view, has not been excluded by section 6 (ka). Mr. Justice Md. Joynul Abedin, Hazera Begum Vs. Artha Rin Adalat and others. 11 BSCD-2008-Page-14
Sections 6 (5) – A guarantor a debtor, is not "গোপী ঋণ গ্রহীতা" within the meaning of section 5(Gaga) of Bank Companies Act, 1991 and therefore his name cannot be included in the CIB list. Major Monjur-Quader (Retd.) Vs Bangladesh Bank (Spl.original). 59 DLR (2007)-AD-45.
Section 6-
The Code of Civil Procedure (V of 1908), Section 20.
The Code of Civil Procedure 7. Rule-11.
That cause of action for filing the suit by the appellant has arisen because of the decree passed in Artha Rin Adalat Case No. 55 of 1990 and the execution taken on the basis of the said decree ending in sale of the property of the appellant in auction and purchases thereof by the Respondent No. 3... (19) Md Habibur Rahman Vs. MS. Uttara Bank Ltd (Md. Ruhul Amin, J (Civil). 3 The ADC (2006)- 154
Sections 6(3) and 57-Section 6(5) of the Ain and Order 1, rule 10 of the Code have got no relevancy in connection with a disposed of suit. It is true that no Court can be regarded as powerless to recall an order in an under trial case pending before it if it is convinced that the order is wangled through fraud or misrepresentation but pre-condition is that such proceeding must be pending before it. The Court must have jurisdiction over the proceeding before it can exercise any inherent power. The Adalat was not justified in resorting its power under section 57 of the Ain to reopen the decree after dispose of the suit. Parvin Akter vs Eastern Bank Ltd. (Civil) 70 DLR (AD) 117
Section 7(1)- Where substituted service was done by publication in the newspaper, the presumption of the service cannot be rebutted by making simple statement. Parvin Akter vs Eastern Bank Ltd. (Civil) 70 DLR (AD) 117
Artha Rin Adalat Ain (VIII of 2003)
Section 7-A person who is aggrieved by the decree of a Artha Rin Suit, may bring a fresh suit who is neither a mortgagor, nor guarantor nor ajudgment debtor. Rowshan Ara Begum vs. Rupali Bank Ltd (Civil) 68 DLR (2016) - HCD-265
S. 7 ( 4 ) 2 )-The provisions of limitation act can not be attracted or applied for the purpose of condonation of delay in preferring an Artha Rin appeal, as per sub-sections 2 and 4 of section 7 of the Ain, it is mandatory condition that without depositing the 50% of the decretal amount an appeal can not be accepted. Mashaha International Company Ltd. Vs. Sonali Bank Ltd. 17 BLC (2012) - HCD-832.
Section 7-A person who is aggrieved by the decree of a Artha Rin Suit, may bring a fresh suit who is neither a mortgagor, nor guarantor nor a judgment debtor. Rowshan Ara Begum vs Rupali Bank Ltd, 68 DLR 265.
Section 7-There being specific remedy in the statute for filing appear against the judgment and decree of the Artha Rin Adalat in the present case the defendant not availing of the aforesaid remedy cannot maintain the writ petitions. Bangladesh Agricultural Development Corporation Vs. Artha Rin Adatat and others (Civil) 39 DLR (2007)-AD-6/See BSCD Vol. IX Page 31. Same 26 BLD (2006) AD 150, Same BSCD VOL X Page 8
Order V, Rule 19-Service of Summons-Summons served by hanging No verification or affidavit of the serving peon-Serving peon was not examined by the Court. There was no legal service of summons. Rezia Khatun and others Vs. Del war Hossain And others, 4 BLD (1984)-HCD-192, 20 DLR 901: 25 DLR 91 Cited
Order V Rule 29(1)-Service of summons upon a prisoner-When the prisoner refuses to accept the summons on being tendered by the officer-in- charge of the prison, whether endorsement of such tender is proper service of summons. Such endorsement will be deemed to be evidence of service. M/S. Naa Metal Industries Vs. Sonali Bank and others. 3 BLD (AD) 270.
Order V. Rules 17 and 19-Service of summons-Service by hanging-Such service when not tenable Considering the depositions of PWs and the facts that DW2 could not say who were the persons present at the time of delivering the summons, who were the attesting witnesses and what was the puper he signed on, the summons were shown to have been served by hanging falsely without any attempt to deliver the same to the petitioner. Then, a duty is cast upon the Court to examine the process server where the service return has not been verified by affidavit of the serving officer. The requirements of Law as to service of summons having not been fulfilled the exparte decree is set aside-Code of Civil Procedure 1908 (V of 1908), Or. IX, r. 13. Nur Ahmed Vs. Muktar Ahmed and others. 9 BLD (HCD) 465
Sections 6 and 115-Reading section 6 of the Code of Civil Procedure, sections 8 und 11 of the Suit Valuation Act and the relevant provisions of the Civil Courts Act the conclusion would follow that the value of the suit or proceeding would conclusively determine the forum where a suit of proceeding will be filed and tried and the appeal will be heard and disposed. The forum of appeal is to be determined according to the value of the suit or proceeding and the value of appeal consequently will lead to the revisional forum and jurisdiction and that would be the basis for determining revisional forum. AHM Khurshed Ali & ors Vs. Md Hashem Ali and others, (Civil) 59 DLR (2007)-HCD-211
Order VI, Rule 17-Amendment of plaint-Question is whether amendment is merely a formal addition of certain facts or whether the same has a hearing on the nature and character the suit- From the facts and circumstances the amendment sought to be introduced it appear that it is not merely the formal addition of a proforma defendant but it will have the effect of making out a case for the plaintiff's having a direct bearing on the merits of the case such amendment cannot be allowed. M's Bangladesh Rubber Industries and another Vs. Begum Lutfunnessa and another 3 BLD (AD) 220
Order VI, Rule 17- Cancellation of written statement filed jointly with other defendants and acceptance of a separate written statement plaeading may be strock out or cancelled at any stage of the proceeding-The Trial Court committed illegalities in not allowing the prayer of the petitioner for cancellation of the written statement filed jointly in so far as it relates to her and acceptance of the written statement filed by her along with the petition. Musammat Sakina Begum Vs. Mohammad Ishaque. 5 BLD (HCD) 13.
Section 7-In the facts and circumstances of the present case, the learned Judges of the High Court Division ought to have treated that the legal decree in the instant suit had been prepared and singed by the trial Court on 3.9.96 when the original decree was correct upon realisation of delicit court fees from the plaintiff decree holders on the direction of the Hight Court Division and in that view of the matter, the appeal of the appellants in the High Court Division was neither barred by limitation nor improper for not making the required deposit of at least 50% of the decretal amount in the trial court as per provision of Section 7 of the Ordinance. ACKO Industries and Cold Storage Ltd. Vs. Pubali Bank (Mohammad Abdur Rouf J) (Civil), 2 ADC (2005) 380.
Section 7(2)-Section 7(1) of the Artha Rin Adalat Ain provides that within 30 days from the date of making the decree the appeal is to be filed before the High Court Division and sub-section (2) of section 7 provides that no appeal shall be entertained unless half of the decretal amount is deposited in the court making the decree, Section 7 of the Ain nowhere speaks about bank guarantee. The expression AbN used in sub-section (2) of section 7 of the Act can not be construed to be "Bank Guarantee. The expression AbNas used in this sub section means cash money and not "Bank Guarantee". Abdus Sattar and others Vs. International Finance Investment and Commerce Bank Ltd. Civil Petition for Leave to Appeal No. 812 of 1999, #9 BSCD-1992-2006-Page-32/21 BLD (AD) 77.
Third party can file a fresh suit against decree
68 DLR 265: Rowshan Ara Begum & others Vs. Rupali Bank Ltd. & others: Section 7 of the Artha Rin Adalat Ain, 2003: However, in many decisions of our Court including Apex Court it has been decided that a person who is aggrieved by the decree of a Artha Rin suit, may bring a fresh suit who is neither a mortgagor, nor guarantor nor a judgment debtor. (Para-36, Mr. Justice Farid Ahmed). Ref: 16 DLR 287, 54 DLR 123, 56 DLR 588, AIR 1945(Patna)434, AIR 1969(SC)78. 7 ADC 291
Section 7
Application for stay of the execution proceeding under section 151 of the Code of Civil Procedure. Messers Shahajan Traders and another vs. Subordinate Judge and Artha Rin Adalat No.1(Mohammad Fazlul Karim J) (Civil) 4 ADC 564
Section 7
In the facts and circumstances of the present case, the learned Judges of the High Court Division ought to have treat-ed that the legal decree in the instant suit had been prepared and singed by the Itrial Court on 3.9.96 when the original decree was correct upon realization of deficit court fees from the plaintiff decree holders on the direction of the High Court Division and in that view of the matter, the appeal of the appellants in the High Court Division was neither barred by limitation nor improper for not making the required deposit of at least 50% of the decretal amount in the trial court as per provision of Section 7 of the Ordinance. ACKO Industries and Cold Storage Ltd vs Pubali Bank (Mohammad Abdur Rouf J) (Civil) 2 ADC 380
Section 7-Any person may move the High Court Division under Article 102 of the Constitution if any other equally efficacious remedy is not available in the law of the country. But on perusal of Section 7 it appears that there is equally efficacious remedy available to the defendant petitioner and nothing has been mentioned what prevented the defendant petitioner from preferring the appeal as provided by law. There being specific remedy in the statute for filing appeal agaist the judgment ad decree of the Artha Rin Adalat in the present case the defendant not availing of the aforesaid remedy cannot maintain the writ petitions. Inspite of the fact that the law in the matter has been settled long back petitions are unnecessarily filed under Article 102 of the Constitution challenging the judgment of the Artha Rin Adalat without making any case covered under the aforesaid Article not to speak of any ground touching fundamental rights of the petitioner. As a result the superior courts are burdened with unnecessary petitions causing wastage of public time which should be discouraged by all concerned including the learned members of the Bar who are as well officers of the Court. 9 BSCD-1992-2006-Page-31.
Section 7-Any person may move the High Court Division under Article 102 of the Constitution if any other equally efficacious remedy is not available in the law of the country. But on perusal of Section 7 it appears that there is equally efficacious remedy available to the defendant petitioner and nothing has been mentioned what prevented the defendant petitioner from preferring the appeal as provided by law. There being specific remedy in the statute for filing appeal against the judgment and decree of the Artha Rin Adalat in the present case the defendant not availing of the aforesaid remedy cannot maintain the writ petitions. Inspite of the fact that the law in the matter has been settled long back petitions are unnecessarily filed under Article 102 of the Constitution challenging the judgment of the Artha Rin Adalat without making any case covered under the aforesaid Article not to speak of any ground touching fundamental rights of the petitioner. As a result the superior courts are burdened with unnecessary petitions causing wastage of public time which should be discouraged by all concerned including the learned members of the Bar who are as well officers of the Court. Bangladesh Agricultural Development Corporation (BADC) vs Artha Rin Adalat, Court No. 3. Dhaka, 26 BLD (AD) 250-59 DLR (AD) 6.
Section 7-Since the Artha Rin Adalat Act does not provide any provision, directly or indirectly, contrary to provision of order 9, rule 9 of the Code of Civil Procedure an application under order 9, rule 9 of the Code of civil Procedure can be entertained by the Artha Rin Adalat. Sonali Bank vs Md Al-Akram (Badal), 46 DLR 671; Agrani Bank vs Artha Rin Adalat, 55 DLR 389.
Section 7-There being specific remedy in the statute for filing appeal against the judgement and decree of the Artha Rin Adalat in the present case the defendant not availing of the aforesaid remedy cannot maintain the writ petitions. Bangladesh Agricultural Development Corporation vs. Artha Rin Adalat, 59 DLR (AD) 6.
Section 7-In the facts and circumstances of the present case, the learned Judges of the High Court Division ought to have treated that the legal decree in the instant suit had been prepared and singed by the trial Court on 3.9.96 when the original decree was correct upon realization of deficit court fees from the plaintiff decree holders on the direction of the High Court Division and in that view of the matter, the appeal of the appellants in the High Court Division was neither barred by limitation nor improper for not making the required deposit of at least 50% of the decretal amount in the trial court as per provision of Section 7 of the Ordinance. ACKO Industries and Cold Storage Ltd vs Pubali Bank 2 ADC (2005) 380.
Sections 7-Against judgment and decree of Artha Rin Adalat two remedies are available one is appeal before the High Court Division and the other is an application under Order 9 rule 13 CPC against expert decree. In both the cases the defendant-judgement-debtor must deposit 50% of the decretal amount in the trial court or Bank guarantee of equivalent amount as pre-condition. Except either of the above courses, if a suit is filed in a court of ordinary civil jurisdiction, such a suit being barred by law the plaint thereof is liable to be rejected outright under Order 7 rule 11 (d) of the Code of Civil Procedure. Delwar Hossain vs. Janata Bank, 9MLR (2004) 17 = 8 BLC 411.
Section 7-Application for stay of the execution proceeding under section 151 of the Code of Civil Procedure. Messers Shahajan Traders and another Vs. Subordinate Judge and Artha Rin Adalat No. I (Mohammad Fazlul Karim, J) (Civil). 4 ADC (2007) 564
Section 7 (2) Section 7 ( 1 ) of the Artha Rin Adalat Ain provides that within 30 days from the date of making the decree the appeal is to be filed before the High Court Division and sub-section (2) of section 7 provides that no appeal shall be entertained unless half of the decretal amount is deposited in the court making the decree. Section 7 of the Ain nowhere speaks about bank guarantee. The expression AbN used in subsection (2) of section 7 of the Act can not be construed to be "Bank Guarantee". The expression AbN as used in this sub- section means cash money and not "Bank Guarantee". Abdus Sattar vs International Finance Investment and Commerce Bank Ltd 21 BLD (AD) 77 = 52 DLR (AD) 122.
Artha Rin Adalat Ain (VIII of 2003)
Section 8 (7)
This provision of law is applicable for the exclusive property of the borrower. Admittedly, the lands which are the self acquired property of the petitioner were not mortgaged to the bank for recovery of the loan amount of the borrower and the petitioner is neither loanee nor mortgagor nor guarantor for the loan of her husband and admittedly she has not inherited any property from her husband, the borrower. So the provision of section 8(7) of the Artha Rin Adalat Ain has got no manner of application for recovery of the Jean of the borrower Amjad Hossain now dead by selling out the self-acquired property of the petitioner Rezia Bibi @ Most Rezia Khatun Bibi Vs. Arthu Rin Adalat and others, (Spl. Original), 7 CNJ (2018)-HCD-129.
Artha Rin Adalat Ain [VIII of 2003] Section 8(Ga)- Under the Ain the Bank bound to disclose the non disclosed material facts and transaction with reference to their sanction advice. Mohammad Ali Vs. Judge, (Joint District Judge) Artha Rin Adalat (Spl.Original), 12 ALR (2018)(1)-HCD-54.
অর্ধষণ আদালত আইন, ১৯৯০। ধারা ৮: The court can not waive interest payable under the loan Consideration all these decisions above, we are of the view that under the Code of Civil Procedure the court can waive interest but Court has no authority to waive interest under special law i.e. under Artha Rin Adalat. Ain, 2003. Special Law is directed towards a special subject, a special class of objects and gives rise to special cause of action and self provides for the method of enforcement of rights conferred by that Act ie a code complete in itself. Therefore, Artha Rin Adalat Ain, 1990 or 2003 is a special law. Since the act do not permit waiving of interest, court can not waive interest either penal or general. We are of the view that interest can be waived only by the Bank it the borrower can make proper representation to the Bank. 7 LG (2010) Page 257
Order VI, Rule 17-Amendment of Plaint-Adding of prayers-It is well settled that adding of prayers which are consequential in nature does not in any way change the nature and character of changing the subject-matter is no ground for refusal of amendment. Where the plaintiff seeks to alter the cause of action itself in the garb of amendment by introducing altogether a new or inconsistent cause of action the Court will refuse such amendment. M. A. Jahangir and another Vs. Abdul Malek and others, 9 BLD (HCD) 528/12 DER 704-Cited
Joinder of Parties Plaintiff can join all persons as defendants against whom any right to relief in respect of the same cause of action, arising against them involves common questions of law and fact, Bangladesh Railway Vs M/S Sinafracht Chartering and Shipbreaking Corporation through their local agents United Liner Agencies and other 5 BLD (1985)-AD-115
Order VI Rule 17-Amendment of Plaint-Whether the plaintiff can be allowed to Amend the plaint for recovery of money based on dishonoured cheques into a suit based on failure to pay price of goods-In a suit for promissory notes, hundis etc. since the plaintiff could have initially sued in the alternative upon the original consideration, there is no reason why the plaintiff should not be allowed to Amend his plaint so as to base his suit only on the original consideration using the dishonoured cheques as evidence of his outstanding dues from the defendant. The amendment does not in any way have the effect of converting the suit into another suit of a different and inconsistent character. Cause of action is not being substituted nor the subject-matter of the suit changed nor, ground of relief is being departed from nor the order allowing amendment takes away from the defendant the legal right of limitation. The Court is empowered to allow at any stage of the proceeding either party to alter or amend the pleadings for the purpose of determining the real questions in controversy. M. A. Majid Vs. M/s. Khalil and sons. 7 BLD (1987)-HCD- 226.
Order VII, Rule 10-Return of plaint-Though Admiralty Court cannot reject the plaint, it may return the same when there is no cause of action retiable by it or it alcks jurisdiction. M/s. Saleh Steel Industries Ltd. Vs. TSS Pacific Aveto and others. 3 BLD (AD) 195
Non-filing of documents with plaint-No malafide or ill-motive could be attributed in not filing the document at the time of filing of the plaint. The new provision for such filing of documents has been added for the purpose of speedy disposal of cases but that does not mean that in case of a bonafide human error the Court will not be in a position to grant leave in unavoidable and exceptional circumstances to fit necessary documents. Afsaruddin Ahmed Vs. Banque Indosuez 44 DLR (AD) 136.
Sections 8-The learned trial Court gave emphasis on the statement of the local manager of the plaintiff-Bank. But the Bank is a financial institution. It deals with the public money. Particular official has got no personal option to deal in the financial matter. Therefore, the statement of the local manager of the plain tiff-Bank in his cross-examination is not binding upon the Bank. The learned trial Court considered the claim of the Bank and exempted 50% interest. So, he cannot reduce the rate of interest which is in the sanction letter. Pubali Bank Ltd vs. Md. Nurul Hoque, 14 BLC 494.
Sections 8(2) read with Code of Civil Procedure, Order 11, rule 14-It appears that the learned Judge, Artha Rin Adalat, by his order dated 25-2-2009, had already directed the plaintiff to file the documents as mentioned in the application dated 1-1-2009 but has not yet been fully complied with although the plaintiff is obliged to do so. If the plaintiff fails to comply, the learned Judge is to take appropriate measure in this respect in accordance with the provision of Artha Rin Adalat Ain, 2003 read with the provision of the Code of Civil Procedure. Mir Rashed Ali Ahmed vs. Artha Rin Adalat, 17 BLT (2009) 416.
Sections 8(2)(a)(b), 60(2)(3) and 47-Applicability of section 47-Section 47 cannot be given effect to any pending suit filed prior to promulgation of the Artha Rin Adalat Ain, 2003. The discussions and observations as made by the High Court Division in the judgment passed by it do not suffer from any illegality or misconception of the law. Humayun Hossain Khan vs Bangladesh, 61 DLR (AD) 92.Sections 8(3)(4) and (5)-The plaintiff in order to get the decree has to come to the court with clean hands and as per or. 11, r. 14 of the Code of Civil Procedure and under section 8 (3), (4) and (5) the plaintiff is under obligation to file the original documents on the basis of which the decree is sought from the court. The court will consider whether the plaintiff has complied with the provision of law and if the court finds that the plaintiff is avoiding to file the documents before the court in that case the court will certainly give direction upon the plaintiff as contemplated under Artha Rin Adalat Ain, 2003 and Civil Procedure Code, failing which the court shall pass necessary order against the plaintiff for withholding the deeds/documents. The court will not make any distinction whoever is the plaintiff. Shaharul Amin Golder vs. Artha Rin Adalat, 18 BLT 127.
Section 8(2)(a)(b), 60(2)(3) & 47-Applicability of section 47-Section 47 cannot be given effec to any pending suit filed prior to promulgation of the Artha Rin Adalat Ain, 2003. The discussions and observations as made by the High Court Division in the judgment passed by it do not suffer from any illegality or misconception of the law. Humayan Hossain Khan Vs. Bangladesh (Civil) 61 DLR (2009) AD 92.
Section-8(2) read with Code of Civil Procedure, 1908; Order 11, Rule,14-It appears that the learned Judge, Artha Rin Adalat, by his order dated 25.02.2009, had already directed the plaintiff to file the documents as mentioned in the application dated 1.1.2009 but has not yet been fully complied with although the plaintiff' is obliged to do so. If the plaintiff fails to comply, the learned Judge is to take appropriate measure in this respect in accordance with the provision of Artha Rin Adalat Ain, 2003 val with the provisions of the Code of Civil Procedure. Mir Rashed Ali Ahmed Vs. Artha Rin Adatat, Dhaka & Ors. 17 BLT (2009)-HCD-416
Section 8-The learned trial Court gave emphasis on the statement of the local manager of the plaintiff Bank, But the Bank is a financial institution. It deals with the public money. Particular official has got no personal option to deal in the financial matter. Therefore, the statement of the local manager of the plaintiff-Bank in his cross-examination is not binding upon the Bank. The learned trial Court considered the claim of the Bank and exempted 50% interest. So, he cannot reduce the rate of interest which is in the sanction letter. Pubali Bank Ltd. Vs. Md Nurul Hoque (Civil). 14 BLC (2009) HCD-494
Section 8(3) (4) and (5)-The plaintiff in order to get the decre3e has to come to the court with clean hands and as per Or. 11. r. 14 of the Code of Civil Procedure and under section 8(3), (4) and (5) the plaintif is under obligation to file the original documents on the basis of which the decree is sought from the court. The court will consider whether the plaintiff has complied with the provision of law and if the court finds that the plaintiff is avoiding to file the documents before the court in that case the court will certainly give direction upon the plaintiff as contemplated under Artha Rin Adalat Ain, 2003 and Civil Procedure Code. failing which the court shall pass necessary order against the plaintiff for withholding the deeds/documents The court will not make any distinction whoever is the plaintiff. Shaharul Amin Golder Vs. Artha Rin Adalat, 18 BLT-127
Section–9(5) read with 13 ( 1 ) - Impugned Judgment and decree passed under Section 13 (1) Held, if there is no specific admission made in the written statement as contemplated In section 9(5) of the Ain, the Adalat cannot come to conclusion as regards the said fact of the case. Md. Arfan Uddin Akand & Ors. Vs. Artha Rin Adatat & Ors. 15 BLT (HCD) 34)
Section 9 & 11 Additional written statement.
Held; The Court, under sub-section 4 of section 9 of Artha Rin Adalat Ain, may accept the same against C.P. cost and further section 11 of the above Ain has specifically made provision for reply of the plaintiff against the written statement but there is no scope in the said Artha Rin Adalat Ain for filing additional written statement. Mr. Justice Md. Tafazzul Islam. Md. Nurul Hoque Sarker Vs. Janata Bank, Tan Bazar Branch, Narayangon) and another, 12 BSCD-2009-Page-16/6 ADC 142
Section 9
For realization of Tk. 75,34,909.64/- by selling the mortgaged property de- scribed in the plaint. M/s. Aimon Elec- trical Industries Proprietor vs. Judge, Artha Rin Adalat (Md. Abdul Matin J) (Civil) 7 ADC 964
Sections 9 and 11-Additional written statement-Held-The Court, under sub-section 4 of section 9 of Artha Rin Adalat Ain, may accept the same against C.P. cost and further section 11 of the above Ain has specifically made provision for reply of the plaintiff against the written statement but there is no scope in the said Artha Rin Adalat Ain for filing additional written statement. [Mr. Justice Md. Tafazzul Islam] Md. Nurul Hoque Sarker vs Janata Bank, Tan Bazar Branch, Narayangonj. 6 ADC 142.
Section 9(5) If there is no specific admission made in the written statement as contemplated in section 9 (5) of the Ain, the Adalat cannot come to conclusion as regards the said fact of the case." Md. Arfan Uddin Akand vs Artha Rin Adalat, 15 BLT 343.
Sections 10 and 19-Upon the grounds for ex-parte proceedings maturing under section 10 there remains no scope under the scheme of the Ain for the section 19 provisions for ex-parte hearing to equally come into play. Section 19 in this regard is found to be predicated upon a due filing of written statement taking place as per the provisions of section 10 and permits of no ground or scope for being invoked in the opposite scenario of filing of written statements not duly taking place as prescribed under section 10 in that utter contingency. Section 10 is found to have a self-contained response mechanism and procedure of its own, thereby, by necessary construction making it an impossibility to further invoke the section 19 provisions on ex-parte hearing and disposal. By that reason, in the present case, the court having assumed jurisdiction to proceed with the case ex- parte under section 10(1) of the Ain there resultantly remained no legal sanction for the petitioners to further additionally opt to take recourse to section 19 of the Ain given their initial failure to comply with the provisions of section 10 of the Ain. ABSCO Limited vs Artha Rin Adalat No.2, Dhaka, 67 DLR 9. Sections 10(1) and 19(2)-There are no provisions in section 10 of the Ain for filing applications against the ex-parte judgments and decree of the Adalat similar to the provisions contained in section 19(2) of the Ain. It was open to the defendant to explore possible avenues of redress otherwise available under the Ain. While the appeal provisions of section 41 come immediately to mind, in addition, a reading of section 26 of the Act serves to provide an indication of invoking relevant provisions of the Code. ABSCO Limited vs Artha Rin Adalat No.2, Dhaka, 67 DLR 9.
Section 10(2) The law itself is a flexible one. We simply cannot understand when the law itself is so positive on the issue how the court below passed an exparte decree holding that though the defendant was given time to file written statement they did not file the same. Absolutely on a perverse finding and without applying judicial mind the Court below decreed the suit ex-parte where in so doing not even the plaintiff was examined. It baffles us. It pricks our judicial conscience when we see the issue which goes at the root of jurisdiction of the suit has been disregarded in such manner without any subjective or objective consideration whatsoever which leads to absurdity and absolutely without any lawful authority. Abdul Hamid Chowdhury vs Artha Rin Adalat, 68 DLR 148.
Artha Rin Adalat Ain (VIII of 2003)
Section 10(2)
The law itself is a flexible one. We simply cannot understand when the law itself is so positive on the issue how the court below passed an exparte decree holding that though the defendant was given time to file written statement they did not file the same. Absolutely on a perverse finding and without applying judicial mind the Court below decreed the suit ex-parte where in so doing not even the plaintiff was examined. It buffles us. It pricks our judicial conscience when we see the issue which goes at the root of jurisdiction of the suit has been disregarded in such a manner without any subjective or objective consideration whatsoever which leads to absurdity and absolutely without any lawful authority. Abdul Hamid Chowdhury (Iqbal) vs Artha Rin Adalar (Spl. Original) 68 DLR (2016)-HCD-148
(la) Sections 10(1) and 19(2)-There are no provisions in section 10 of the Ain for filing applications against the ex-parte judgments and decree of the Adalat similar to the provisions contained in section 19(2) of the Ain. It was open to the defendant to explore possible avenues of redress otherwise available under the Ain. While the appeal provisions of section 41 come immediately to mind, in addition, a reading of section 26 of the Act serves to provide an indication of invoking relevant provisions of the Code. ABSCO Limited Vs. Artha Rin Adalat No.2, Dhaka (Spl. Original), 67 DLR (2015)-HCD-9
Sections 10 and 19(1)
The High Court Division found that the date fixed for hearing of the case necessarily means a date falling after the filing of written statements under Section 10 of the Ain in evidence of a suit being actually and duly contested by the defendants. Thus Section 191) is not attracted in the present case as the petitioners did not file written statements.
The Division also found that clearly there are no provisions in Section 10 of the Ain for filing applications against the ex parte judgments and decrees of the Artha Rin Adalat similar to the provisions contained in Section 19(2) of the Ain. Given that scenario, it is High Court's considered view that it was open to the defendant in the facts and circumstances to explore possible avenues of redress otherwise available under the Ain. Here, while the appeal provisions of Section 41 come immediately to mind, in addition, a reading of Section 26 of the Act serves to provide an indication of invoking relevant provisions of the Code. ABSCO Limited Vs. The Artha Rin Adalat No.2 (Spl. Original), 4 ALR (2014) (2)-AD-326.
Section 11-Section 11 of the above Ain has specifically made provision for reply of the plaintiff against the written statement but there is scope in the said Artha Rin Adalat Ain for filing additional written statement and in the case of Sultana Jute Mills Ltd vs Agrani Bank reported in 46 DLR (AD) 174 similar principle has been laid down. Md. Nurul Hoque Sarker vs Janata Bank, 6 ADC 142.
Section 11 ( 1 ) ( 2 ) The suit has been filed prior to promulgation of Artha rin Adalat Ain, 2003 and thus there is no bar in proceeding with the suit without sale of the pledged goods and adjustment of the sale proceeds thereof with the claim amount in the suit, United Leather International vs Artha Rin Adalat, 17 BLT (AD) 204.
Section 12-Absence of bank's legal power to sell the mortgaged property all the actions relating to sale of the same shall become void and will have no legal effect. Every action in the absence of such power shall fall apart. The protection given to the bank and the auction purchaser in section 12(8) does not override sections 12(1) and 12(3). This protection is only available when the bank has the legal right to sell the mortgaged property. A Hakim Gazi vs Md Nasiruddin, Assistant Vice President/Manager, 67 DLR 218.
Section 12-Sale of the property in execution-Held: The procedure contained in sub-section 5 of section 6 of the Ain is applicable with regard to sell of the properties in execution of a decree in an execution proceeding. But section 12 requires a financial institution to take an initial step to liquidate the liabilities of the debtor, if possible, by selling the movable properties pledged with the bank or to sell the mortgaged properties in order to avoid filing of the suit. In case of such sale under section 12 of the Ain, the provisions of sub-section 5 of section 6 was got no manner of application. MA Hossain vs National Bank of Pakistan, 7 ADC 595 695.
Section 12-Since the property is being sold by the attorney agent of the petitioner to adjust the outstanding dues of the principal, the contention raised for the petitioner that the right to enjoy the property is being taken away under section 12 is Overseas Garments Industries (Pvt.) Ltd vs Bangladesh, 57 DLR 168
Section 12-Since the mortgaged property has already been sold having no issue of illegality or irregularity ever raised and the auction purchaser has already taken possession thereof vide registered sale deed executed by the bank as a legal attorney of the mortgagor, so there is no scope to interfere with that very sale because no violation of the provision of section 12 of the Ain, has ever been made. Moniruzzaman (Md) vs Bangladesh,68 DLR 255.
Section 12(2), 57
Artha Rin Case rejecting the application filed under Sections 12(2) and 57 of the Artha Rin Adalat Ain, 2003 praying for adjustment of the outstanding loan with the sale price of the pledged goods and thereby to fix the actual claim amount in the suit. M/S. United Leather Inter- national vs. Artha Rin Adalat (Shah Abu Nayeem Mominur Rahman J) (Civil) 6 ADC 978
Section 12-Writ petition is not maintainable against the private bank and if in such a case to attract the jurisdiction under Article 102 a device is taken by impleading the government a party that would be only a futile exercise. Mamun- ur-Rashid (Md) vs Secretary, Ministry of Law, 18 BLC 162.
Sections 12 and 33-Auction-Bid money not deposited by the party- Held: After the auction, the rest of the bid money was not deposited within the period of 10(ten) days as envisaged under sub-section 2 of section 33 of the Ain. But the auction of the concerned property of the petitioners was not sold in auction in pursuance of a decree or order as envisaged under section 33 of the Ain but the auction was made prior to filing of the suit in pursuance to sub- section 1 of section 12 of the Ain, as such, under sub-section 4 of section 12, the provisions of section 33 are not mandatory. Besides, it appears that although by an order the auction purchaser was directed to deposit the rest of the bid money but by an order dated passed by the High Court Division in the writ petition, all further actions pursuant to the impugned auction was stayed, as such/ the rest of the bid money could not be deposited in time. Zinnatul Ara vs Government of the People's Republic of Bangladesh, 15 BLC (AD) 168.
Sections 12 and 33-The auction of the concerned property of the petitioners was not sold in auction in pursuance of a decree or order as envisaged under section 33 of the Ain but the auction was made prior to filing of the suit in pursuance to sub-section 1 of section 12 of the Ain, as such, under sub-section 4 of section 12, the provisions of section 33 are not mandatory. Zinnatul Ara vs Bangladesh, 15 BLC (AD) 168.
Sections 12, 33(1) and 48-The bank is selling the properties of the borrower placed to the bank as security against loan ought to have acted fairly at least in determining the value of the property upon obtaining the information from the local registration office as indicated in sub-section (6) of section 12 of the Ain, publishing notice in according with the provision contained in sections 33(1) and 48 of the Ain and ensured participation of the bibders from the members of the publice so as to enable the borrowed to oversee the auction process and to take necessary steps to protected their properties from auction sale... (Para-18). Proshanta Kumar Sarkar Vs. Agrani Bank, 2 CLR (2014)-HCD-41.
Sections 12 and 33(2)-The compliance of provision of section 33(2) of Ain for the purpose of section 12 of the Ain even when read with sub-section 4, is not at all mandatory rather it is directory. Ramjan Ali Tarafder (Md) vs Bangladesh, 67 DLR 245.
Section 12
Challenged the legality of the notice fo auction sale of the properties of the petitioners.
Under the provisions of Sub-section 8 of Section 12 of the Artho Rin Adalat Ain, 2003, such sale can not be questioned. Mrs. Zinnatul Ara vs. Government of the People's (A.B.M. Khairul Haque J) (Civil) 7 ADC 901
Section 12
The petitioners mortgaged their properties in favour of National Bank of Pakistan, Agrabad Branch in order to secure the loan obtained by him. On his failure to repay, the bank published a notice in the newspapers to sell the properties mortgaged in its favour by auction on. This notice has been challenged in the writ-petition. M. A. Hossain vs. Na- tional Bank of Pakista (A.B.M. Khairul Haque J) (Civil) 7 ADC 695
Sections 12, 46 and 57-It appears that the provision of section 46 of the Ain, 2003 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 and not at all mandatory and therefore, in any view of the matter, the suit is not barred by limitation. Thus, there is no illegality or impropriety in the impugned order of the learned Judge of Artha Rin Adalat No. 1, Dhaka. Hence, the Rule fails. Shahabuddin Khan (Md) vs Bangladesh, 14 BLC 111.
Sections 12(1) and (3)-Bank must have the power to sell the mortgaged property before it takes any step to proceed with the sale of the same under the section. A Hakim Gazi vs Md Nasiruddin, Assistant Vice President/Manager, 67 DLR 218.
Sections 12(1)(2)(4) and 33-Since the auction of the concerned property of the petitioner was not sold in auction in pursuance of a decree or order as envisaged under section 33 of the Ain but the auction was made prior to filing of the suit in pursuance to sub-section 1 of section 12 of the Ain, as such, under sub- section 4 of section 12, the provisions of section 33 are not mandatory. Ramjan Ali Tarafder (Md) vs Bangladesh,67 DLR 245.
Sections 12(1)(2)(3)(6) and 49-In the suit in hand the provisions of sub-section (6) of section 12 of Ain 2003 are not applicable as the instant suit being filed on 4-11-1999 there was no scope for compliance with the provisions of sub-section (3) of the section 12 of the Ain, 2003 which came into force on 10-3-2003 and further, the contents of the order dated 16-5-2003 passed in the instant suit reveals that the petitioner, though filed an application under section 49 of the Ain of 2003 praying for allowing him to repay the outstanding dues by installments but did not file any application before the Artha Rin Adalat praying for selling the mortgaged property in terms of sub-section (3) of section 12 of Ain 2003 and now, in the writ petition the petitioner, for the first time, tried to make out a case that the Artha Rin Adalat should have complied with the provision of sub-section (6) of section 12 of Ain, 2003. The High Court Division on due consideration of the materials on record and the law involved discharged the Rule. AQM Shah Alam Chowdhury vs Bangladesh, 13 BLC 122.
Sections 12(1)(3)(8)-The words "and war" used in section 12(8) read with sections 12(1) and 12(3) also suggest that the bank must have the legal power to sell the mortgaged property which is the condition precedent to take subsequent actions. A Hakim Gazi vs Md Nasiruddin, Assistant Vice President/ Manager, 67 DLR 218.
Sections 12(1)(2)(3)(4)(6)(7), 19 and 41-The petitioner being a defendant in the suit having not contested the same, preferring of the writ petition without availing the forum of appeal as provided under section 41 of the Ain or challenging the ex parte decree under section 19 of the Ain, the writ petition is not maintainable. KM Hamdor Rahman vs National Housing Finance & Investments Ltd, 12 BLC 578.
Sections 12(2) and 57-Artha Rin Case rejecting the application filed under Sections 12(2) and 57 of the Artha Rin Adalat Ain, 2003 praying for adjustment of the outstanding loan with the sale price of the pledged goods and thereby to fix the actual claim amount in the suit. United Leather International vs Artha Rin Adalar, 6 ADC 978.
Section 12(2)-The order fixing the date of auction and publishing the auction notices for sale of the mortgaged property without selling the pledged goods and adjustment of the sale proceeds against the outstanding loan was illegal. The Bank appears to be irresponsible and negligent in selling the pledged goods, and the loss incurred because of not selling the goods, should not be borne by the petitioner. It will be just and proper, if the value of the pledged tea, which was under control of the Bank at the time of instituting the suit, is adjusted. Mohammad Ali vs Bangladesh Bank,20 BLC 512.
Section 12(2)(3)-Artha Rin suit cannot be filed by any financial institution without selling of a mortgage property or any other institution first. Even if the suit has been filed wrongly or by mistake but in course of trial that has to be cured in terms of section 12(2) of Ain. Further section 12(3) of Ain provides that if owing any reason a suit cannot be filed by the financial institution even then a suit can well be filed afterwards without any restriction. Shakwat Hossain (Md) vs The Artha Rin Adalat No.2 Dhaka, 19 BLC 74.
Artha Rin-Adalat Ain [VIII of 2003]
Sections 12(4), 33(1) and 48-As per section 48 of the Artha Rin-Adalat Ain, 2003 in counting days, only working days to be counted.
The auction notice that it was published on 21.05.2005 fixing 04.06.2005 for auction, i.e., giving only 12 working days in violation Artha Rin Adalat Ain, of the sections 12(4) and 33 of the Artha Rin Adalat Ain.
The High Court Division held that the plaintiffs took loan of Tk. 8,00,000/- (Eight lac) from the defendant Bank on 19.01.2001 and for security against the said loan plaintiff appellants predecessor mortgaged their properties to the Bank and out of the loan amount part payment was made with interest and due to non-payment of some outstanding, the defendant bank put the mortgaged properties in auction on 21.05.2005 and the defendant No. 3 purchased the property at a price of Tk. 12,50,000/-. The plaintiffs came to know about the said auction on 02.07.2005 when they were threatened with dispossession and they filed the instant suit. It is an admitted fact that the auction took place in violation of sections 12, 33 and 48 of the Artha Rin Adalat Ain, 2003. It is apparent on the face of the auction notice that it was published on 21.05.2005 fixing 04.06.2005 for auction, i.e., giving only 12 working days in violation Artha Rin Adalat Ain, of the sections 12(4) and 33 of the Artha Rin Adalat Ain, and as such the High Court Division finds substance in the submissions of the learned Advocate for the appellants and hence, the impugned judgment and de- cree is not sustainable in law and is liable to be set aside. Accordingly, the Appeal is allowed. Abul Khayer Mollah and others - Vs. Agrani Bank Ltd (Civil) 18 ALR (HCD) 372-374
Section 12(4)-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. S. Co. Power Plant Ltd. vs Government of Bangladesh, 7 ADC 299.
Section 12(6)-In deciding the application under section 12(6) of the Ain in a execution proceeding the Adalat wrongly exceeded it limit by making uncall for observations beyond the decree. The court executing a decree cannot go behind the decree. Sonali Bank Limited vs Judge, Artha Rin Adalat, 18 BLC 743.
Sections 12(6), 19, 20, 41 and 47-The precondition of depositing 50% of the decretal amount is in the law since 1990. The point raised in this Writ Petition has also been challenged in various other cases under the previous law before this court and the issue has been settled by the High Court Division as well as by the Appellate Division in several decisions. It has already been settled that the Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under the Code of Civil Procedure subject to the provision of the said Artha Rin Adalat Ain. It has also been settled that said Ain provided that it is a civil Court with confined and limitation jurisdiction to deal with the Artha Rin cases and the law has been made for the purpose of realisation of money from the defaulting borrowers, accordingly the legislature has enacted such provision for depositing 50% of the decretal amount both in preferring appeal and in filing application against the ex parte decree. Anisur Rahman @ KM Ziaul Haque vs Government of Bangladesh, 12 BLC 22.
Sections 12(6), 33(1) and 48- The bank in selling the properties of the borrower placed to the bank as security against loan ought to have acted fairly and reasonably at least in determining the value of the property upon obtaining information from the local registration office as indicated in sub-section (6) of section 12 of the Ain, publishing notice in accordance with the provision contained in sections 33(1) and 48 of the Ain and ensured due participation of the bidders from the members of the public so as to allow the borrower to be duly kept abreast with on transparent auction process and thereby to take necessary steps to protect their properties as necessary during such process. Proshanta Kumar Sarkar vs Managing Director, Agrani Bank Ltd,67 DLR 50.
Sections 12(6) and 33(7)-When the Court deducted the price of land from the claim of the Bank under section 12(6) of the Ain, the title of the land shall vest in the Bank under section 33(7) of the Ain as per provision contained in section 12(7) the Court cannot deal with the mortgaged property in any manner whatsoever except issuance of a certificate of title under section 33(7) in favour of the Bank. Mukleshur Rahman vs Artha Rin Adalat.68 DLR 205.
Section 12(8) Auction sale-No Question as to the irregularities in auction sale-Held: The mortgagee bank has auction sold the property following the provisions of 12 of the Artha Rin Adalat Ain, 2003 since the predecessor of the leave petitioners did not respond to the demand notices sent by the bank and ignored the auction sale notice published in the National Dailies and the leave petitioners have made up with the leave petition auction sale. The writ petitioners did not disclose as to when and how the loanee or they came to know about the auction sale and also did not mention in the writ petition about the other writ petition filed two years back, being Writ Petition No. 4105 of 2005. Be that as it may as per Section 12(8) of the Artha Rin Adalat Ain, 2003 and proviso thereof, which provided that in case of an auction sale held illegally or with irregularity, the same cannot be challenged. However, owner may sue the bank concern for any loss, if suffered because of such illegal or irregular auction sale. Banesa Bibi vs The Senior Vice President, 18 BLT (AD) 507= 63 DLR (AD) 160.
Section 12(8) Since there is specific restriction in section 12(8) of the Ain, which is a special law, to challenge auction sale by filing any suit, the question of lenient construction of the law does not arise. The special law enacted for certain purpose and it shall always prevail over the general law. Suit being barred under section 12(8) of the Ain, rejection of plaint is justified under Order VII, rule 11(d) read with section 151 of the Code. AM Mostafiz Meah vs United Commercial Bank Ltd, 68 DLR 302.
Section 12(8)-In case of an auction sale held illegally or with irregularity, the same cannot be challenged. However, owner may sue the bank concern for any loss, if suffered because of such illegal or irregular auction sale. Banesa Bibi vs Senior Vice President, 63 DLR (AD) 160.
Section 12(8) In case of an auction sale held illegally or with irregularity, the same cannot be challenged. However, the owner may sue the bank concerned for any loss, if suffered because of such illegal or irregular auction sale. Rex Apparels (Private) Limited vs Bangladesh,21 BLC 395.
Section 12(8) Selling mortgaged property in auction phase by phase-No bar. Held: After the tender was submitted and opened for the auction sale, there is no scope to amend the same. Further there is no bar for selling the mortgaged property by the decree holder purchaser bank to realize the decreetal dues phase by phase. Sonali Rank Ltd. vs. Md. Nur Habib Bappi, 16 MLR (AD) 121.
Section 12-Writ petition is not maintainable against a private bank
The High Court Division held that it is now settled principle of law that writ petition is not maintainable against a private bank. The issue is no longer a res integra. Therefore, the Rule issued in Wp No. 3798 of 2015 so far as it relates to publication of auction notice dated 30.03.2015 by the respondent City Bank Ltd. in the newspaper under section 12 of the Artha Rin Adalat Ain, 2003 must fail. Rules issued in WP Nos: 3798, 4239 and 4243 of 2015 in respect of direction upon the respondents to consider the petitioners applications for restructuring of their loan liabilities must fail for the same reason so far as they relate to private banks. In respect of this part of the Rules relating to seeking a direction upon Bangladesh Bank in the form of writ of mandamus, suffice it to say that since no legitimate expectation or legal rights have accrued under the impugned Circular in favour of the petitioners, there has been no violation of any legal right of the petitioners by Bangladesh Bank in not considering the representations of the petitioners. So, this part of the Rules also must fail. However, High Court Division noted that the representations of the petitioners have not been disposed of by Bangladesh Bank. For the sake of fairness and justice Bangladesh Bank should dispose of the representations in accordance with law. Accordingly these Rules are discharged Gazipur Paperboard-vs. Bangladesh Bank (Zafar Ahmed J) 8 ALR 2016 (2) HCD-137
Section 13(1)
Section 13(1) of the Artha Rin Adalat Ain, 2003 of passing the judgment and decree on the basis of the admission of the defendant petitioner in his written statement, was allowed. Md. Kamal Uddin Akand vs Artha Rin Adalat (Md. Tafazzul Islam J) (Civil) 383
Section 13-The petitioner being the defendants may still raise the question of liability which they did not raise at the time of framing of issues in the suit by filing an application under section 13 of the Artha Rin Adalat Ain, 2003 and the Court may, on such application, adjudicate upon the question of liability of the present petitioners as issues of law. Prime Global Ltd vs Artha Rin Adalat, 11 BLC 236.
Section 13-The petitioner being the defendants may still raise the question of liability which they did not raise at the time of framing of issues in the suit by filing an application under section 13 of the Artha Rin Adalat Ain, 2003 and the Court may on such application, adjudicate upon the question of liability of the present petitioners as issues of law. Prime Global Ltd vs Joint District Judge and Artha Rin Adalat No. 4, Dhaka, 11 BLC 236.
Section 13-The Court before passing any judgment or order of finally disposing of the suit shall have to take into consideration the facts stated in the plaint and written statement of the parties and to determine that whether the defendants admit the claim of the plaintiff and also to determine whether there is any dispute between the parties as regards the facts as stated in the pleadings. When the Adalat passed the impugned judgement beyond the scope of law as provided for in section 13 of the Ain then it can be said that the same is without jurisdiction. But when it appears from the impugned judgment that the same is passed upon compiling with the provision of section 13 it cannot be said that the same is without jurisdiction. Md. Arfan Uddin Akand vs Artha Rin Adalat, 15 BLT (2007) 343.
Section 13(1)-Impugned judgment and decree passed under section 13(1) of the Artha Rin Adalat Ain-Held; if the Adalat passes any order which is wholly without jurisdiction, not in excess of jurisdiction, then despite of the fact that the law provided forum for appeal, the petitioner cannot be debarred from availing the jurisdiction under Article 102 of Constitution. Md. Arfanuddin Akand vs. Artha Rin Adalat, 15 BLT 343.
Section 13(1) and 9(5)-If there is no specific admission made in the written statement as contemplated in section 9(5) of the Ain, the Adalat cannot come to conclusion as regards the said fact of the case. Md Arfamuddin Akanda vs Artha Rin Adalat, 15 BLT 343.
Section 13(1) and 9(5)-Thus the Adalat considering statements made in the written statement specially the statement made in paragraph No. 8 of the written statement came to conclusion that the defendant petitioner admitted the loan and as such took up the suit for disposal under section 13 and that although the Adalat rejected the application filed by the defendant under Or. 26 r. 11 of the Code without assigning any reason but the findings arrived at as to disposal of the suit is in accordance with law and upon compliance of provisions of section 9 and 13 of the Ain 2003 and accordingly not without jurisdiction so writ jurisdiction cannot be invoked. Md. Kamal Uddin Akanda vs Artha Rin Adalat, 6 ADC 383.
Section 13(3)-In order to pass judgment and decree under the provision the Adalat has to be satisfied that there is an admission by the concerned defendant over the claim so made by the plaintiff bank and to that effect the Bank is to make an application. The legislature having used the word " after the words "বাদীর আরজির বক্তব্য স্বীকৃত হইয়া থাকিলে" and "উক্তরুপ স্বীকৃতির ভিত্তিতে যেরুপ রায় বা আদেশ পাইতে বাদী অধিকারী” made those two requirements conjunctive. Tajuddin (Md) vs Bangladesh, 19 BLC 526.
Sections 17(1)(2) The period prescribed for disposal of Artha Rin suit as laid down in section 17 of the Ain, 2003 is merely directory and not mandatory. So, there is no legal mandate to stop or dismiss the Artha Rin suit if the trial of the same be not concluded within the period of 90 days and further extended period of 30 days. The Artha Rin Adalat Ain, 2003 has been promul gated by the Parliament incorporating different provisions including stipulated period of disposal of the suit. The only purpose is for speedy disposal of the suit, otherwise the defaulting borrowers of the financial institutions with their best efforts will cause delay in the process of trial. Bangladesh German Food (Pvt) Ltd vs Bangladesh, 14 BLC 266.
Section 17(1)(2)-Section 17(1)(2) of the Ain albeit provided time limit to conclude the trial firstly within 90 days, if not, extend the period for further period of 30 days, if not concluded within the aforesaid period; the Ain does not provide any consequential effect or procedure or resulting use of the suit and, as such, the time limit as provided under section 17(1)(2) of the Artha Rin Adalat Ain is not mandatory as it has no consequential effect or resulting use laid down in the Act itself even if the suit is not disposed of within the time limit. Artha Rin Adalat is a civil Court having limited jurisdiction. Instant suit was filed in 1989 and it has crossed Artha Rin Adalat Ain, 1990 and now continuing under the provisions of Artha Rin Adalat Ain, 2003 and by the law it is the intention of the legislature to dispose of the suit on merit and also with an intention to dispose of the suit expeditiously or on priority basis and, as such, the provisions as laid down in section 17 of the Ain is merely directory one. Jewel Cotton Spinning and Weaving Mills Ltd vs Bangladesh, 13 BLC 572.
Section 18-As per section 18 of the Artha Rin Adalat Ain, 2003, no case filed in the Artha Rin Adalat can be transferred to any other Court for analogous hearing or any other can be brought to this Court for analogous hearing with the suit filed in the Artha Rin Adalat and it is settled law Artha Rin Adalat is not a full-fledged Civil Court. It has been created by special enactment only for recovery of the defaulted loan. It has got no power to adjudicate any other matters. Oriental Bank Ltd vs Sitara Siddiq, 59 DLR 573.
Section 18-Rupali Bank Ltd. instituted title suit against the defendant petitioner and the suit was decreed in preliminary form on contest on 1-6-97 and the preliminary decree was sealed and signed on the same date. On 24-4-2003, the decree holder made an application for an Order making the preliminary decree dated 1-6-97 final. The application was allowed by the Artha Rin Adalat and on the said date the final decree was sealed and signed. Held: In a writ of certiorari writ cannot be issued to correct the mistake or wrong done in exercise of the power under the CP Code but in instance case the Artha Rin Adalat passed the impugned order and exercised its power going beyond the statutory period of limitation which cannot be otherwise excluded and as such the order is without jurisdiction and is liable to be struck down. M/s Brick Linkers Ltd vs Joint District Judge, 15 BLT (2007) 99.
Sections 18 and 9-Praying for a preliminary decree for Tk. 78,70,728 as on 31-10-94 with interest @ 20% per annum including penal interest as, also praying that in case of the failure of the defendant petitioner to pay the decreetal dues, to make the decree final and direct sale of mortgaged properties and also to pass a personal decree against the defendant petitioner in respect of the shortfall amount after sale of mortgaged properties. Md. Nurul Hoque vs Janata Bank, 6 ADC (2009) 142.
Section 18(1)-Any amount of money misappropriated by any officer or employee of the bank cannot be treated as a loan and realised through the Court under the Ain.
The High Court Division held that it is the averments of the plaintiff-respondent bank that the defendant-petitioner t-petitioner has fraudulently withdrawn the excess profit against his MTDR accounts in collusion with the defendant No. 2, a junior officer of the bank, which contemplates that the petitioner has misappropriated the excess profit in collusion with an officer of the bank. This contemplation also gets support from the submission made by the respondent bank in its Affidavit-in- Opposition "the defect in filing the suit under section 18(1) of the Artho Rin Adalat Ain, 2003 can easily be cured by filing an amendment application at any stage of the trial." Therefore, the amount of money misappropriated or fraudulently withdrawn by the petitioner in collusion with an officer of the bank cannot be realised upon treating the same as loan through the Court under the Artha Rin Adalat Ain, 2003. Accordingly, the Court established under the Ain has no jurisdiction to adjudicate upon the suit. In view of the discussions made above, the suit being hopelessly barred by limitation and beyond the jurisdiction of the Court established under the Artha Rin Adalat Ain, 2003. Kazi Mohammad Mofizur Rahman -Vs.- Artha Rin Adalat and others (Spl. Original) 15 ALR (HCD) 243-257
Artha Rin Adalat Ain [VIII of 2003] Section 22-It is well settled principle of Apex Court that the Executing Court cannot go behind the decree, save few exceptions; if it appears to the executing court that the decree is nullity in the eye of law or the decree is passed against dead man or decree is passed by the court having no jurisdiction.
The High Court Division held that admittedly, having obtained an ample opportunity, the parties to the Execution Case failed to mediate the dispute therefore, the submission for settlement conference is fallacious. From the aforesaid discussion, it is also crystal clear that the judgment-debtor has got no bona fide intention to pay off the outstanding decretal amount, therefore, it would not be advisable to stand against the execution proceeding. Accordingly, the High Court Division hold the view that the Rule has got no merit. Consequently, the Rule shall fall through. At the time of pronouncement of the judgment, the learned Advocate of the petitioner orally apprises that he has instruction by his client not to proceed with the case. Considering the facts and circumstances of the case and to prevent multiplicity of proceeding on self-same cause, the High Court Division hold the view that it would be advisable to dispose of the Rule on merit. Moreover, the backdrop of the case, palpably indicates the petitioner in order to frustrate the hardearned decree has taken different devices. The High Court Division does not find any substance therein and hence, the High Court Division has disposed of the Rule on merit. As a result, the Rule is discharged. Md. Rawshan Ali Sarker Vs. Bangladesh and others (Spl.Original) 21 ALR (HCD) 168-171
Section 19-Any application is competent under section 19 if it is filed with 10% of deposit as required under the section. The provision cannot be said to be violative of fundamental right of the petitioner guaranteed by Article 27, 31, 40 and 42 of the Constitution. Mohiuddin Mahmood vs Bangladesh, 17 BLC 531.
Section 19-To exercise jurisdiction under section 19 of the Ain, the Adalat will have to have both the jurisdictional facts before it, namely the application has to be filed within 30 days and deposit of 10% of the decretal amount within 15 days from the application. Prime Global Ltd vs Artha Ain Adalat, 65 DLR 205
Setting a side the exparte decree
68 DLR 265: Rowshan Ara Begum & others Vs. Rupali Bank Ltd. & others: Section 19 of the Artha Rin Adalat Ain, 2003: If an exparte decree is passed under the Artha Rin Adalat Ain, 2003 the judgment-debtor can file an application under Section 19 of the Artha Rin Adalat Ain, 2003 within 30 days from the date of decree for setting aside the said decree by depositing 10% of the decreetal amount. (Para-39, Mr. Justice Farid Ahmed). Ref: 16 DLR 287, 54 DLR 123, 56 DLR 588, AIR 1945(Patna)434, AIR 1969(SC)78. 7 ADC 291.
Section 19 (2)(3) & (4)- Ex parte decree Sub-sections (2)(3) and (4) of section 19 of the Ain is that if a proper application is made by the defendant for setting aside an ex parte decree in accordance with law a right accrues to the defendant to have the ex parte decree set aside. In the present case the only point in issue is whether or not the defendant filed the application for setting aside the ex parte decree within the time stipulated by law. Admittedly miscellaneous case was not filed within 30 days from the date of the decree. Whether or not it was filed within 30 days from the date of knowledge of the ex parte decree is a matter to be decided with the help of evidence, adduced by the parties. It is our considered view that the view taken by the High Court Division that the appellant had knowledge through her constituted attorney is absolutely misconceived since knowledge of any party to the suit is a matter personal to that party. Knowledge can only be ascertained upon taking evidence. There is no evidence on record to indicate that even the attorney was examined to ascertain whether or not this defendant had received notices of the suit. The judgement and order of the High Court Division is hereby set aside. The artha rin miscellaneous case is sent back to the Artha Rin Adalat, First Court, Chittagong, where the appellant (defendant No.8) is to be given an opportunity to prove her knowledge as contemplated in section 19(2)of the Ain by adducing evidence. The Artha Rin Adalat is directed to dispose of the miscellaneous case within four months of receipt of this judgement. Dilruba Morshed (Mrs.) =VS= Artha Rin Adalat, [4 LM (AD) 104]
Sections 19 and 20-If any party is aggrieved by the judgment and decree of the Adalat he may prefer appeal against the same as per specific provisions of the Ain and in case of ex-parte decree, the judgment debtor may prefer an application under section 19 of the Ain, for setting-aside the ex-parte decree upon deposit of certain amount as per the provisions of law. The suit filed by the plaintiff challenging the judgment and decree passed by the Adalat was expressly barred by specific provisions of both old and new Ain. Assistant Director, Agricultural Extension vs Sonali Bank, 20 BLC 536.
Sections 19 and 33(7)-The petitioner ought to have resorted to section 19 of Ain for setting-aside the ex-parte decree which he did not do. Even in the whole process of execution case he did not turn up. All on a sudden after the impugned order was issued realization came to the petitioner and he rushed directly before this Division. This Division would be loath to sit as a Court of appeal in writ certiorari. So far compliance of section 33(7) as assailed by the petitioner we are not at all impressed with the submission. It has no substance being fallacious one. Azizur Rahman (Md) vs Bangladesh, 65 DLR 31.
Sections 19 and 41-The statutory requirement to deposit legal requirements particularly in case of Artha Rin Adalat being a special law is mandatory. There cannot be any escape from fulfillment of legal necessity as envisaged in section 19 or likewise section 41 of the Ain. Mohiuddin Mahmood vs Bangladesh, 17 BLC 531,
Section 19(1)-The decree was passed without any service of summons or even without any attempt to do so. As such, it is a nullity in the eye of law and it is imperative upon any Court of law, to hold so, even without invoking the provisions of section 19 of the Ain or Rule 13 of Order IX of the Code. Because Rule 13 envisages at least a service, even if not 'duly' and sub-section (1) of section 19 also envisages a service of summons upon the defendant.
Since on the admitted facts that the ex-parte decree against the defendant No. 2 is a nullity, the judgment and order passed by the High Court Division cannot be sustained. Sonali Bank Limited vs Prime Global Limited, 63 DLR (AD) 99.
Section 19(1) Section 19(1) puts a clear bar to consider the case of defendant, as evident from the word "sa" This bar may appear to be unfair compared to the advantage given to the plaintiff under section 19(6). But the legislative intent as reflected in section 19(1) cannot be interpreted otherwise than by applying the literal rule of interpretation, which requires that when language is clear, it has to be followed unless it results in an absurdity. Undoubtedly 'unfair' and 'absurd' do not bear the same meaning or consequence Enayetur Rahman vs Bangladesh, 64 DLR 116.
Section 19(1)-If the Adalat finds that the manner and style of conducting the case by the defendant is to avoid or refrain from hearing (a), the Adalat should go for exparte disposal of the suit. Osman Gazi Chowdhury vs Artha Rin Adalat, 21 BLC 322.
Section 19(1) The Legislature made the provision in section 19(1) of the Ain, 2003 for the Adalat to dispose of the suit ex-parte (a). The expression "(4)" in section 19(1) of the Ain, 2003 has been purposefully employed debarring the Adalat from considering the defendant's case. Osman Gazi Chowdhury vs Artha Rin Adalat, 21 BLC 322.
Sections 19 and 42
অর্থ ঋণ আদালত আইনের ১৯ এবং ৪২ ধারা তথা জারী পর্যায় নিলাম রদের জন্য দাখিলী বিবিধ মামলাসমূহের চূড়ান্ত আদেশের বিরুদ্ধে বিবিধ আপীল রক্ষণীয় এবং অর্থ ঋণ মোকদ্দমা হতে উদ্ভূত জারী মোকদ্দমার সকল অন্তবর্তীকালীন আদেশের বিরুদ্ধে আপীল বা রিভিশন গ্রহণযোগ্য নয় । ....... (২৫) 73 DLR 237
Section 19(2) The petitioner can only get any relief if, and only if, the petitioner did not have any knowledge as to the exparte decree or as to the Jari Case. Either by herself or through her constituted attorney would be sufficient for knowledge of the case which have given her to file an application under sub- section (2) within 30 days from knowledge for filing an application for setting aside the exparte decree. Dilruba Morshed vs Artha Rin Adalat, 17 BLC 98.
Section 19(2) Because of the percentage of deposit being only 10% of the decretal amount, the time-limitation of filing the application being sufficient (30 days from the date of knowledge of passing the exparte decree plus further 15 days for deposit) and the mode of payment being flexible, for, it is permissible to pay in cash or submit bank draft, pay order, cheque and any other negotiable instrument, it would not be irrational to view these conditions as affordable for an aggrieved party. Osman Gazi Chowdhury vs Artha Rin Adalat, 21 BLC 322.
Section 19(2)-Since the Ain, 2003 is a special law with an overriding provision over other laws and has prescribed a special procedure, there is no scope to bypass the appellate forum, if the forum under section 19(2) of the Ain, 2003 against an exparte decree is already not availed of by the party. Osman Gazi Chowdhury vs Artha Rin Adalat,21 BLC 322.
Section 19(2) Section 19(2) of the Ain does not expressly prescribe for issuance of any notice upon the decree-holder to show cause in determining the correctness of the date of knowledge but it is the established principle of law that even when a statute is silent, notice has to be given if any person is sought to be affected in his right, interest, property or character. Pubali Bank Ltd vs Bangladesh,66 DLR 317.
Section 19(2) Unless the other requirement as to limitation under section 19(2) of the Ain is complied with, the Adalat has no scope to allow the application, irrespective of the fact that the defendant deposited 10% of the decretal dues. Pubali Bank Ltd vs Bangladesh, 66 DLR 317.
Sections 19(2)(3)-The Adalat has to be satisfied that the application has been filed properly within the limitation as prescribed in section 19(2) of the Ain and also in compliance with section 19(3) of the Ain (deposit of 10% of the decretal dues) and that in determining such limitation period particularly the correctness of the date of knowledge as per requirement of section 19(2) of the Ain, notice has to be served upon the plaintiff. Pubali Bank Ltd vs Bangladesh, 66 DLR 317.
Sections 19(3) (4)-A bare reading of the provisions of Ain gives a clear understanding that right after passing of the exparte decree or from the date of knowledge of the exparte decree if within 30 days as per sub-section (3) of section 19 by depositing 10% of the decrectal amount an application is filed for restoration of the suit after setting-aside the exparte decree, the suit will automatically restored in terms of section 19(4) of Ain. Bangladesh Development Bank Limited vs Judge, Artha Rin Adalat, Jessore, 66 DLR 1.
Section 19(4) Legislature never intended that by operation of section 19(4) of Ain application of this kind can also be restored without deciding the question of knowledge in a given situation. Bangladesh Development Bank Limited vs Judge, Artha Rin Adalat, Jessore, 66 DLR 1.
Section 20-Under section 20 of the Ain an aggrieved party cannot bring a fresh suit against the decision of the Artha Rin Adalat. The section provides that no person can challenge the order or judgment and decree of the Artha Rin Adalat under any other law except the Arth Rin Adalat Ain, 2003. If any prayer is made under any other law except the Artha Rin Adalat Ain, 2003 the same shall not be entertainable. Rowshan Ara Begum vs Rupali Bank Ltd, 68 DLR 265.
Section 20-No form of word seeking to limit the jurisdiction of the ordinary court protects a nullity. A judgment-debtor not concerned with the loan either as borrower, mortgagor or guarantor is not precluded by the ouster clause from protecting his property by resort to ordinary civil court. Per M. Moazzam Husain J (dissenting). Arab Bangladesh Bank Ltd vs Md. Salauddin, 16 BLC 277.
Section 20-Since the intention of law is not to put a person unconnected with loan transaction into the rigorous procedure of a special statute for protection of his property. He can, therefore, maintain his suit in an ordinary civil Court for relief. Per M. Moazzam Husain J (dissenting). Arab Bangladesh Bank Lid vs Md. Salauddin, 16 BLC 277.
Section 20-The plaintiffs-appellants without availing the remedies available to them challenged the judgment and decree in a suit before court of ordinary civil jurisdiction. The suit thus, is eminently barred by law justifying rejection of plaint. 55 DLR $85.
Section 20-Separate suit to set aside ex-parte decree passed by Artha Rin Adalat will not be maintainable in view of remedy available under Artha Rin Adalat Act itself 18 BLD (AD) 268.
Section 20-That 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. 46 DLR (AD) 191; 4 BLC (AD) 178.
Section 20-There is specific provision of law for appeal against the judgment and decree passed by the Artha Rin Adalat within 30 days of passing thereof upon depositing 50% of the decretal dues. When such provisions are not availed of, the writ petition there against is not maintainable. AQM Shah Alam Chowdhury vs Bangladesh, 13 MLR (AD) 258 = 13 BLC (AD) 122.
Section 20-There being specific remedy in the statute for filing appeal against the judgment and decree of the Artha Rin Adalat, the defendant not availing of the aforesaid remedy can not maintain the writ petitions. BCR 2006 (AD) 189 56 DLR (AD) 06.
Section 20-The law is settled now that no petition under Article 102(2) of the institution lies impugning the judgment and decree passed by the Artha Rin Adalat in a case filed by the financial institution for realization of its loan money. Azad Shahnewaz vs Artha Rin Adalat, Dinajpur, 15 BLT (AD) 77.
Section 20-A judgment-debtor is not competent to challenge the decree of the Artha Rin Adalat in writ jurisdiction unless the judgment and decree of the Adalat is without jurisdiction or in other words coram non judice or outcome of fraud committed on court and that also suffers from malafide. Mir Motiur Rahman Zihadi vs. Artha Rin Adalat, 15 BLT (AD) 267.
Section 20-The writ petition is not proper course for challenging the judgment of Artha Rin in view of provision for filing appeal being provided in the statute. BADC vs Artha Rin Adalat, 15 BLT (AD) 363.
Section 20-High Court Division held that the impugned order passed by the Artha Rin Adalat in a proceeding under Order 21, Rule 89 of Code of Civil Procedure is not amenable to writ jurisdiction and the same can in an appropriate case be dealt with by a civil court. The High Court Division further held that the order Artha Rin Adalat passed in exercise of power of the Code of Civil Procedure cannot be challenged under Article 102(2) of the Constitution-We are of view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. Md. Mokaddas Ali vs Artha Rin Adalar, 15 BLT (AD) 237.
Section 20-If the Adalat passes any order which is wholly without jurisdiction, not in excess of jurisdiction, then despite of the fact that the law provided forum for appeal, the petitioner cannot he debarred from availing the jurisdiction under article 102 of the constitution. Md. Arfanuddin Akanda vs. Artha Rin Adalat, 15 BLT 343.
Section 20 Question as to whether the suit against the debtor was barred - limitation or not may be agitated in appeal and not in writ jurisdiction, AQM Shah Alam Chowdhury vs Bangladesh, 5 ADC 198.
Aggrieved party cannot bring a fresh suit against the decision of the Artha Rin Adalat.
68 DLR 265: Rowshan Ara Begum & others Vs. Rupali Bank Ltd. & others: Section 20 of the Artha Rin Adalat Ain, 2003: Under Section 20 of the Artha Rin Adalat Ain, 2003 an aggrieved party cannot being a fresh suit against the decision of the Artha Rin Adalat. The Section provides that no person can challenge the order or judgment and decree of the Artha Rin Adalat under any other law except the Artha Rin Adalat Ain, 2003. If any prayer is made under any other law except the Artha Rin Adalat Ain, 2003 the same shall not be entertainable. (Para-39, Mr. Justice Farid Ahmed). Ref: 16 DLR 287, 54 DLR 123, 56 DLR 588, AIR 1945(Patna)434, AIR 1969(SC)78. 7 ADC 291
Sections 20 and 19-No question shall be raised before any court or authority about any pending proceeding in Artha Rin Adalat or its order, judgment or decree. The judgment or decree of Artha Rin Adalat is final and the same cannot be questioned in any other Court under any separate proceeding. Per Sheikh Abdul Awal, J (delivering the main judgment). Arab Bangladesh Bank Ltd vs Md. Salauddin, 16 BLC 277.
Sections 20 and 41-Section 6 of the Artha Rin Adalat Ain, 1990 or for that matter Section 20 of Ain, 2003 create a bar in proceeding with a subsequent suit making a prayer for setting aside an ex-parte decree even on the ground of fraud or even with a prayer for another declaration for the Power of Attorney and Memorandum of Deposit of Title Documents as forged, fabricated and false rather the only remedy available for the opposite party No. I was to go for an application under Order IX Rule 13 of the Code of Civil Procedure or an appeal under Section 7 or Section 41 of the Artha Rin Adalat Ain, 1990 and 2003 respectively. Per Nozrul Islam Chowdhury J (Agreeing with Awal, J). Arab Bangladesh Bank Ltd vs Md Salauddin, 16 BLC 293.
Section 21-From the plain reading of the provisions, it appears that the law has given the right to plaintiff to avail the remedy under Order XXIII, rule 1 of the Code of even at the appellate stage. But the relief contemplated under this provision of law is one of discretionary nature. So, it is desirable that for a discretionary relief the plaintiff should come before the Court at the earliest opportunity. Sekander Ali vs. Md. Seraj Mia, 60 DLR 154.
Section 21-Held The High Court Division upon correct assessment of the materials on record arrived at a correct decision. M/s. Ali Reza represented by its proprietor Shikder Ali Reza, Bagerhat vs Joint District Judge and Artha Rin Adalat, 2nd Court, Bagerhat, 15 BLT (AD) 323.
Sections 21 and 22-From reading section 21 it appears that if the Court deems fit and proper after filing and perusing the written statement than the Court can invoke the provision of this section. But section 21 clearly said that if the parties desires then the Court has no other choice but to go for mediation/arbitration, reading section 21 we find that the power given to the Court under section 21 is a discretionary power to be exercised judiciously. Rana Appearels Ltd. vs. Bangladesh, 15 BLT 104.
Sections 21, 22, 24 and 38-Provision for amicable settlement for payment of outstanding dues-Held: An amicable settlement for payment of outstanding dues under the Ain of 2003 can be effected in three stages of a proceedings; the first stage is provided in sections 21 and 22 which can be done at the pretrial stage and the procedure is provided in section 24; the second stage is under section 38 after passing a decree and during the pendency of the execution proceedings; and the last stage is under section 45, which enjoins a borrower or any other defaulter or a judgment-debtor to settle up the dispute at any stage of the proceedings. Fariduddin Mahmud vs Md Saidur Rahman, 63 DLR (AD) 93.
Sections 21-25, 38 and 45-It cannot be said that the petitioners have been left out without any forum to place its grievance in accordance with law. The Artha Rin Adalat being a creature of the statute it cannot go beyond it nor can it be regulated by other notification which is not, at all related with the adjudication of the suit rather it was made for other purposes as discussed. Mirzaboo Steels Lid vs Government of Bangladesh 59 DLR 141.
Sections 21, 22, 38 and 45-If the decree holder is satisfied with the terms of compromise and volunteers that it has compromised the dispute, the Court is left with no option but to accept the prayer and pass necessary order for compromise.
Held: The intention of the legislature i.e. the Artha Rin Adalat Ain is explicit. It encourages amicable settlement of the disputes outside the Court. It is the cardinal rule for construction of Act of Parliament that they should be construed according to the intention expressed in the Acts themselves. In construing Acts of Parliament we are to look not only at the language of the preamble or of any particular clause, but the language of the whole Act. In the Ain, a settlement can be effected at three stages of proceedings; firstly, at the pretrial stage of the proceedings under sections 21 and 22; secondly, after the passing of the decree and during the pendency of execution proceedings under section 38 and the last phase is under section 45, which authorizes the Artha Rin Adalat to accept the settlement or conciliation for the payment of the decreetal amount at any stage of the proceeding i.e. even at the final stage of the execution proceedings. In this case the decree holder itself is eager to settle up the dispute amicably and accordingly it filed the application for staying further proceedings of the execution case before the auction sale was held, which prayer is normally made by the judgment-debtors. The order-sheet shows that the executing Court is very much interested in putting the property in auction sale despite the objection raised by the decree holder. The Courts are adjudicating a lis in accordance with law but in this case we find the executing Court has adjudicated the matter in such a manner, which can be taken as has been done in accordance with law. If the decree holder is satisfied with the terms of compromise and volunteers that it has compromised the dispute, the Court is left with no option but to accept the prayer and pass necessary order for compromise. Lt Col. MA Mannan (Retd.) vs Social Investment Bank Ltd, 31 BLD (AD) 124.
Sections 22 and 24-Adalat should remember that after amendment of section 22 in the year 2010 mediation has been made mandatory on the part of the Adalat itself. When amended section 22 be read together with section 24 of the Ain it makes the proposition more clear. Now the law stands that right after filing of the written statement, the duty is incumbent upon the Court to initiate mediation. Mohammad Ali vs Judge, Artha Rin Adalat, 19 BLC 356.
Section 26-Order XXI, rule 83 of the Code does not come into conflict with any of the provisions of Artha Rin Adalat Ain and, as such, applicable in an execution proceeding under the Ain. While arriving at such a decision this Division also took an account of section 26 of the Ain which made the Code of Civil Procedure applicable in execution proceeding so far the relevant provisions of the Code is not inconsistent with the provision of the Ain. Mosharef Hossain (Md) vs Bangladesh, 65 DLR 81.
Section 26-Section 26 of the Ain of 2003 has expressly debarred application of the provisions of other statutes including the Code of Civil Procedure pending execution proceedings so far it is inconsistent with the provisions of the Ain of 2003. In other words, the relevant provisions of the Code of Civil Procedure so far it relates to the procedure to make the suit ready for holding trial of Artha Rin Suit as well as for execution of decrees are applicable which are not in conflict with the Ain of 2003. Bodiuzzaman Milon vs Bangladesh Commerce Bank Limited, 17 BLC 426.
Section 26-Procedure of money execution proceeding as laid in the Code shall equally apply in case of provision of Ain (execution). Rafia Ashraf vs Government of Bangladesh, 19 BLC 546
Section 26-It has made provision for depositing of 25% of the decretal amount where any 3rd party wants to join in execution proceeding to ventilate grievances. Since the Artha Rin Adalat Ain is a special law it will override any other law if there is no inconsistency in the special law itself. Rafia Ashraf Polly vs Govern-ment of Bangladesh, 19 BLC 546.
Section 26-Filing objection against inadequacy of price or for any other causes: Held: Section 26 of the Ain provides that the procedure provided for execution of a proceeding in the Code of Civil will be applicable if those provisions are not inconsistent with it. Since there is no provision in Chapter VI of the Ain for filing objection against inadequacy of price or for any other causes as provided in Rules 89, 90 and 91 of Order 21 of the Code of Civil Procedure for setting aside a sale, those provisions of the Code are applicable in execution proceedings. Fariduddin Mahmud vs Md Saidur Rahman, 63 DLR (AD) 93.
Section 26-Since specific provision is not available in the Act enabling the Artha Rin Court to put the decree-holder into possession, the Court may exercise its such jurisdiction as provided in rules 97 and 98 under Order XXI of the Code read with section 26 of the Act, and give necessary directions to execute its order. IFIC Bank Limited Vs. Marinar Fashions Wear Pvt, 15 BLT 425.
Sections 26 and 33(4)(5)(7)(9)-In the instant case, the learned Judge ought to have taken necessary steps to put the decree-holder in physical possession of the concerned property of the Judgment-debtor as prayed for. Since specific provision is not available in the Act. enabling the Artha Rin Court to put the decree-holder into possession, the Court may exercise its such jurisdiction as provided in rules 97 and 98 under Order XXI of the Code read with section 26 of the Act, and give necessary directions to execute its order. IFIC Bank Ltd vs Mariner Fashions Wear Ltd. 12 BLC 723.
Section 27-When execution case is not premature-Held: The learned Counsel appearing for the added respondent concedes that on 7-2-2007 the application for revival of the execution case was premature but on 22-7-2007 when admittedly the present petitioner judgment debtor admitted that the decreetal amount was not paid and prayed for time the execution case became a mature one because it was long after 12 months and therefore the contention raised by the learned counsel for the petitioner has no substance. We find substance in the submission of Mr Mahmudul Islam and hold that "the execution case was not at all premature. The next contention that the executing court had no authority to pass the impugned order has been correctly decided by the High Court Division holding that the Learned Additional District Judge did not adjudicate in the matter and he only allowed certain adjournments and issued notices and subsequently he was replaced by the District Judge as Artha Rin Adalat and therefore the allegation that the court had no jurisdiction has been rightly rejected by the High Court Division. [Mr Justice Md Abdul Matin] MA Salam and Co. vs Islami Bank Bangladesh Limited represented by its Executive Vice President, 6 ADC 797.
Section 27-The auction sale alleging that the price which was accepted was shocking low bit-The executing court rejected the said prayer.
Held: In writ jurisdiction judgment debtor obtained rule and auction purchaser by filing affidavit-in-opposition opposed the Rule while decree holder Bank supported the Rule High Court Division disposing of the Rule directing the executing court for passing necessary order for setting aside the auction sate and for holding fresh auction of the mortgaged properties provided that the judgment debtor pay the auction purchaser, interest at the rate of 12%, on the amount of money which the auction purchase, deposited in the court with effect from the date of deposit.
High Court Division on proper consideration of the materials on record arrived at a correct decision and there in no illegality or infirmity in the above decision so as to call for any interference. [Mr. Justice Md. Tafazzul Islam]. M's International Trade Promotors vs The Judge, Artha Rin Adalat No. 1, Dhaka, 17BLT (AD) 306.
Sections 27 and 30-As section 34 does not exclude the operation of section 51 and Order XXI, rule 37 of the Code specifically or by necessary implication, rather the Ain of 2003 is read as a whole, no inference other than that the audi alteram partem rule shall be followed by the Adalat(s) in making an order of civil prison of judgment debtor(s) in execution proceedings. Rahima Auto Rice Mills vs Manager, Pubali Bank Ltd, 60 DLR 313.
Section 27(1) Rule 58 of Order XXI of the Code of Civil Procedure requires an executing Court to investigate the claim or objection of an objector as if he was a party to suit. Such investigation is dispensed with only when the court considers the claim or objection was designedly or unnecessarily delayed. The court did not find the claim or objection of AB Bank was delayed. In the facts and circumstances of the case and in the interest of justice, the Fourth Artha Rin Adalat which now holds the property must dispose of both execution cases under section 27 of the Ain. In the result, the appeal is disposed of without however any order as to cost. Third Artha Rin Adalat is directed to send the decree dated 29-7-99 passed by it in Title Suit No. 125 of 1992 to the Fourth Artha Rin Adalat for execution and Fourth Artha Rin Adalat is directed to execute both the decrees in accordance with law. Arab Bangladesh Bank Ltd vs Janata Bank, 11 BLC 186.
Sections 27(1) and 33 (7) Admittedly the property is situated in Dhaka but the Artha Rin Adalat at Chittagong initiated the process of auction and issued the certificate under section 33(7) of the Ain which is absolutely beyond its territorial jurisdiction. Khadiza Begum vs Shahjalal Islami Bank Ltd, 67 DLR 583.
Artha Rin Adalat Ain [VIII of 2003]
Section 27-To get the maximum price of the property for the benefit of the decree holder Bank as well as the borrower, the auction process in an execution proceeding under the Artha Rin Adalat has to be conducted within the jurisdiction of the property concerned.
The High Court Division finds that the property is situated under the District Gazipur and on the other hand, the executing court is at Dhaka. It is the consistent view of our High Court Division by several cases, in particular, in the case of Gulshana Ara Begum and others Vs Judge, Artha Rin Adalat No. 1, Dhaka and another reported in 70 DLR 230, their lordships held that to get the maximum price of the property for the benefit of the decree holder Bank as well as the borrower, the auction process in an execution proceeding under the Artha Rin Adalat has to be conducted within the jurisdiction of the property concerned. Relevant portions of the said ratio are as follows: "We have already seen that under section 27 (1) of the Ain, the Artha Rin Adalat is empowered to transfer an execution case to a different district and the mortgaged property having been situated at Narayanganj, we are of the view that the execution case has been lawfully filed before the Adalat, but the execution case ought to have been transferred to Artha Rin Adalat, Narayanganj for execution of the decree relating to the mortgaged property situated at Narayanganj so that the property is sold at the maximum price. If the mortgaged property is sold at a maximum price, both the Bank and the judgment-debtors would be benefited by it. Therefore, the learned Judge of the Adalat ought to have allowed the application for transfer of the execution case to a Court of Narayanganj district." Therefore, agreeing with the above ratio, the High Court Division consider that instead of Artha Rin Adalat No. 1, Dhaka, the present executing proceeding has to be transferred to the Gazipur District in accordance with section 27 of the Artha Rin Adalat Ain, 2003. Considering the facts and circumstances stated hereinbe- fore, the High Court Division finds merit in the Rules. In the result, the Rules issued in three writ petitions are made absolute. Agrani Bank Limited Vs. The Judge. Artha Rin Adalat, 1 Court, Dhaka and others (Spl. Original) 18 ALR (HCD) 285- 293
Artha Rin Adalat Ain [VIII of 2003]
Section 28(1) read with
Limitation Act [IX of 1908]
Article 182-After pronouncement of judgment and signing decree if the said decree is amended at the instance of either party or the Court itself/himself the fresh limitation would be counted from the date of amendment of decree as per article 182 of the Limitation Act, 1908.
The High Court Division held that it appears that the learned Judge of the Adalat without following the relevant provision of law passed the impugned order rejecting the artha jari case of the Bank as barred and barred by limitation, which is not tenable in the eye of law. Pubali Bank Limited -Vs.- Judge, Artha Rin Adalat, Khulna and others (Spl. Original) 15 ALR (HCD) 270- 272
Artha Rin Adalat Ain [VIII of 2003]
Sections 28 and 33-Whether an Artha decree execution case is disposed of after issuance of certificates either under Sections 33(5) or 33(7) of the Artha Rin Adalat Ain, 2003 even without delivery of possession of the property in respect of which such certificates were issued;
The High Court Division is of the view that, once certificate is issued in favour of the decree-holder in respect of the concerned property either under sub- section (5) or sub-section (7) of Section 33 of the said Ain, the execution case in question has to be regarded as disposed of under sub-section (9) of Section 33. After such disposal, the executing Adalat will become fungtus-officio in so far as the execution of the said decree is concerned except that the executing Adalat will only have power to handover possession of the property in question in favour of the decree-holder under sub-section (7 ka) of Section 33 and in doing so will conduct an inquiry as regards real ownership of the judgment debtor in respect of the said property under sub-section (7 Kha) of Section 33. In which case, though the process of handing over of possession of the property in question as well as inquiry as regards ownership of the property may go in accordance with law for long time, the decree-holder bank will be able to file the second or next execution case for execution of decree in so far as the remaining decreetal amount is concerned. Otherwise, the whole purpose of enabling the decree-holder to file second or subsequent execution case will be redundant and, under no circumstances, the decree-holder will be able to file second or next execution case once the issue of delivery of possession in favour of the decree-holder remains pending. It is for this reason that, the legislature has inserted sub- section (6ka) under Section 33 by virtue of Act No. 16 of 2010 to adjust the value of the property with the decreetal amount and to file second or next execution case, again subject to the provisions under Section 28 of the said Ain. Therefore, unless the execution case is regarded as disposed of under sub-section (9) of Section 33 after issuance of the certificate under sub- sections (5) or (7) of Section 33, in most cases, the decree-holder bank or financial institution will never be able to file second or next execution case subject to the provisions under Section 28 of the said Ain for execution of a decree in so far as the remaining decreetal amount is concerned. A.R. Jafar Sadek -Vs.- Artha Rin Adalat, 1 Court, Dhaka and others. (Spl.Original) 16 ALR (AD) 265-272
Section 28-Barred by limitation-Held: After taking three adjournments on the 4th date on 22-4-2003 the decree holder bank filed the certified copy of the decree and also the vakalatnama of the respondent bank and hence the execution case having been filed long after two and half years is hopelessly barred by limitation and as such are liable to be rejected as per provisions of Section 28 of the Artha Rin Adalat Ain, 2003. Nasir Hossain Chaklader vs Joint District Judge & Artha Rin Adalat No. 2, Dhaka. 6 ADC 302.
Section 28 Chapter VI of Ain 2003 deals with execution matter. Section 28 of Ain prescribes limitation only in respect of filing of Execution Cases arising out of Artha Rin Case. It prescribes limitation for filing the Execution Case by giving a positive and specific consequence in as much as if the same is not filed within time specified in the section itself the same would be rejected outright. It certainly bears a mandatory implication. The construction of the section implies that the Execution Case would be barred by limitation if it is not filed within time. The legislatures in its wisdom connotes the mandatory application of section 28 consciously. The legislatures. to make a particular enactment mandatory, used some phraseologies to give it a mandatory meaning. Shitalakhaya Ice and Cold Storage Pvt. Ltd vs Artha Rin Adalat, 64 DLR 487.
Section 28-Admittedly the decree in question was passed on 14- 7-1984 and thereafter the 1st execution case was filed on 26-11-1984. This last execution case was dismissed for default on 3-10-1992 and thereafter the execution case in question i.e. the 2nd execution case was filed on 8-2-1999 the execution case in question has not been filed on 8-2-1999 the execution case in question has not been filed within the time prescribed in Article 182 of the Limitation Act and in section 48 of the Code of Civil Procedure. So, in this circumstances without any further discussion it may be said that the execution case in question being hopelessly barred by limitation is unlawful. A.B.M. Ashrafullah vs Bangladesh, 17 BLT 343.
Section 28
After taking three adjournments on the 4th date on 22.04.2003 the decree holder bank filed the certified copy of the decree and also the vakalatnama of the respondent bank and hence the execution case having been filed long after two and half years is hopelessly barred by limitation and as such are liable to be rejected as per provisions of Section 28 of the Artha Rin Adalat Ain, 2003. Nasir Hossain Chakladar vs. Joint District Judge (Md. Abdul Matin J) (Civil)6 ADC 302
Section 28-Section 5 of the Limitation Act has no manner of application in the Artha Rin Adalat Ain. When there is special limitation in a special law, that is, mandatorily to be followed. Habib Bank Limited vs UAE Bangladesh Investment Company Limited, 52 DLR 25
Section 28(1) Limitation for filing appeal-from a reading of the relevant provisions it is manifest that if a suit is a mortgage suit and brought for foreclosure in that case, the decree pronounced by the Adalat shall be a preliminary decree and the decrees of the Adalat for recovery of loans in other cases are to be treated final decrees. FR Garments (Pvt) Ltd. vs Artha Rin Adalat, Dhaka, 61 DLR 296.
Section 28(1) The law on the point is very much clear that notwithstanding anything different contained in Limitation Act and in the Code of Civil Procedure the time prescribed for filing of the Execution Case under section 28 of Ain should be strictly followed. The law, being a special law shall override any other provisions in that regard. Mostafa Ahmed vs Government of Bangladesh, 65 DLR 294.
Section 28(1) Law of limitation-The question of limitation is a mixed question of fact and law. One cannot be allowed to take advantage of something indirectly which he cannot take directly. Mostafa Ahmed vs Government of Bangladesh, 65 DLR 294.
Sections 28(1), (2), (3) and (4)-If the 2nd Execution Case is filed after expiry of 1 year from the rejection or disposal of the 1st Execution Case or if any new execution case is filed after expiry of six years of filing the first execution case, the same would be barred by limitation. Birendra Nath Roy vs Rupali Bank Ltd, 18 BLC 118.
Section 28(2) After the passing of the preliminary decree in 1992 final decree was signed on 1-2-2000 and it is also admitted that the Execution was filed on 12-5-2003 which is beyond the prescribed limitation for filing the same under section 28 of the Ain and for that reason the executing Court acted illegally in not holding that the Execution Case is barred under section 28(2) of the Ain. Momin Automatic Rice Mills Limited vs Bangladesh Shilpa Bank. 17 BLC 337
Section 28(3) A second execution case can be maintained when it is filed within one year from the date of rejection or disposal of the first execution case, however that course is available only when the first execution case is rejected for reasons other than the ground of limitation. If the second execution case is continued after rejection of the first execution case on the point of limitation it will defeat the special provision of limitation as contemplated in the statute. Janata Bank Ltd vs Bangladesh, Secretary Ministry, of Finance and planning. 20 BLC 751.
Section 28(3)(4)-According to section 28(3) (4) of the Ain, the second execution case is to be filed within one year from the date of disposal of the previous execution case, and or within 6 years from the date of filing of the first execution case. Iftekhar Uddin Ahmed vs Artha Rin Adalat, 17 BLC 220.
Sections 28(3), 37 and 60(3)-Since there was no suit of the Financial Institutions pending before any Commercial Court after 1990. Thereafter, Artha Rin Adalat Ain 2003 having come into force on 1-5-2003 upon repealing the Ain of 1990, the said execution case was transferred to the Artha Rin Adalat constituted under the Ain 2003 pursuant to section 60(3) of the said Ain. As such, dismissal of the said execution case on 16-5-2003 for default was made by the Adalat constituted under Ain 2003. Hence, filing of the second execution case on 13-11-2003 is very much within one year of the dismissal of the earlier case and is wholly within the scope of section 28(3) of the said Ain of 2003. Thus, there is no illegality in filing of the execution case and continuation of the proceeding of the same. Moreover, the time limit fixed by section 37 of the Ain 2003, for disposal of execution case within 150 days being "directory" not "mandatory", as decided in Writ Petition No. 7615 of 2005 (M Serajul Islam vs Bangladesh) by this bench, there is no illegality in the proceedings of the execution case. Khurshid Alam (Md) vs Judge, Artha Rin Adalat- 1, 12 BLC 592.
Section 29-Entire proceeding of execution case is barred by limitation and without jurisdiction as such, from the date of filing of the execution case upto selling of the property in auction, entirely was done without jurisdiction, illegally, malafide and arbitrarily. Dr Md Asadullah vs Sonali Bank Ltd. 62 DLR 474.
Section 30-As section 34 does not exclude the operation of section 51 and order XXI, rule 37 of the Code specifically or by necessary implication, rather the Ain of 2003 is read as a whole, no inference other that the audi alteram partem rule shall be followed by Adalat(s) in making an order of civil prison of judgment debtor(s) in execution proceedings. Rahima Auto Rice Mills vs. Manager, Pubali Bank Ltd., 60 DLR 313.
Artha Rin Adalat Ain (VIII of 2003)
Sections 30 and 50
The notice was published in the newspaper for appearance of the judgment-debtors following the provision of section 30 of the Ain in a newspaper. The notice was for information to the judgment-debtors that a execution case has been filed for non-payment of decree dues. The notice was published about filing of the execution case legally. The High Court Division had no jurisdiction to interfere with the judgment and decree passed by the Artha Rin Adalat in writ-petition by directing the writ petitioner only to pay the principal amount of loan without paying the interest. This is in clear violation of section 50 of the Ain. [73 DLR (AD) (2021) 116]
Sections 30 and 34(1)-The in issuing warrant of arrest and detaining the petitioners in civil jail has assigned the reason only stating that the judgment-debtor failed to appear before the Court and to show cause in spite of publishing notice under section 30 of the Ain in the dailies, but the Ain does not say so. The application filed by the Bank praying for issuance of warrant of arrest and detention of the petitioners and the impugned order are contrary to the provisions as contained in section 34(1) of the Ain. Abdul Jalil (Md) vs Judge, Artha Rin Adalat, 2nd Court, Dhaka, 67 DLR 575.
Sections 30(1) and 33(5)(6)-Failure of the Bank to follow up the provision of section 33(5), (6) and the Adalat's failure to follow up the provision of section 30(1) of the Ain appears to be the fatal flow that appears evidently on record. Wadud Sheikh (Md) vs Artha Rin Adalat, 20 BLC 398.
Section 31-In the instant case, only an appeal under section 7(2) could be preferred challenging the decree passed by the Artha Rin Adalat Ain, 2003 and in the absence of any such appeal, we do not find that the petitioner's application for stay of the Artha Rin Execution Case No. 2 of 2001 is maintainable. Shahajan Traders vs Sub-ordinate Judge and Artha Rin Adalat, 15 BLT (AD) 370.
Section 31-In the facts and circumstances of the case, if the petitioner's allegation of non service of summons of the suit is correct, his remedy of a separate suit is not barred, provided his remedies under the Artha Rin Adalat Act stood barred at the time of the filing of the suit for no fault of his own. But, these are matters of evidence and until the plaintiff petitioner proves these allegations in the suit the decree-holder respondent-Bank cannot be denied the fruit of its decree for indefinite period. Md Mozammel Hoque vs Sonali Bank, 15 BLD (AD) 35.
Section 31-An aggrieved party i.e. a judgment-debtor has only the forum of appeal when a decree is passed either on contest or expert. Provision of the Code of Civil Procedure is applicable subject to this special law. MAC vs Agrani Bank, 47 DLR 233.
Sections 31 and 41-Appeal may be preferred against any kind of order passed at the time of carrying out the execution process, irrespective of its nature of finality or interlocutory, and, thus, we hold that no distinctive meanings have been attributed to the words "order" or 'interlocutory order" by the Legislature for the order passed at the post-decree stage by the Adalats. Sonali Bank Limited vs Asha Tex International, 20 BLC 185.
Sections 31, 41 and 44 Once the decree is drawn, thereafter, *any party to the suit' is competent to prefer any appeal against any order passed by the Adalats inasmuch as the precondition for preferring an appeal to deposit a certain amount of money can be fulfilled only after ascertaining the decretal amount. Sonali Bank Ltd vs Asha Tex International, 20 BLC 185.
Third party claim
Third party can lodge claim in the execution case on depositing 25% of the decretal amount.
Title by Adverse possession and title through documents-68 DLR 265: Rowshan Ara Begum & others Vs. Rupali Bank Ltd. & others: Section 32 of the Artha Rin Adalat Ain, 2003: But the 3rd party like the present appellants can lodge calim under Section 32 of the Artha Rin Adalat Ain, 2003 according to the provisions of Civil Procedure Code by filing an application in the execution case arisen out of a decree or an order of the Artha Rin Adalat on depositing 25% of the decreetal amount. (Para-39, Mr. Justice Farid Ahmed). Ref: 16 DLR 287, 54 DLR 123, 56 DLR 588, AIR 1945(Patna)434, AIR 1969(SC)78. 7 ADC 291
Section 32
If a third party raises any objection against the execution proceeding by submitting any claim (vex), then he has to comply with the provision of sub-section (2) of section 32 of the Ain. What is - important to note here is that the objection must be against the execution of a decree and that the claim must be on the subject matter of the suit/execution proceeding. Md. Salim Hossain vs. Artha Rin Adalat (Syed Mahmud Hossain J) (Civil) 10 ADC 420
Section 32-The Adalat by exercising its discretion under order XXI, rule 100 and 101 of the Code entertained the application and after delivery of possession of the schedule property to the petitioner- auction-purchaser, the Adalat has not become functus-officio. Sanaullah vs Government of Bangladesh, 17 BLC 481.
Section 32(1)
The Rupali bank Limited instituted Artha Rin Mortgage Suit No.69 of 2003 in the Court of the Artha Rin Adalat, Narayan- gonj, for realization of a sum of Taka 18,37,494/- with interest against the re- spondent Nos.3-6 stating that on the basis of the application of the judgment debtors, the plaintiff bank initially sanc-: tioned a sum of Taka 1,50,000/- as cash credit hypo loan on 12th August, 1991. Jalaluddin Ahmed vs. Md. Selim Hossain (S.K. Sinha J) (Civil) 7 ADC 291
Section 32 (2)
The respondent No.1 Sonali Bank Limited instituted Artha Rin Suit No.623 of 2004 in Artha Rin Adalat No.1, Dhaka against the respondent Nos.2 to 5 for re- alization of outstanding loan. The said suit was decreed ex-parte by the judg- ment and decree dated 08.09.2004. Md. Humayun Kabir vs. Sonali Bank (Naz- mun Ara Sultana J) (Civil) 9 ADC 335
Section 32-The requirement of depositing 25% of decrectal amount is mandatory since the consequence of not depositing 25% of decrectal amount is stipulated in the section 32 of the Act to the effect that the application shall be rejected. Shamsuddin Ahmed vs City Bank Ltd, 18 BLC 30.
Section 32-Civil court under section 9 of the Code has jurisdiction to try all suit/case of civil nature, as such, if the decree under challenge be tainted with fraud then why the plaintiff shall be over burdened with compulsory payment of 10% of the decreetal amount as per section 32 of the Ain. Since Artha Rin Adalat Ain, being special law, learned Judge was totally on wrong forum in entertaining which is not within his jurisdiction. Janata Bank vs Md Sekandar, 18 BLC 793.
Section 32-Third party can lodge claim under section 32 of the Ain according to the provisions of Civil Procedure Code by filing an application in the execution case arising out of a decree or an order of the Artha Rin Adalat on depositing 25% of the decreetal amount. Rowshan Ara Begum vs Rupali Bank Ltd, 68 DLR 265.
Section 32-The 3rd party had enough scope to file an application before the Adalat by way of filing an objection under section 32 of the Ain, against the execution of a decree passed by the Adalat relating to the property. Promoda Sundari Sen Kalyan Trust. Rangpur vs Momtaz Zafar Ahmed, 68 DLR 53.
Sections 32 and 33(7) The petitioners are the third party and their case is that they are the bonafide purchaser of the mortgage property and they are willing to clear up the outstanding dues of the Bank. The petitioners can have their remedy under section 32 of the Ain, 2003, if so advised. Dr Md Habibuzzaman Chowdhury vs Bangladesh, 64 DLR 281.
Section 32 read with
Code of Civil Procedure [V of 1908]
Rule 7 of Order VI
It is the settled principle that if any party adduce evidence beyond the pleadings is liable to be ignored. Parties cannot be permitted to lead evidence beyond their pleadings and leading of the evidence beyond the pleadings is unwarranted and conclusion based on such evidence cannot be approved. Normally, evidence beyond pleadings cannot be considered by the Court. The said principle is still being followed, but there are exception to this general Rule. Exception is that when in the absence of the pleading.
It appears to the Appellate Division that the High Court Division expunged the above quoted evidence of the bank, at the instance of the petitioner of the Miscellaneous case under Section 32 of the Artha Rin Adalat Ain and excluded the exhibit 'Kha' from the list of evidence in the said Miscellaneous case. It is the claim of the writ petitioner that the aforesaid portions of evidence and the exhibit 'Kha' have been adduced and produced beyond the pleadings of the bank, that is, in written objection filed against the contents of the application under Section 32 of the Ain. It is the settled principle that if any party adduce evidence beyond the pleadings is liable to be ignored. Parties cannot be permitted to lead evidence beyond their pleadings and leading of the evidence beyond the pleadings is unwarranted and conclusion based on such evidence cannot be approved. Normally, evidence beyond pleadings cannot be considered by the Court. The said principle is still being followed, but there are exception to this general Rule. Exception is that when in the absence of the pleading, the parties proceed with the trial of the case with their full understanding regarding the involvement of the issues and respective cases of their adversaries, it cannot be said that the decision of the Court is vitiated by consideration of the evidence of the parties beyond their pleading. At the time of adjudicating the application under Section 32 of the Artha Rin Adalat Ain, if the evidence of the bank is found to be adduced beyond the pleadings the Adalat will have the authority to deal with issue in accordance with the law and principles enunciated in that regard. There is every possibility of the bank to be prejudiced if in writ jurisdiction evidence is expunged. The Appellate Division is of view that the High Court Division has committed an error of law in expunging evidence of the bank before allowing the Adalat to adjudicate the issues to be decided in the Miscellaneous case. The petitioner of the application under Section 32 of the Artha Rin Adalat can make his argument before the Adalat as to admissibility of above quoted portion of evidence as well as exhibit 'Kha' at the time of adjudication of the issues of the case. In view of the aforesaid facts and circumstances, the petition is disposed of. The judgment and order of the High Court Division is hereby set aside. Agrani Bank Ltd -Vs- Md. Abdus Sobhan and others (Civil), 22 ALR (AD) 192
Section 32(1)(2)-In view of section 32(1)(2) Artha Rin Adalat Ain, 2003, the petitioners were required to deposit 25% of the decretal amount while making an application for restoration of possession and in that view of the matter, the learned Judges of the High Court Division had committed no error in law in interfering with the judgment of the learned District Judge. Since the petitioners are not claiming title through the judgment-debtors, this judgment will not stand on the way if they file a fresh suit, for recovery of the suit property. Jalaluddin Ahmed vs. Md. Selim Hossain, 7 ADC 291.
Section 32(2)-Artha Rin Adalat Ain is a special law and the provision of section 32(2) of the Ain shall prevail over any other law relating to the claim of the third party claimants and the third party claimants are to comply with the mandatory provision of section 32(2) of the Ain for releasing the mortgaged properties claiming ownership. Rupali Bank Limited vs Artha Rin Adalat Chittagong, 69 DLR 178.
Section 32(2) Provision of previous sub-section (2) of section 32 of the Ain has been amended, but the provision is still a mandatory provision of law. Adalat released the mortgaged properties in favour of the third party claimants, although the third party claimants have not complied with the provision of section 32(2) of the Ain and the Adalat had no jurisdiction to entertain or decide the claim of the third party claimants and release the mortgaged properties in their favour. Rupali Bank Limited vs Artha Rin Adalat Chittagong, 69 DLR 178..
Section 32(2) The contemplation of the legislature in section 32(2) is the investigation of claims and objection as provided under Order XXI, rule 58 not beyond the periphery of rule 58. Since the petitioner filed the petition under Order XXI, rules 90 and 91 for setting- aside the sale on the ground of fraud they are not required to furnish any security as provided under sub-section (2) of section 32 of the Artha Rin Adalat Ain. Mollah Shahidul Islam vs Md Monsur Rahman, 57 DLR 164.
Section 32(2) The language of sub-section (2) is absolutely mandatory in nature as consequence of non-deposit of such security has been provided therein and since the petitioners did not deposit security equivalent to 25% of the decretal amount, their application was incompetent. Glas Uddin Chowdhury vs Bangladesh, represented by the Ministry of Law, 66 DLR (AD) 213.
Section 32(2)-A mere reading of sub-section (2) of section 32 shows that it is the precondition to deposit security equivalent to 25% of the decretal amount in order to lay claim to an immovable property involved in an execution case, but admittedly in this case. Gias Uddin Chowdhury (Md) vs Bangladesh, represented by the Secretary, Ministry of Law, 66 DLR (AD) 213.
Section 32(2) Artha Rin Adalat Ain is a special law providing special provisions to combat different situations. Section 32(2) is one which gives a right to any third party to file application against any grievance that to be remedied. But the law enjoins a strict compliance of the provision in its true purport and spirit. It has to be borne in mind that this special provision of law cannot be circumvent by bringing some fallacious argument that would negate the main spirit of law as propounded by the legislature in its wisdom. Saiful Islam (Md) vs Bangladesh, 17 BLC 558.
Section 32(2) Both parties alleged fraud against each other. Whether there was any fraud or not itself is also disputed question of fact and its answer will depend on the answer to the question whether the petitioner is the real owner of the flats or whether she is only custodian of the flats and the judgment-debtor No. 2 is the real owner. Considering the facts and circumstances of the case and the provision of section 32(2) of the Ain, the petitioner is required to furnish security to the extent of 25% of the decretal amount to maintain an application under the Ain. Rashida Mahabub vs IFIC Bank Ltd, 13. BLC 78.
Section 32(2) -The respondent No. 1 Sonali Bank Limited instituted Artha Rin Suit No. 623 of 2004 in Artha Rin Adalat No.1, Dhaka against the respondent Nos. 2 to 5 for realization of outstanding loan. The said suit was decreed ex-parte by the judgment and decree dated 8-9-2004. The decree-holder bank thereafter filed Artha Execution Case No. 189 of 2005 on the basis of the said decree. While the said Artha Execution Case was pending this present petitioner, as a third party claimant, filed an application under Order 21 Rule 58 of the Code of Civil procedure claiming some of the mortgaged properties to be his own. The said application was registered as Miscellaneous Case No. 25 of 2009. The learned Judge of the executing court ultimately rejected the said application by the judgment and order dated 15-6-2009 on the ground that the security as per section 32(2) of the Artha Rin Adalat Ain, 2003 was not deposited. Admittedly this petitioner did not deposit the security as per section 32(2) of the Artha Rin Adalat Ain, 2003 for consideration of his application under Order 21, Rule 58 of the Code of Civil Procedure. The executing Artha Rin Adalat, therefore, by the impugned order rightly rejected the said application on the ground that no security as per section 32(2) of the Artha Rin Adalat Ain, 2003 was deposited. This order of the Artha Rin Adalat rejecting this petitioner's application under Order 21 Rule 58 of the Code of Civil Procedure was passed in accordance with section 32(2) of the Artha Rin Adalat Ain, 2003. The contention of this petitioner's learned Counsel that the Artha Rin Adalat passed the said order under Order 21. Rule 58 of the Code of Civil Procedure is not correct at all. The application under Order 21 Rule 58 of the Code of Civil Procedure was filed as per provision of Artha Rin Adalat Ain, 2003 and the rejection of the same also was ordered in accordance with the provision of Artha Rin Adalat Ain, 2003. Md Humayun Kabir vs Sonali Hank IX ADC 335.
Section 32- The High Court Division held that if it could be shown that the decree was obtained by practicing fraud, the aggrieved party had its remedy under the Artha Rin Adalat Ain under section 32 by depositing 10% of the decreetal amount and that an independent suit is not maintainable. ....Sekandar (Md.) =VS= Janata Bank Ltd., [3 LM (AD) 448]
Artha Rin Adalat Ain [VIII of 2003]
Sections 32 and 60(2) & (3)-The suit filed by the respondents against the judgment and decree delivered by the Artha Rin Adalat was not barred in view of the provision of sub-section (1) of section 6 of the Artha Rin Adalat Ain, 1990 and that the respondents may still have recourse to section 32 of the Artha Rin Adalat Ain, 2003 to seek redress of their grievances by filing an application according to the provisions of section 32 of the Artha Rin Adalat Ain, 2003.
The Appellate Division observed that the appellant stated that the borrower created equitable mortgage on signing a charge document dated 14.07.1985 and that the memorandum of deposit of title deed was signed by the mortgagor on 14.07.1985. The suit land was alleged to have been sold by the borrower to the respondents on 10.12.1989. The respondents claimed that the disputed plot No. 3764 is not in the irrevocable general power of attorney dated 03.10.2004 executed and registered by the borrower authorizing the appellant to sell his properties and that disputed plot No. 3764 was conspicuously absent in that registered power of attorney. Having considered the facts and circumstances of the case and the materials on record, the Appellate Division is of the view that the suit filed by the respondents against the judgment and decree delivered by the Artha Rin Adalat was not barred in view of the provision of sub-section (1) of section 6 of the Artha Rin Adalat Ain, 1990 and that the respondents may still have recourse to section 32 of the Artha Rin Adalat Ain, 2003 to seek redress of their grievances by filing an application according to the provisions of section 32 of the Artha Rin Adalat Ain, 2003, if so advised. Accor- dingly, this appeal is allowed and the plaint of Title Suit No. 10 of 2002 is rejected with the observation made in the body of the judgment that the respondents may have recourse to section 32 of the Artha Rin Adalat Ain, 2003 to seek redress of their grievances, if so advised. International Finance Investment and Commerce Bank Ltd. -Vs.- Md. Alauddin and others. (Civil) 15 ALR (AD)73-76
Artha Rin Adalat Ain [VIII of 2003]
Section 32 read with
Code of Civil Procedure [V of 1908] Rule 7 of Order VI-It is the settled principle that if any party adduce evidence beyond the pleadings is liable to be ignored. Parties cannot be permitted to lead evidence beyond their pleadings and leading of the evidence beyond the pleadings is unwarranted and conclusion based on such evidence cannot be approved. Normally, evidence beyond pleadings cannot be considered by the Court. The said principle is still being followed, but there are exception to this general Rule. Exception is that when in the absence of the pleading.
It appears to the Appellate Division that the High Court Division expunged the above quoted evidence of the bank, at the instance of the petitioner of the Miscellaneous case under Section 32 of the Artha Rin Adalat Ain and excluded the exhibit 'Kha' from the list of evidence in the said Miscellaneous case. It is the claim of the writ petitioner that the aforesaid portions of evidence and the exhibit 'Kha' have been adduced and produced beyond the pleadings of the bank, that is, in written objection filed against the contents of the application under Section 32 of the Ain. It is the settled principle that if any party adduce evidence beyond the pleadings is liable to be ignored. Parties cannot be permitted to lead evidence beyond their pleadings and leading of the evidence beyond the pleadings is unwarranted and conclusion based on such evidence cannot be approved. Normally, evidence beyond pleadings cannot be considered by the Court. The said principle is still being followed, but there are exception to this general Rule. Exception is that when in the absence of the pleading, the parties proceed with the trial of the case with their full understanding regarding the involvement of the issues and respective cases of their adversaries, it cannot be said that the decision of the Court is vitiated by consideration of the evidence of the parties beyond their pleading. At the time of adjudicating the application under Section 32 of the Artha Rin Adalat Ain, if the evidence of the bank is found to be adduced beyond the pleadings the Adalat will have the authority to deal with issue in accordance with the law and principles enunciated in that regard. There is every possibility of the bank to be prejudiced if in writ jurisdiction evidence is expunged. The Appellate Division is of view that the High Court Division has committed an error of law in expunging evidence of the bank before allowing the Adalat to adjudicate the issues to be decided in the Miscellaneous case. The petitioner of the application plication under Section 32 of the Artha Rin Adalat can make his argument before the Adalat as to admissibility of above quoted portion of evidence as well as exhibit 'Kha' at the time of adjudication of the issues of the case. In view of the aforesaid facts and circumstances, the petition is disposed of. The judgment and order of the High Court Division is hereby set aside. Agrani Bank Lid -Vs. Md. Abdus Sobhan and others (Civil) 22 ALR (AD) 122
Artha Rin Adalat Ain [VIII of 2003]
Sections 32 and 60(2) & (3) -The suit filed by the respondents against the judgment and decree delivered by the Artha Rin Adalat was not barred in view of the provision of sub-section (1) of section 6 of the Artha Rin Adalat Ain, 1990 and that the respondents may still have recourse to section 32 of the Artha Rin Adalat Ain, 2003 to seek redress of their grievances by filing an application according to the provisions of section 32 of the Artha Rin Adalat Ain, 2003.
The Appellate Division observed that the appellant stated that the borrower created equitable mortgage on signing a charge document dated 14.07.1985 and that the memorandum of deposit of title deed was signed by the mortgagor on 14.07.1985. The suit land was alleged to have been sold by the borrower to the respondents on 10.12.1989. The respondents claimed that the disputed plot No. 3764 is not in the irrevocable general power of attorney dated 03.10.2004 executed and registered by the borrower authorizing the appellant to sell his properties and that disputed plot No. 3764 was conspicuously absent in that registered power of attorney. Having considered the facts and circumstances of the case and the materials on record, the Appellate Division is of the view that the suit filed by the respondents against the judgment and decree delivered by the Artha Rin Adalat was not barred in view of the provision of sub-section (1) of section 6 of the Artha Rin Adalat Ain, 1990 and that the respondents may still have recourse to section 32 of the Artha Rin Adalat Ain, 2003 to seek redress of their grievances by filing an application according to the provisions of section 32 of the Artha Rin Adalat Ain, 2003, if so advised. Accor- dingly, this appeal is allowed and the plaint of Title Suit No. 10 of 2002 is rejected with the observation made in the body of the judgment that the respondents may have recourse to section 32 of the Artha Rin Adalat Ain, 2003 to seek redress of their grievances, if so advised. International Finance Investment and Commerce Bank Ltd. -Vs.- Md. Alauddin and others. (Civil) 15 ALR (AD)73-76
section 33(1)
No one should be allowed to take advantage of his own wrong action. The negotiation was conducted by the principal loanee himself and he requested the bank to sell the 5 buses in favour of M/S Dipzal Enterprise as it was the highest bidder amongst the 3 bidders. The bank has just complied with the request of the principal loance and the sale money was adjusted with the judgment-debtor's loan. After such adjustment the present respondent No.1, who is the wife of the principal loanee, and the guarantor filed Writ Petition No.1699 of 2021 before the High Court Division .....(16)
If a judgment- debtor comes up to set- tle the dispute amicably during penden- cy of the suit and even at the stage of execution, that should be encouraged. In the instant case the buses in question were sold out at the instance of judg- ment-debtor No.1 and at his instance the decree-holder bank filed an applica- tion before the executing Court for striking out 05(five) buses from the schedule of the execution case. Section 33 of the Artha Rin Adalat Ain, 2003 is not a bar to make any settlement, out side the Court, if the parties agree to do so. .......(19)
Midland Bank Limited vs. Nasima Aktar (M. Enayetur Rahim J) (Civil) 20 ADC 52
Artha Rin Adalat Ain [VIII of 2003]
Section 33(2) read with
Code of Civil Procedure [V of 1908] Order XXI Rule 90 -Section 37 of Ain, 2003 regarding time limit for disposing of the execution case, is not mandatory rather it is directory.
The High Court Division observed that it has already been settled by a good number of cases that provision of section 37 of the Ain, 2003 regarding time limit for disposing of the execution case, is not mandatory rather it is directory. The Adalat misconceived the legal position and thereby considering the time frame for disposing of the execution case rejected the application for canceling the auction sale accepting the objected low price. Thus, the impugned order suffers from gross illegality and as such, it is liable to be interfered by this Court. Agrani Bank Ltd. Vs. Ministry of law, and others. (Spl. Original) 21 ALR (HCD) 85-89
Artha Rin Adalat Ain [VIII of 2003]
Section 33(2) No one be allowed to take any advantage of his own wrong equity follows the appropriate rules of law and does not replace or violate the law.
The High Court Division held that as per the established principles of law no one be allowed to take any advantage of his own wrong. As per section 33(2) of the Act, the Petitioner has forfeited all rights and privileges upon his failure to deposit the balance amount of bid money within the stipulated period of ten days time. Furthermore, there is no scope to interpret the law to give the Petitioner a technical or tactical advantage of a ninety-day extension in the name of Artha Rin Adalat (Amendment) Ordinance, 2007. This is because equity follows the appropriate rules of law and does not replace or violate the law. M. A. Hashem son of late Addul Aziz -Vs.- The Artha Rin Adalat No. 2. Dhaka and others (Spl. Original) 19 ALR (HCD) 225-236
Artha Rin Adalat Ain [VIII of 2003]
Section 33(5) and 60-The legislators meant to have all proceedings pending under the 1990 Ain to be transferred intact to the Adalats constituted under the Ain of 2003.
As the Appellate Division took up the leave petition, Mr. S.N.Goswami, the learned Advocate for the leave petitioners argued that as section 33(4) or similar provision as in that section of 2003 Ain was not present in the Ain of 1990, that section cannot be now invoked as the execution case was filed before the Ain of 2003 came into force. He went on to submit that since the subject decree was passed by a civil court in a title suit the same was not executable by an Artha Rin Adalat. Mr. Hefzul Bari, the learned Advocate for the respondent bank, on the other hand submitted that when the Ain of 2003, repealing that of 1990 was brought into force, the legislators remained conscious to ensure that by the change over no pending proceeding is frustrated, and hence inserted section 60. Having read the relevant provisions, particularly, section 60(3) of the Ain of 2003, the Appellate Division is left in no doubt that the legislators meant to have all proceedings pending under the 1990 Ain to be transferred intact to the Adalats constituted under the Ain of 2003. Hence, the High Court Division committed no error.
Accordingly, this civil petition for leave to appeal is dismissed. Shahidul Islam & others -Vs. Artha Rin Adalat and others (Civil) 20 ALR (AD) 70-71
Artha Rin Adalat Ain [VIII of 2003]
Section 33(7)- Since fraud has been appeared in conducting the auction within a short span of time and by submitting bids, the total auction process is a nullity and cannot sustain in eye of law.
This view of the High Court Division finds support in the case reported in 22 BLC (AD) 139 wherein identical scenario having been found the Apex court held that fraud was perpetrated in conducting auction and consequently, the auction sale was set aside. Relevant portions of the said decision are quoted herein below:- "It appeared that the auction purchaser submitted tender at Taka 7,75,00,600 and two other bidders Md Abdul Aziz at Taka 1,00,60,000 and Nasimul Gani at Taka 50,00,000. The Artha Rin Adalat rejected the bids on 29-06-2005 on the reasoning that the price was shockingly low and that the proclamation of sale was not published in the locality. The decree holder again prayed for selling the property in auction under section 33(4) of the Ain. Thus time also three bidders, the auction purchaser submitted tender at Taka 7,75,50,600 the second bidder Md Abdul Aziz at Taka 1,01,00,000 and the third bidder Md Rojob Ali at Taka 40,00,000. This time the Adalat was of the view that the money offered by the highest bidder is higher than the bank's claim of Taka 7,67,11,845.51 and therefore, despite filing an application under section 33(7) for issuing a certificate conferring title by the decree-holder, in the absence of opposition in accepting the highest bid, the prayer for issuing certificate is rejected. Accordingly it directed the auction purchaser to deposit the balance amount. Same auction purchaser submitted his first bid at Taka 7,75,50,600 and the Adalat rejected his bid on the reasoning that the amount was shockingly low. In the second bid he submitted tender exactly at the same price of Taka 7,75,50,600 with the difference of only fifty thousand more than his first bid. Two other bidders also submitted almost at similar price. How one can believe that this sale is not collusive, where the highest bid is at over seven crore Taka, the second bid is at taka one crore and the third bid is around Taka fifty lacs. The second bidder is the same person and the third bidder is although another person, it cannot alte altogether be ignored that this third bidders is none but the one set up by the emotion purchaser. Thus there is no gainsaying that the auction purchaser submitted three bids, one in his name and other persons have been set up by him in other to show that there was complaisance of formalities, but in order to avoid the deposit of huge money along with the bids as required by law a very low amount was quoted by two bidders. Agrani Bank Limited -Vs. The Judge, Artha Rin Adalat, 1 Court, Dhaka and others (Spl. Original) 18 ALR (HCD) 285-293
Artha Rin Adalat Ain [VIII of 2003]
Section 33(5), (7) It is established principle of law that after issuance of the certificate under Section 33(5) and/or Section 33(7) of the Ain in respect of the mortgaged property in favour of the decree holder-Bank the execution case arising thereunder is finally disposed of in satisfaction of the decree and the executing court becomes functus officio. The High Court Division held that on a plain reading of Section 33(7)(K) and 7(L) of the Ain, it appears that the provisions do not have any bearing or so to say it cannot circumvent the principle as it has been laid down by both the Divisions time and again. The contradictory decisions as it could be found in IFIC Bank's case 15 BLT 425 and Salma Begum's case 63 DLR HC does not apply in the instant case at all. Therefore, the High Court Division certainly finds merit and substance in the contention of the learned counsel for the petitioner that with the granting of certificate under Section 33(5) or 33(7) of the Ain the Execution Case is finally disposed of and the executing court becomes functus officio. In the result the Rule is made absolute without any order as to cost. Bank Asia Limited - Vs.- Judge, Artha Rin Adalat, Chattogram and others (Spl. Original) 15 ALR (HCD) 130-133
Section 33(7)-If the decree-holder is willing to acquire title to the mortgaged property, it has to file an application before the Artha Rin Adalat, in short, the Adalat and upon receipt of such application the Adalat will take step under sub-sections (1), (2) (2ka), (2kha), (2ga) and (3) thereof and will not take any step under sub-sections (4) and (5) i.e one open auction must be held before issuing a certificate under sub-section (7) of section 33 of the Ain.
The Appellate Division observed that no auction as contemplated in sub-section (7) was ever held including the one in question. 12-1-2006 was fixed for holding the auction of the property in question but that being a holiday auction could not be held on that day. Fixation of a date for holding auction on a holiday can in no way be regarded or accepted as an auction within the meaning of sections (1), (2), (2ka), (2kha), (2ga) and (3) and thus to comply with the mandate of sub-section (7) of the section 33. Further though the executing Court fixed 9-3-2006 for taking step in the matter, the decree-holder without taking any step in that regard, filed application to issue certificate in its favour in respect of the property in question under sub-section (7) of section 33 and accordingly the same was issued. It also appears to the Appellate Division that one auction as contemplated in sub-sections (1), (2), (2ka), (2kha), (2ga) and (3) must be an actual auction and not a show of auction as has been done in the instant case. So, the Adalat was totally wrong in issuing certificate under sub-section (7) of section 33 of the Ain, 2003 and then to issue writ of delivery of possession of the property in question in favour of the decree holder and, as such, order Nos. 8 and 23 passed by the Adalat were passed illegally and those cannot be sustained and therefore, must be set aside and at the same time direction need be given to the decree- holder to take positive step to hold one auction in the real sense within the meaning of sub-sections (1), (2), 2(ka), 2(kha) 2(ga) and 3 of the Ain, 2003. The High Court Division totally failed to consider the true purport and scope of sub- sections (1), (2), (2ka), (2kha), 2(ga) and (3) in summarily rejecting the application under article 102 of the Constitution. Ellal Textile Mills Limited Vs. Artha Rin Adalat, 3rd Court, Dhaka and others (Civil) 15 ALR (AD)30-33
Artha Rin Adalat Ain [VIII of 2003]
Section 33 (6 Kha) -Whether section 33(6 Kha) of the Artha Rin Adalat Ain, 2003 (Act No. 8 of 2003) Amendment Act, 2010 as Amendment on 31.03.2010 should be given retrospective effect and why section 33 (6 Kha) of the Artha Rin Adalat Ain, 2003 (Act No. 8 of 2003) Amendment Act, 2010 as Amendment on 31.03.2010 should not be declared to have been made ultra vires the Constitution, being contrary to section 60 of the Transfer of Property Act, 1882 and in violation of Article 42 of the Constitution if the same has been given retrospective effect.
The Appellate Division has considered the submissions of the learned Senior Advocates of both the sides, perused the impugned judgment and the materials on record. In the impugned judgment, the Appellate Division held that the judgment debtors having failed to get back the properties on payment of decretal dues after compromise decree and after issuance of certificate under section 33(5) of the Ain, 2003, they lost the right to enjoy/possess the mortgaged property by their own action. The Appellate Division also noted that the High Court Division concluded that the provisions of section 33(6-Kha) of the Amendment Ain could not be said to be ultra vires the provision of Article 42 on the facts of the present case. The Appellate Division also noted that the High Court Division found that the judgment-debtors' right to possess/enjoy the mortgaged property and the right to sell such property ceased after issuance of the certificate under section 33(5) of the Ain of 2003. Admittedly, there was no illegality in issuing certificate under section 33(7) of the Artha Rin Adalat Ain, 2003 in favour of the Bank. The learned Senior Advocate appearing on behalf the petitioners could not make out a case of review of the impugned judgment. Therefore, both the review-petitions are dismissed. K. Ashfaq Ahmed and others -Vs.- Bangladesh Krishi Bank and others (Civil) 23 ALR (AD) 01
Section 33- Against the order of discharge for default- The Appellate Division held that it appears from the record that earlier both the Rules were discharged for default in the High Court Division and those were restored .second time, both the appeared in the list with the names of the learned Advocates of the petitioner but he did not turn -up when those were taken up for hearing. Consequently.both the Rules were again discharged for default. In view of the facts of the case and other circumstances, the Appellate Division does not find any illegality in the orders of the High Court Division in rejecting the prayers to recall the orders of discharged for default. Accordingly both the petitions are dismissed. Md. Nuruzzaman =VS= Artha Rin Adalat & others, [1 LM (AD) 416]
Sections 33(5), 57- Judgment debtor have no right to redeem mortgaged property that the decree-holder has already sold the suit property in favour of the respondent No.8 by registered sale deed and therefore there is no scope to interfere with the bonafide purchase for value- The decree of foreclosure in favour of the plaintiff attained its finality and the judgment debtor shall have no right to redeem the said mortgaged property. Moreover after issuance of the certificate under Section 33(5) of the Artha Rin Adalat Ain the same court of Artha Rin Adalat Ain had no power to entertain the application of the appellant invoking Section 57 of the ARtha Rin Adalat Ain as such power under Section 57 is only available when the other provisions of the Ain are not exhaustive. In this case after the certificate issued under Section 33(5) of the Ain the decree-holder has already sold the suit property in favour of the respondent No.8, Md. Rafique by registered sale deed and therefore there is no scope to interfere with the bonafide purchase for value. ... Sonali Bank, Dhaka =VS= Hazera Islam(Mrs.), [8 LM (AD) 140]
Section 33(7)- Judgment-debtor can always settle the matter with the decree- holder Bank arranging the payment of the decretal amount- The impugned order of the High Court Division and those of the executing Court dated 31-5-2006 and 26-2- 2008 are set aside. The executing Court is directed to hold fresh auction of the property in question in accordance with law. The decree-holder is directed to take positive step in the matter in that regard. It does not require any direction/order by this Court, because the judgment-debtor can always settle the matter with the decree- holder Bank arranging the payment of the decretal amount. Ellal Textile Mills Limited =VS= Artha Rin Adalat, [4 LM (AD) 110]
Section 33-Procedure for selling any property by the Artha Rin Adalat for realization of the decreetal amount:
Held: Section 33 provides the procedure for selling any property by the Artha Rin Adalat for realization of the decreetal amount. Sub- section (1) of section 33 provides for publication of notice by giving 15 days time inviting for auction sale at least in one national daily news paper. Sub-sections (2) and (3) provide the procedure for filing tender by the intending purchasers. Subsection (4) of section 33 provides that if it is not practicable to sell the property on auction under sub-sections (1), (2) and (3), the Adalat shall direct publication of notice at least in two Bengali daily news papers, and if it is practicable in a local news paper, as per provisions of Sub-section (1) of section 33. These provisions clearly show that at the initial stage the publication of notice for sale of the mortgaged property or any other property be made in a national daily news paper and on such publication if the sale cannot be effected, then the Adalat will direct for publication of notice for sale at least two daily national news papers by giving 15 days time, which is the minimum requirement of law. Lt Col. MA Mannan (Retd.) vs Social Investment Bank Ltd, 31 BLD (AD) 124.
Section 33-Under the Ain, the Artha Rin Adalat was empowered to raise money for payment of the total amount by way of mortgage or lease or private sale of the property with the permission of the Court. The expression, 'the amount of the decree may be raised' used in sub-rule (1) means the total decretal amount and not an amount which could not satisfy the decree, and no Court can grant such permission unless the entire debt can be realized by private alienation. This provision should be read subject to the provision of sub-rule (3). Agrani Bank vs Anwarul Bashir Khan, 19 BLC (AD) 120,
Section 33-Petitioner a fugitive since 9-8-2006 and being a fugitive obtained the Rule. It is well settled that a fugitive has no right to seek any kind of redress as against his grievance of awarding sentence. Nitai Kumar Mondol vs. Judge, Artha Rin Adalat, 62 DLR, 446.
Section 33-In the premises, the Artha Rin Adalat has exceeded its jurisdiction in selling the mortgaged property in auction without following the provisions law and that's too when the decree holder itself prayed in Court that it had already compromised the matter with the judgment-debtor subject to the approval of the Bangladesh Bank. Lt. Col. MA Mannan (Retd.) vs Social Investment Bank Ltd, 31 BLD (AD) 124.
Sections 33 and 34-Civil imprisonment will not exempt decretal amount. Held: Section 34 of the Artha Rin Adalat Ain, 2003 is clear and provides for ordering civil imprisonment up to 6 months against a judgment-debtor for compelling to satisfy the decree. Section 34 is not dependent upon section 33. In the instant case, the decree holder has taken step for auction sale of the property but there being no response, auction sale could not be held. Further, it appears from the provisions of section 34 of the Artha Rin Adalat Ain, 2003 that the law provides for simple civil imprisonment of the judgment debtor to compel to make the payment for satisfaction of the decree and is not an-alternative punishment in lieu of payment of the decretal amount. Civil imprisonment will not exempt payment of the decretal amount. Provat Kumar Das. vs Agrani Bank, 15 BLC (AD) 113.
Sections 33 and 34-Petitioner a fugitive since 9-8-2006 and being a fugitive obtained the Rule. It is well settled that a fugitive has no right to seek any kind of redress as against his grievance of awarding sentence. Nitai Kumar Mondol vs Judge, Artha Rin Adalat 62 DLR 446.
Sections 33 and 34-Ssection 34 of the Ain, 2003 provides for ordering civil imprisonment upto 6 months against a judgment-debtor for compelling to satisfy the decree. Section 34 is not dependent upon section 33. Provisions of section 34 of the Artha Rin Adalat Ain, 2003 that the law provides for simple civil imprisonment of the judgment- debtor to compel to make the payment for satisfaction of the decree and is not an alternative punishment in lieu of payment of the decretal amount. Civil imprisonment will not exempt payment of the decretal amount. Provat Kumar Das vs Agrani Bank, 15 BLC (AD) 113.
Section 33
The judgment debtors for recovery of a sum of Tk.2,09,59,112/-. There was publication notice for selling of the mortgaged property on auction on 18th February, 2003 and ultimately 12th March, 2003 was fixed for sale of the mortgaged property. As no bidder at- tended in the auction sale on successive three dates on 12th March, 30th March and 14th June, 2003, the decree holder came up with a application that it had amicably settled the dispute regarding payment of the decreetal amount with the judgment debtor and prayed for staying further proceedings of the exe- cuting case. Lt. Col. M. A. Mannan (Retd.) vs. Social Investment Bank Ltd (S.K. Sinha J) (Civil) 8 ADC 518
Sections 33 and 34-From a combined reading of sub-sections of section 34 of the Artha Rin Adalat Ain, 2003 it transpires that the Adalat is empowered to pass an order of warrant of arrest/civil imprisonment directly when no auction sale is possible to be held for any reason. The auction sale notice was published in the 'Daily Sonar Desh' on 19-2-2004 mentioning date of auction sale on 23-2-2004 at 3-00 PM but the property in question was not sold due to non- availability of the auction purchaser. Therefore, the contention of the learned Advocate for the petitioner that no attempt was made to sell the property as per mandatory provision of section 34(9) of the Ain, 2003 by the respondent No. 2 before passing the impugned order of civil imprisonment is wholly untenable. Provat Kumar Das vs Agrani Bank, 15 BLC 180.
Sections 33, 34(1)(9) and (10)-Attempt was taken for auction of the mortgaged property under section 33 of the Ain and due to non-participation of the bidder, the property could not be sold in auction. Thereafter, on application of the decree-holder-Bank, the Adalat passed order for six months' civil prison of the judgment-debtors and issued warrants of arrest against the judgment- debtors accordingly. Abdul Kader vs Government of Bangladesh, 69 DLR 304.
Sections 33, 38 and 49-The parties in their petition can provide for re-payment of the entire agreed dues in one installment. In the present case, it is agreed between the parties that the judgment-debtor would re-pay the entire agreed dues of Taka 2 crore 7 lac by 31-12- 2008. The learned Judge can still consider such a prayer within the ambit of section 49. Under such circumstances without issuing any Rule, the order dated 15-3-2007, (Annexure-D), passed by the Artha Rin Court, Comilla, in Artha Execution Case No. 339 of 2004, is declared illegal and is of no legal effect. Quayyaim Steel Mills Ltd vs Pubali Bank, 13 BLC 334.
Section 33(1) The Ain is a special law providing special procedure for auction sale of the mortgaged property under section 33 of the Ain. The Adalat is empowered to pass an order for publishing auction sale notice of the mortgage property directly and the provision of Order XXI, rule 64 of the Code is not applicable relating to auction sale in Artha Ain Execution Cases. Afifa Sultana vs Judge. Artha Rin Adalat 63 DLR 354.
Section 33(1)-Challenging the legality of the auction notice published under section 12(3) read with Section 33(1) of the Artha Rin Adalat Ain, 2003, on the ground that the time frame of 15(fifteen) days as stipulated in section 33(1) and not been complied with. The High Court Division on consideration of the provision of the time frame of 15(fifteen) days contained in section 33(1), held that the date of publication of the notice on 11-9-2008 is to be included within the said 15(fifteen) days which ended on 25-9-2008. Md Rafiqul Islam Faruque vs Government of Bangladesh, represented by the Secretary Ministary of Law, Justice and Parliamentary Affairs, VIII ADC 439.
Sections 33(1)(2)(3)(4) and (5)-After the execution case was transferred under section 60(3) of the Ain the executing Court would proceed from the stage where the execution proceeding was lying pending for disposal. As such, issuance of sale certificate under section 33(5) of the Ain on the same day when execution case was restored without exhausting the procedures as provided under section 33(1), (2), (3) and (4) of the Ain resorting to a short-cut way is not tenable in the eye of law. Udayan Garments (Pvt) Ltd vs Bangladesh 59 DLR 615.
Section 33(1)(7)-The Adalat is not obliged to sell the property in any manner or at any price for satisfaction of the decree, particularly when the decree holder specifically raises objection to the highest offer being abnormally low and that the amount is too inadequate to satisfy the decretal dues. Agrani Bank Ltd vs Secretary, Ministry of law, Justice and Parliamentary Affairs, 20 BLC 329.
Sections 33(1) and 48-Section 33(1) has allowed 15 days time for inviting tender for auction. Section 48 of the Ain clearly stipulates that for the purpose of counting days under Artha Rin Ain only the working days of the court i.e. the days on which the court functions (fastca) should be taken into consideration. Even the court in which the Judge-in-charge is sitting temporarily this section applies in verbatim. That is to say absolutely in terms of the law as it stands. Abdul Monayem Lili vs Judge, Artha Rin Adalat, 67 DLR 358.
Sections 33(1)(2)(3)(4)(5)(7) (8)-When the decree-holder filed an application as required under sub-section (7) of section 33 of the said Ain the Court is at liberty to issue certificate when "froNEY eware application has been filed by the decree-holder. So, there is no illegality or infirmity in the order of issuance of the certificate dated 15-9-2008, which is awaiting for registration under sub-section (8) of section 33 of the said Ain. Atiqullah vs Artha Rin Adalat, 16 BLC 486.
Section 33(2ga)-If it has been informed by the decree holder bank that the proposed bid offer is shockingly low the Adalat upon endorsing the reason thereof may reject the proposal of the highest bidder. Dutch Bangla Bank Limited vs Artha Rin Adalat, 68 DLR 340.
Section 33(4)-Decree-holder institution, by not resorting to sub-section (4) of Section 33, has committed fraud on the Court by using the process of the same to grab the properties free of cost. This is a sample example of the abuse of process of the Court and the spirit of law for which we have no option but to interfere to prevent such gross injustice. Shamsunnahar vs Bangladesh, 19 BLC 67.
Section 33(4)(5)(7)-Sub-section (7) has also given a special leverage on the decree holder. According to the said provisions, notwithstanding the provisions under sub-sections (4) and (5), the decree holder will be at liberty to file an application for conferment of title on it by the Adalat, and once such application is made, the Adalat will even refrain from following the proceedings under sub-sections (4) and (5) and will confer such title on the decree holder through a certificate of title issued by it declaring such title. The only hurdle in the said provisions under sub-section (7) is that the provisions under sub-sections (1), (2), 2(Ka), 2(Kha), 2(Ga) and (3) of section 33 cannot be jeopardized. In other words, it recognizes the mandatory nature of the 1st auction in view of sub-sections (1), (2), 2(Ka), 2(Kha), 2(Ga) and (3). Thus, once the 1st auction is done and it fails for any reason, the decree-holder bank will be at liberty to either proceed for the 2nd auction and then for conferment of right to possession and enjoyment under sub-section (5) or it can ask for conferment of title under sub-section (7). This option of conferment of title can be exercised by the decree holder either immediately after the 1st auction or after conferment of right to possession and enjoyment of the mortgaged property or even after conclusion of the 2nd auction, though un successfully. This intention of the Legislature to give almost a free leverage to the decree holder is clear from the provisions mentioned under sub-section 6(Kha) and section (7) of section 33. Mosharaf Hossain (Md) vs Bangladesh, 67 DLR 199,
Section 33(5)-At the instance of the decree holder-bank auction was held and ultimately the decree-holder-bank has withdrawn the money deposited by the auction purchasers. After the auction process is completed, proceeding with the execution case is redundant. Sonali Bank vs Artha Rin Adalat, 62 DLR (AD) 231.
Section 33(5)-Certificate of Sale-Grant Instalment-Held: Issuance of certificate of sale of the mortgaged property in favour of the decree-holder when the auction sale could not be held due to low price offered by the bidders, terminates the execution proceedings leaving behind no scope of stay of further proceedings and to grant instalment in payment of decretal amount. Mohiuddin (SK.) vs Joint District Judge and Artha Rin Adalat No. 3, Dhaka, 13 MLR (AD) 356.
Section 33(5)-The execution case does not come to an end with the issuance of a certificate under section 33(5) of the Ain. Rather, it remains alive till the possession of the property alleged to have been sold in auction, was handed over to the auction purchaser. Salma Begum vs Sonali Bank Limited, 63 DLR 282.
Section 33(5)-The certificate has been issued by the Adalat under section 33(5) of the Ain, and, as such, there is no scope to follow the provision of paragraph (a) of the Guidelines by the Bank so far as it relates to sell of the mortgaged property but the provisions of section 33(5) of the Ain is to be followed. ABC Attire Ltd vs Bangladesh, 64 DLR 399.
Section 33(5)-Auction completed-Execution case redundant. -Held: Bank has already encashed the pay order and thereby accepted the auction sale. In view of the provision of law to the effect that once an auction sale is completed no relief is available against such auction sale but the mortgagee may proceed against the mortgagor bank for any compensation, it is proved that there was illegality in the auction sale. In the instant case, it is not such case rather it appears that at the instance of the decree-holder bank auction was held and ultimately the decree holder bank has withdrawn the money deposited by the auction purchasers. After the auction is completed, proceeding with the execution case is redundant. Sonali Bank vs Artha Rin Adalat, 62 DLR (AD) 231.
Section 33(5)-The execution case does not come to an end with the issuance of a certificate under section 33(5) of the Ain. Rather, it remains alive till the possession of the property alleged to have been sold in auction, was handed over to the auction purchaser. Salma Begum vs Sonali Bank Limited, 63 DLR 282.
Section 33(5)-The certificate has been issued by the Adalat under section 33(5) of the Ain, and, as such, there is no scope to follow the provision paragraph () of the Guidelines by the Bank so far as it relates to sell of the mortgaged property but the provisions of section 33(5) of the Ain is to be followed. ABC Attire Ltd. vs Bangladesh, 64 DLR 399.
Section 33(5)-Auction completed-Execution case redundant- Bank has already encased the pay order and thereby accepted the auction sale. In view of the provision of law to the effect that once an auction sale is completed no relief is available against such auction sale but the mortgagee may proceed against the mortgagor bank for any compensation, it is proved that there was illegality in the auction sale. In the instant case, it is not such case rather it appears that at the instance of the decree-holder bank auction was held and ultimately the decree holder bank has withdrawn the money deposited by the auction purchasers. After the auction process is completed, proceeding with the execution case is redundant. Sonali Bank vs. Artha Rin Adalat, 62 DLR (AD) 231.
Section 33(5), 33, 33(1) to 4
Sale having been not taken place there were attempts for putting the property to sale on repeated dates and the date of sale was lastly shifted to 01.12.2003 when the respondent No.3 offered Tk. 6.07,00,000/- which was accepted by the court and the said respondent deposited 25% of the bid money and at that stage the petitioner challenged the impugned order and so the sale could not be finalized. There is according to him no illegality in the sale. Mohd. Junayed Quader vs The learned Artha Rin Adalat No.4, Dhaka and others (Amirul Kabir Chowdhury J)(Civil) 3 ADC 825
Section 33(5)-Certificate under section 33(5) of the Artha Rin Adalat Ain 2003 due to non availability of bidder in the auction sale held on 4.4.2005 for sale of the properties mortgaged by the judgment debtor petitioners as security for the loan. Crownage Tannaries Ltd vs Joint District Judge, 6 ADC 594.
Section 33(5)
Certificate under section 33(5) of the Artha Rin Adalat Ain 2003 due to non availability of bidder in the auction sale held on 4.4.2005 for sale of the proper- 2 ties mortgaged by the judgment debtor petitioners as security for the loan. M/s. Cromvege Tannaries Ltd vs. Joint District Judge (Md. Tafazzul Islam J) (Civil) 6 ADC 594
Section 33(5)-It appears that the decree of foreclosure in favour of the plaintiff attained its finality and the judgment debtor shall have no right to redeem the said mortgaged property. Moreover, after issuance of the certificate under section 33(5) of the Artha Rin Adalat Ain had no power to entertain the application of the appellant invoking section 57 of the Artha Rin Adalat Ain as such power under section 57 is only available when the other provisions of the Ain are not exhaustive. In this case after the certificate issued under section 33(5) of the Ain the decree-holder has already sold the suit property in favour of the respondent No. 8, Md. Rafique by registered sale deed and therefore there is no scope to interfere with the bonafide purchaser for value. Sonali Bank vs Hazera Islam, 6 ADC 975.
Section 33(5), 33, 33(1) to 4-Sale having been not taken place there were attempts for putting the property to sale on repeated dates and the date of sale was lastly shifted to 1-12-2003 when the respondent No. 3 offered Tk. 6,07,00,00 which was accepted by the court and the said respondent deposited 25% of the bid money and at that stage the petitioner challenged the impugned order and so the sale could not be finalized. There is according to him no illegality in the sale. Junayed Quader vs Artha Rin Adalat No 4, Dhaka, 3 ADC 825.
Section 33(5)(9)-When the certificate has been issued under section 33(5) in favour of the decree holder, the execution proceeding is disposed of as per section 33(9) of the Ain. Issuing the certificate under section 35(5) pre-supposes compliance of the formalities under section 33(1-4) of Ain. Sheuly Khanam vs Artha Rin Adalat, 2nd Court, Dhaka, 17 BLC 579.
Sections 33(5) and 34-In Civil Revision No. 2573 of 2007, second execution case was started on the basis of certificate issued by the Adalat under section 33(5) of the Ain in connection with Artha Execution Case No. 76 of 2001, having failed to auction sale the mortgaged property and that the impugned order of warrant of arrest was made after issuance of show cause notice upon the judgment debtors providing opportunity to give reply as to why they should not be detained in civil prison. The petitioners did not appear before the Court. But within a period of one month from the date of issuance of the impugned order they have filed the present revisional application and obtained the present Rule and an interim order of stay. Since the petitioners have not come with clean hand they cannot seek for exercising Court's inherent jurisdiction in the name of ends of justice. Further, considering the relevant provisions of Artha Rin Adalat Ain, 2003 and in the facts and circumstances of the case this Court cannot invoke its inherent power under section 151 of the Code of Civil Procedure. Syed Monjur Morshed vs Manager, Agrani Bank Ltd, 14 BLC 107 501.
Section 33(5)and 57
Mr. Abdul Quiyum, learned counsel for the petitioners has taken us all the documents and judgments including the impugned judgment and submits that the High Court Division erred in law in failing to consider that the mortgaged property was collusively transferred by suppression of material facts by evicting the petitioners from their dwelling houses which property is quite distinct from the property mortgaged with the Rupali Bank. Md. Rafiqul Islam vs. Md. Azmal Hossain (S.K. Sinha J) (Civil) 9 ADC 842
Section 33(6)-The execution case under the Ain does not come to an end unless the possession of the property is handed over to the auction purchaser. Birendra Nath Roy vs Rupali Bank Ltd. 18 BLC 118.
Section 33(6)(Kha)(7)-Legislature has deliberately given sub- sections 6(Kha) and (7) a separate status. Thus, the provisions under sub-section 6(kha) are such that they can be followed even not withstanding whatever contained in the entire section 33. This means, once the right to enjoyment and possession of the mortgaged property is conferred on the decree holder, it will be at liberty to even immediately apply for conferment of title under sub-section (7). In which case, it will not be obligatory on it to try to sell the property through 2nd, 3rd or 4th auctions. To obtain that special status under sub-section 6(kha), the precondition is that the right to possession and of the property is conferred on the decree holder in view of sub-section (5). Mosharaf Hossain (Md) vs Bangladesh, 67 DLR 199.
Section 33(7)-A reading of sub-section (7) of section 33 of the Ain, 2003 clearly shows that if the decree-holder is willing to acquire title to the mortgaged property, it has to file an application before the Adalat, the Adalat and upon receipt of such application the Adalat will take step under sub-sections (1), (2) (2ka), (2kha), (2ga) and (3) thereof and will not take any step under sub-sections (4) and (5) i.e one open auction must be held before issuing a certificate under sub-section (7) of section 33 of the Ain. But from order Nos. 4, 5 and 8 it is prima facie clear that no auction as contemplated in sub-section (7) was ever held including the one in question. Ellal Textile Mills Limited vs Artha Rin Adalat, 3rd Court, Dhaka (Civil) 70 DLR (AD) 63
Section 33(7)
The defence case is that under small industrial loan BISIC on 18.05.1994 by sanction letter No.94/04 the defendant received Tk.3,92,500/- and the defen- dant petitioner adjusted the loan of Tk. 72,303/- but the plaintiff bank fraudulently created over draft loan (OD) of Tk.1,65,546/-and when it was detected the plaintiffs authority was offered as loan of Tk.30,00,000/- (thirty lacs) on condition that the loan of Tk. 16,55,546/- will be adjusted and to return rest amount to the petitioner and sanction the same in favour of the defendant petitioner for which the petitioner executed collateral security of Tk.33,50,000/- in favour of the plaintiff bank. But the plaintiff did not ultimately materialize the plaintiff bank with ill motive kept petitioner's document in his custody and suppressed the facts and filed the instant suit. Dr. S. M. Eunus Ali vs. Joint District Judge and Artha Rin Adalat (Md. Abdul Matin J)(Civil) 7 ADC 194
Section 33(7) Title of mortgaged property-Section 33(5) of the Ain, 2003 provides that after due compliance of sub-sections (1)(2)(3) and (4) of section 33 of the Ain, if it is not possible to sell the mortgaged property in auction, then the right and possession of the mortgaged property will be vested upon the bank. Consequently, at the instance of the bank the Adalat rightly passed an order conferring title of the petitioner's mortgaged property upon the bank and directed to issue a certificate to that effect. Setara Begum vs Al-Arafah Islami Bank Ltd, 61 DLR 791.
Section 33(7) Transfer of title under section 33(7) does not indeed envisage the right of foreclosure. In the scheme of the Act, foreclosure in the sense of a limitation on the right of redemption can only arise when associated with an auction sale contemplated in section 5(4). Beyond that, section 37(7) appears to this Court to operate independently of section 5(4) and the provisions in section 33(7) in not contemplating a transfer by sale must be found also not to envisage the existence of the corresponding right of foreclosure. The right of redemption under section 33(7) is always found to be alive and extant, World Resources Limited vs Artha Rin Adalat No. 3, Dhaka, 66 DLR 637.
Section 33(7) The provisions under sub-section (7) have made it clear that the Legislature wanted to give a free leverage to the decree holder bank or financial institution to apply for the conferment of title at any stage after the 1st auction is done and failed. Therefore, just holding of the 2nd auction will not be a bar against the decree-holder bank preventing it from applying to get the title of the mortgaged property under sub-section (7). Mosharaf Hossain (Md) vs Bangladesh, 67 DLR 199.
Section 33(7) The transfer of title under section 33(7) does not indeed envisage the right of foreclosure. In the scheme of the Act, foreclosure in the sense of a limitation on can the of redemption only arise when associated with an auction sale contemplated in section 5(4). Beyond that, section 33(7) appears to this Court to operate independently of section 5(4) and the provisions of section 33(7) in not contemplating a transfer by sale must be found also not to envisage the existence of the corresponding right of foreclosure. The right of redemption under section 33(7) is always found to be alive and extant. Rokaiya Amin vs Bangladesh, represented by the Secretary, Finance Division, Ministry of Finance, 67 DLR 545.
Section 33(7) Going through the provision laid down in Article 42 and 31 of the Constitution but it appears that there is no scope to say that the provision laid in section 33(7) in any way is found to be inconsistent the provision laid down in the Constitution and hence there is no merit in the Rule in that Count. Atiqullah vs Artha Rin Adalat, 16 BLC 489.
Section 33(7) The petitioners are the third party and their case is that they are the bonafide purchaser of the mortgage property and they are willing to clear up the outstanding dues of the Bank. The petitioners can have their remedy under section 32 of the Ain, 2003, if so advised. Dr Md Habibuzzaman Chowdhury vs Bangladesh, 64 DLR 281.
Section 33(7)-It appears that the respondent bank already became the owner of all the mortgaged property mentioned in the Writ petition after getting a certificate from the Court under section 33(7) of the Artha Rin Adalat Ain, 2003 and the price assessed was taka 8 lacs which was deducted from the claim of the plaintiff bank and therefore the High Court Division committed no illegality in discharging the Rule. Dr SM Eunus Ali vs Joint District Judge, 7 ADC 194.
Section 33 (7) — Sub-section 7 envisages vesting of ownership of the property of the judgment-debtor upon the decree-holder. The said vesting of ownership includes delivery of possession of the property. Without the delivery of possession, the execution case cannot be disposed of. IFIC Bank vs Merina Fashions, 15 BLT 425.
Section 34 (2) & (11) Exempting a woman judgment-debtor- The High Court Division observed that there was no requirement under provisions of the Artha Rin Adalat Ain, 2003 to issue show cause notice and that the provisions of Order XXI of the Code are applicable in execution cases where the prayer is for execution of a money decree. Mst. Sufia Khatun =VS= Artha Rin Adalat, Khulna & others, [1 LM (AD) 226]
Artha Rin Adalat Ain [VIII of 2003]
Section 34 read with
Code of Civil Procedure [V of 1908]
Order XXI Rule 37-There was no requirement under provisions of the Artha Rin Adalat Ain, 2003 to issue show cause notice and that the provisions of Order XXI of the Code are applicable in execution cases where the prayer is for execution of a money decree, and no provision has been made in Artha Rin Adalat Ain, 2003 for exempting a woman judgement-debtor from being arrested for the purpose of realisation of the decretal amount as per section 34 of the special law.
The Appellate Division observed that the High Court Division went on to elaborate that section 32 sub-sections (2) and (11) have exempted certain other persons from being arrested and non-inclusion of a woman judgement-debtor in the list of exempted persons indicates that this category is not exempted from being arrested. The Appellate Division notes from the impugned judgement that the High Court Division gave the petitioner a further opportunity for making payment of the outstanding decretal amount by remaining outside of the jail custody for a further period of three months. The impugned judgement was delivered on 27.10.2009 and there was no order of stay from this Division. Even to this day the petitioner has not taken any steps to make payment of the decretal amount. Clearly, the petitioner is flouting the Court orders and has no intention other than to defeat the course of justice. In the facts and circumstances discussed above, the Appellate Division does not find any reason to interfere with the impugned judgement and order and, accordingly, the civil petition for leave to appeal is dismissed. Mst. Sufia Khatun Vs. Artha Rin Adalat, Khulna and others (Civil) 19 ALR (AD) 96-97
Artha Rin Adalat Ain [VIII of 2003]
Section 34-Whether an application by the decree-holder bank or financial institution for issuance of warrant of arrest against the judgment debtor under Section 34(1) of the said Ain has to be filed along with affidavit.
The High Court Division held that it appears from the provisions under Section 34 of the said Ain that, according to sub- section (1) of the said provision, on an application of decree-holder bank or financial institution, the Adalat IS empowered to commit the judgment debtor to 06 (six) months civil imprisonment in an effort to realize the decreetal amount. This sub-section (1) of Section 34 does not provide for anything like affidavit or verification. However, since it provides that such committal order has to be passed on the basis of an application filed by the decree-holder, the High Court Division is of the view that, mere application with verification is the basic requirement of this provision. Therefore, when an application is filed even without verification by the concerned officer of the bank or financial institution, such application cannot be regarded as an application filed by the decree-holder. By expressing this view, the High Court Division has already set aside the order of the executing Adalat issuing warrant of arrest in some cases, namely Golam Kabir vs. Bangladesh, 15 BLC-831, Sheikh Nazmul Haque vs Bangladesh, 14 BLC-107 and Marzan Abedin vs. Artha Rin Adalat, 65 DLR-79. A.R. Jafar Sadek - Vs. Artha Rin Adalat, 1 Court, Dhaka and others. (Spl. Original) 16 ALR (AD) 265-272
Artha Rin Adalat Ain [VIII of 2003]
Section 34(1)-In an execution case, the decree-holder-bank may file an application for issuance of warrant of arrest under the provision of section 34(1) of the Artha Rin Adalat Ain, 2003. Under section 34(1) of the Ain, an order for civil custody (civil prison)/warrant of arrest may be passed on an application filed by the decree-holder. In the instant case, the application is not signed by any authorized officer of the Bank and it is neither verified nor supported by any affidavit and, as such, the impugned order dated 27.02.2005 for issuance of warrant of arrest against the judgment- debtors cannot be said to be lawful.
It transpires to the High Court Division that the application for warrant of arrest was filed on 23.02.2004 by the learned Advocate for the Bank for issuance of warrant of arrest against the judgment- debtors. It further appears that the application is neither verified nor supported by any affidavit. Moreover, the application is not also signed by any authorized officer of the Bank. In an execution case, the decree-holder-bank may file an application for issuance of warrant of arrest under the provision of section 34(1) of the Artha Rin Adalat Ain, 2003 (hereinafter referred to as the Ain). Under section 34(1) of the Ain, an order for civil custody (civil prison)/warrant of arrest may be passed on an application filed by the decree-holder. In the instant case, the application is not signed by any authorized officer of the Bank and it is neither verified nor supported by any affidavit and, as such, the impugned order dated 27.02.2005 for issuance of warrant of arrest against the judgment-debtors cannot be said to be lawful. In view of discussions made foregoing paragraphs, vis-a-vis the law, the High Court Division finds merit in this Rule. Accordingly, the Rule is made absolute. M/S Anika Agro Farming Complex-Vs.- Ministry of Law, and others (Spl. Original) 23 ALR (HCD) 16
Section 34 (2) & (11) Artha Rin Adalat Ain, 2003 for exempting a woman judgment-debtor from being arrested for the purpose of realisation of the decretal amount as per section 34 of the special law. Section 34 sub-sections (2) and (11) have exempted certain other persons from being arrested and non-inclusion of a woman judgment-debtor in the list of exempted persons indicates that this category is not exempted from being arrested. Mst. Sufia Khatun VS= Artha Rin Adalat, Khulna & others, [1 LM (AD) 226]
Artha Rin Adalat Ain 2003
Whether the Artha Rin Adalat can draw up a final decree beyond the statutory period of three years from the date of preliminary decree. Rupali Bank Ltd. vs. M/s. Brick Linkers Ltd (S.K. Sinha J) (Civil) 8 ADC 523
Artha Rin Adalat Ain
(VIII of 2003)
Section 34(3)-Artha Rin Adalat is empowered to confine the judgment debtor/s in civil prison for a period of 6(six) months to compel them to pay the decreetal amount. According to section 34(3) of Ain, if the borrower is a company, the natural person consisting of whom the company is deemed to have been formed, shall, severally and jointly be liable to confinement in civil prison. Rupali Bank Limited vs Mahmuda Jaman (Civil) 75 DLR (AD) 225
Section 34(5) Under section 34(5) of Ain, the writ-petitioners are not entitled to be released on bail unless they deposit 25% of the total decreetal amount and also execute a bond to the effect that they will pay the rest of the decreetal amount within next 90(ninety) days. The High Court Division without complying with provisions of law, most illegally released the writ- petitioners on bail. Rupali Bank Limited vs Mahmuda Jaman (Civil) 75 DLR (AD) 225
Section 34-Warrant of Arrest-The application is silent as to whether any property is mortgaged/pledged/lien in favour of the Bank which could not be sold due to any reason or whether no such property is available for sale to realise the decretal amount. The application filed by the Bank is thus vague. It appears to us that warrant of arrest was issued against the judgment-debtor petitioner without following the provisions of section 34(9) and (10) of the Ain. Jahangir Chowdhury vs Artha Rin Adalat, 61 DLR 167.
Section 34-A new provision under section 34 has been introduced under Ain, 2003 that makes an elaborate, exhaustive and independent provision for issuing warrant of arrest. The provision of special law shall override all other laws in force that includes the Code. The provision of section 34 of the Ain is absolutely independent and self-contained. Kanika Begum vs Artha Rin Adalat, 64 DLR 276.
Section 34-Since section 34 of the Ain has not made any synonymous provision like that of section 56 of the Code the Court can exercise its discretion on the same but in so doing there cannot be any gender discrimination as the same would certainly go against the principle of the Constitution of the Republic. Kanika Begum vs Artha Rin Adalat, 64 DLR 276.
Section 34-Section 34 is exclusive, independent and exhaustive which cannot be subjected to or circumvent by other provisions of Ain. Mostafa Ahmed vs Government of Bangladesh, 65 DLR 294.
Section 34-Section 34 is exclusive, independent and exhaustive which cannot be subjected to or circumvent by other provisions of Ain, Mostafa Ahmed vs Government of Bangladesh, 65 DLR 294.
Section 34-Fugitive-The term 'fugitive' disqualifying a person to get any relief from the Court is applicable for criminal proceedings. Artha Rin Suit is a clear and simple suit of civil nature and in execution of the decree passed therein the execution case is also a proceeding of civil nature. A judgment-debtor against whom an warrant of arrest is pending in a case of civil nature, cannot be termed as a fugitive and the door of justice is not closed for him. Mirza Ahsan Habib vs The Judge, Artha Rin Adalat, 65 DLR 579.
Section 34-From a combined reading of those sub-sections to section 34 of the Ain, 2003 it transpires that the Adalat is competent enough to award civil imprisonment to the extent of 6(six) months to the judgment debtor/s for recovery of decretal amount on an application filed by the decree-holder Bank when no auction sale is possible to be held for any reason. On a careful exmination of the application under section 34 of the Ain, 2003, it appears that in the application under section 34 of the Ain, 2003 for issuing warrant of arrest against the judgment debtors the concerned official/authority of the Bank neither put his signature nor made any verification/affidavit thereto and therefore, it cannot be said that the application in question was filed by the decree-holder-Bank as per provision of section 34(1) of the Ain, 2003. In the result, the Rule is made absolute without any order as to cost. The impugned order dated 28-9-2004 insorfar as it relates to warrant of arrest is hereby declared to have been made without lawful authority and is of no legal effect. However, the decree-holder-Bank shall still approach before the Adalat for issuance of warrant of arrest as per provisions of section 34(1) of the Ain, 2003 if he so likes. Sheikh Nazmul Haque vs Bangladesh, 14 BLC 107.
Section 34-Since the legislature has authorised the Adalat vide section 34 of the Ain of 2003 to issue warrant of arrest to detain him in civil prison as a mode of recovery of the decretal amount speedily hence it is not unjust, unfair or unreasonable, resulting to declare it ultra vires the Article 31 of the Constitution. It is to be remembered that reasonable and non-arbitrary exercise of decision is an inbuilt requirement of good piece of legislation which cannot be knocked down by the Court which will go to undermine the act of parliament rather to be reduced to oligarchy of judges which is neither desirable nor can it be brought within the scheme of the Constitution. In view of the above, there is no requirement to issue another notice before issuance of the process of arrest under section 34(1) of the Ain of 2003 at the execution stage in the name of natural justice. ABM Shirajum Monir vs Subordinate Judge, 14 BLC 716.
Authority can discontinue the service of the unauthorised absentee.
The absence of the Respondent from his duties without permission is not a single occasion, rather multiple and in that background the authority was quite correct in taking the decision to discontinue the service of the Respondent in the interest of the Organization which is a service oriented Organization...(12). Agrani Bank, Chairman, Board of Director, vs Khandaker Badrudduza (Md. Ruhul Amin J)(Civil) 2ADC 935
Section 34-It appears that warrant of arrest has been issued against the judgment debtor petitioner after following the provisions of section 34 of the Artha Rin Adalat Ain, 2003. Hence the Rule fails. Ziaul Huq vs Artha Rin Adalat, 14 BLC 809.
Section 34-From a combined reading of those sub-sections of section 34 of the Artha Rin Adalat Ain, 2003 it manifests that the Adalat is empowered to pass an order of Warrant of Arrest/Civil Imprisonment directly on the basis of an application filed by the decree-holder bank when no auction sale is possible to be held for any reason. Sujit Kumar Mondal vs Bangladesh, 13 BLC 391.
Section 34-Section 34 is exclusive, independent and exhaustive which cannot be subjected to or circumvent by other provisions of Ain. Mostafa Ahmed vs Government of Bangladesh, 65 DLR 294.
Section 34-Petitioner a fugitive since 9-8-2006 and being a he obtained the Rule. It is well settled that a fugitive has no right to seek any kind of redress as against his grievance of awarding sentence. Nital Kumar Mondol vs Judge, Artha Rin Adalat, 62 DLR 446.
Section 34-Section 34 of the Artha Rin Adalat Ain, 2003 is clear and provides for ordering civil imprisonment up to 6 months against a judgment-debtor for compelling to satisfy the decree. Section 34 is not dependent upon section 33. In the instant case, the decree holder has taken step for auction sale of the property but there being no response, auction sale could not be held. Further, appears from the provisions of section 34 of the Artha Rin Adalat Ain, 2003 that the law provides for simple civil imprisonment of the judgment debtor to compel to make the payment for satisfaction of the decree and is not an alternative punishment in lieu of payment of the decretal amount. Civil imprisonment will not exempt payment of the decretal amount. Provat Kumar Das. vs Agrani Bank, 15 MLR (AD) 96= 15 BLC (AD) 96.
Section 34(1)
No release order unless pay 25% decreetal amount
Under Section 34(5) of Ain, 2003 the writ-petitioners are not entitled to be released on bail unless they deposit 25% of the total decreetal amount and also execute a bond to the effect that they will pay the rest of the decreetal amount within next 90(ninety) days. But in the cases in hand, the High Court Division without complying with aforesaid provisions of law, most ille- gally released the writ petitioners on bail. In doing so, the High Court Division flouted the categorical provi- sions of law as stated in Section 34 of Ain, 2003 ....(29)
Rupali Bank Limited vs. Mahmuda Jaman (Obaidul Hassan J) (Civil) 20 ADC 203
Section 34-The provisions of section 51 and Order XXI, rule 37 the Code provide for issuance of show cause notice upon the judgment-debtors before issuance of warrant of arrest as to why he should not be committed to prison on some ground such as judgment- debtors likely to abscond, dishonesty transfer, conceal, remove his property, etc.
However, this provision is not also mandatory in all cases as Order XXI, rule 37 also provides that such notice shall not be necessary if the Court is satisfied by affidavit or otherwise that with the object of delaying the execution of the decree, the judgment- debtor will likely abscond, etc. These provisions of section 51 and Order XXI, rule 37 of the Code are incorporated as a measure of punishment under certain circumstances. On the other hand, section 34 of the Ain empowers the Adalat to detain the judgment-debtor in civil prison (civil custody) as a measure to compel him to pay the decretal money and not as measure of punishment.
Therefore, object of section 51 read with Order XXI rule 37 of the Code and the object of an under section 34 are not the same. Moreover, the provisions of section 51 and Order XXI, rule 37 are relating to Money Decree passed in a Money suit but not in a suit for recovery of loan by financial institution though it may be called a Money Decree but for the later a special law, the Ain, has been enacted by the Parliament. Section 34(10) of the Ain provides that if for any reason auction sale is not possible the judgment-debtor may be arrested and detained in civil prison/civil custody "fe' (directly) Since the word "fa" (directly) has been used in section 34(10) of the Ain, it cannot be interpreted that prior show cause notice is necessary as the meaning of section 34(10) would be nugatory is such a case. Thus, the provisions of section 51 and order XXI, rule 37 of the Code are in conflict with the provisions of section 34(1)(9)(10) of the Ain. Under section 26 of the Ain the provision of the Code is applicable so far as it is not inconsistent with the provisions of the Ain which includes the provision of section 34 of the Ain. Moreover, under section 30 of the Ain special provision has been made for publishing notice after filing of the execution case under certain circumstances.
From the sub-sections (9) and (10) of section 34 of the Ain, there is nothing to show that there is any scope of issuing any show cause notice before issuing warrant of arrest rather it appears that warrant of arrest may be issued directly. What is not in the law itself cannot be imported in the law by way of interpretation.
From the discussions made in the foregoing paragraphs, it transpires that the Appellate Division accepted the decision of the High Court Division to the effect that warrant of arrest may be issued directly if no auction is possible for any reason and the decision of the Appellate Division is binding on us. Manik K Bhattacherjee vs Artha Rin Adalat, 16 BLC 195.
Sections 34 and 44-In the present Artha Rin Adalat Ain, 2003 the legislature by incorporating section 44 has expressly debarred filing revisional application against an interlocutory order passed by the Adalat pending execution proceeding. The impugned orders passed by the Adalat under section 34 of the Ain, 2003 in the present cases are, no doubt, interlocutory orders. Accordingly, in view of section 44 of the Ain those orders are not revisable under section 115(1) of the Code of Civil Procedure. As such, all the respective Rules issued under section 115(1) of the Code of Civil Procedure are liable to be discharged as being not maintainable. Syed Monjur Morshed vs Manager, Agrani Bank Ltd, 14 BLC 501.
Section 34(1)- Amended section 22 of the Ain itself is binding upon the Court that is to say that the Court has to take initiative for mediation, of course in a fit case. Technomech Engineering (Pvt) Ltd vs Judge, Artha Rin Court No.2, Dhaka, 18 BLC 798,
Section 34(1)-Bank without taking recourse to provisions of law directly filed an application praying for issuance of warrant of arrest and order of detention which is palpably illegal and contrary to the provisions of law. The Order shows that the Adalat in issuing warrant of arrest and detaining the petitioners for six months in civil jail has assigned the reason only stating that the Judgment-Debtor failed to appeal before the Court and to show cause in spite of publishing notice under section 30 of the Ain in the Dailies, but the Ain does not say so. Abdul Jalil (Md) vs Judge, Artha Rin Adalat, 2nd Court, Dhaka, 67 DLR 475.
Section 34(1)- It appears that the application has been filed by the learned Advocate on behalf of the Bank but the application is neither signed by the official/ authority of the Bank nor the application contains the verification/ affidavit thereto and therefore, it cannot be said that the application in question was filed by the decree-holder Bank as per provision of section 34(1) of the Artha Rin Adalat Ain, 2003. Golam Haider vs Bangladesh. 15 BLC 831.
Section 34(1) From the application filed by the Bank under section 34(1) of the Ain it transpires that the said application was filed by Mr Harunur Rashid, Senior officer of the Bank on 3-4-2004. Therefore, it is evident that authority was given to Md Harunur Rashid by the Bank on 9-1-2008 and the application was filed by Md Harunur Rashid on 3-4-2008 before the Adalat for issuance of warrant of arrest against the judgment-debtors by virtue of the said authorization letter. On examination of the said application it appears that there in no illegality in the said application rather it has been filed in consonance with the provision of the section 34 (1) of the Ain. Manik K Bhattacherjee vs Artha Rin Adalat, 16 BLC 195.
Section 34(1)-On close appraisal of the materials on record it transpires to that after issuance of warrant of arrest dated 13-11-2005 the judgment-debtor-petitioner did not appear in the Court below. He remained fugitive and being fugitive he obtained the present Rule. It is well settled that a fugitive has no right to seek any kind of redress as against his grievance of issuance of warrant of arrest. Bashir Ullah Master vs Bangladesh, 61 DLR 760.
Section 34(1) Section 34(1) itself clearly tells the civil imprisonment which is imposed on the judgment-debtors under this section is not any punishment for committing any offence, rather it is only for the purpose of making them compelled to pay the decreetal money. Ziaur Rahman (Md) vs Artha Rin Adalat, 64 DLR 189.
Section 34(1)- The Bank is at liberty to file fresh application under section 34(1) of the Ain for Civil prison (civil custody)/ issuance of warrant of arrest against the judgment-debtors in accordance with law provided attempt was taken earlier for auction sale of the mortgaged property at least once or auction was not possible due to any reason as provided in section 34(9)(10) of the Ain. Otherwise, the provision of section 34(9)(10) of the Ain is to be followed before action under section 34 (1) of the Ain. AKM Tofazzal Hossain vs Rupali Bank Ltd, 64 DLR 435.
Section 34(1) The application seeking warrant of arrest on behalf of the bank should be officially signed, verified and followed by affidavit. If the same is absent the application is not tenable under the law, Marzan Abedin vs Judge, Artha Rin Adalat No. 4 Dhaka, 65 DLR 79.
Section 34(1)-It was the responsibility of the Adalat to take initiatives for auction sale of those moveable properties first before invoking power under section 34(1) of the Ain. In the absence of the process issuance of the order of warrant of arrest is palpably illegal for being passed in violation of section 34(9) of the Ain. Mohammad Saheed vs Government of Bangladesh, 66 DLR 254.
Section 34(1) Under section 34(1) of the Ain, an order for civil custody (civil prison)/warrant of arrest may be passed on an application filed by the decree-holder. In the instant case the application is not signed by any authorized officer of the Bank and it is neither verified nor supported by any affidavit and, as such, the impugned order for 6 months civil custody/issuance of warrant of arrest cannot be said to be lawful. AKM Tofazzel Hossain vs Rupali Bank Ltd, 64 DLR 435.
Section 34(1) The application warrant of arrest on of the bank should be officially signed, verified and followed by affidavit. If the same is absent the application is not tenable under the law. Marzan Abedin vs Judge, Artha Rin Adalat No. 4 Dhaka, 65 DLR 79.
Section 34(1) Artha Rin Adalat reserve the powers to detain a person up to 6(six) months for realization of outstanding dues. Bodiuzzaman Milan (Md) vs BCB Limited, 18 MLR 137 = 17 BLC 426.
Section 34(1) The application seeking warrant of arrest on behalf of the bank should be officially signed, verified and followed by affidavit. If the same is absent the application is not tenable under the law. Marzan Abedin vs Judge, Artha Rin Adalat No. 4 Dhaka, 65 DLR 79.
Section 34(1) In the instant case warrant of arrest was issued against the in execution proceedings under section 34(1) of the Artha Rin Adalat Ain, 2003 in situation when no intending purchaser was forth coming pursuant to the attempts to sell the pledged property the learned judges of the High Court division found nothing wrong with the impugned order and held that the issuance of warrant of arrest against judgment-debtor to compel him to pay the decretal dues is not dependent on the compliance with the provisions of subsection (5), (6), and (7) of section 33. MA Jaher vs Sonali Bank, 13 MLR 64.
Section 34(1)(9)(12)-The Adalat shall not pass any order of civil detention until process of holding of auction sale of the property of the judgment-debtor(s) has been resorted to at least once. That power under sub-section (1) thereof cannot be exercised unless the conditions as stipulated therein are fulfilled. Abdur Razzaque Chowdhury vs Artha Rin Adalat, 65 DLR (AD) 111.
Section 34(2) From a combined reading of the Ain 2003 as a whole, we find that the intention of the legislature is also to protect the rights of the substituted heirs of mortgagor and guarantor. Therefore, we hold that the Provisions of section 34(2) of the Ain 2003 are squarely applicable in respect of the substituted heirs of mortgagor and guarantor. Akramuzzaman (Md) alias Babu vs Artha Rin Adalat No. 1 Rajbari, 61 DLR 638.
Section 34(9)-At least a single auction of mortgaged property shall have to be attempted before issuing order of warrant of arrest. Order of warrant of arrest in question cannot be sustained since the same are not in keeping with section 34(9) of Ain. Abul Kalam (Md) vs Artha Rin Adalat, Khulna, 65 DLR 431.
Section 34(9) No property at all-Question of realization- Held: Having considered the admission of the petitioner that he has no property at all rightly held that the question of realization of the decreetal amount as per sub section (9) of section 34 of the Artha Rin Adalat Ain, 2003 does not arise at all. Abdur Rashid vs Artha Rin Adalat, 7 ADC 611.
Section 34(9)-Since the Bank and the Adalat proceeded against the petitioner before exhausting all the processes against the main borrower, the orders of arrest as well as the refusal of bail should not sustain in the eye of law. ABM Liton vs Bangladesh, 66 DLR 207.
Section 34(12) As per section 34(12) the petitioner cannot be put to civil imprisonment for the second time and for that reason the order impugned against is ex-facie illegal and without any lawful authority and is of no legal effect. Osarunnessa vs Bangladesh, 64 DLR 417.
Section 37-When a particular provision of Code will go to frustrate the intention of the legislature for expedite disposal of the Artha Rin Execution Case for the purpose of recovery of the decretal amount in accordance with the law, the court must not allow the judgment-debtor to have a shelter under such other provisions which will go to drag it beyond any doubt. Kanak Rani Roy vs Bangladesh, 65 DLR 364
Section 37-If any time a certificate is allowed to sell the mortgage property by private negotiation under Order XXI, rule 83(1) and (2) of the Code certainly the same will also be inconsistent with the provision of section 37 of the Ain. where there is no provision to exclude time under sub-section (2). Kanak Rani Roy vs Bangladesh, 65 DLR 364.
Section 37-When a particular provision of Code will go to frustrate the intention of the legislature for expedite disposal of the Artha Rin Execution Case for the purpose of recovery of the decretal amount in accordance with the law, the court must not allow the judgment-debtor to have a shelter under such other provisions which will go to drag it beyond any doubt. Kanak Rant Roy vs Bangladesh. 65 DLR 364.
Section 37-If any time a certificate is allowed to sell the mortgage property by private negotiation under Order XXI, rule 83(1) and (2) of the Code certainly the same will also be inconsistent with the provision of section 37 of the Ain. where there is no provision to exclude time under sub-section (2). Kanak Rani Roy vs Bangladesh. 65 DLR 364.
Section 37-It is apparent that the requirement of time-frame for disposal of an execution case as laid down in section 37 of the Ain, 2003, is merely directory and not mandatory. So, it cannot be said that if the execution case is not disposed of within 90+60-150 days it will be automatically stopped or dismissed. Sujit Kumar Mondal vs Bangladesh, 13 BLC 391.
Section 37-In this backdrop, since there is no indication in the statute about the fate of the execution case if it does not conclude within 90+60-150 days our considered opinion is that the provision of section 37(1) of the Ain, 2003 so far it relates to timeframe for disposal of the execution case is directory and not at all mandatory. Abul Basher vs 1st Artha Rin Adalat, 13 MLR 208.
Sections 37 and 49-It appears that the time-frame for disposal of the execution case has been provided for in section 37 of the Act. But it would appear from the other provisions of the Act, notably section 49, that in case of allowing the installment an execution case can be extended beyond 150 days and at least for the next three years from the date of allowing an application filed by the judgment debtor, praying for installments and agreed to by the decree-holder. In such a case, the period of time under section 37 of the Act would be subject to the application of the provisions of section 49 as envisaged under sub-section 2 of section 37 of the Act. It is apparent that the requirement of time-frame for disposal of an execution case, as stated in section 37, is merely directory and not mandatory. Morwar Hossain (Md) vs Government of Bangladesh, 13 BLC 181.
Section 38-Amicable Settlement-The Bank and the Judgment- debtors are at liberty settle the matter, excluding the auction sold property, if they are willing to do so in terms of the Guidelines for the balance decretal amount due to the Bank from the judgment-debtor- petitioner and others as amicable settlement is permissible at any stage during the execution case by the parties under the Ain. ABC Attire Ltd. vs. Bangladesh, 64 DLR 399.
Artha Rin Adalat Ain [VIII of 2003]
Sections 38 and 45 Judgment- Debtors and the Decree-Holder Bank could settle the dispute between them at any stage of the suit and even at the execution stage.
The High Court Division further not that sections 38 and 45 of the Act contain the provisions of amicable settlement. Under the above provisions of law, the Judgment- Debtors and the Decree-Holder Bank could settle the dispute between them at any stage of the suit and even at the execution stage. Since the mortgaged property has been redeemed and the execution proceeding was withdrawn following an amicable settlement between the Judgment-Debtors and the Decree Holder, the auction purchaser Petitioner is not found to be entitled to any relief as prayed for. M. A. Hashem son of late Addul Aziz -Vs.- The Artha Rin Adalat No. 2, Dhaka and others (Spl. Original) 19 ALR (HCD) 225-236
Sections 38 and 45-The question of third party claim is a question of facts and requires evidence and enquiry by the Court. The petitioner either can settle the dispute amicably out of Court under section 38 and 45 of the Ain or can take recourse to the relevant provisions of law contained in the Ain by filing an appropriate application before the Adalat, if so advised. Khadiza Begum vs Shahjalal Islami Bank Ltd, 67 DLR 583.
Sections 38, 45, 49 and 57-The Adalat almost in every case is reluctant to extend its hands to help the litigants taking recourse to the sections of the Ain making them virtually ineffective. AB Mannaf Sheikh (Md) vs 1st Joint District Judge Court and Artha Rin Adalat, 19 BLC 493.
Section 40-The provisions of appeal and revision of the Code such as sections 96, 104, Order XLI and section 115 respectively have been made applicable in respect of an appeal and a revision, if filed under the Ain, 2003 subject to the provisions of the Ain. Golzar Hossain (Md). Advocate vs Janata Bank 65 DLR (AD) 101.
Sections 40 and 44Ka-In case of pledge loan, firstly, the borrower has to furnish a certain amount as agreed between lender bank and the borrower as margin, which in this case was 30% of the loan amount; secondly, in case of pledge loan facility, pledge goods remain under the custody of lender bank. The Adalat rightly found that it could not legally compel the defendants to refund the pledge loan when pledged goods were misappropriated from the bank's custody. Nimai Chandra Biswas vs Sonali Bank, 22 BLC (AD) 195.
Section 41-Appeal against the order in relation to decree for Tk. 1,72,90,708 passed by the Artha Rin Adalat can only be submitted before the High Court Division-Held: Appeal was also not entertainable by the Court of District Judge or Additional District Judge as in the present case admittedly the decree was for Tk.1,72,90,708 and according to section 41 of the Artha Rin Adalat Ain, 2003, the appeal against the above order dated 8-2-2007 passed by the Artha Rin Adalat could be submitted only before the High Court Division. Sonali Bank Ltd. vs Md Nur Habib Bappi, 16 MLR (AD) 121.
অর্থ ঋণ আদালত আইন [VIII of 2003]
ধারা ৪১ এবং ৪৪-জারী পর্যায় নিলাম রদের জন্য দাখিলী বিবিধ মামলাসমূহের চূড়ান্ত আদেশের বিরুদ্ধে বিবিধ আপীল রক্ষণীয় এবং অর্থ ঋণ মোকদ্দমা হতে উদ্ভূত জারী মোকদ্দমার সকল অন্তবর্তীকালীন আদেশের বিরুদ্ধে আপীল বা রিভিশন গ্রহণযোগ্য নয়। তবে উক্ত ক্ষেত্রে রীট রক্ষণীয়।
অর্থ ঋণ আদালত আইনের ১৯ ধারা এবং ৪২ ধারা তথা জারী পর্যায় নিলাম রদের জন্য দাখিলী বিবিধ মামলাসমূহের চূড়ান্ত আদেশের বিরুদ্ধে বিবিধ আপীল রক্ষণীয় এবং অর্থ ঋণ মোকদ্দমা হতে উদ্ভূত জারী মোকদ্দমার সকল অন্তবর্তীকালীন আদেশের বিরুদ্ধে আপীল বা রিভিশন গ্রহণযোগ্য নয়। তবে উক্ত ক্ষেত্রে রীট রক্ষণীয়। উপরি- উক্ত আলোচনা হতে প্রতীয়মান হয় যে, অর্থ ঋণ আদালত আইন, ২০০৩ এর ৪১ এবং ৪৪ ধারার বিধানাবলী একটি অন্যটির সহিত সাংঘর্ষিক নয় বরং দুইটি বিধানের যথার্থ কার্যকারিতা রয়েছে। স্বীকৃত মতে, অর্থ জারী আদালতের ৬৪ নং আদেশ বা অন্যকোনো আদেশ চ্যালেঞ্জ করে বাদী ব্যাংক কোনো রীট মামলা দায়ের করেননি। বাদী ব্যাংক ইচ্ছা করলে উক্ত আদেশের বিরুদ্ধে রীট মামলা দায়ের করতে পারতেন। কিন্তু উক্ত আদেশের বিরুদ্ধে রীট না করে মিস আপীল নং ০১/২০১৩ (অর্থ) দায়ের করেন। জেলা জজ, বগুড়া এর উক্ত আপীল গ্রহণের কোনো আইনগত ক্ষমতা না থাকা সত্ত্বেও তিনি উক্ত আপীল গ্রহণ করে নিষ্পত্তির জন্য অতিরিক্ত জেলা জজ, ২য় আদালত বগুড়ায় পাঠিয়েছেন। অতিরিক্ত জেলা জজ, ২য় আদালতের উচিৎ ছিল উক্ত মামলাটি maintainable নয় মর্মে সিদ্ধান্ত প্রদানপূর্বক আপীলটি খারিজ করা। এখতিয়ার না থাকা সত্ত্বেও বিজ্ঞ অতিরিক্ত জেলা জজ মামলার গুণাগুণ বিবেচনা করে সিদ্ধান্ত প্রদান করেছেন। যা দৃশ্যত বেআইনী। মোঃ আব্দুল মান্নান রউফ বনাম বাংলাদেশ সরকার গং (Spl. Original) 19 ALR (HCD) 268-274
অর্থ ঋণ আদালত আইন, [VIII of 2003]
ধারা ৪১-অর্থ ঋণ আদালতের বিজ্ঞ বিচারক আদালতে ব্যাংককে দায়িকের দাখিলী দলিলাদি উপস্থাপন করার জন্য নির্দেশ প্রদান করলেও ব্যাংকের সংশ্লিষ্ট আইনজীবী আদালত কে জানান যে ব্যাংক সংশ্লিষ্ট দলিলাদি আদালতে দাখিল করবে না। যা ধৃষ্টতাপূর্ণ এবং অপ্রত্যাশিত।
নথি পর্যালোচনায় দেখা যায় যে, দায়িক ইষ্টার্ণ ব্যাংক বাংলাদেশ লিমিটেড এর বগুড়া শাখা থেকে ব্যবসায়ের উদ্দেশ্যে ২০ (বিশ) লক্ষ টাকা ঋণ গ্রহণ করেন। ঋণ প্রদানে ব্যর্থতায় বাদী ব্যাংক অর্থ ঋণ আদালতে মামলা দায়ের করেন। উক্ত মামলা দায়ের করার আগে বাদী ব্যাংকে ১০ (দশ) লক্ষ টাকা জমা দেন। অর্থ ঋণ মোকদ্দমায় ডিক্রী হয় ২২,৩৪,৩২৪.০২ টাকা ডিক্রী হয়। অতঃপর দায়িক মামলা চলাকালীন এবং মামলার রায়ের পরে বিভিন্ন তারিখে সর্বমোট ২৮,৬৭,৫৯৯.৩৭ টাকা ব্যাংকে জমা প্রদান করেন অর্থাৎ দায়িক ঋণগ্রহীতা সর্বমোট (১০,০০,০০০,০০+২৮,৬৭,৫৯৯.৩৭)= ৩৮,৬৭,৫৯৯.৩৭ টাকা প্রদান করেছেন। অর্থ ঋণ আদালতের বিজ্ঞ বিচারক আদালতে ব্যাংককে দায়িকের দাখিলী দলিলাদি উপস্থাপন করার জন্য নির্দেশ প্রদান করলেও ব্যাংকের সংশ্লিষ্ট আইনজীবী আদালত কে জানান যে ব্যাংক সংশ্লিষ্ট দলিলাদি আদালতে দাখিল করবে না। যা ধৃষ্টতাপূর্ণ এবং অপ্রত্যাশিত। ব্যাংক কর্মকর্তাদের মনে রাখতে হবে "They are bound by law, subordinate to law and answerable to law who are they may be." আদালতের উক্ত আদেশ দ্বারা ডিক্রী জারী মামলাটি চূড়ান্তভাবে নিষ্পত্তি হয়নি। বরং ইহা একটি অন্তবর্তীকালীন আদেশ। উক্ত জারী মামলাটি চূড়ান্ত নিষ্পত্তিকালে বাদী ব্যাংকের কোনো দাবী থাকলে তা উপস্থাপন করতে পারতো। এখানে উল্লেখযোগ্য যে, বাদী ব্যাংক wrong forum এ আপীল করার ফলে এ রীট মামলার উদ্ভব ঘটে। উপরি-উক্ত আলোচনা ও উক্ত মামলার ঘটনা, অবস্থা ও প্রেক্ষাপট পর্যালোচনা করলে আদালতের কাছে প্রতীয়মান হয় যে, অর্থ জারী মামলায় প্রদত্ত আদেশটি অন্তবর্তীকালীন আদেশ। উক্ত আদেশের বিরুদ্ধে আপীল মামলাটি ৪১ ধারা অনুযায়ী গ্রহণযোগ্য নয় এবং তর্কিত মিস আপীল মামলার রায় ও আদেশ আইনত রক্ষণীয় নয়। সংগত কারণে বলা যায় যে, উক্ত রুলের সারবত্তা রয়েছে। ফলে রুলটি চূড়ান্তকরণ যোগ্য। অতএব, আদেশ হয় যে, উক্ত রুলটি চূড়ান্ত তথা absolute করা হলো। মোঃ আব্দুল মান্নান রউফ -বনাম- বাংলাদেশ সরকার গং (Spl. Original) 19 ALR (HCD) 268-274
Section 41-In view of the well settled principle of law as to the question of maintainability of the Writ Petition, there is no hesitation to hold that the petitioner has miserably failed to cross the first hurdle, inasmuch as Artha Rin Adalat Ain, 2003 is a special law and special provision having been provided in Artha Rin Adalat Ain, 2003 for preferring appeal against the judgment and decree passed by the Artha Rin Adalat. In order to save the valuable public time since the petitioner could not cross the first hurdle, it is not necessary to consider the other grounds of the writ petition. Edruk Ltd vs Secretary. Ministry of Industries, 14 BLC 102.
Section 41-It appears that the judgment of the Artha Rin Adalat was appealable under the Artha Rin Adalat Ain, 2003 and instead of filing the appeal in time the petitioner manufactured letter dated 26-1- 2000 in order to justify their failure to file appeal in time. The remedy in the writ jurisdiction is an equitable one and to seek the same one must come with clean hands and since two Judges of the High Court Division held that the petitioner did not come to the High Court Division with clean hands have rightly found the writ petition as not maintainable. Oriental Bank Ltd vs AB Siddiq (Ludu). 13 BLC (AD) 144.
Section 41(1) and 42(2)
That the Artha Rin Adalat Ain being a special law prescribing the period of 30 days for filing appeal with 50% deposit of the decretal amount, the failure of the respondent Nos. 1 and 2 to deposit the said statutory amount within the time stipulated, renders the appeal as no appeal in the eye of law and as such the impugned order of the High Court Division admitting the appeal beyond 30 days and passing the ad-interim order is liable to be set aside being violative of Section 41 of the Ain. Peninsular Shipping Service Limited vs. M/S. Faruque Paint and Varnish Manufacturing Co. Ltd (Amirul Kabir Chowdhury J) (Civil) 4 ADC 372
Section 41-The learned Advocate for the petitioner submits that the petitioner is to deposit 50% of the decretal amount in order to prefer an appeal under section 41 of the Ain and therefore, the appeal is not an equally efficacious remedy for the petitioners and so, that writ petition is maintainable. Moreover, the suit having been filed under the Ain and the Ain being a special law the provision of the Ain shall be applicable in the instant case. United Food Complex Ltd vs Artha Rin Adalat, 15 BLC 489.
Section 41-The sole question to be investigated is one of possession. And next, if possession is found of the respondents whether they possessed independently or through judgment debtor. Learned Judge without any investigation passed the order holding that the applicant's respondents ascertained in the application that their property was wrongly included in the auction notice. Rupali Bank Lid vs Sheuli Akter Moni, 17 BLC 476.
Section 41-We are of the view that the petitioner bank may file any appeal without depositing any money but within 30 (thirty) days as prescribed and admittedly the appeal has been filed beyond the prescribed period of 30 (thirty) days, the Artha rin Adalat Ain, 2003 being special law and the limitation for preferring appeal having been provided by the special law, the provisions of Limitation Act, is not available. Rupali Bank Ltd. vs Md. Hamayet Uddin. 17 BLT 60.
Sections 41 and 4(7)-Artha Rin Adalat can only be constituted by Joint District Judge alone. If due to illness or for any other reason or the court is in vacation the Adalat cannot function with its regular work the District Judge will appoint temporarily a Joint District Judge to continue function of Artha Rin Adalat. For the purpose of functioning of Adalat to be more particular to hold the trial jurisdiction lies with the Joint District Judge. Section 11 of Ain clearly says that the District Judge and the Additional District Judge are the appellate authority to dispose of the appeal against the judgment and order passed by the Joint District Judge in the capacity of Artha Rin Adalat Judge. Sheikh Md Rafiqul Islam (Babul) vs Manager, Uttara Bank Limited, 66 DLR 131.
Section 41(1)(2)-Filing of appeal under subsection (1) is subject to fulfilment of the requirement of subsection (2) of the Ain and both the provisions are conjunctive and not disjunctive and the law being a special law there is no way out to escape the limitation. Peninsular Shipping Service Ltd vs Faruque Paint and Varnish Manufacturing Co Ltd 59 DLR (AD) 26.
Section 41(1)(2)-Filing of Appeal-Requirement-Held Though we are of the view that the memorandum of appeal being filed on 23-3-2005 was within 30 days from the order complained of, but the memorandum of appeal being not enclosed with proof of deposit of 50% of decretal amount and the filing of appeal being subject to fulfilment of subsection (2) of section 41 (m()-f). the filing of the memorandum of appeal simpliciter does not lead to hold that the appeal was entertainable legaly.
Though in section 7 there was clear prohibition for acceptance of any appeal. in case of failure to make deposit as required under subsections (2) and (3) of section 41 of the Ain 2003 it has not improved the situation in favour of a party intending to prefer an appeal, putting the obligation to enclose proof of deposit of 50% of the decretal amount with the memorandum of appeal under sub- section (2) in as much as filing of memorandum of appeal itself has been made dependent on (উপ-ধারা (২) এর বিধান সাপেক্ষে), and subject to fulfilment of the sub-section (2). [Mr. Justice Amirul Kabir Chowdhury] Peninsular Shipping Service Ltd vs Faruque Paint and Varnish Manufacturing Co. Ltd., 59 DLR (AD) 26 12 MLR (AD) I.
Section 41(1) & (2)-Under section 41 any party in order to prefer an appeal against any order or decree of the Artha Rin Adalat is required to file the said appeal within 30 days and deposit 50% of the decretal amount and submit with the memorandum of appeal the proof of such deposit and in the absence of submitting such proof with memorandum of appeal no appeal filed under section 41(1) shall be accepted for any action. If the provisions of sub-section (1) of section 41(1) and (2) of the said section are read meticulously it shall be crystal clear that filing of appeal under sub-section (1) is subject to fulfilment of the requirement of sub-section (2) of the Ain and both the provisions are therefore conjunctive and not disjunctive at all and the law being a special law there is no way out to escape the limitation. Peninsular Shipping Service Limited vs M/s. Faruque Paint and Varnish Manufacturing Co. Ltd. 26 BLD (AD) 172 59 DLR (AD) 26.
Section 41(1)(2)-If the provisions of sub-section (1) of section 41 and sub-section (2) of the said section are read meticulously it shall be crystal clear that filing of appeal under sub-section (1) is subject to fulfilment of the requirement of sub-section (2) of the Ain and both the provisions are therefore conjunctive and not disjunctive at all and the law being a special law there is no way out to escape the limitation. From the aforesaid discussion we find that the memorandum of appeal filed on 19-3-2005 being not accompanied with proof of deposit of 50% of decreetal amount, nor such deposit being made within statutory period of 30 days, the High Court Division committed error in passing the impugned order (admitting the appeal for hearing) on 29-3-2005 and as such the order is not sustainable in law. Penninsular Shipping Service Ltd vs M/S Faruque Paint and Varnish Manufacturing Company Ltd. 12 MLR (AD) 1-59 DLR (AD) 26.
Section 41(2)-Due to non-fulfilment of the mandatory requirement of sub-section (2) of section 41 of the Ain no valid appeal is pending before this Court and, as such, the application filed for dismissing the appeal on the ground of maintainability has got substance for which the appeal is liable to be dismissed as not maintainable in law. Sonali Food Products (Pvt) Ltd. vs Premier Bank Ltd. 17 BLC 441.
Section 41(2)-It appears that the legislature has set down the condition in section 41(2) of the Ain that 50% of the decretal dues at the time of preferring appeal or at the time of filing an application must be deposited which is a precondition for preferring an appeal. Such precondition being imposed by the Parliament, who has the power to take away any vested right by clear and unambiguous language, the same cannot be said to have taken away the right to protection of law. Anisur Rahman @ KM Ziaul Haque vs Government of Bangladesh, 12 BLC 22.
Section 41(2)-In an execution proceedings in respect of decree of Artha Rin Adalat an application for setting aside the auction sale on the ground of low valuation was rejected by Artha Rin Adalat. Since the Artha Rin Adalat Ain is a special statute, it shall prevail over all other laws including the provision of the Code of Civil Procedure. The appeal against the order of rejection of the application was filed without deposit of 50% of the decretal amount. The Appellate Division held the appeal without such deposit is no appeal in the eye of law. Korea-Bangladesh Food Products Ltd vs National Bank Ltd. 13 MLR (AD) 253.
Appeal against decree
68 DLR 265: Rowshan Ara Begum & others Vs. Rupali Bank Ltd. & others: Section 41 of the Artha Rin Adalat Ain, 2003: The judgment- debtor also may file an appeal under Section 41 of the Artha Rin Adalat Ain, 2003 by depositing 50% of the decreetal amount within 60 days from the date of decree. (Para-39, Mr. Justice Farid Ahmed). Ref: 16 DLR 287, 54 DLR 123, 56 DLR 588, AIR 1945(Patna)434, AIR 1969(SC)78.7 ADC 291.
Section 41(2)-On perusal of the said Ain it appears that the legislature has set down the condition in section 41(2) of the Ain that 50% of the decreetal dues at the time of preferring of appeal or at the time of filing of an application must be deposited which is a precondition being imposed by the parliament, which has the power to take away any vested right by clear and unambiguous language, the same cannot be said to have taken away the right to protection of law. For the reasons and discussion made hereinabove and considering the decisions as cited above, we are of the view that the provision of section 41(2) of the Ain or any part of the same is not violative of Articles 27,31, 40 or 42 of the Constitution. Anisur Rahman @ KM Ziaul Haque vs Government, 12 MLR 75= 11 BLC 22.
Sections 41(2)(3), 44 ( 2 ) – While an appeal may be preferred against those orders which are passed only after drawing the decree, the orders passed by the Adalat at pre-decree stage, which have been defined as interlocutory orders, can also be taken into consideration by the appellate court in course of dealing with the appeal matter preferred against the decree itself or the post-decree order. Sonali Bank Limited vs Asha Tex International, 20 BLC 185.
Section 42-The provisions of the Code will be applicable so far as the procedure in filing the revision application and the grounds on which revisional Court would interfere in revision with the judgment or the decree passed in an Artha Rin appeal. Golzar Hossain (Md). Advocate vs Janata Bank 65 DLR (AD) 101.
Section 42(2)(a)-Court is not empowered or authorized to waive interest charged on the amount under claim as per agreement executed between the judgment debtor and the financial institution i.e. the plaintiff-Bank till its realization. The contemplation of the aforesaid provision of law is clear and unambiguous that the Court cannot waive such interest and it is the Bank itself who could waive such interest to whom the defendant could approach for waiving the interest.
Section 30 of the Bank Companies Act, 1991 has also imposed similar embargo upon the Court's jurisdiction to interfere with the interest so payable by the borrower to the Bank under agreement, although the Court had authority to grant installment to the decretal amount subject to some limitations. Janata Bank vs Mohiuddin Textile 62 DLR 501.
Sections 42 and 44-There is a total bar in filing any revision against any interlocutory order passed by the Artha Rin Adalat. All the decisions of the Appellate Division and this Division clearly focused on the said proposition of law. The revisions which are filed against interlocutory order of the Adalat are not accepted by now. Mahbubur Rahman vs District Judge, Bogra, 17 BLC 601.
Section 44- It is settled by several decisions of this Division that the interlocutory order passed in a Artha Rin Suit by the Artha Rin Adalat can be challenged in writ jurisdiction of the High Court Division- It appears that the High Court Division in its impugned judgment, by making an elaborate discussion and also quoting section 44 of the Arthat Rin Adalat Ain, 2003, held that since there is a specific provision in Artha Rin Adalat Ain, 2003 providing that an interlocutory order passed by the Adalat cannot be challenged in appellate or revisional forum and there having been no other alternative remedy available to challenge the impugned interlocutory order the writ petition was maintainable. We are in agreement with the above observation and decision of the High Court Division. The impugned order is an interlocutory order. The Artha Rin Adalat Ain, 2003 has clearly provided that no interlocutory order passed in a Artha Rin Suit can be challenged either in appeal or in revision. So, in the circumstances there being no other alternative forum to challenge any interlocutory order passed by the Artha Rin Adalat in Artha Rin Suit any party to the suit aggrieved by such interlocutory order can invoke the writ jurisdiction of the High Court Division. It has already been settled by several decisions of this Division that the interlocutory order passed in a Artha Rin Suit by the Artha Rin Adalat can be challenged in writ jurisdiction of the High Court Division. ...M/S. Orient Trading Corporation =VS= Janata Bank, [9 LM (AD) 170]
Section 44-Under section 44 of the Ain interlocutory orders passed by the Artha Rin Adalat cannot be challenged in appellate and revisional jurisdiction and so, writ petitions are maintainable against interlocutory orders passed by the Artha Rin Adalat. Trade Multi Plex vs Artha Rin Adalat 62 DLR 533.
Section 44(2) Legislature has mandated the Adalats to take the matters, which fall within the mischief of the interlocutory orders, into consideration when they deal with an appeal filed by any party to the suit against the decree or any post-decree order. Sonali Bank Limited vs Asha Tex International, 20 BLC 185.
Section 45-A non-obstante clause has been provided in section 45 of the Ain the Adalat to afford the parties to resolve the dispute amicably at any stage. This shows the intention of the legislature that despite the sale of the property if the execution case is not finally disposed of, the Adalat has power to resolve the matter even at a later stage of the proceedings for ends of justice. Jahangir Kabir Chowdhury vs Bangladesh, 22 BLC (AD) 139.
Section 46-It appears that the provision of Section 46 of the Ain, 2003 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 and not at all mandatory and therefore, in any view of the matter, the suit is not barred by limitation. Thus, there is no illegality or impropriety in the impugned order of the learned Judge of Artha Rin Adalat No. 1 Dhaka. Hence, the rule fails. Shahabuddin Khan vs Bangladesh, 14 BLC 111.
Section 46(5) Sub-section 5 of section 46 is that a power has been given to Adalat to take action against the bank if the case has not been filed in terms of section 46 of Ain. Therefore, it cannot be said that section 46 in its entirety connotes a mandatory implication. This is only a directory one. Analogy of section 28 of Ain does not fit in section 46 of the Ain. Shitalakhaya Ice and Cold Storage Pvt. Ltd vs Artha Rin Adalat, 64 DLR 487.
Artha Rin Adalat Ain [VIII of 2003]
Section 46 -The provisions of section 46(1) or those of section 46(3) with regard to the filing of a suit are clothed in a positive command following a negative condition. If the negative condition exists, the positive command is to be obeyed. Thus, the negative condition and the positive command are strong indication of the intent of the Legislature to make the provision mandatory.
Whether a provision is mandatory or directory it is required to look into the real intention of the Legislature upon considering the whole scope of the statute.
The High Court Division held that the Legislature has made the provisions of section 46(1) applicable subject to the provisions of section 46(2). From a joint reading of sections 46(1) and 46(2) it appears that the filing of a suit under section 46(1) is subject to the rescheduling of the loan under section 46(2) within the prescribed period of limitation i.e. if the loan is rescheduled, no suit can be filed within the prescribed period. In the other words, if the loan is not rescheduled, the suit must have to be filed within the period prescribed in section 46(1) and not after that period. Similarly, the provisions of section 46(3) being subject to the provisions of section 46(4), if the loan is not rescheduled, the suit must be filed within the period prescribed in section 46(3). Since the filing of any suit under the Ain depends on the circumstances as to non-realisation of the stipulated amount of loan and non-rescheduling of the loan within the prescribed period, if the circumstances exist the concerned financial institution is legally bound to file the suit within the prescribed period in accurately obeying the circumstances, which contemplates implied nullification for disobedience thereto. Kazi Mohammad Mofizur Rahman Vs. Artha Rin Adala and others (Spl. Original) 15 ALR (HCD) 243-257
Artha Rin Adalat Ain [VIII of 2003]
Section 46 (1) read with
Family Courts Ordinance [XVIII of 1985]
Section 3 (Comparative discussion)
The Artha Rin Adalat Ain, 2003 being a special law the provisions of section 29(2) of the Limitation Act, 1908 and by virtue thereof, the provisions of section 3 of the same Act are applicable to the suits under the said Ain of 2003.
The High Court Division held that like the overriding clause of section 3 of the Family Courts Ordinance, 1985 the overriding clause of section 3 of the Aritha Rin Adalat Ain, 2003 also means that if there are provisions in the Ain which are different from or are in conflict with the provisions of any other law, then the provisions of the said Ain will prevail over the provisions of other laws. By virtue of the non-obstante clause of section 46(1) of the Ain 'The Limitation Act, 1908 (Act No. IX of 1908) এ ভিন্নতর বিধান যাহাই থাকুক না কেন' only the periods of limitation prescribed therein shall prevail over the periods of limitation prescribed in the Limitation Act and thereby the application of section 29(2) or section 3 of the Limitation Act to the suits under the Ain has not been debarred. Kazi Mohammad Mofizur Rahman Vs. Artha Rin Adalat and others (Spl. Original) 15 ALR (HCD) 243-257
Artha Rin Adalat Ain [VIII of 2003]
Section 46 (1) (Ka) read with
Limitation Act [IX of 1908]
Sections 29(2) and 3-Since not even a single farthing of the alleged loan money was ever realised nor was it rescheduled, the respondent bank was to file its suit within one year from the date of coming into force of the provision of section 46 of the Ain i.e. within 30.04.2005. But the suit was filed on 25.07.2010 and as such, the suit is hopelessly barred by limitation and as per the provisions of section 46(1)(Ka) of the Ain read with the provisions of sections 29(2) and 3 of the Limitation Act is also liable to be dismissed. Kazi Mohammad Mofizur Rahman -Vs.- Artha Rin Adalat and others (Spl. Original) 15 ALR (HCD) 243-257
Artha Rin Adalat Ain [VIII of 2003]
Section 46 (5)- The High Court Division further held that the provision of section 46 (5) does not diminish the force of the other provisions of section 46 of the Ain. Accordingly, the filing of the suit within the period of limitation prescribed under section 46(1) or section 46(3), as the case may be, is mandatory, which also contemplates implied nullification for disobeying the same provisions. Kazi Mohammad Mofizur Rahman -Vs.- Artha Rin Adalat and others (Spl. Original) 15 ALR (HCD) 243-257
Artha Rin-Adalat Ain [VIII of 2003]
Section 47-Whether the plaintiff- Bank was legally entitled to claim money more than 200% on the principal amount of the loan and that the Adalat was justified in allowing the claim of the plaintiff-Bank more than 200% in view of the provisions of section 47 of the Ain, 2003.
The Appellate Division observed that from a reading of sub-sections (1) and (2) of section 47, it is clear that a financial institution shall not be entitled to make claim more than 200% on the actual loan advanced to a party. Sub-section (2) is more explicit and it has categorically stated that the claim of a financial institution more than 200% of the actual loan shall not be acceptable by the Adalat. Rupali Bank Lid Vs. Md. Shamser Ali and others (Civil) 19 ALR (AD) 176-180
Artha Rin-Adalat Ain [ VIII of 2003]
Section 47-It is by now well settled that a writ petition does not lie against the judgment and decree passed in an artha rin suit.
The Appellate Division opined that in this regard, the learned Advocate for the appellant rightly referred the decisions as noted hereinbefore. So the Appellate Division does not feel it at all necessary to re-open the issue and the Appellate Division hold that the writ petitions filed before the High Court Division were not maintainable. Rupali Bank Ltd -Vs. Md. Shamser Ali and others (Civil) 19 ALR (AD) 176-180
Artha Rin Adalat Ain (VIII of 2003)
Section 47
The Ain, 2003 came into force on 1-5-2003. The provisions of section 47 were effective from on 1-5-2004. The suit was filed on 25-4 2004 and, therefore, the provisions of section 47 of the Ain, were not applicable in the facts of the instant case. [73 DLR (AD) (2021) 380]
Section 47-Applicability of section-Held: Section 47 cannot be given effect to any pending suit filed prior to promulgation of the Artha Rin Adalat Ain, 2003. [Mr Justice Shah Abu Nayeem Mominur Rahman] Humayun Hossain Khan vs Government of People's Republic of Bangladesh, represented by the Secretary. Ministry of Finance 61 DLR (AD) 92.
Section 47-How much interest Bank can claim-Held: The plaintiff sanctioned 3 (three) lacs taka only as loan to the petitioner and, as such, bank cannot claim interest more than 6(six) lacs taka from the petitioner in view of Section 47 of the Artha Rin Adalat Ain, 2003. Sreemoti Shipra Shaha vs Judge, Artha Rin Adalat No.3. Dhaka, 16 MLR (AD) 149.
Section 47-The claim of Taka 5,09,340.50 becomes very high against the small loan amount of Taka 40,000 and it will create hardship to refund. So the amount of claim may be reduced according to section 47 of the Artha Rin Adalat Ain, 2003, which allows the Bank to set up claim of only the loan amount by adding not more than double the principle amount as interest irrespective of the contract. Pubali Bank Ltd vs Farzana Begum, 15 BLC 49.
Section 47-The legislature imposed restriction on the claim to the tune that a financial institution in no way can demand any interest more than 200%. Sonali Bank vs Md Lutfor Rahman, 21 BLC 198.
Section 47-Section 47 became effective one year after the date on which the Artha Rin Adalat Ain came into force.-Held: In Section 1(3) the word 'n' has been specifically mentioned and it contains that except Sections 46 and 47, all other sections of 'the Ain' were to become effective from 1st May, 2003 and that section 47(3) provides that the said section 47 is to come into force one year after the said 'Ain' comes into force. In the said Section 47(3) the words '' and '' appear. The word means to become effective i.e. coming into force. The word as per dictionary meaning (Samsad's Bengali to English Dictionary published by Sahitta Samsud, Calcutta, India) in English, is 'operative', 'enforce' and the word 's' means in English language is to put into force. We required the learned Advocate to provide us with the meaning of the words in English language and also to place before us any material showing the English meaning of the word ' but he submitted that he could not find the same. Thus we take English meaning of the word ('') as 'operative' or 'coming into force' as per the aforementioned Dictionary. The Artha Rin Adalat Ain has been promulgated (c) on 10-3-2003 and by section 1(3) the said Ain was made effective / from 1st May, 2003 except it's Sections 46 and 47, which were made effective from the dates mentioned in the respective sections. Section 47 provides that the said section would come into force one year after the 'Ain' becomes effective or comes into force. The Artha Rin Adalat Ain consists of 60 sections and out of those 60 sections, 58 sections came into force with effect from 1-5-2003 as mentioned in section 1(3) and the rest two sections i.e. sections 46 and 47 came into force on the dates mentioned in the respective sections. The date 10-3-2003 is the date of promulgation (c) of the law and the date mentioned in section 1(3) of the Ain are the dates on which the said law came into force or became effective. In the premises we are of the view that Section 47 became effective one year after the date on which the Artha Rin Adalat Ain came into force, which is on 1-5-2003, and thus the provisions of Section 47 came into force with effect from 1st May, 2004. K.M Muzahid Islam vs Bangladesh. 6 ADC 865.
Section 47-The provisions of section 47 of the Ain, 2003 came into force on 1-5-2004 and the suit was filed on 27-1-2003 i.e. before the Ain, 2003 and the provisions of section 47 came into force. Therefore, section 47 has no manner of application in the suit. Humayun Hossain Khan vs. Government of the People's Republic of Bangladesh. 61 DLR 513.
Section 47-There is no scope to argue that a plaint of Artha Rin Suit even if not filed along with the affidavit and the advalorem court fee as mentioned in sub-section (2) of section 6 of the Artha Rin Adalat Ain, 2003 can be registered as a Artha Rin Suit. The very language of sub-section (2) of section 6 of the Artha Rin Adalat Ain 2003, in our opinion, makes it mandatory that a plaint of a Artha Rin Suit has to be filed along with advalorem court fee. Specially where the question of applicability of section 47 of the Artha Rin Adalat Ain, 2003 comes the provision of sub-section (2) of section 6 has to be followed strictly. Section 47 of the Artha Rin Adalat A 2003 has given the borrowers a special privilege of getting remission of interest exceeding 200% of the principal loan amount and this privilege has been made effective from 1-5-2004. Giving of a liberal meaning to sub section (2) of section 6 of the Artha Rin Adalat Ain, 2003 will deprive the borrowers of this special privilege which has been granted to them by a statute. Since in the present case the advalorem court fee was filed on 11-5-2004 the plaint has to be deemed to have been filed and registered on that very date i.e. on 11-5-2004. So, in the circumstances the defendant-petitioner is entitled to get the benefit of section 47 of the Artha Rin Adalat Ain, 2003. M.A Bari Talukder vs Agrani Bank, VIII ADC 424.
Section 47-Fraudulently mortgaged the said property by way of security against the loan obtained by him from Janata Bank, Narayanganj by forging the signature of other co-sharers without any knowledge of the said respondent Nos. 1-3 or their predecessors. The said Bank filed Artha Rin Mortgage Suit No. 67 of 1995 claiming Tk. 8,50,000 as principal amount and Tk. 67,58,557.25 as interest in violation of section 47 of the Artha Rin Adalat Ain, 2003 and obtained a decree from the Artha Rin Adalat and started the said execution case in which the said property was advertised for sale in auction. Janata Bank vs Rezwanul Haque, 5 ADC 996.
Sections 47 and 6(2)-Power to do complete justice-We cannot just be a silent spectator to a glaring prima-facie illegality which has came to our knowledge and which does not require any determination of fact and consider it a fit and proper case to invoke Article 104 of the Constitution to interfere with the respective decree of the Adalat passed in the respective suit so far as it relates to allowing the claim of the plaintiff-Bank more than 200% over the principal amount for doing complete justice by ignoring the provision of section 47 of the Artha Rin Adalat Ain, 2003 and following a totally wrong procedure in entertaining and registering the plaint in violation of section 6(2) of the Ain, 2003. Rupali Bank Ltd vs Md Shamser Ali, 69 DLR (AD) 366.
Section 47
Fraudulently mortgaged the said proper- ty by way of security against the loan obtained by him from Janata Bank, Narayangonj by forging the signature of other co-sharers without any knowledge of the said respondent Nos. 1-3 or their predecessors. The said Bank filed Artha Rin Mortgage Suit No. 67 of 1995 claim- ing Tk. 8,50,000.00 as principal amount and Tk. 67,58,557.25 as interest in viola- tion of section 47 of the Artha Rin Adalat Ain, 2003 and obtained a decree from the Artha Rin Adalat and started the said execution case in which the said proper- ty was advertised for sale in auction. Janata Bank vs. Rezwanul Haque (Md. Joynul Abedin J) (Civil) 5 ADC 996
The obligation of repayment of ঋণ as defined in Section 2(Kha) of the Ain is of the one who has availed the same from financial institution as well as of the one who either facilitated the one to avail ঋণ or secured repayment of the ঋণ and only these categories are to be held responsible in case of default in the repayment of the amount became due as against the ঋণ availed from financial institution (11) Sonali Bank vs Md. Sirajul Hoque Chowdhury (Ma Ruhul Amin J) (Civil) 1 ADC 394
Sections 47 and 60-The provisions of section 47 of the Ain, 2003 came into force on 1-5-2004 and the suit was filed on 27-1-2003 i.e. before the Ain, 2003 and the provisions of section 47 came into force. Therefore, section 47 has no manner of application in the suit. Humayun Hossain Khan vs Bangladesh, 61 DLR 513.
Sections 47(1)(12) and 60(3)-On a mere reading of sub-sections (1) and (2) of section 47 of the Ain, it appears to us that the embargo in making claim by a financial institution more than 200% over the actual interest has been put without making any reservations whatsoever. Similarly if we look at section 60(3) of the Ain, it would appear that the said provisions have also been made in respect of all the suits filed by the financial institutions under the repealed Ain, 1990. Therefore, we do not find any injustice, inequality or unequal treatment to the appellant i.e. he has not been treated unequally in the matter of application of section 47 of the Ain, to attract the provisions of article 27 of the Constitution. Humayun Hossain Khan vs Bangladesh 64 DLR (AD) 88.
Section 47(3)- Fixing the date of hearing-State of emergency.- Held: We are of the view that the High Court Division has not committed any error of law in fixing the date of hearing of the rule which apparently has been done in anticipation of the fact that the present state of emergency may not exist by then. The High Court Division has the discretion to shift the date of hearing if the state of emergency in the country continued beyond the date fixed for hearing of the rule. The petitioner was/is therefore not required to be unduly and overly sensitive in this regard. Irshad Hossain vs Bangladesh. 6 ADC 82.
Section 47
There is no scope to argue that a plaint of Artha Rin Suit even if not filed along with the affidavit and the advalorem court fee as mentioned in sub-section (2) of section 6 of the Artha Rin Adalat Ain,2003 can be registered as a Artha Rin Suit. The very language of sub-section (2) of section 6 of the Artha Rin Adalat Ain, 2003, in our opinion, makes it mandatory that a plaint of a Artha Rin Suit has to be filed along with advalorem court fee. Specially where the question of applicability of section 47 of the Artha Rin Adalat Ain, 2003 comes the provision of sub-section (2) of section 6 has to be followed strictly. M.A. Bari Talukder vs. Agrani Bank (Nazmun Ara Sultana J) (Civil) 8 ADC 424
Sections 47 and 50(2)-Keeping consistency with the section 50(2) of the Ain, this Court inclined to award simple interest at the rate of 12% per annum on the principal amount from the date of filing the suit till realization subject to maximum payable under section 47 of the Artha Rin Adalat Ain. The simple interest payable shall not exceed 200% of the original claim. Pubali Bank Ltd vs Amin Iqbal Corporation, 17 BLC 500.
Section 47, 34(1)
Against the order of issuance of warrant of arrest dated 25.08.2005 passed by the Joint District Judge and Additional Artha Rin Adalat No.2, Dhaka (respondent No. 1) in Money Execution Case No.28 of 2002 discharging the Rule. Faruqur Rah- man vs. Joint District Judge (Md. Abdul Aziz J) (Civil) 6 ADC 935
Section 47(3)
Challenging section 47(3) of the Artha Rin Adalat Ain, 2003 (Act VII of 2003) as well as the proceedings of Artha Rin Suit No.315 of 2004. Irshad Hossain vs. Bangladesh represented by the Secre- tary (Md. Joynul Abedin J) (Civil) 6 ADC 82
Sections 47, 50(2) A writ petition does not lie against the judgment and decree passed in an artha rin suit- We consider it a fit and proper case to invoke article 104 of the Constitution to interfere with the respective decree of the Adalat passed in the respective suit so far as it relates to allowing the claim of the plaintiff- Bank more than 200% over the principal amount for doing complete justice. And accordingly, we invoke the said power and these appeals are disposed in the following terms:
Defendant-respondent No.1 (the writ- petitioner) is directed to pay the admitted principal loan amount of taka 4,68,000.00X3 =14,04,000.00 in connec- tion with Artha Rin Suit No.364 of 2004 and taka 1,20,577 53X3=3,61,732 59 in connection with Artha Rin Suit No.351 of 2004 to the plaintiff-Bank.
The defendant shall also pay interest on the principal loan amount from the date of filing of the suit upto date as per provision of section 50(2) of the Ain, 2003. The respective decree passed in the respective artha rin suit stands modified accordingly. ...Rupali Bank Ltd. =VS= Md. Shamser Ali, [10 LM (AD) 28]
Section 47, 60 (3)- A discretion/option has been given by the legislature to the plaintiff-bank to apply the provisions of section 47 of the Ain, 2003 even before its coming into operation in respect of the suit filed under the Ain, 1990- The Artha Rin Adalat Ain, 2003 came into force on 01.05.2003. However, the provisions of section 47 were effective from on 01.05.2004. The instant suit was filed on 25.04.2004 and, therefore, the provisions of section 47 of the Ain, 2003 were not applicable in the facts of the instant case.
Learned Advocate for the petitioner that his client has agreed to pay the proposed amount of Tk.1,51,66,000/- (one crore fifty one lac and sixty six thousand) within period 6(six) months as proposed by the Bank, this matter can now be brought to a close.
We direct the petitioner Messers Monsur Knitting and Hosiery Industries Limited to pay to Bangladesh Development Bank Limited (BDBL), respondent No.3, the sum of Tk. 1,51,66,000/- (one crore fifty one lac and sixty six thousand)within 6 months from 06.12.2020, failing which the instant civil petition for leave to appeal shall stand dismissed....Messers Monsur Knitting and Hosiery Industries Ltd. =VS= Artha Rin Adalat, Sylhet, [10 LM (AD) 338]
Section 48-This provision in section 48 of the Ain is limited only to count the time for disposal of cases having no connection whatsoever with the period prescribed for filing appeal, not of making deposit as required under section 41 of the Ain. Peninsular Shipping Service Ltd vs Faruque Paint and Varnish Manufacturing Co Ltd 59 DLR (AD) 26.
Section 48-Provision of section 48 of the Ain is limited only to take the time for disposal of the cases having no connection whatsoever with the period prescribed for filing an appeal, not of making deposit as required under section 41 of the Ain. Abdul Monayem Lili vs Judge, Artha Rin Adalat, 67 DLR 358.
Section 48-Time for disposal-filing Appeal-Held The position shall be more clear if we read sections 45 to 46 prescribing various period as to filing/disposal of case in the aforesaid separate chapter i.e. chapter VIII. In view of what has been stated above we are of the view that, acceptance of the argument of the respondents that section 48 is applicable in case of filing the appeal shall lead to a dangerous effect falling upon the legal jurisprudence of the country and such a view is there fore unwarranted. [Mr. Justice Amirul Kabir Chowdhury] Peninsular Shipping Service Ltd vs Faruque Paint and Varnish Manufacturing Co. Ltd., 12 MLR (AD) 1 = 59 DLR (AD) 26.
Section 49(3)
Auction purchaser, a third party, is directed against the judgment and order arising out of Artha Jari Case .....(1) There is no scope for the High Court Di- vision to pass any order of stay of the order of the executing Court without finding any illegality in the procedure and the manner of selling the mortgaged property in auction. the High Court Di- vision fell an error in allowing the judgment-debtor to pay the decreetal amount by installments in failing to consider that the property had already been sold in auction to the appellant and thereby he had acquired a valuable right in the said property, which right could not be taken away without affording him an opportunity of being heard. Farid Uddin Mahmud vs. Md. Saidur Rahman (S.K. Sinha J) (Civil) 8 ADC 196
Section 49-Writ Petitioner due to acute financial constraint could not pay the decretal amount in time, but he is very much eager to pay back the outstanding dues of the plaintiff-bank and that considering the financial crisis of the petitioner he, on humanitarian ground, may be given another chance to pay the decretal amount in 4 installments within one year time as contended by the learned counsel for the petitioner. Held: we are inclined to give another chance to the petitioner to pay the decretal amount in installments. Shiekh Shahidul Islam vs Joint District Judge, 15 BLT 326.
Section 49-We are inclined to give another chance to the petitioner to pay the decretal amount in installments. Sk. Shahidul Islam vs Joint District Judge, 15 BLT 326.
Section 49 – Section 49 authorizes the Adalat to pass appropriate order that if it deems fit on the application of the judgment-debtor to afford him to pay the decreetal amount by four equal installments in a year. Even if the decree-holder agrees, the Adalat may allow to repay the dues within three years in twelve equal installments. Jahangir Kabir Chowdhury vs Bangladesh, 22 BLC (AD) 139.
Section 50-Imposition of interest cannot be reduced or waived by the Court of law in any manner. The Court is to accept the rate of interest and other issues fixed by the financial institution. Sonali Bank vs Md Lutfor Rahman, 21 BLC 198.
Section 50- Bank interest will have to be calculated according to the prevailing interest rate.
The Appellate Division is of the view that the interest to be paid by the judgement debtor will have to be calculated according to the prevailing interest rate or rates, which may be different for different periods, from the time of filing of the suit till the payment of the decretal amount by the judgement debtor. .....M/S. Rajib Traders VS Artha Rin Adalat & another, [1 LM (AD) 186]
Section 50(2) Calculate interest pendente lite- The High Court Division correctly identified the rates of interest that should have been used in calculating the total sum due, but fell into error in not allowing interest for the period from the date of the decree till filing of the amended plaint.
The Appellate Division is of the view that the direction given by the High Court Division to calculate interest pendente lite from 20.01.2013 is erroneous. The interest pendente lite is to be calculated in accordance with the rates applicable at the relevant times after the filing of the suit on 30.07.2008. According to section 50(2) of the Ain the judgement debtor will be liable to interest at the increased rate for bringing the matter to the High Court Division by way of Writ Petition No. 8843 of 2014 in spite of the fact that the incorrectly claimed rate of interest in Artha Zari Case No. 118 of 2014 had been amended by an application filed on 28.08.2014. The civil petition for leave to appeal is disposed of. ...Premier Bank Limited =VS= Mampower Ltd., Dhaka, [10 LM (AD) 319]
Section 50-Banking (Moazzal system of transaction)-Moazzal system of transaction is a simple transaction whereby the bank on credit sells certain properties to customer on a fixed profit and purchaser is required to repay a fixed amount agreed within the stipulated time. Islamic Bank Ltd. vs Sohag Medicine, 2001 BLD 1 = 52 DLR 571.
Artha Rin Adalat Ain (VIII of 2003)
Section 50
The Adalat has no jurisdiction to waive or remit any interest from the date of taking loan till the date of filing of the suit and recovery of loan. [70 DLR 580]
Sections 50 and 60-Section 50(3) of the Ain of 2003 gives the authority on appellate Court to the interest, during the period of pendency of the suit and appeal if it thinks just and proper. Because of fault and arbitrariness, the plaintiff bank suffered loss, if any, the defendants cannot be made liable for such loss. In view of such facts the plaintiff bank is not entitled to get interest during the pendency of the suit and appeal that is pendente lite interest. Janata Bank vs Betka Poultry and Dairy Complex, 16 BLC 665.
Section 50(2)-Non-recording of any direction regarding payment of interest from the date of filing of the suit till realization of the decretal amount in the judgment and decree by the Adalat not to the affect give the right of the decree holder for charging the payment of interest as provided under section 50 of the Ain. Abdul Mannan @Rouf vs Bangladesh, 17 BLC 350.
Section 50(2)-Rate of interest-Interest to be paid by the judgement debtor will have to be calculated according to the prevailing interest rate or rates, which may be different for different periods, from the time of filing of the suit till the payment of the decretal amount by the judgement debtor. Rajib Traders vs Artha Rin Adalat as well as Joint District Judge, Additional Court, Jessore, 68 DLR (AD) 10.
Section 50(2) Since the matter is still pending as a money execution case before the Adalat, what rate of interest is to be awarded on appeal before the High Court Division or the Appellate Division is not material in the case. However, the rate of interest to be awarded for the period from filing of the suit till the realization of the decretal amount is clearly 12% as from 31-3-2010. Interest was calculated at 8% for the period before the Act came into force in force in 2010 because the Ordinance enhancing the rate to 12% was not approved by Parliament from 25-2-2009 to 31-3-2010. Rajib Traders vs Artha Rin Adalat as well as Joint District Judge, Additional Court, Jessore, 68 DLR (AD) 10.
Section 50(2)-If the judgement debtor had paid the decretal amount within the period stipulated by the trial Court, then the rate of interest applicable at that time would have been the appropriate rate of interest to be paid. Since the judgement debtor did not pay the decretal amount in accordance with the order of the Court it would be liable to pay at the various rates which may change from time to time. Rajib Traders vs Artha Rin Adalat, 68 DLR (AD) 10.
Artha Rin Adalat Ain [VIII of 2003]
Section 50-The Adalat has no jurisdiction to waive or remit any interest from the date of taking loan till the date of filing of the suit and recovery of loan.
The High Court Division held that the Adalat without following the said provision of law passed the impugned judgment and decree and thereby committed an error of law. Thereafter, the Adalat took up issue Nos. 1 to 4 together for decision and decided issue No. 1 in favour of the plaintiff. The other issue Nos. 2 to 4 relating to claim of the plaintiff as prayed for has been decided by the Adalat in favour of the plaintiff in-part, which to be decided by the Adalat in strict compliance with the provision of section 50 of the Ain, 2003 subject to the provision of section 47 of the said Ain. The Ist part of issue No. 6 with regard to Memorandum of Under- standing (MOU) dated 24.10.2004 absolutely relates to the merit of the case while the 2nd part of the issue relating to 'are the defendants entitled to get any relief under section 57 of the Ain, 2003 does not arise in any manner where the plaintiff sought relief under the specific provision of the Ain, 2003. The Adalat struck out from the plaint the name of defendant- respondent No. 4, who was a director of defendant No. 1-Company, holding that his resignation from the directorship of the company had been accepted by the Board of Directors of the company and he has transferred all his shares of the company to its other directors but it has not been reflected in the impugned judgment and decree whether his resignation has been accepted and his guarantee, etc, has been released by the Board of Directors of the Bank as required under section 27Ka of the Act, 1991. This question needs to be addressed on taking evidence. In the light of the above discussions and findings, the High Court Division is of the view that the impugned judgment and decree of the Adalat suffers from legal infirmities and illegalities, which cannot be sustained in the eye of law. In that view of the matter justice will better be served if the appeal is sent back on remand to the Adalat concerned by setting aside the impugned judgment and decree for fresh trial/ hearing giving the parties an opportunity of being heard and if necessary to adduce further evidence in accordance with law. In the result, the appeal is allowed. Striking out the name of respondent No. 4 from the plaint of the suit by order No. 45 dated 31.08.2010 as well as the impugned judgment and decree dated 31.08.2010 passed by the learned Judge of the Artha Rin Adalat, Chittagong in Artha Rin Suit No. 95 of 2007 is set aside and the suit is sent back on remand to the Adalat concerned for fresh trial/ hearing. Agrani Bank Limited -Vs.- M/S. Vanguard Steels Limited (Civil) 18 ALR (HCD) 294-299
Section 57- It is true that no Court can be regarded as powerless to recall an order in an under trial case pending before it if it is convinced that the order is wangled through or mis- representation but pre-condition is that such proceeding must be pending before it. The Court must have jurisdiction over the proceeding before it carr exercise any inherent power. The Adalat was not justified in resorting its power under section 57 of the Ain to reopen the decree after disposing of the suit. The instant Artha Rin Suit has been disposed of exparte against the defendant Nos. 2(a) to (d) and on contest against the rest. Inherent power of the Adalat in section 57 of the Ain should be exercised subject to the Ain that if the Ain does not contain specific provision which would meet the necessities of the provision should be followed and inherent jurisdiction should not be invoked. Parvin Akter -VS- Eastern Bank Ltd., [5 LM (AD) 162]
Section 57-Artha Rin Adalat can exercise its power under section 57 of the Ain to rectify its own mistake by restoring possession to respondent No.6 in respect of the disputed land as the auction-purchaser by practising fraud upon the Adalat took possession of the land not sold in auction. Md Salim Hossain vs Artha Rin Adalat Munshigonj, 17 BLC (AD) 154.
Section 57-The questions may only be decided at the time of final hearing of the suit on taking evidence and those questions cannot be decided in writ jurisdiction. Hubble Corporate Ltd vs Artha Rin Adalat, 64 DLR 86.
Artha Rin Adalat Ain [VIII of 2003]
Section 57 read with
Evidence Act [I of 1872]
Section 45-The High Court Division without considering the lawful order of the learned Judge of the Adalat, without issuing any rule nisi and without giving any opportunity to the Bank for hearing, illegally disposed of the Writ Petition with unlawful direction by giving complete relief to the Writ Petitioners and, as such, it is liable to be set aside.
The Appellate Division held that the personal guarantees filed by the plaintiff (the Bank) in the suit are admitted personal guarantees as per the application under Order 1 rule 10(2) of the Code and, as such, there was hardly any scope for examining the admitted personal guarantees executed by defendant Nos. 4 and 5. It is evident that the learned Judge of the Adalat lawfully rejected the application for examining the signatures by Handwriting Expert. It is crystal clear that the subsequent application for ex- amining their signatures on the ground that defendant Nos. 4 and 5 have not executed personal guarantees is nothing but a cunning device to delay the disposal of the suit. There is no reason for sending the admitted signatures of defendant Nos. 4 and 5 for examination by Handwriting Expert. The learned Judges of the High Court Division without considering the said admitted facts disposed of the Writ Petition unlawfully by giving complete relief to the writ petitioners without affording any opportunity to the Bank for hearing of the matter. In view of the above, apparently the impugned Judgment and order passed by the High Court Division is unlawful. In view of the discussions made hereinbefore, the Appellate Division finds merit in the submissions of the learned Advocate for the petitioner-Bank. In view of the above, this leave petition is disposed of. Accor dingly, the Judgment and order passed by the High Court Division in Writ Petition No. 3653 of 2016 is set aside. Southeast Bank Limited -Vs. Laila Hossain and oth- ers (Civil) 20 ALR (AD) 64-66
Artha Rin Adalat Ain [VIII of 2003]
Section 57-Whether the Bank has produced all the documents in support of its case or not is a disputed question of fact which cannot be decided in writ jurisdiction. It has to be decided by the learned Judge of the Adalat on merit after taking evidence of both sides.
The High Court Division observed that it appears from the materials on record that the defendant-petitioner has been filing applications one after another before the Adalat as a delaying device. One of the delaying devices is filing of this meritless writ petition in the year 2010, but without taking any initiative for disposal of this rule within a period of about eight years. Eventually, the respondent side took initiative several times to get the matter heard. As a result, the rule was, eventually, heard by this court. The Bank has filed statements of accounts and all other necessary papers before the Adalat and the documents were marked as exhibits. The learned Judge of the Adalat, upon perusal of those documents and ascertaining the claim of the plaintiff, would decide the suit on merit. Mahbub Minhaj-Vs. Artha Rin Adalat 3rd Court, Dhaka (Spl.Original) 19 ALR (HCD) 45-47
Artharin Adalat Ain [VIII of 2003]
Section 57 read with
Code of Civil Procedure [V of 1908]
Order XXI Rule 83 -The entire amount of the decree has to be adjusted by the private sale it the petitioner did not intend to adjust the entire liability by making the prayer of private sale of the mortgaged property which is also requirement under Order XXI Rule 83 of the Code, the Adalat rightly refused to allow the application under Order XXI Rule 83 of the Code.
The High Court Division held that if the decree holder comes forward with consent to the prayer for disposing of the mortgaged property by the judgment debtor through private sale, The Adalat may allow in such circumstances inasmuch as the purpose for selling the property is for recovery of decrtal dues acquiring maximum price of the property for the interest of both the decree holder and the judgment debtor. But in this case, the decree holder Bank is also vehemently opposing to the private sale. Regard being had to the above, the High Court Division is of the view that relating to disposal of mortgaged property under the present. decree, the Adalat rightly refused to allow the application under Order XXI Rule 83 of the Code and as, the High Court Division does not find any merit in this Rule. In the result, the Rule is discharged. Md. Sirajul Islam Vs. The Government of the People's Republic of Bangladesh represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs and others. (Spl. Original) 17 ALR (HCD) 29-33
The Artha Rin Adalat Ain, 2003
Order 1, Rule 10 of the Code of Civil Procedure read with section 57 of the Artha Rin Adalat Ain, 2003 praying for adding them as party in the above suit stating that the properties describes in schedule Kha (1) of both the suits were mortgaged with the petitioner on 12.08.1997 by a registered deed of mortgaged dated 12.08.1997 accompanied by a registered power of attorney and also by deposit of original title deeds and that schedule Kha (2) of Artha Rin Suit No. 03 of 2006. The City Bank Limited vs. Judge, Artha Rin Adalat, Barisal (Md. Tafazzul Islam J) (Civil) 6 ADC 563
Section 57-The order of rectifying the decretal amount under section 57 of the Adalat read with section 152 of the Code cannot be declared illegal and without lawful authority since a writ jurisdiction where there is a scope of appeal where appellate court having sufficient authority will decide the matter with the help of evidence. Doel Apparels Ltd vs Judge Artha Rin Adalat, 66 DLR 341.
Section 57-The right of redemption-The right of redemption of mortgage has never stood extinguished at any material time. Accordingly, it was always open to the petitioner in particular in the facts and circumstances to seek redemption of her mortgage upon a settlement arrived at with the bank of financial institution concerned. Once the loan repayment is forthcoming, the Adalat will correspondingly find it within its power to permit such repayment and recovery of loan, thereby, doing that which is right and just as contemplated in section 57. Rokaiya Amin vs Bangladesh, represented by the Secretary, Finance Division, Ministry of Finance, 67 DLR 545.
Section 57
From the facts as discussed, herein- above, it appears that the petitioners' first application for setting aside the auction sale held on 06.09.2006 was filed within time by making the statutory deposit to the tune of ΤΚ. 14,17,500.00, but because of mis- calculation there was a shortfall of TK.1,76,114 which they already de- posited by filing application on 28.01.2009 along with the other deposit and thus, there was due and substantial compliance of the provisions of Order XXI, rule 89 of the Code after disposal of Writ Petition No.3326 of 2007, but the executing Court refused to accept the same on the view that the shortfall was deposited after long 2(two) years from the date of auction sale. Moreover, it appears that in the schedule of the property sold in auction the fact of existence of a two storied house was also - omitted which is a material omission. - Md. Shajahan vs. Secretary, represented by the Ministry of Law (Md. Abdul Wah- - hab Miah J) (Civil) 8 ADC 685
Artha Rin Adalat Ain (VIII of 2003)
Section 57
Where ex-parte decree is contaminated due to apparent fraud, the petitioners do not require paying 10% of the decretal amount. In an appropriate case, the Adalat may invoke section 57 of the Ain, to do justice and to undo injustice. The Adalat could have set-aside the ex-parte decree invoking section 57 of the Ain, as it was obtained by practicing fraud apparent on the record. [73 DLR (2021) 492]
In this respect, the ratio set out within the bounds of the judgment pronounced in the case of Government of Bangladesh vs Mashiur Rahman, reported in 50 DLR (AD) 205 may be stated as under:
"It is a cardinal principle of administra- tion of justice that no result of any judicial proceeding should be allowed to receive judicial approval from any court of law whenever it is obtained by practising fraud upon the court; reason being fraud demolishes the very foundation of sanctity of such judicial proceeding. It is also well established principle of law that fraud vitiates all judicial proceeding. Thus contravention of the provision of law, cannot be a valid ground for allowing an order obtained by fraud to stand. When the trial court itself on consideration of the materials on record was satisfied that a fraud had been committed in obtaining the ex-parte decree it was the duty of the trial court to set-aside the ex-parte decree. The failure of the trial court in the performance of its legal obligations ought not to have been maintained by the High Court Division in affirming the finding of the trial court." [73 DLR (2021) 498]
The ratio of the judgment pronounced by Appellate Division in the case of Sonali Bank Ltd. vs Prime Global Ltd, reported in 63 DLR (AD) 99 may be profitable for a better appreciation and understanding of the submission of the learned Advocate of the petitioners. In this case it was held that-
"15. The irresistible conclusion from the above facts is that the decree. so far the defendant No. 2 is concerned, was passed without any service of summons upon it or even without any attempt to do so. As such, it is a nullity in the eye of law and it is imperative upon any Court of law, which is in seisin of the matter, to hold so, even without invoking the provisions of section 19 of the Artha Rin Adalat Ain or rule 13 of Order IX of the Code of Civil Procedure. Because rule 13 envisages at least a service, even if not 'duly' and sub-section (1) of section 19 also envisages a service of summons upon the defendant. In the instant matter, however, these provisions need not to be invoked when there is a total absence of any kind of service or attempt to do so upon the concerned defendants.". [73 DLR (2021) 498]
In the case of Md Refat Ali vs Govt. of Bangladesh, reported in 2001 BLD (HCD) 133, the Government filed a miscellaneous case under Order IX, rule 13 for setting aside an ex-parte decree on the ground that summons was not served upon the Deputy Commissioner or to any authorized officer. After filing of the case, an application under section 151 of the Code was filed to set-aside the ex-parte decree alleging that no summons was at all issued. This application was opposed mainly on the ground that, once the Government filed a case under Order IX rule 13, no relief could be given under section 151. On scrutiny of the record, it was found that, summons was not at all issued upon the Government and thereafter the Court set-aside the ex-parte decree on the ground that it was obtained by practicing fraud upon the Court. In this respect, the relevant paragraph of the said judgment may be stated thus:
"It is true, ordinarily the court does not exercise its inherent power under section 151 of the Code of Civil procedure whenever a remedy is available to the aggrieved party under any provision of the Code of Civil Procedure. But it is also well-settled that if the disputed Order or decree is obtained by a party by practicing fraud upon the Court or it is has been occasioned due to the fault of the Court or Court officials, the Court has not only the competence in exercise of its inherent power under section 151 of the Code to undo the wrong done to the aggrieved party but also it is imperative in the interest of justice to do so fraud always vitiates all solemn transactions and a fraudulent act by its own nature is a nullity in the eye of law and it is never protected by law. In such cases, it will be highly inequitable and in just to ask the wronged party to seek his relief under other arduous and time consuming provisions of law instead of giving him a relief under section 151 of the Code as the special preserve of the Court for doing justice. It deserves to be noted in this connection that procedures are just means towards advance- ment of the cause of justice and not certainly for obstructing it in the name of technical fall- outs. The filing of an application under Order 9, rule 13 of the Code of Civil Procedure cannot be allowed to stand in the way of the relief the defrauded defendant is entitled to under the Law. We are satisfied in the facts of the case, that the learned Subordinate Judge rightly exercised his power under section 151 of the Code in giving the appropriate relief..." [73 DLR (2021) 498]
In the case of Ram Chandra Singh vs Savitri Devi, (2003) 8 SCC 319, para-15, it was held that-
"Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together." [73 DLR (2021) 499]
In the case of Bangladesh Development Bank Ltd. vs Judge, Artha Rin Adalat, Jessore and "12. Two aspects have been made abundantly clear in the said provisions of law that an application for restoration of the suit after setting-aside ex-parte decree may be made within 30 days right after passing of the ex-parte decree or from the date of knowledge of the ex-parte decree. The words and phrases in sub-section 2 of section 19 of Ain “একতরফা ডিক্রির তারিখের অথবা উক্ত একতরফা ডিক্রি সম্পর্কে অবগত হইবার..." clearly contem plate two different situations for filing an application for restoration. One right after passing of the ex-parte decree and the other one from the date of knowledge of the ex- parte decree as the case may be. The word অথবা in the said provision made the two situations disjunctive..." [73 DLR (2021) 499]
In the case of Jahangir Kabir Chowdhury vs Bangladesh Government, 22 BLC (AD) 139, it was held:
"There is no doubt that this power can be exercised sparingly-it is a power to promote justice and prevent abuse of the process of the court but if the Adalat finds that by practicing fraud or by false representation, a party has obtained a judgment or order, the Adalat can always interfere..." [73 DLR (2021) 499]
Section 57-Section 57 of the Ain confirms the inherent power of the court. Section 57 of the Ain is not any enabling provision for setting-aside of sale. Section 57 of the Ain reiterates the provision of section 151 of CPC, which just confirms the inherent power of court. Inherent power of the court cannot be exercised when there is specific provision in CPC and other law. Shamsuddin Ahmed vs City Bank Ltd. 18 BLC 30.
Section 57
We have considered the submissions of the learned Advocate, the impugned judgment and the materials on record. This Division came to a finding that an application filed for setting aside the auction sale under section 57 of the Artha Rin Adalat Ain, 2003 after disposal of an application filed earlier under Order 21 Rule 90 of the Code of - Civil Procedure on 25.08.2005 was not maintainable. This Division also found that the application filed under section = 57 of the Artha Rin Adalat Ain, 2003 was also not maintainable because the judgment-debtor earlier filed another application under Order 21 Rule 90 read with section 57 of the Artha Rin Adalat Ain, 2003 for setting aside the auction sale unsuccessfully.
Md. Mansur Rahman vs. Abdul Mannan Sarder (Syed Mahmud Hossain J) (Civil) 10 ADC 309
Section 57-Section 57 of the Act, empowers the Adalat to give adequate relief in cases as in hand, even if it is assumed but not conceded that there is no scope to give the petitioner appropriate relief by the Adalat under the other provision of the Act. AB Mannaf Sheikh vs 1st Joint District Judge Court and Artha Rin Adalat, 19 BLC 493.
Section 57-High Court Division hold that the contention of the learned advocate of the petitioner that having the first charge over the mortgaged property the petitioner is a necessary party in the subsequent suit filed by the respondent No. 2, is tenable in the eye of law as in the subsequent suit the only issue for adjudication is where respondent No. 4 owes any money to the respondent No. 2 and to adjudicate this issue the presence of the petitioner is not necessary at all and the petitioner can make prayer to the Artha Rin Adalat concerned at proper stage for satisfaction of its decreetal amount first from the proceeds of the sale of the mortgaged properties in question and the Artha Rin Adalat concerned at may that prayer under section 57 of Artha Rin Adalat Ain, 2003.
We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegality or infirmity in the above decision so as to call for any interference. City Bank Limited vs Judge, Artha Rin Adalar Barisal, 17 BLT (AD) 209.
Section 57-Several applications for setting aside the auction sale-Held: The application filed for setting aside the auction sale under section 57 of the Ain after disposal an application filed earlier under Order 21, rule 90 of the Code of Civil Procedure is not entertainable and further the application filed under section 57 of the Artha Rin Adalat, 2003 is also not maintainable, in view of the fact that the judgment-debtor filed earlier another application under Order 21, rule 98 read with section 57 of the Artha Rin Adalat Ain, 2003 for setting aside the auction sale unsuccessfully. Md Mansur Rahman vs Abdul Mannan Sardar, 7 ADC 623.
Section 57-Remission of interest-The writ petitioner cannot get the advantage of the wrong in calculation-The interest paid before the remission of interest shall be adjusted with the principal amount. The petitioner is not entitled to get any advantage of the wrong in calculation by the Bank official. Ebrahim Steel Re-Rolling Industries Pvt. Ltd. vs Bangladesh. 15 MLR (AD) 190.
Section 57-Under section 57 of the Ain, the Adalat is empowered to pass any order for ends of justice or to prevent the abuse of the process of the Adalat. The Judge of the Adalat for ends of justice to correct the inadvertent mistake committed by it in rejecting the execution case on the ground of being barred by limitation, although it was not barred by limitation, which is evident on the face of the record. The Adalat had jurisdiction to pass such order to correct the error committed by it by miscalculation for the ends of justice. Jafrul Islam vs Bangladesh, 68 DLR 323.
Section 57-As there was alternative remedy available against the expert decree under section 6(2) of the Artha Rin Adalat Ain, 1990 a party (defendant) cannot have recourse to inherent jurisdiction of the Court under section 151 of the Code of Civil Procedure. Golden Re- Rolling Industries Ltd vs Subordinate Judge, Artha Rin Adalat, 60 DLR (AD) 38.
Section 57-Section 57 of the Ain is another enabling provision empowering the Adalat to pass any order for securing the ends of justice. It is a power to act ex debito justitiae to do that real and substantial justice for the administration of which alone it exists or to prevent the abuse of the process of the court. It lengthens the hands of the Adalat to pass any order to do justice when there is no other remedy open to the aggrieved party. When the Ain itself recognizes the existence of the inherent power of the Adalat, there is no question of implying any powers outside the limits of the Ain. Jahangir Kabir Chowdhury vs Bangladesh, 22 BLC (AD) 139.
Section 57-It is a power to promote justice and prevent abuse of the process of the court but if the Adalat finds that by practicing fraud or by false representation a has obtained a judgment or order, the Adalat can always interfere, and even the argument of functus officio cannot stand on its way to pass such orders which may advance justice to a party: Jahangir Kabir Chowdhury vs Bangladesh, 22 BLC (AD) 139.
Section 57-The provisions of the Code of Civil Procedure are applicable for execution of a decree, but then also, there is a provision for filing objection by a third party against the decree or order of sale of mortgaged property. Though there are some stringent provisions contained in the Ain on the question of auction sale, appeal, revision, detention in civil prison, there are provisions for making interlocutory orders by the Adalat if it finds that such order is necessary for securing the ends of justice. Jahangir Kabir Chowdhury vs Bangladesh, 22 BLC (AD) 139.
Section 57
Complying with the provisions of the Artha Rin Adalat Ain, 2003, and under direction of the Executing Court an auction-sale notice for sale of the mort- gaged property was published in two daily newspapers and the judgment debtor-petitioner hereof entered appearance in the execution case on 08.08.2005 and prayed for adjournment of the sale with a plea of compromise and that the Executing Court allowed time fixing 11.08.2005 for filing com- promise petition but the judgment debtor-petitioner did not file the required compromise and hence the Executing Court fixed 18.08.2005 for auction and on that date the auction pur- chaser-respondent No.1 hereof participated in the bid and his bid, being highest, was accepted. Accordingly he deposited 25% of the bid money on that date and subsequently deposited the balance of the bid money. Thereafter the auction sale was made final. Md. Mansur Rahman vs. Abdul Mannan Sardar (Shah Abu Nayeem Mominur - Rahman J) (Civil) 7 ADC 623
Section 57
Section 57 of the Artha Rin Adalat Ain, 2003 for dismissal of the Execution Case.......(2) "অত্রাদালতের অভিমত এই যে, অত্রাদালত বর্তমানে একটি জারী আদালত এবং অত্রাদালতকে শুধুমাত্র ডিক্রীকেই অনানয়ন করিতে হইবে। মূল মামলায় কিভাবে ডিক্রী হইয়াছে তাহা জারী মামলায় দ্রষ্টব্যের নহে। দায়ীক বিবাদীপক্ষ ঐ ডিক্রীকে অবৈধ বলিতে চাহিলে তাহা রদ রহিতের জন্য বিধি মোতাবেক অগ্রসর হইতে হইবে। এইরূপ অর্থঋণ আদালত আইন-২০০৩ এর ৫৭ ধারায় একটি দরখাস্ত প্রদান করিয়া কোন প্রতিকার পাইবে না। সুতরাং ৩নং দায়িকের অত্র দরখাস্ত নামঞ্জুর করা গেল।" K.M. Muzahid Islam vs. Bangladesh, Secretary Min- istry of Law (Shah Abu Nayeem Mominur Rahman J) (Civil) 6 ADC 865
Section 60(3)- In discharging the Rule, the High Court Division held that when the execution case was pending in the Artha Rin Adalat constituted under the Artha Rin Adalat Ain of 1990, the 2003 Act of the same nomenclature came into force, by virtue of section 60(3) of which all proceedings, including execution cases, pending in Artha Rin Adalats created by the repealed Act of 1990, stood transferred to the Artha Rin Adalats created by the Act of 2003, and hence there was no lack of jurisdiction. We are left in no doubt that the legislators meant to have all proceedings pending under the 1990 Ain to be transferred intact to the Adalats constituted under the Ain of 2003. Shahidul Islam =VS= Artha Rin Adalat, [4 LM (AD) 329]
Artha Rin Adalat Ain [VIII of 2003]
Section 60(3)-When the execution case was pending in the Artha Rin Adalat constituted under the Artha Rin Adalat Ain of 1990, the 2003 Act of the same nomenclature came into force, by virtue of section 60(3) of which all proceedings, including execution cases, pending in Artha Rin Adalats created by the repealed Act of 1990, stood transferred to the Artha Rin Adalats created by the Act of 2003, and hence there was no lack of jurisdiction. Shahidul Islam & others -Vs. Artha Rin Adalat and others (Civil) 20 ALR (AD) 70- 71
Section 60-Sale of pledge goods at the stage of peremptory hearing-Held: The Suit was instituted on 3-4-03 and on 25-10-05 the leave Petitioner filed an application under sections 12(2) and 57 of the Artha Rin Adalat Ain, 2003 praying for a direction upon the plaintiff- bank for sale of the pledged goods and to adjust the claim amount with the sale proceeds of the pledged goods and fix the actual claim amount and that the Artha Rin Adalat by its order No. 44 dated 25-10-2005 rejected the application observing that examination of the witnesses are being in progress and that the provision for sale of the pledge goods before filing of the suit was not in the Artha Rin Adalat Ain, 1990 and the said provision has been provided in Artha Rin Adalat Ain, 2003 and that the suit has been filed prior to promulgation of Artha Rin Adalat Ain 2003 and thus there is no bar in proceeding with the suit without sale of the pledged goods and adjustment of the sale. proceeds thereof with the claim amount in the suit. On consideration of the facts and circumstances of the learned Advocate as well as provision of Artha Rin Adalat Ain, 2003 particularly sections 12(2) and 12(6) read with sections 57 and 60 of the Artha Rin Adalat Ain, 2003 and the reasonings given by the Artha Rin Adalat as appearing in impugned order, we are of the view that the High Court Division has correctly interpreted the law and passed the order in accordance with law, which do not call for any interference. United Leather International vs Artha Rin Adalat, 17 BLT (AD) 204.
Section 60(3) and 47
Since a discretion/option has been given by the legislature to the plaintiff-bank to apply the provisions of section 47 of the Ain, 2003 even before its coming into operation in respect of the suit filed under the Ain, 1990 we do not see any bar on the part of the bank to exclude the amount claimed by it in the suit over 200% of the actual amount of loan disbursed by it to the appellant. And if so advised, the appellant may apply to the plaintiff-bank for deducting the amount claimed by it over 200% of the actual amount of loan availed of by him by applying the discretion given to it by section 47 of the Ain, 2003. Humayun Hossain Khan vs. Government of Bangladesh (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 318
Section 60-The words "en" as provided in section 60(3) of Ain, 2003 also include pending execution cases and as such after coming into force of Ain " 2003, all pending execution cases instituted under the provisions of Ain 1990, stood transferred to the Artha Rin Adalats constituted under Ain, 2003 and accordingly all such execution case, so transferred, would be proceeded as per provision of new Ain 2003 and accordingly the Execution Case No. 141 of 2002 was validly transferred to the Artha Rin Adalat No. 1, Dhaka constituted under Ain 2003 and the issuance of certificate under section 33(5) of Ain 2003 and the impugned order dated 14-7- 2003 under section 33(a) of Ain 2003 does not suffer from any illegality and further the contents of the instant writ petition also show that the petitioners, who appeared in the above Title suit No. 199 of 1997 and also filed written statement, obviously knew about the judgment and decree passed therein against them and also the starting of the above Execution Case no. 141 of 2002 against them but inspite of that they remained silent for along period and moreover the impugned order was passed on 14-7-2005 and the writ petition was filed on 27-2-2007, long after, and for this inordinate delay the writ petition is also not maintainable. M/s. Cromvege Tannaries Ltd. vs Joint District Judge and Artha Rin Adalat No. 1, Dhaka, VI ADC 594.
Sections 60 and 47-The provisions of section 47 are applicable at the time of institution of a suit under the Ain, 2003. Section 60 cannot be interpreted in such a way that section 47 can be applied from the stage of institution of a suit which was filed long before the Ain, 2003 came into force. Humayun Hossain Khan vs Bangladesh 61 DLR $13.
Sections 60 and 50(2)-The appeal was filed at the instance of plaintiff-Bank. There is no doubt that under provision of section 60 of the Ain, it has its application to the appeals pending from the cases filed under the Ain, 1990. In pursuance of provision of sub-section 2 of section 50 of the Ain, the plaintiff bank is entitled to penal interest. United Commercial Bank Limited vs Panam Banaspati Ltd, 20 BLC 10.
Section 60(1)(3) Preamble-Intention of the Legislature clear -On a plain reading of the preamble of the statute, it transpires that the Artha Rin Adalat Ain, 2003 (Act VIII of 2003) was promulgated with a view to further consolidate and amend the existing law i.e. Artha Rin Adalat Ain, 1990 for speedy recovery of loan of the financial institution. Whereas, by virtue of section 60(1) of the Ain, 2003 the Artha Rin Adalat Ain, 1990 has altogether been repealed and in explicit terms the legislature manifested its clear intention in section 60(3) that so far pending cases are concerned the provision enunciated under Ain, 2003, are to be made applicable. In other words, the Ain, 2003 did not conceive any saving clause in order to make the earlier repealed Ain applicable for the pending cases to be disposed of under the Ain, 1990. Udayan Garments (Pvt) Ltd vs Bangladesh 59 DLR 615.
Section 60(3) Preamble-Remedial Legislation-The above language of the preamble of two separate enactments are more or less identical in order to address the problem of recovery of loans disbursed in favour of the loanee. In fact, Act VIII of 2003 is a remedial legislation which has been promulgated in an integrated manner with an intention to recover the loan from the defaulter loanee by repealing the previous Act IV of 1990. Normally it is the procedure which is in force, at the time of the trial or the disposal of the suit must be applied. Section 60(1) of the Ain provides, " অর্থঋণ আদালত আইন (১৯৯০ সালের ৪নং আইন) আইন এতদ্বারা রহিত করা হইল।" In the same breath, by virtue of section 60(3) all the provisions as enacted under the new Ain have been made applicable to the pending proceedings initiated under the Ain, 1990.
In fact, section 6(e) is not at all applicable where the repeal is followed by a fresh legislation. It is to be remembered that where a statute is repealed and a new statute takes place for the same purpose, the action under the repealed statutes continues but that does not mean that the procedure under the repealed enactment must be followed. The statute dealing with matters of procedure may properly have retrospective effect unless that construction be textually inadmissible. Angels Corporation (Pvt) Ltd vs Bangladesh, 59 DLR 601.
Section 60(3)- The execution cases filed under the Ain, 1990 comes within the meaning of "" as contemplated in section 60(3) of the Ain, 2003. Section 60(3) of the Ain, 2003 manifests the view that the Artha Rin Adalat established under section 4 of the Ain, 2003 has entirely inherited upon repealing the Ain, 1990 in which all the cases relating to recovery of loan including execution cases pending in those Adalats under the Ain, 1990 stood transferred by operation of law to the Artha Rin Adalat constituted under the new Ain namely, the Artha Rin Adalat Ain, 2003 providing statutory power to dispose of all the pending cases in accordance with the provisions of the Ain, 2003, as far as possible. Mofiz Mia vs Artha Rin Adalat, 60 DLR 417.
Section 60(3)-In conclusion, we hold that the execution case filed under the Ain, 1990 comes within the meaning of "on" as contemplated in section 60(3) of the Ain, 2003. As already mentioned section 60(3) of the Ain, 2003 manifests the view that the Artha Rin Adalat established under section 4 of the Ain, 2003 has entirely inherited upon repealing the Ain, 1990 in which all the cases relating to recovery of loan including execution cases pending in those Adalats under the Ain, 1990 stood transferred by operation of law to the Artha Rin Adalat constituted under the new Ain, namely the Artha Rin Adalat Ain, 2003 providing statutory power to dispose of all the pending cases in accordance with the provisions of the Ain, 2003, as far as possible. Kazi Masudur Rahman vs Artha Rin Adalat, 60 DLR 679.
Section 60(3)- Under the provision of sub-section (3) of section 60 of the Ain the said proceedings shall be taken to be a proceeding under the Artha Rin Adalat Ain, 2003. Therefore, the question raised can be decided at the trial of the suit and at the time of receiving evidence from the parties. Besides, the impugned order was not amenable to the writ jurisdiction as the order was passed under the repealed Artha Rin Adalat Ain, 1990. Zahidi Millah vs Artha Rin Adalat, Khulna, 11 BLC 238.
Section 60(3)-It appears that the Execution Cases were filed by the decree holder bank to execute the decree before the Adalat constituted under the Ain, 1990 and thereafter, the Artha Rin Adalat Ain, 2003 having come into force on 1-5-2003 upon repealing the Ain of 1990 in which the said execution cases automatically transferred to the Artha Rin Adalat established under the Ain, 2003 under the provision of section 60(3) of the said Ain. It also appears that the Adalat rejected the applications for dismissing the execution cases on the ground that since there is no indication in the Ain, 2003 for disposal of the execution cases filed under the Ain, 1990 the Code of Civil Procedure shall be applicable relating to those execution cases. On an analysis of the impugned orders vis-a-vis the law, it appears that there is no flaw in the reasoning of the Adalat or any ground to assail the impugned orders which are based on proper appreciation of fact and law. Mofiz Mia vs Artha Rin Adalat, 13 BLC 444.
Editors’ Note:
The petitioner, a guarantor to the loan in question, filed this writ petition without surrendering before the court, when the learned Judge of the Artha Rin Adalat, in an execution case, awarded civil detention against him under section 34 (1) of the Artha Rin Adalat Ain, 2003. The petitioner claimed that the decree holder bank had not filed the application as per requirement of section 34 of the act and the adalat had issued the impugned order of detention without exhausting all process against the principal borrower for realizing decretal dues. On the other hand, the respondent no 3-decree holder bank claimed that being fugitive from justice the petitioner couldn’t claim relief. Moreover, he has alternative remedy of appeal and so the writ is not maintainable. The High Court Division held that the writ petition is maintainable on the ground that a Judgement Debtor cannot be treated as a fugitive accused and the order of detention being an interlocutory order, appeal cannot be preferred against the same. On the claim of the petitioner the Court held that the execution case can proceed against all the judgment debtors simultaneously and privilege of a guarantor to become liable to repay after borrower’s default remains valid only before instituting the suit. The Court has made the rule absolute on the ground that decree holder bank has not filed the application, with verification or affidavit, under section 34 of the Artha Rin Adalat Ain, 2003 in accordance with law.
Difference between “the Accused” and “the Judgment Debtor:
In this case, a fundamental difference exists between two classes of justice seekers i.e “the Accused” and “the Judgment Debtor”. The term “Accused” has not been specifically defined in the Code of Criminal Procedure (Cr.PC). But the common parlance of ‘Accused’ is, a person who is charged with the commission of ‘Offence’. On the other hand, an ‘Offence’ is defined in the Code of Criminal Procedure as an act or omission made punishable by any law for the time being in force. On the other hand, under the Act, 2003 the term “Judgment Debtor” means a person against whom a decree has been passed ordering him to repay the decretal dues and it remains unsatisfied. In this particular case, the warrant of arrest was issued against a person who is, admittedly not an Accused person but a Judgment Debtor. The impugned order was passed against the Judgment Debtor (petitioner) awarding him civil detention under section 34 of the Act, 2003. (Para -21, 22)
Sections 2(kha), 4(1), 4(4), 5(2), 6(1) and 26 of the Artha Rin Adalat Act, 2003:
By no means, we can treat a Judgment Debtor as an Accused person or criminal suspect: It is crystal clear that the legislature has incorporated this provision in the statute to compel a judgment debtor to repay decretal dues and so, the Adalat can pass any term of civil detention to a Judgment Debtor not more than 6(six) months. But certainly, the order of civil detention is not a sentence which is defined in the Black’s Law Dictionary 8 th Edition, page 1393 as “the judgment that a court formally pronounces after finding a criminal defendant guilty” Or “a punishment imposed on a criminal wrongdoer”. From all the legal provisions of the Act, 2003 as referred to by the learned Deputy Attorney General (DAG) viz sections 2(kha), 4(1), 4(4), 5(2), 6(1) and 26 of the Act, 2003 it appears that the Artha Rin Adalat adjudicated the artha rin suit as a civil dispute by a civil Court following the provisions of the Code of Civil Procedure. Although, in sections 6(1) and 26 of the Act, 2003 it has been provided that the Code (CPC) shall be applied subject to not being inconsistent with the provisions of the Act, 2003, but the provisions of the Act, 2003 are also similar and supplementary to the provisions of the Code (CPC). Further, after adjudication of the suit, the petitioner has been determined as a Judgment Debtor which is substantially different from the term of an Accused person in a criminal case. Therefore, by no means, we can treat a Judgment Debtor as an Accused person or criminal suspect. There must have distinction between the Accused in a criminal case and the Judgment Debtor in a civil suit. (Para 23, 24)
Section 34(1) of the Artha Rin Adalat Act, 2003, We find that the Artha Rin Adalat as a civil Court itself can pass order of civil detention under section 34(1) of the Act, 2003 against the Judgment Debtor and to execute/effect the civil detention, the Adalat is issuing warrant of arrest in order to make him available for serving out the awarded civil detention. Section 35 only provides that in issuing warrant of arrest, the Adalat shall be deemed to be a Magistrate of a 1st class. But nowhere in the provision, the applicability of the Code of Criminal Procedure is provided. However, in the last part of section 35 although the Code of Criminal Procedure, 1898 is mentioned but it is related to prescribed Form of warrant of arrest and other matters for the time being until prescribed Form is prepared by the Artha Rin Adalat. It does not mean that the applicability of the Code of Criminal Procedure has been provided in issuing warrant of arrest. (Para-26)
Ratio requiring to surrender as laid down by our apex Court, is applicable only for the accused or convict in criminal proceeding not for a judgment debtor: We consider that the petitioner’s civil liability was adjudicated by a civil Court under the Artha Rin Adalat Ain and the Code of Civil Procedure. Thereby he is determined as a Judgment Debtor and not an Accused or convict for criminal offence. According to section 34 of the Act, 2003, the civil detention has been awarded only for the purpose of compelling the judgment debtor to repay the decretal dues. As such, he does not require to surrender inasmuch as referred ratio requiring to surrender as laid down by our apex Court, is applicable only for the accused or convict in criminal proceeding. (Para-27)
We are led to hold that the petitioner, a Judgment Debtor can not be treated as a fugitive accused and so, he did not require to surrender to the concerned Court before challenging the impugned order awarding civil detention under section 34 of the Act, 2003. Therefore, the writ petition is quite maintainable. (Para-29) Order under section 34 of the Act, 2003 is an interlocutory order in the execution proceeding and so, appeal cannot be preferred against such order in view of section 44(2) of the Act, 2003. (Para-30)
Execution case shall proceed simultaneously against all the judgment debtors:
A 3 rd party guarantor involved with the loan shall also be impleaded in the suit as defendant alongwith the principal borrower and the mortgagor and that the decree, if any, shall be effective against all defendants jointly and severally and the execution case shall proceed simultaneously against all the judgment debtors. Therefore, section 34(1) applies to all the judgment debtors to compell them to repay the decretal dues. However, in disposing of the property of the judgment debtors, by the 1st proviso to section 6(5), the legislature put a condition to the effect that the property of the principal borrower shall attract first and thereafter, the property of 3rd party mortgagor and the 3rd party guarantor respectively. But in awarding civil detention under section 34(1) of the Act, 2003 to compel the judgment debtors to satisfy decree, there is no such provision and here the condition is, absence of property or failure to sell mortgaged property. In this case, according to the application filed by the Bank, there is no property belong to the judgment debtors, considering which the Adalat awarded civil detention against both the principal borrower and the guarantor as well. (Para-32, 33)
Section 6(5) of the Artha Rin Adalat Act, 2003:
Guarantor’s property shall be attracted after the property of principal borrower: Privilege of a guarantor to become liable to repay after borrower’s default, remains only before instituting the suit. In other words, on failure to repay by the principal borrower, the guarantor had to pay the liability on demand. But both being failed to repay, the matter has been brought before the Court seeking relief against both of them liable and under section 6(5) of the Act, the decree being passed, both of them are liable jointly and severally and execution case shall proceed simultaneously against both of them. However, due to 1st proviso to section 6(5) of the Act, only guarantor’s property shall be attracted after the property of principal borrower. (Para-34)
Chapter-1, Rule 19 of the Civil Rules and Orders (CRO) read with Order VI, Rule 15 of the Code of Civil Procedure and Section 34 (1) of the Artha Rin Adalat Act, 2003:
Filing the application under section 34 (1) of the Act, 2003 civil detention of judgment debtor is sought for by the decree holder applicant. As such, the Adalat has to dispose of it awarding civil detention or rejecting the prayer. Hence, the applicant needs to substantiate the facts in the application for determination by the Adalat. Thus, considering facts of the application, judicial determination has to make by the Adalat awarding civil imprisonment or not. Therefore, the Bank requires to file the application in accordance with Chapter-1, Rule 19 of the Civil Rules and Orders (CRO) read with Order VI Rule 15 of the Code of Civil Procedure. But from the application (Annexure[1]C and C1) filed by the decree holder Bank, we do not find this compliance. In the circumstances, we are of the view that without verification or affidavit, putting signature at the top of the application alone is not enough to consider an application under section 34(1) of the Act, 2003. (Para 38) [17 SCOB [2023] HCD 20]
Constitution of Bangladesh, 1972
Article 102(2)
As the ex-parte decree has been tainted with apparent fraud and nullity due to lack of service of summons, the execution proceeding shall certainly be collapsed. If a foundation of a building is not strongly laid down, obviously, the super-structure shall collapse. As the ex- parte decree is not well founded as per law, therefore, the entire execution proceedings shall fall through. [73 DLR (2021) 492]
Artha Rin Matter
Artha Rin Adalat, suit for realisation of loan- The Appellate Division observed that the claim of the plaintiff is against two sets of defendants. Defendant Nos. 1 and 2 are the borrowers. Defendant Nos. 3 and 4 are parties to a tripartite agreement by which the goods purchased with the loan money were to be stored in a cold storage belonging to defendant No. 4. With regard to the liability of defendant Nos. 3 and 4 the High Court Division came to a finding that the tripartite agreement may gave rise to liability of defendant Nos. 3 and 4 but that liability is not related to the loan and the proper course would be for the plaintiff bank to sue defendant Nos. 3 and 4 for realisation of money and compensation in a money suit. So far as it relates to the claim against defendant Nos. 1 and 2 the High Court Division observed that although morabaha loan was granted by the bank in favour of defendant Nos. 1 and 2 there was no allegation against defendant Nos. 1 and 2 for non-payment of claimed money. The High Court Division upheld the decision of the trial Court observing that since defendant Nos. 1 and 2 did not get the remaining 844 bags of potatos, they have no liability to pay the price of the said goods. Appellate Division does not find any illegality. Accordingly, the civil petition for leave to appeal is dismissed. Islami Bank VS M/S Ahsanuddin Ahmed & others, [1 LM (AD) 82]
Judgment and decree passed by the Artha Rin Adalat was not maintainable-
The Appellate Division held that it is now well settled that a writ petition challenging the judgment and decree passed by the Artha Rin Adalat was not maintainable and moreover, respondent No.1 as defendant No.4 contested the suit. Such a decree can only be challenged by filing an appeal within the statutory period of limitation on depositing 50% of decretal amount. Agrani Bank VS Mrs. Hosne Ara Begum & another, [1 LM (AD) 334]
'Prescribed' means 'Prescribed' would mean prescribed by law. In the facts of the instant case the 'prescribed rate' was amended more than once since 01.04.2004. M/S. Rajib Traders =VS= Artha Rin Adalat & another, [1 LM (AD) 186]
When collusion and fraud have been established and illegal order/direction and decrees have been obtained from the Court Appellate Division cannot its eyes forward to undo the wrongs by setting aside the illegal decree- When collusion and fraud have been established and illegal order/direction and decrees have been obtained from the Courts, this Court cannot shut its eyes and remain a silent spectator. This Court must come forward to undo the wrongs by setting aside the illegal decrees. This Apex Court has the duty and obligation to rise to the occasion in order to do substantial and complete justice. Since collusion and fraud affect the solemnity, regularity and orderliness of the proceedings of the Courts, this Court, in exercise of its extra-ordinary power, is authorised to set aside the decrees obtained illegally by collusion. The learned Judges of the High Court Division have issued an absolutely illegal order directing the Artha Rin Adalat to decree the suits in a specified manner which has eroded the confidence of the litigants to the suits and will have the effect of undermining the credibility of the judiciary as whole. Accordingly, the leave petition is disposed of. The judgments and decrees dated 16.10.2017 passed by the Artha Rin Adalat No.3, Dhaka in Artha Rin Suit Nos.382 of 2016 and 1618 of 2016 are set aside. The Adalat is directed to proceed with both the suits in accordance with law. The Rule issued in Contempt Petition No.239 of 2019 is hereby discharged. ...National Bank Limited =VS= M.R. Trading Company, [7 LM (AD) 216]
50 lacs as damage and compensation penalising the bank- The High Court Division found that the exigencies demanded an expeditious disposal of the proposal made by the plaintiff company for sale of some of the land mortgaged with the bank with a view to salvaging the plaintiff Mills, and hence, since the bank did not act promptly, it should be made liable to pay Tk. 50 lacs to the plaintiff company. The High Court Division felt that had the bank taken prompt action with regard to the proposed sale of the land then the bank's loan could have been managed preventing litigation between the parties. W. Rahman Jute Mills Ltd. =VS= Rupali Bank Ltd., [3 LM (AD) 499]
The Artha Rin Adalat Ain 1990
The facts relevant for disposal of this petition, in brief, are that the respondent No.1 (defendant No.1 in the Artha Rin Case) took loan of Tk.3,94,000/- under the "Power of Driving Vehicle Scheme, 1987" from the Sonali Bank Limited, Kangshanagar Branch, Comilla (plaintiff in the Artha Rin Case and petitioner herein). The loan was taken to purchase a bus and in due course the bus plied on the permitted route. The respondent No.1 duly paid the bank's installments, but could not continue to do so as the bus was not yielding sufficient income. Due to the failure of respondent No.1 to pay the loan as stipulated in the loan agreement, the petitioner filed Money Suit No.19 of 1987 in the Court of 1st Subordinate Judge, Comilla for a sum of Tk.6,25,486.05, being the loan amount and accrued interest thereon. The respondent No.1 filed written statement admitting that he took the loan of Tk.3,94,000/- but denied the amount claimed by the Bank in the Money Suit. He expressed his intention to pay back the loan while explaining the reasons for his inability to pay the bank's installments in due time. Sonali Bank Limited vs. Abdul Malek (Muhammad Imman Ali J) (Civil) 8 ADC 649
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