High Court Division :
(Special Original Jurisdiction)
Zinat Ara J
AKM Zahirul Hoque J
Topman Fashion Wears
Limited……….Petitioner
vs
Dutch Bangla Bank Limited and others……………Respondents
Judgment
February 15th, 2017
Artha Rin Adalat Ain (VIII of 2003)
Section 50(4)
Under Section 50(4) of the Ain, if any writ petition is filed without payment of requisite amount of money or security, as the case may be, challenging the order or decree diretly or indirectly by the judgment-debtors, in such case, if the Rule issued in the writ petition or appeal against such order is discharged/dismissed, interest @ 25% has to be calculated during the period for which such matter was pending before the High Court Division or the Appellate Division…………….(13)
Artha Rin Adalat Ain (VIII of 2003)
Section 50(4)
The suit is still pending. The provision of Section 50(4) of the Ain was not applicable. The Adalat allowing amendment of the plaint of imposing 25% interest during the period on which writ petition was pending before the High Court Division cannot be said to be lawful. …………(14)
Lokman Karim, Advocate-For the Petitioner.
Md Ashrafuddin Bhuiyan-For the Respondent No. 2.
Judgment
Zinat Ara J : In this Rule Nisi, the petitioner has called in question the legality of order No. 49 dated 27-4-2011 passed by respondent No. 4, the learned Judge, Artha Rin Adalat No. 1, Chittagong in Artha Rin Suit No. 47 of 2008 (Annexure-F to the writ petition), allowing the application for amendment of the plaint of the suit.
Admitted Facts
2. Respondents No. 1 and 2, Dutch Bangla Bank Limited, Head Office, Dhaka and its Agrabad Branch, Chittagong (hereiafter stated as the Bank), as paintiff, on 27-7-2008, filed Artha Rin Suit No. 47 of 2008 before the Artha Rin Adalat, Chittagong (shortly sated as the Adalat) for recovery of loan amounting to Taka 2,03,50,860.37 along with interest till realization thereof impleading petitioner-M/s Topman Fashion Wears Limited and proforma-respondent No. 5 to 7 as defendats of the suit. The defendant-petitioner has been contesting the suit by filing written statement dated 20-11-2008 denying the allegations made in the plaint of the suit. Defendant respondent No. 8 and other respodents have also been contesting the suit by filing separate Writing statements. Defendant No. 6 (respondent No. 8) filed an application in the suit for striking out his name from the plaint alleging that he is neither a mortgagor nor a guarantor for the loan, but a director of the petitioner. The learned Judge of the Adalat, upon hearing, rejected the application by order No. 33 dated 30-1-2010. Whereupon, the said defendant filed Writ Petition No. 1658 of 2010 before the High Court Division and the Rule issued in the said writ petition was discharged by the judgment and order dated 9-2-2011. Thereafter, the Bank, on 22-3-2011, filed an application before the Adalat under Order VI, rule 17 of the Code of Civil Procedure, 1908 (shortly stated as the CPC) read with Section 50(4) of the Artha Rin Adalat Ain, 2003 (hereinafter stated as the Ain) for amendment of the plaint claiming 25% interest from the date of filing of the aforesaid writ petition till discharge of the Rule issued in the writ petition. Defendant-petitioner, on 27-4-2011 filed written objection against the said application for amendment of the plaint. Upon hearing, the learned Judge of the Adalat allowed the application for amendment of the plaint by the impugned order dated 27-4-2011.
Petitioner’s Case
3. Sub-section (4) of Section 50 of the Ain is applicable only when a person has challenged the judgment and decree without depositing 50% of the decretal dues. But, in the instant case, the suit is still continuing and therefore, question of imposing 25% interest for the period during which the writ petition was pending before the High Court Division does not arise. The learned Judge of the Adalat without considering the aforesaid legal aspect of the case, allowed the application of the Bank unlawfully and therefore, the impugned order is liable to be declared to be without lawful authority.
Respondents No.1 & 2’s Case
4. Respondents Nos. 1 and 2 the Bank contested the Rule by filing an affidavit-in-opposition controverting some of the statements made in the writ petition contending, inter-alia,
that Section 50 of the Ain is applicable if a writ petition is filed in relation to order passed by the Adalat also and therefore, the Bank legally filed an application under Section 50(4) of the Ain for amendment of the plaint claiming 25% of interest in the suit during the period of pendency of Writ Petition No. 1658 of 2010 and the learned Judge of the Adalat lawfully allowed the said application; that the writ petition is misconceived and the Rule is, thus liable to be discharged.
Arguments of the Contending Parties
5. Mr Lokman Karim, the learned Advocate for the petitioner, takes us through the writ petition, the connected materials on record, the impugned order, the relevant provision of Section 50(4) of the Ain and submits that the provision of Section 50(4) of the Ain is applicable, if any application is filed against the order/judgment and decree passed by the Adalat after the decree, but, in the instant case, the suit is continuing and therefore, there was no scope to apply the provision of Section 50(4) of the Ain and to impose 25% interest during the period from 4-4-2010 to 9-2-2010, when Writ Petition No. 1658 of 2010 was pending. He finally submits that in the facts and circumstances, the impugned order allowing amendment of the plaint and passing order for inclusion of 25% interest in the plaint for the aforesaid period is unlawful and the Rule is, thus, liable to be made absolute.
6. In reply, Mr Md Ashrafuddin Bhuiyan, the learned Advocate for respondents No. I and 2, takes us through the affidavit-in-opposition, the connected materials on record, the relevant provision of Section 50(4) of the Ain and contends that the impugned order has been passed legally inasmuch as the order may also be challenged in the appellate forum.
7. However, he admits that the writ petition was filed against the order passed on an application under Order I, rule 10(2) of the CPC and the order rejecting the said application is not an appealable order.
Point for Determination
8. In view of the arguments as advanced by the learned Advocates for the contending parties, the sole question to be decided in the writ petition is the legality of impugned order No. 49 dated 27-4-2011.
Examination of Records
9. We have examined the writ petition, the affidavit-in-opposition, the connected materials on record, the impugned order and the relevant provision of Section 50 of the Artha Rin Adalat Ain, 2003.
Deliberation of the Court
10. In order to decide the legality of the impugned order, it is necessary to examine the relevant portion of the impugned order. For better understanding, the relevant portion of the impugned order is quoted below : –
“………….??? ?????? ????? ??????? ??????? ???????? ????? ???????? ??????? ? ?? ???????? ????? ?????? ???????? ?????? ????? ??? ???? ?? ??(?) ???? ??????? ????? ???????? ????????? ????? ??????? ???????? ?????? ??? ???? ????? ????? ? ????? ?????? ??? ???? ??? ????? ??-?-?????? ????? ????? ???????? ?????????? ????????? ???????? ?????”
11. Thus, from the above impugned order, it appears that the learned Judge of the Adalat allowed the application filed by the Bank under Section 50(4) of the Ain in the Artha Rin Suit itself. Admittedly, the Artha Rin Suit is still continuing and it has not been disposed of by pronouncement of judgment and decree.
12. Now, let us study the rlevant provision of Section 50 of the Ain, as it was on the date of passing the impugned order, which reads as under :
??? (?) ???? ?? ?? ????? ????????, ?? ????? ???? ??? ?????, ?? ???????? ???? ???? ????? ??????? ???? ??????? ??????? ??? ???? ??? ?????? ?????????? ?????? ??????????? ???????? ??? ??, ?????????, ?????? ?? ????- ?????, ??? ?? ???????? ????? ?????? ???
(?) ???? ?? ????? ?????? ??????? ??????? ???????? ??????-????? ???? ??? ????, ??????, ???? ?????? ???? ?? ???? ?????? ??????? ??? ?”??? ?????? ????? ?? ?????, ????? ??????? ???? ???? ??????? ???? ???? ????? ???? ??????? ????? ???? ????????? ????? ??? ??% (??? ?????) ??????? ??? ????, ??? ????, ?????? ?? ???? ??? ??????? ??? ?????? ?????? ????? ????? ?????????? ???????? ???? ??% (??? ?????) ??????? ??? ????, ??? ???? ?? ?”??? ??????? ?????? ?? ?????? ???????? ???? ?????? ???? ?????, ?????????? ???????? ???? ??% (???? ?????) ??????? ??? ????, ??-???? (?) ?? ????? ????????, ???, ?? ?????????, ?????? ?????? ?????
(?) ??-???? (?) ?? ????? ???????? ?????? ????? ????, ??????, ???? ?????? ???? ?? ???? ??? ???????? ??????? ?? ???????? ?????? ?? ?????? ????? ???????? ????? ??? ???? ?? ?????? ?????? ?????, ???? ?????, ????-???????? ????????? ?????? ??? ?? ??????? ??? ???? ?? ???????????? ???????? ???????? ???? ?? ????? ???? ?????? ????? ???????
(?) ?? ????? ?????????? ??-????????? ??????? ????? ????? ?? ???, ???? ?? ? ?? ?? ????? ??????? ??????-????? ?????? ????????? ?????? ???? ??, ?????????, ?????? ??? ????? ?”??? ?????? ???? ?? ?????? ????? ?????? ????? ???? ???????? ??? ??? ??????-????? ?????? ????????? ?????? ???? ??, ?????????, ?????? ??? ?? ????? ????? ??????? ???? ?? ???????? ????????? ?? ?????????? ?????? ????? ???????? ?????? ??? ????? ????? ???? ??? ???? ??? ????? ???????? ????? ?? ???? ????? ?????? ????? ??, ???? ???? ??-???? (?) ? ???????? ????? ???? ??% ??????? ??? ???? ??? ??, ?????????, ?????? ?????? ?????”
13. Thus, it appears that under Section 50(4) of the Ain, if any writ petition is filed without payment of requisite amount of money or security, as the case may be, challenging the order or decree directly or indirectly by the defendant judgment-debtors, in such case, if the Rule issued in the writ petition or appeal against such order is discharged/dismissed, interest @ 25% has to be calculated during the period for which such matter was pending before the High Court Division or the Appellate Division.
14. The writ petition has not been filed by the defendant-judgment-debtor, as the Suit is still pending. Thus, the provision of Section 50(4) of the Ain was not applicable. So, the impugned order passed by the learned Judge of the Adalat allowing amendment of the plaint of imposing 25% interest during the period on which Writ Petition No. 1658 of 2010 was pending before the High Court Division cannot be said to be lawful.
15. In view of the discussions made hereinbefore, vis-a-vis the law, it appears that the impugned order suffers from legal infirmity.
16. Thus, we find merit and force in the submissions of Mr Lokman Karim, the learned Advocate for the petitioner and we find no merit in the submissions of Mr Mohammad Ashrafuddin Bhuiyan, the learned Advocate for the Bank.
17. In view of the above, we find merit in the Rule.
18. Accordingly, the Rule is made absolute
19. Impugned order No. 49 dated 27-4-2011 passed by respondent No.4, the learned Judge, Artha Rin Adalat No. I, Chittagong in Artha Rin Suit No. 47 of 2008 (Annexure-F to the writ petition) is, hereby, declared to have been passed without lawful authority and be of no legal effect.
20. Respondent No.4, the learned Judge, Artha Rin Adalat No. 1, Chittagong is directed to proceed further with Artha Rin Suit No.47 of 2008 in accordance with law and dispose of the suit expeditiously preferably within three months from the date of receiving copy of the judgment.
21. No costs.
Communicate the judgment to respondents Nos. 2, 3 and 4 at once.
(Special Original Jurisdiction)
Zinat Ara J
AKM Zahirul Hoque J
Topman Fashion Wears
Limited……….Petitioner
vs
Dutch Bangla Bank Limited and others……………Respondents
Judgment
February 15th, 2017
Artha Rin Adalat Ain (VIII of 2003)
Section 50(4)
Under Section 50(4) of the Ain, if any writ petition is filed without payment of requisite amount of money or security, as the case may be, challenging the order or decree diretly or indirectly by the judgment-debtors, in such case, if the Rule issued in the writ petition or appeal against such order is discharged/dismissed, interest @ 25% has to be calculated during the period for which such matter was pending before the High Court Division or the Appellate Division…………….(13)
Artha Rin Adalat Ain (VIII of 2003)
Section 50(4)
The suit is still pending. The provision of Section 50(4) of the Ain was not applicable. The Adalat allowing amendment of the plaint of imposing 25% interest during the period on which writ petition was pending before the High Court Division cannot be said to be lawful. …………(14)
Lokman Karim, Advocate-For the Petitioner.
Md Ashrafuddin Bhuiyan-For the Respondent No. 2.
Judgment
Zinat Ara J : In this Rule Nisi, the petitioner has called in question the legality of order No. 49 dated 27-4-2011 passed by respondent No. 4, the learned Judge, Artha Rin Adalat No. 1, Chittagong in Artha Rin Suit No. 47 of 2008 (Annexure-F to the writ petition), allowing the application for amendment of the plaint of the suit.
Admitted Facts
2. Respondents No. 1 and 2, Dutch Bangla Bank Limited, Head Office, Dhaka and its Agrabad Branch, Chittagong (hereiafter stated as the Bank), as paintiff, on 27-7-2008, filed Artha Rin Suit No. 47 of 2008 before the Artha Rin Adalat, Chittagong (shortly sated as the Adalat) for recovery of loan amounting to Taka 2,03,50,860.37 along with interest till realization thereof impleading petitioner-M/s Topman Fashion Wears Limited and proforma-respondent No. 5 to 7 as defendats of the suit. The defendant-petitioner has been contesting the suit by filing written statement dated 20-11-2008 denying the allegations made in the plaint of the suit. Defendant respondent No. 8 and other respodents have also been contesting the suit by filing separate Writing statements. Defendant No. 6 (respondent No. 8) filed an application in the suit for striking out his name from the plaint alleging that he is neither a mortgagor nor a guarantor for the loan, but a director of the petitioner. The learned Judge of the Adalat, upon hearing, rejected the application by order No. 33 dated 30-1-2010. Whereupon, the said defendant filed Writ Petition No. 1658 of 2010 before the High Court Division and the Rule issued in the said writ petition was discharged by the judgment and order dated 9-2-2011. Thereafter, the Bank, on 22-3-2011, filed an application before the Adalat under Order VI, rule 17 of the Code of Civil Procedure, 1908 (shortly stated as the CPC) read with Section 50(4) of the Artha Rin Adalat Ain, 2003 (hereinafter stated as the Ain) for amendment of the plaint claiming 25% interest from the date of filing of the aforesaid writ petition till discharge of the Rule issued in the writ petition. Defendant-petitioner, on 27-4-2011 filed written objection against the said application for amendment of the plaint. Upon hearing, the learned Judge of the Adalat allowed the application for amendment of the plaint by the impugned order dated 27-4-2011.
Petitioner’s Case
3. Sub-section (4) of Section 50 of the Ain is applicable only when a person has challenged the judgment and decree without depositing 50% of the decretal dues. But, in the instant case, the suit is still continuing and therefore, question of imposing 25% interest for the period during which the writ petition was pending before the High Court Division does not arise. The learned Judge of the Adalat without considering the aforesaid legal aspect of the case, allowed the application of the Bank unlawfully and therefore, the impugned order is liable to be declared to be without lawful authority.
Respondents No.1 & 2’s Case
4. Respondents Nos. 1 and 2 the Bank contested the Rule by filing an affidavit-in-opposition controverting some of the statements made in the writ petition contending, inter-alia,
that Section 50 of the Ain is applicable if a writ petition is filed in relation to order passed by the Adalat also and therefore, the Bank legally filed an application under Section 50(4) of the Ain for amendment of the plaint claiming 25% of interest in the suit during the period of pendency of Writ Petition No. 1658 of 2010 and the learned Judge of the Adalat lawfully allowed the said application; that the writ petition is misconceived and the Rule is, thus liable to be discharged.
Arguments of the Contending Parties
5. Mr Lokman Karim, the learned Advocate for the petitioner, takes us through the writ petition, the connected materials on record, the impugned order, the relevant provision of Section 50(4) of the Ain and submits that the provision of Section 50(4) of the Ain is applicable, if any application is filed against the order/judgment and decree passed by the Adalat after the decree, but, in the instant case, the suit is continuing and therefore, there was no scope to apply the provision of Section 50(4) of the Ain and to impose 25% interest during the period from 4-4-2010 to 9-2-2010, when Writ Petition No. 1658 of 2010 was pending. He finally submits that in the facts and circumstances, the impugned order allowing amendment of the plaint and passing order for inclusion of 25% interest in the plaint for the aforesaid period is unlawful and the Rule is, thus, liable to be made absolute.
6. In reply, Mr Md Ashrafuddin Bhuiyan, the learned Advocate for respondents No. I and 2, takes us through the affidavit-in-opposition, the connected materials on record, the relevant provision of Section 50(4) of the Ain and contends that the impugned order has been passed legally inasmuch as the order may also be challenged in the appellate forum.
7. However, he admits that the writ petition was filed against the order passed on an application under Order I, rule 10(2) of the CPC and the order rejecting the said application is not an appealable order.
Point for Determination
8. In view of the arguments as advanced by the learned Advocates for the contending parties, the sole question to be decided in the writ petition is the legality of impugned order No. 49 dated 27-4-2011.
Examination of Records
9. We have examined the writ petition, the affidavit-in-opposition, the connected materials on record, the impugned order and the relevant provision of Section 50 of the Artha Rin Adalat Ain, 2003.
Deliberation of the Court
10. In order to decide the legality of the impugned order, it is necessary to examine the relevant portion of the impugned order. For better understanding, the relevant portion of the impugned order is quoted below : –
“………….??? ?????? ????? ??????? ??????? ???????? ????? ???????? ??????? ? ?? ???????? ????? ?????? ???????? ?????? ????? ??? ???? ?? ??(?) ???? ??????? ????? ???????? ????????? ????? ??????? ???????? ?????? ??? ???? ????? ????? ? ????? ?????? ??? ???? ??? ????? ??-?-?????? ????? ????? ???????? ?????????? ????????? ???????? ?????”
11. Thus, from the above impugned order, it appears that the learned Judge of the Adalat allowed the application filed by the Bank under Section 50(4) of the Ain in the Artha Rin Suit itself. Admittedly, the Artha Rin Suit is still continuing and it has not been disposed of by pronouncement of judgment and decree.
12. Now, let us study the rlevant provision of Section 50 of the Ain, as it was on the date of passing the impugned order, which reads as under :
??? (?) ???? ?? ?? ????? ????????, ?? ????? ???? ??? ?????, ?? ???????? ???? ???? ????? ??????? ???? ??????? ??????? ??? ???? ??? ?????? ?????????? ?????? ??????????? ???????? ??? ??, ?????????, ?????? ?? ????- ?????, ??? ?? ???????? ????? ?????? ???
(?) ???? ?? ????? ?????? ??????? ??????? ???????? ??????-????? ???? ??? ????, ??????, ???? ?????? ???? ?? ???? ?????? ??????? ??? ?”??? ?????? ????? ?? ?????, ????? ??????? ???? ???? ??????? ???? ???? ????? ???? ??????? ????? ???? ????????? ????? ??? ??% (??? ?????) ??????? ??? ????, ??? ????, ?????? ?? ???? ??? ??????? ??? ?????? ?????? ????? ????? ?????????? ???????? ???? ??% (??? ?????) ??????? ??? ????, ??? ???? ?? ?”??? ??????? ?????? ?? ?????? ???????? ???? ?????? ???? ?????, ?????????? ???????? ???? ??% (???? ?????) ??????? ??? ????, ??-???? (?) ?? ????? ????????, ???, ?? ?????????, ?????? ?????? ?????
(?) ??-???? (?) ?? ????? ???????? ?????? ????? ????, ??????, ???? ?????? ???? ?? ???? ??? ???????? ??????? ?? ???????? ?????? ?? ?????? ????? ???????? ????? ??? ???? ?? ?????? ?????? ?????, ???? ?????, ????-???????? ????????? ?????? ??? ?? ??????? ??? ???? ?? ???????????? ???????? ???????? ???? ?? ????? ???? ?????? ????? ???????
(?) ?? ????? ?????????? ??-????????? ??????? ????? ????? ?? ???, ???? ?? ? ?? ?? ????? ??????? ??????-????? ?????? ????????? ?????? ???? ??, ?????????, ?????? ??? ????? ?”??? ?????? ???? ?? ?????? ????? ?????? ????? ???? ???????? ??? ??? ??????-????? ?????? ????????? ?????? ???? ??, ?????????, ?????? ??? ?? ????? ????? ??????? ???? ?? ???????? ????????? ?? ?????????? ?????? ????? ???????? ?????? ??? ????? ????? ???? ??? ???? ??? ????? ???????? ????? ?? ???? ????? ?????? ????? ??, ???? ???? ??-???? (?) ? ???????? ????? ???? ??% ??????? ??? ???? ??? ??, ?????????, ?????? ?????? ?????”
13. Thus, it appears that under Section 50(4) of the Ain, if any writ petition is filed without payment of requisite amount of money or security, as the case may be, challenging the order or decree directly or indirectly by the defendant judgment-debtors, in such case, if the Rule issued in the writ petition or appeal against such order is discharged/dismissed, interest @ 25% has to be calculated during the period for which such matter was pending before the High Court Division or the Appellate Division.
14. The writ petition has not been filed by the defendant-judgment-debtor, as the Suit is still pending. Thus, the provision of Section 50(4) of the Ain was not applicable. So, the impugned order passed by the learned Judge of the Adalat allowing amendment of the plaint of imposing 25% interest during the period on which Writ Petition No. 1658 of 2010 was pending before the High Court Division cannot be said to be lawful.
15. In view of the discussions made hereinbefore, vis-a-vis the law, it appears that the impugned order suffers from legal infirmity.
16. Thus, we find merit and force in the submissions of Mr Lokman Karim, the learned Advocate for the petitioner and we find no merit in the submissions of Mr Mohammad Ashrafuddin Bhuiyan, the learned Advocate for the Bank.
17. In view of the above, we find merit in the Rule.
18. Accordingly, the Rule is made absolute
19. Impugned order No. 49 dated 27-4-2011 passed by respondent No.4, the learned Judge, Artha Rin Adalat No. I, Chittagong in Artha Rin Suit No. 47 of 2008 (Annexure-F to the writ petition) is, hereby, declared to have been passed without lawful authority and be of no legal effect.
20. Respondent No.4, the learned Judge, Artha Rin Adalat No. 1, Chittagong is directed to proceed further with Artha Rin Suit No.47 of 2008 in accordance with law and dispose of the suit expeditiously preferably within three months from the date of receiving copy of the judgment.
21. No costs.
Communicate the judgment to respondents Nos. 2, 3 and 4 at once.
