(From previous issue) :
Sub-section 9 of section 34 provides that before issuance of warrant of arrest and order of detention at least auction is to be held once and it is the sine qua non to the issuance of order of detention but in the present case no property was mortgaged by the borrower as security against loan to be sold in auction. However, the loan was secured by an Insurance Policy. As per terms of the Policy the Insurance Company i.e. SBC as guarantor is legally obliged to pay the outstanding dues of the Bank in the event of failure of the borrower judgment-debtors. It appears that the Respondent No. 2 took certain initiatives for recovery of the loan from SBC under Insurance Policy but the Respondent-Bank could not show any paper showing that SBC refused to pay the claim under the Policy rather it appears from the letter dated 20-6-2013 written by SBC to the Bank asking them to provide with some information regarding steps taken by the Bank for recovery of the loan against the Petitioners. It means that the process is not yet complete. In other words, if we consider that the beneficiary of the Insurance Policy is the Judgment-Debtors in that case section 36 of the Ain also provides provision for recovery of decretal amount from the persons from whom the money is due and owing to the judgment-debtor. For proper appreciation of the matter Section 36 of the Ain may be looked into which runs thus:-
36| (?) ??? ????????? ??????? ??????? ?????? ????? ??? ??, ??? ???? ???????? ???? ???? ????? ???? ????? ???, ???? ???? ?????, ???? ????????? ?????? ????? ?????? ??? ?????, ????? ???? ???? ????? ?? ???? ??????? ??, ??? ???? ????????? ????? ???????? ???? ?????? ???????? ???? ????????? ???? ?????? ????? ??? ?????, ???? ???? ???? ????? ?? ? ???? ???? ???? ?????? ????? ; ??? ???? ???? ?????? ? ??????? ??????? ???? ? ?????? ?????? ???? ???? ???? ????? ????? ??????
(?) ??????? ???? ??? ???? ???????? ????? ???? ????????, ??-???? (?) ?? ?????? ???????? ??? ??????-????? ??? ????? ????, ??????, ???????? ?????????? ?? ???????? ?? ???? ???? ??? ???? ????? ????, ????? ???? ????? ????, ??????, ?????? ?????????? ?? ???????? ?? ???? ?????? ???????? ???? ???? ?????? ????? ?š”??? ????, ???? ???? ????? ????? ???? ????? ?????? ; ??? ????????? ??? ??? ??, ??????? ????, ????? ????, ???? ??? ?????? ????, ???????, ??????????? ?? ?????? ???? ??? ????????????? ????? ?????? ??? ??? ?????? ???? ???
(?) ??-???? (?) ? (?) ?? ????? ????? ?????? ??????? ???? ?????? ????? ?????????? ??????? ?? ???????????? ???? ???????? ???? ???? ???????? ???? ??????? ?????? ????????? ????, ??? ??? ????? ????? ??????? ????????????? ????? ??? ??????????? ????????? ???? ???? ??????? ?????? ???? ??????
8. In the present case admittedly loan of the Bank was secured by a Policy with SBC a statutory body corporate. Under the said Policy SBC undertook payment of the outstanding dues to the Bank. In the event of failure of the loanee the Bank as Decree-Holder is legally empowered to compel SBC to make payment of the money under the policy by filing an application before the Artha Rin Adalat and after receiving the money under policy and adjustment of the same with the decretal amount, if there be any short fall, the Decree-Holder Bank can proceed with the other properties of the judgment-debtors and finally by filing an application for arrest and order of detention. But in the instant case the Bank without taking recourse to such provisions of law directly filed an application praying for issuance of warrant of arrest and order of detention against the Petitioners which is palpably illegal and contrary to the provisions of law. Apart from this the application filed by the Bank (annexure-IV) is not supported by any affidavit. Moreover, no sufficient averment has been made in the application why the warrant of arrest and order of detention is necessary against the petitioners. The Impugned 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 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. This Court finds that the application filed by the Decree-Holder 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. This Court also finds, that the application for issuing warrant of arrest was filed simply saying that no property of the judgment-debtors was mortgaged as security with the Bank and in the absence of security to compel the judgment-debtors warrant of arrest was issued.
9. That being the position, the Impugned Order in this Court’s view has been passed without lawful authority and is of no legal effect.
10. In the light of the observations made herein above this Court finds merit in the Rule issued.
11. In the result, the Rule is made absolute, without any order as to costs.
12. The Impugned Order No. 4 dated 4-3-2008 passed by the Artha Rin Adalat, 2ndCourt, Dhaka, in Artha Execution Case No. 27 of 2012 issuing warrant of arrest and order of detention against the Petitioners as reproduced in paragraph No.9 of the writ petition detaining the petitioners in civil jail for six months is hereby declared to have been passed without lawful authority and is of no legal effect. However, the respondent-bank may further file a properly framed application under Section 34(1) of the Ain, upon compliance of the provisions of law as discussed above.
13. The order of stay granted earlier at the time of issuance of the Rule is hereby recalled and vacated. Communicate a copy of this judgment at once to the Court concerned.
(Concluded)
Sub-section 9 of section 34 provides that before issuance of warrant of arrest and order of detention at least auction is to be held once and it is the sine qua non to the issuance of order of detention but in the present case no property was mortgaged by the borrower as security against loan to be sold in auction. However, the loan was secured by an Insurance Policy. As per terms of the Policy the Insurance Company i.e. SBC as guarantor is legally obliged to pay the outstanding dues of the Bank in the event of failure of the borrower judgment-debtors. It appears that the Respondent No. 2 took certain initiatives for recovery of the loan from SBC under Insurance Policy but the Respondent-Bank could not show any paper showing that SBC refused to pay the claim under the Policy rather it appears from the letter dated 20-6-2013 written by SBC to the Bank asking them to provide with some information regarding steps taken by the Bank for recovery of the loan against the Petitioners. It means that the process is not yet complete. In other words, if we consider that the beneficiary of the Insurance Policy is the Judgment-Debtors in that case section 36 of the Ain also provides provision for recovery of decretal amount from the persons from whom the money is due and owing to the judgment-debtor. For proper appreciation of the matter Section 36 of the Ain may be looked into which runs thus:-
36| (?) ??? ????????? ??????? ??????? ?????? ????? ??? ??, ??? ???? ???????? ???? ???? ????? ???? ????? ???, ???? ???? ?????, ???? ????????? ?????? ????? ?????? ??? ?????, ????? ???? ???? ????? ?? ???? ??????? ??, ??? ???? ????????? ????? ???????? ???? ?????? ???????? ???? ????????? ???? ?????? ????? ??? ?????, ???? ???? ???? ????? ?? ? ???? ???? ???? ?????? ????? ; ??? ???? ???? ?????? ? ??????? ??????? ???? ? ?????? ?????? ???? ???? ???? ????? ????? ??????
(?) ??????? ???? ??? ???? ???????? ????? ???? ????????, ??-???? (?) ?? ?????? ???????? ??? ??????-????? ??? ????? ????, ??????, ???????? ?????????? ?? ???????? ?? ???? ???? ??? ???? ????? ????, ????? ???? ????? ????, ??????, ?????? ?????????? ?? ???????? ?? ???? ?????? ???????? ???? ???? ?????? ????? ?š”??? ????, ???? ???? ????? ????? ???? ????? ?????? ; ??? ????????? ??? ??? ??, ??????? ????, ????? ????, ???? ??? ?????? ????, ???????, ??????????? ?? ?????? ???? ??? ????????????? ????? ?????? ??? ??? ?????? ???? ???
(?) ??-???? (?) ? (?) ?? ????? ????? ?????? ??????? ???? ?????? ????? ?????????? ??????? ?? ???????????? ???? ???????? ???? ???? ???????? ???? ??????? ?????? ????????? ????, ??? ??? ????? ????? ??????? ????????????? ????? ??? ??????????? ????????? ???? ???? ??????? ?????? ???? ??????
8. In the present case admittedly loan of the Bank was secured by a Policy with SBC a statutory body corporate. Under the said Policy SBC undertook payment of the outstanding dues to the Bank. In the event of failure of the loanee the Bank as Decree-Holder is legally empowered to compel SBC to make payment of the money under the policy by filing an application before the Artha Rin Adalat and after receiving the money under policy and adjustment of the same with the decretal amount, if there be any short fall, the Decree-Holder Bank can proceed with the other properties of the judgment-debtors and finally by filing an application for arrest and order of detention. But in the instant case the Bank without taking recourse to such provisions of law directly filed an application praying for issuance of warrant of arrest and order of detention against the Petitioners which is palpably illegal and contrary to the provisions of law. Apart from this the application filed by the Bank (annexure-IV) is not supported by any affidavit. Moreover, no sufficient averment has been made in the application why the warrant of arrest and order of detention is necessary against the petitioners. The Impugned 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 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. This Court finds that the application filed by the Decree-Holder 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. This Court also finds, that the application for issuing warrant of arrest was filed simply saying that no property of the judgment-debtors was mortgaged as security with the Bank and in the absence of security to compel the judgment-debtors warrant of arrest was issued.
9. That being the position, the Impugned Order in this Court’s view has been passed without lawful authority and is of no legal effect.
10. In the light of the observations made herein above this Court finds merit in the Rule issued.
11. In the result, the Rule is made absolute, without any order as to costs.
12. The Impugned Order No. 4 dated 4-3-2008 passed by the Artha Rin Adalat, 2ndCourt, Dhaka, in Artha Execution Case No. 27 of 2012 issuing warrant of arrest and order of detention against the Petitioners as reproduced in paragraph No.9 of the writ petition detaining the petitioners in civil jail for six months is hereby declared to have been passed without lawful authority and is of no legal effect. However, the respondent-bank may further file a properly framed application under Section 34(1) of the Ain, upon compliance of the provisions of law as discussed above.
13. The order of stay granted earlier at the time of issuance of the Rule is hereby recalled and vacated. Communicate a copy of this judgment at once to the Court concerned.
(Concluded)
