Bankruptcy Act, 1997
Section- 2 (X), 5(1), 9(1)(S), 10, 110- Maintainability of the Dewlia Suit- The order dated 28.04.2000 passed by the Dewlia Adalat in Dewlia Suit No.27 of 2000 rejecting the plaint is set aside. The Dewlia Adalat is directed to proceed with the suit and dispose the same in accordance with law. The question of maintainability of the suit shall be decided along with the other issues at the trial of the suit. Shinepukur Holdings Ltd. =VS= Abdur Rashid Chowdhury & others, [1 LM (AD) 162]
Bankruptcy Act [X of 1997] Sections 5(b), 10, 28(B) and 96-Since the petitioner did not file any application in any point of time to raise any allegations to dismiss the plaint now that ground of the petitioner after passing the impugned judgment and decree passed by the competent court of Bankruptcy in Bankruptcy Case cannot be sustained in the eye of law. The High Court Division held that respondent No. 2 as plaintiff filed the Bankruptcy case under the Bankruptcy Act, 1997 in pursuance of the section 10 of the said Act and there is no material on record that the petitioner being the defendant file any application for dismissed the plaint in pursuance of section 28(B) of the said Act and the said suit was tried by respondent No. 1 Bankruptcy case and passed the impugned judgment and decree. Thus the decision was passed under the act of Bankruptcy by the respondent No. 1 as Bankruptcy Court. So, on plain reading of the plaint and section 5(b) of the provision of section 96 read with section 10 of the Bankruptcy Act, 1997 alongwith the Courts power as provide under section 5 to 7 the High Court Division finds that respondent No. 1 has got the jurisdiction to pass such judgment and decree under the Bankruptcy Act, 1997. Since the High Court Division finds that the decision i. e. the impugned judgment and decree passed by respondent No. 1 under the Bankruptcy Act thereby the said decision is an appealable decision in accordance with the provisions of section 96 of the Bankruptcy Act, 1997. And regarding section 28(B) of the Bankruptcy Act the High Court Division finds that since the petitioner did not file any application in any point of time to raise any allegations to dismiss the plaint now that ground of the petitioner after passing the impugned judgment and decree passed by the competent court of Bankruptcy in Bankruptcy Case cannot be sustained in the eye of law. In such circumstances, the High Court Division does not find any substance in the submissions of the learned Advocate for the petitioner in the present writ petition. In such view of the matter and considering the facts and circumstances, the High Court Division finds that the present writ petition is not maintainable. Md. Bazlur Rahman -Vs.- The Court of the District Judge (Spl. Original) 16 ALR (HCD) 329-334 Bankruptcy Act [X of 1997]
Section 28-Order passed by the Bankruptcy Court being an appealable order as provided under Section 96(5) (gha) of the Bankruptcy Act, and the writ petition having efficacious alternative remedy by way of statutory appeal/review, the petition was not maintainable.
The Appellate Division opined that as the order passed under section 28 of the Ain is appealable under section 96(5) thereof, that was an equally efficacious remedy. It may also be stated that besides filing the appeal under section 96(5) of the Ain, the plaintiff had other remedies under bidhi 26(3) of the Bidhimala, i.e. he could file a fresh suit within 30 days from the date of the order or could file an application for setting aside the order rejecting the plaint. So, the plaintiff in any view of the matter could not invoke the jurisdiction of judicial review of the High Court Division under article 102 of the Constitution, the writ petition was not maintainable. Shinepukur Holdings Limited -Vs.- Abdur Rashid Chowdhury and others (Civil) 17 ALR (AD) 79
