Hight Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Kashefa Hussain J
Abdul Monayem Lili. …..
……………………Petitioner
vs
Judge, Artha Rin Adalat & others……….Respondents*
Judgment
May 25th, 2015
Artha Rin Adalat Ain (VIII of 2003)
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 (wePvi‡Ki Kvh©w`em) 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. . ….. (11)
Artha Rin Adalat Ain (VIII of 2003)
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. Nay of making deposit as required under section 41 of the Ain.
Section 48 of the Ain, mandates only to take into account the time for disposal of the case which relates only those days spent during the proceeding of the court itself. No plausible deduction other than this can be given on this count. …….(12&14)
Peninsular Shipping Service Ltd vs Faruque Paint and Varnish Manufacturing Company Limited 59 DLR (AD) 26 ref.
Md. Liton Ahmed, Advocate-For the Petitioner.
Shahjada Al-Amin Kabir, Advocate-For Respondent No.2.
SM Moniruzzaman. DAG with SM Quamrul Hasan and Mosammat Khairun Nesa. AAGs. Assistant Attorney Generals-For Respondents.
Judgment
Md Ashfaqul Islam J: At the instance of the petitioner, Finix Sweater Bangladesh Ltd. this Rule was issued in the following terms:-
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the auction notice dated 26-7-2012 passed by the Artha Rin Adalat No.4, Dhaka in Execution Case No. 36 of 2012 (Annexure-B) should not be declared to have been published without lawful authority and is of no legal effect.”
2. The background leading to the Rule, in short is that the petitioner and four others created a limited company for exporting and importing their readymade garments namely Finix Sweater and started their business, thereafter, to run the business they took loan and opened back to back L/C with respondent No.2, the Social Islami Bank Ltd., Principal Branch, Motijheel, Dhaka for exporting the goods amounting to Taka 3,29,00,000 (Three Crore Twenty Nine Lacs) but failed to export the same. The respondent No.2 then filed Artha Rin Suit No. 87 of 2011 against the petitioner for recovery of outstanding dues which stood at Taka 4,60,03,651.38 upto 29-2-2011. The suit was decreed ex-parte on 31-1-2012 engendering execution case No. 36 of 2012 in which pursuant to auction sale of the Mortgage Property under section 33(1) of the Artha Rin Adalat Ain, 2003 (hereinafter referred to as Ain) and auction fixed on 12-8-2012 even after fixing the said date for auction, the respondent no.2 violating his own order published the impugned auction notice on 26-7-2012 in “Daily Kaler Kantha” for sale of the petitioner’s mortgage property and at this stage the petitioner moved this Division and obtained the present rule and the order of stay.
3. No one appears for the petitioner though this matter appears in the list for quite a long time.
4. On perusal of the petition it appears that the crux of the petitioner’s case is mainly upon interpretation of section 33(1) of the Ain, which enjoins 15 days time to be given before sale of the property in auction after publishing the auction notice but by the auction notice published on 26-7-2012 and fixed on 12-8-2012 i.e. only 11 working days that was allowed in that respect. This, as it has been stated in paragraph No.7 of the petition, was done in clear violation of section 33(1) read with section 48 of the Ain, 2003.
5. By filing an affidavit-in-opposition Mr Shahjada Al-Amin Kabir the learned counsel appearing for the respondent No.2 bank opposes the rule.
6. Mr Shahjada Al-Amin Kabir the learned counsel mainly contends that the provision of section 48 of the Ain is limited only to count the time for disposal of the cases specifically stated in Chapter VIII of the Ain, having no connection whatsoever with the period prescribed for publishing the auction notice under section 33(1) of the Ain. In support of his contention the learned counsel placed reliance in the decision of Peninsular Shipping Service Ltd vs Faruque Paint and Varnish Manufacturing Company Limited, 59 DLR (AD) 26.
(To be continued)
7. We have heard the learned counsel appearing on behalf of the respondent No.2 bank and considered his submission and also perused the petition, impugned auction notice and other materials on record carefully. To appreciate the submission pressed in to service by the counsel for the respondent it would be profitable to quote sections 33(1) and 48 of the Ain, 2003.
8. Section 33(1) runs as follows:- wbjvg weµq 33(1) A_© FY Av`vjZ wWµx ev Av‡`k Rvixi mgq †Kvb m¤úwË weµ‡qi †ÿ‡Î ev`xi Li‡P weÁwß cÖPv‡ii ZvwiL nB‡Z Ab~¨b 15 (c‡bi) w`e‡mi mgq w`qv mxj‡gvniK…Z †UÛvi AvnŸvb Kwi‡e, D³ weÁwß Kgc‡ÿ eûj cÖPvwiZ GKwU evsjv RvZxq ˆ`wbK cwÎKvq, Z`ycwi b¨vq wePv‡ii ¯^v‡_© cÖ‡qvRb g‡b Kwi‡j ¯’vbxq GKwU cwÎKvq, hw` _v‡K, cÖKvk Kwi‡e; Ges Av`vj‡Zi †bvwUk †ev‡W© jUKvBqv I ¯’vbxqfv‡e †Xvj mniZ †hv‡MI D³ weÁwß cÖPvi Kwi‡e|
9. Further in section 48 of the Ain, 2003 definition of w`e‡mi MYbv has been given in the following manner:-
48| GB AvB‡bi Aaxb w`em MYbvi †ÿ‡Î †KejgvÎ wePvi‡Ki Kvh©w`em MYbv Kiv nB‡e Ges mvgwqKfv‡e `vwqZ¡cÖvß wePvi‡Ki Kvh© w`emI Abyiƒc MYbvi AšÍf~³© nB‡e|Ó
10. As we have already mentioned that the petitioner has made out his case in paragraph-7 of the petition. His case is that though under section 33(1) of the Ain, clear 15 days time for floating auction notice should be given but in the instant case only 11 working days were allowed for the same violating section 33(1) read with section 48 of the Ain.
11. Section 33(1) has allowed 15 days time for inviting tender for auction. And under section 48 of the Ain, the law 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 (wePvi‡Ki Kvh©w`em) 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 said law as it stands.
12. In the decision of 59 DLR AD 26 as referred to above our Appellate Division held that the 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 pre-scribed for filing an appeal. Nay of making deposit as required under section 41 of the Ain.
13. Here we like to quote from a pertinent part of the decision which is as under;
“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 telling upon the legal jurisprudence of the country and such a view is therefore unwarranted.”
14. The said decision equally applies with the same force in the instant case. Section 48 of the Ain, mandates only to take into account the time for disposal of the case which relates only those days spent during the proceeding of the court itself. No plausible deduction other than this can be given on this count.
15. On that score this Rule should fail being devoid of any substance.
16. In the result, the Rule is discharged without any order as to cost. The order of stay granted earlier by this court is hereby recalled and vacated.
Communicate this order at once.
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Kashefa Hussain J
Abdul Monayem Lili. …..
……………………Petitioner
vs
Judge, Artha Rin Adalat & others……….Respondents*
Judgment
May 25th, 2015
Artha Rin Adalat Ain (VIII of 2003)
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 (wePvi‡Ki Kvh©w`em) 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. . ….. (11)
Artha Rin Adalat Ain (VIII of 2003)
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. Nay of making deposit as required under section 41 of the Ain.
Section 48 of the Ain, mandates only to take into account the time for disposal of the case which relates only those days spent during the proceeding of the court itself. No plausible deduction other than this can be given on this count. …….(12&14)
Peninsular Shipping Service Ltd vs Faruque Paint and Varnish Manufacturing Company Limited 59 DLR (AD) 26 ref.
Md. Liton Ahmed, Advocate-For the Petitioner.
Shahjada Al-Amin Kabir, Advocate-For Respondent No.2.
SM Moniruzzaman. DAG with SM Quamrul Hasan and Mosammat Khairun Nesa. AAGs. Assistant Attorney Generals-For Respondents.
Judgment
Md Ashfaqul Islam J: At the instance of the petitioner, Finix Sweater Bangladesh Ltd. this Rule was issued in the following terms:-
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the auction notice dated 26-7-2012 passed by the Artha Rin Adalat No.4, Dhaka in Execution Case No. 36 of 2012 (Annexure-B) should not be declared to have been published without lawful authority and is of no legal effect.”
2. The background leading to the Rule, in short is that the petitioner and four others created a limited company for exporting and importing their readymade garments namely Finix Sweater and started their business, thereafter, to run the business they took loan and opened back to back L/C with respondent No.2, the Social Islami Bank Ltd., Principal Branch, Motijheel, Dhaka for exporting the goods amounting to Taka 3,29,00,000 (Three Crore Twenty Nine Lacs) but failed to export the same. The respondent No.2 then filed Artha Rin Suit No. 87 of 2011 against the petitioner for recovery of outstanding dues which stood at Taka 4,60,03,651.38 upto 29-2-2011. The suit was decreed ex-parte on 31-1-2012 engendering execution case No. 36 of 2012 in which pursuant to auction sale of the Mortgage Property under section 33(1) of the Artha Rin Adalat Ain, 2003 (hereinafter referred to as Ain) and auction fixed on 12-8-2012 even after fixing the said date for auction, the respondent no.2 violating his own order published the impugned auction notice on 26-7-2012 in “Daily Kaler Kantha” for sale of the petitioner’s mortgage property and at this stage the petitioner moved this Division and obtained the present rule and the order of stay.
3. No one appears for the petitioner though this matter appears in the list for quite a long time.
4. On perusal of the petition it appears that the crux of the petitioner’s case is mainly upon interpretation of section 33(1) of the Ain, which enjoins 15 days time to be given before sale of the property in auction after publishing the auction notice but by the auction notice published on 26-7-2012 and fixed on 12-8-2012 i.e. only 11 working days that was allowed in that respect. This, as it has been stated in paragraph No.7 of the petition, was done in clear violation of section 33(1) read with section 48 of the Ain, 2003.
5. By filing an affidavit-in-opposition Mr Shahjada Al-Amin Kabir the learned counsel appearing for the respondent No.2 bank opposes the rule.
6. Mr Shahjada Al-Amin Kabir the learned counsel mainly contends that the provision of section 48 of the Ain is limited only to count the time for disposal of the cases specifically stated in Chapter VIII of the Ain, having no connection whatsoever with the period prescribed for publishing the auction notice under section 33(1) of the Ain. In support of his contention the learned counsel placed reliance in the decision of Peninsular Shipping Service Ltd vs Faruque Paint and Varnish Manufacturing Company Limited, 59 DLR (AD) 26.
(To be continued)
7. We have heard the learned counsel appearing on behalf of the respondent No.2 bank and considered his submission and also perused the petition, impugned auction notice and other materials on record carefully. To appreciate the submission pressed in to service by the counsel for the respondent it would be profitable to quote sections 33(1) and 48 of the Ain, 2003.
8. Section 33(1) runs as follows:- wbjvg weµq 33(1) A_© FY Av`vjZ wWµx ev Av‡`k Rvixi mgq †Kvb m¤úwË weµ‡qi †ÿ‡Î ev`xi Li‡P weÁwß cÖPv‡ii ZvwiL nB‡Z Ab~¨b 15 (c‡bi) w`e‡mi mgq w`qv mxj‡gvniK…Z †UÛvi AvnŸvb Kwi‡e, D³ weÁwß Kgc‡ÿ eûj cÖPvwiZ GKwU evsjv RvZxq ˆ`wbK cwÎKvq, Z`ycwi b¨vq wePv‡ii ¯^v‡_© cÖ‡qvRb g‡b Kwi‡j ¯’vbxq GKwU cwÎKvq, hw` _v‡K, cÖKvk Kwi‡e; Ges Av`vj‡Zi †bvwUk †ev‡W© jUKvBqv I ¯’vbxqfv‡e †Xvj mniZ †hv‡MI D³ weÁwß cÖPvi Kwi‡e|
9. Further in section 48 of the Ain, 2003 definition of w`e‡mi MYbv has been given in the following manner:-
48| GB AvB‡bi Aaxb w`em MYbvi †ÿ‡Î †KejgvÎ wePvi‡Ki Kvh©w`em MYbv Kiv nB‡e Ges mvgwqKfv‡e `vwqZ¡cÖvß wePvi‡Ki Kvh© w`emI Abyiƒc MYbvi AšÍf~³© nB‡e|Ó
10. As we have already mentioned that the petitioner has made out his case in paragraph-7 of the petition. His case is that though under section 33(1) of the Ain, clear 15 days time for floating auction notice should be given but in the instant case only 11 working days were allowed for the same violating section 33(1) read with section 48 of the Ain.
11. Section 33(1) has allowed 15 days time for inviting tender for auction. And under section 48 of the Ain, the law 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 (wePvi‡Ki Kvh©w`em) 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 said law as it stands.
12. In the decision of 59 DLR AD 26 as referred to above our Appellate Division held that the 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 pre-scribed for filing an appeal. Nay of making deposit as required under section 41 of the Ain.
13. Here we like to quote from a pertinent part of the decision which is as under;
“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 telling upon the legal jurisprudence of the country and such a view is therefore unwarranted.”
14. The said decision equally applies with the same force in the instant case. Section 48 of the Ain, mandates only to take into account the time for disposal of the case which relates only those days spent during the proceeding of the court itself. No plausible deduction other than this can be given on this count.
15. On that score this Rule should fail being devoid of any substance.
16. In the result, the Rule is discharged without any order as to cost. The order of stay granted earlier by this court is hereby recalled and vacated.
Communicate this order at once.
