Public Demands Recovery Act
Editors’ Note:
For a defaulted loan of 250,000/- taka a certificate case was instituted against the petitioner-certificate-debtor and he was ordered to pay Tk. 5000/- per month as repayment of loan on 05.02.2008. Thereafter, as per order of the Certificate Officer, the certificate debtor deposited entire amount of the certificate in deferent installments. The Certificate Officer on 01.02.2016 wanted to know from the certificate holder about the outstanding dues of the certificate debtor. The certificate holder informed in reply that till then Tk. 5,07,766.00 was outstanding. In the above backdrop, challenging the legality and propriety of the certificate proceeding, the petitioner rushed to the High Court Division and obtained the Rule and stay. High Court Division found that as per section 5(5) of the Artha Rin Adalat Ain 2003 the certificate proceeding does not suffer from jurisdictional defect raised by the petitioner but the Certificate Officer without any objective satisfaction and only on the basis of improperly filed requisition letter and without considering as to whether the entire outstanding dues as claimed by the respondent-Bank is actually due at the relevant time, started certificate proceeding which is illegal. Consequently, the Court quashed the certificate proceeding.
Section 5(5) of the Artha Rin Adalat Ain, 2003: On meticulous and meaningful reading of the aforesaid provision of the Ain, 2003, it is as clear as day light that the legislature has consciously given option for shopping the forum either to file Artha Rin Suit or Certificate Case for speedy realization of the outstanding amount which does not exceed Tk. 5 lacs. The jurisdiction of the Certificate Officer is in addition but not in derogation to the jurisdiction of the Artha Rin Adalat; therefore, the certificate proceeding does not suffer from jurisdictional defect raised by the petitioner. Consequently, the issue stands decided in the negative. (Para 16)
Section 4, 6 and 16 of the Public Demands Recovery Act, 1913: Section 16 of the PDR Act refers to interest, costs and charge which are recoverable in respect of every certificate which has been filed under section 4 or section 6. In other words, these include the amounts which are leviable from time to time in respect of the certificate after it has been filed. It should be noted that upto the stage of filing of a certificate under section 4 or 6 whatever sums become due are entered in the certificate, and they are- (i) actual amount due, (ii) interest, if any, from the date when the amount becomes due to the date of filing of the certificate (the inclusion of the interest shall be done by the Requiring Officer or the Department concerned), and amount of ad-valorem court-fees paid (this is in respect of certificate filed under section 6). Clause (a) of section 16 refers to interest leviable on the demands in the certificate calculated at the rate of 6 4 1 % from the date of signing of the certificate to the date of realization i.e., the actual recovery of the demands. (Para 19)
Section 16 of the Public Demands Recovery Act, 1913: By and large after filing the Certificate Case, the calculation of interest has to be made in accordance with section 16 of the PDR Act. If the contention of the respondent-Bank is accepted that the interest and charges are recoverable on the certificate amount upto the date of realization as per the mandate of section 16 of the PDR Act, then it would be safely concluded that the interest imposed during the pendency of the Certificate Case was also unlawful and unjustified. (Para 25)
Sections 5 and 6 of the Public Demands Recovery Act, 1913: Duty of the Certificate Officer: Before starting Certificate Case, it is the duty of the Certificate Officer to see as to whether the requisition is filed in a prescribed form under section 5 of the PDR Act and whether the provision of section 6 of the PDR Act has been complied with. In this case, the Certificate Officer without any objective satisfaction and only on the basis of improperly filed requisition letter and without considering as to whether the entire outstanding dues as claimed by the respondent-Bank is actually due at the relevant time, the Certificate Officer started certificate proceeding. Prescribed Form means the forms appended in the PDR Act. The Schedule-II, Rule 84 prescribes the various forms. Form No. 1 clearly spells out that the Certificate Officer has to give certificate that the amount stated in the requisition letter is recoverable and is recovered by suit is not barred by law. (Para 28, 29)
It is true that a certificate tantamounts to decree. It cannot be denied that the Certificate Officer’s position is like an Executing Court for enforcing the decree of the Civil Court. (Para 30) When Executing Court can go behind the decree: The ratio that Executing Court cannot go behind the decree is not absolute. It has got four exceptions; the Executing Court may refuse to execute the decree, if it is found that the decree was passed by the Court having no jurisdiction or it is made against dead man or the decree is tainted with apparent fraud. (Para 32)
Interest should be imposed as per law: It cannot be denied that during the pendency of the execution case, the lender Bank or FIs may impose interest, but that interest should be as per law. But the interest, costs and other incidental expenses incurred during the execution proceeding is the discretion of the presiding officer, who presides over certificate proceedings and such discretion has also to be exercised judiciously, carefully, cautiously and not whimsically. (Para 34)
A writ of certiorari is available in case of violation of the principles of natural justice or where there is an error of law apparent on the face of record: A writ of certiorari controls all courts, tribunals, and other authorities when they purport to act without jurisdiction, or in excess of it. It is also available in case of violation of the principles of natural justice or where there is an error of law apparent on the face of record. If the Court or executing authority does not perform its obligation in accordance with law, the writ of certiorari may be invoked. In the meantime 12 years have already been elapsed, if this small borrower goes for appeal or revision as embodied in PDR Act itself, it may take another 12 years and it will not yield him any positive, effective and speedy result. Moreover, without being any final decision by the Certificate Officer, it would not possible to take resort of Appeal. Therefore, we hold our view that the writ of certiorari is an appropriate and efficacious remedy in this case in hand. Since the starting of certificate proceeding is not in accordance with law; therefore, the entire proceeding is liable to be quashed to secure the ends of justice. (Para 35)
Section 45 and 49 of the Bank Company Ain, 1991: Experience shows that the calculation of interest is a very challenging job and at times, we find that the Bank officials are not so vigilant and not so diligent in calculating interest; therefore, Bangladesh Bank should exercise its power as embodied under section 45 and 49 of the Bank Company Ain, 1991 to inspect the case as to the calculation of interest by FIs at least on random basis. Bangladesh Bank should examine as to whether the interest calculated is in accordance with law or not. Mere denial or no objection as to calculation of interest by the borrower does not ipso facto give validity of the statement as to interest. (Para 36) [17 SCOB [2023] HCD 168]
Section 7
Certificate Officer to have been issued without lawful authority. Additional Deputy Commissioner vs. Pirpur Fish- ermen's Co-operative Society Limited (Mohammad Fazlul Karim J) (Civil)6 ADC 451
The Public Demand Recovery Act
Section 23
M/s. Jess Duck (Pvt.) Limited Company took loan from Bangladesh Shilpa Bank, Jhenidah Branch, Jhenidah. The said loan was not paid in time. Hence Bangladesh Shilpa Bank started Certificate Case. Md. Asaduzzaman vs. Kazi Abdus Sabur (Md. Joynul Abedin J) (Civil) 5 ADC 609
Declaring that confication of the vessel as well as imposing of penalty on the writ petitioners and each of the mem- bers of the crew are illegal and without lawful authority. The Government of the People's vs. Horng Woei Industrial Co. (Md. Tafazzul Islam J) (Civil) 5ADC 611
Section 37
The suit has been filed to set aside the auction sale on the ground of fraud. Both the trial Court and the High Court Division came to a finding that defendant No.1 did not have title in the suit land and as such the auction sale was fraudulent and void. The proviso to sec- tion 37 of the Public Demands Recovery Act provides in no uncertain terms that a suit may be brought in a Civil Court in respect of any such question upon the ground of fraud. Therefore, it appears that the suit is not barred by section 37 of the Public Demands Re- covery Act. Manager, Janata Bank Ltd. vs. Mrs. Khairun Nessa Kamal (Syed Mahmud Hossain J) (Civil) 10 ADC 404
The Public Demands Recovery Act (PDR Act)
Section 37, 48, 49
Averments having been made in the plaint alleging fraud and malafide and that in the light thereof relief having been sought civil court is quite competent to investigate the question of fraud and malafide and the said allegation as can only finally adjudicate upon full dress hearing of the suit, the High Court Division was in error in rejecting the plaint upon an erroneous view that the suit is barred under section 37 of the PDR Act. Md. Marfat Ali Miah vs Sree Jagadish Chandra Sheel (Md. Ruhul Amin J (Civil) 3ADC 476
Public Demand Recovery Act, 1913
A memo of delivery of possession plays a vital role in the possession of a fishery and in the absence of which the appellants cannot claim that respondent No.1 possessed the fishery and should pay for it- The writ-petitioner has asserted in its petition that no possession of the disputed fishery during relevant year under claim was delivered and nothing could be shown that the respondent was ever in possession of the fishery in question for the relevant period. The appellants though asserted that they were in possession of the fishery and accordingly claimed the amount for the lease period from 1396 to 1398 B.S. and for which no premium was paid but the same is contradicted in Annexure-E to the writ petition and accordingly, the appellants could not claim the said amount for the period in which they were not in possession of fishery in question. The appellant as well could not prove that the respondent No.1 was in possession of the disputed fishery for later period beyond the lease period and in the absence of material on record could be drawn for the alleged possession simply because it was in possession of the fishery in question in the former period. Moreover, the appellant could not show any memo. of delivery of possession showing that the possession of the fishery in question for the relevant period was handed over or they were ever in possession for which they are liable to pay the salami for the period. We find no substance in the appeal. Accordingly, the appeal is dismissed. ...ADC, Moulavi Bazar-VS-Pirpur Fishermen's Co-operative Society Ltd., [8 LM (AD) 14]