High Court Division :
(Special Original Jurisdiction)
Zubayer Rahman
Chowdhury J
Mahmudul Hoque J
Judgment
April 30th, 2015
Abdul Jali1 (Md) & others
………………….Petitioners
vs
Judge, Artha Rin Adalat,
2nd Court, Dhaka, &
another…………. Respondents
Code of Civil Procedure (V of 1908)
Order XXI, rule 37
Artha Rin Adalat Ain (V111 of 2003) Section 34(1)
Bank without taking recourse to provisions of law directly filed an application praying for issuance of warrant of arrest and order of detention which is palpably illegal and contrary to the provisions of law. The 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 appeal 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. .. …. (8)
Nashir Ullah Master vs Bangladesh, 61 DLR 760 and ABM Shirajum Monir vs Subordinate Judge, 14 BLC 716 ref.
Julhasuddin Ahmed with Faisal Reza-For the Petitioners.
Md Forrukh Rahman-For the Respondents.
Judgment
Mahmudul Hoque J: In this application under Article 102 of the Constitution of Bangladesh a Rule Nisi has been issued at the instance of the Petitioner calling upon the Respondents to show cause as to why the Order No. 4 dated 4-3-2008 passed by the Artha Rin Adalat, 2nd Court, Dhaka in Artha Execution Case No. 27 of 2012 issuing warrant of arrest and order of detention against the petitioner as reproduced in paragraph No.9 of the writ petition should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Facts relevant for disposal of this Rule, in brief, are that the Respondent No.2, First Security Islami Bank Limited as plaintiff instituted Artha Rin Suit No. 29 of 2007 in the 2nd Court of Artha Rin Adalat, Dhaka for recovery of Taka 1,93,54,953.29 against the petitioners as defendants. The said suit was decreed ex parte on 19-82007 against the petitioners. Thereafter the Respondent No. 2 Bank put the said decree into execution by filing Artha Rin Execution Case No. 217 of 2007 on 25-10-2007.
The Respondent No. 2 Bank in the said Execution Case filed an application under section 34(1) of the Artha Rin Adalat Ain, 2003 (“Ain”) on 4-3-2008 for issuing order of warrant of arrest against the present judgment-debtors petitioners. The Artha Rin Adalat heard the said application and upon hearing vide its Order No. 4 dated 4-3-2008 issued warrant of arrest giving them detention for six months in the civil jail. It is in this backdrop, the petitioners filed this application challenging the validity and propriety of the said order and obtained the present Rule and order of stay.
3. The Respondent No. 2 Bank contested the Rule by filing an Affidavit-in-Opposition and supplementary Affidavit-in-Opposition denying all the material allegations made in the application contending, inter alia, that the judgment-debtorpetitioners furnished no security against loan in the form of mortgage and no property in the name of the petitioners was found after making search. In these circumstances the Respondent Bank has no other alternative other than detention of the petitioners in the civil jail to compel them to make payment of the Bank’s dues. It is also stated that the instant Execution Case was filed in the year 2007, but the Petitioners did not come forward to settle the Bank’s claim, cunningly avoiding arrest adopting various foul play.
It is also stated that in the absence of any mortgage property, the order of arrest was rightly passed by the Artha Rin Adalat with a view to compelling the Petitioner for making payment of the decretal amount and, as such, the present writ petition is not maintainable.
4. Mr Julhasuddin Ahmed with Mr Faisal Reza, the learned Advocates appearing for the petitioners submit that before passing the order’ of detention and issuance of warrant of’ arrest, no show cause was issued and served upon the petitioners as provided under Order XXI, rule 37 of the Code of Civil Procedure (“Code”). It is also argued that the order of detention was passed in violation of principles of natural justice and without giving an opportunity of being heard to the petitioners. Mr Ahmed further submits that the order of detention and arrest was passed by the Artha Rin Adalat also in violation of section 34 (9) of the Ain as no auction was held before issuance of such order of detention and warrant of arrest. As such the impugned order is illegal and unlawful. He further submits that the application filed by the Respondent No. 2 Bank praying for issuance of warrant of arrest against the petitioner is not followed by any affidavit and sufficient statement’ necessitating issuance of warrant and order of detention against the Petitioners. It is also argued that the loan in question has been insured with the Sadharan Bima Corporation, (“SBC”). Under the insurance policy, SBC undertook payment of the loan to the Respondent No., 2 Bank in the event of failure of the borrower to repay of the loan amount. In such a situation, the Bank, without exhausting process of recovery from SBC and adjustment of the amount to be received against the policy and finding any shortfall thereof, issued warrant of arrest detaining petitioners for six months in the civil jail.
5. Mr Forrukh Rahman, the learned Advocate appearing for the Respondent No. 2 Bank submits that the petitioners before this Court are fugitive in law and, as such, they cannot file this application seeking any relief against the issuance of warrant of arrest. In support of his submission, he referred to the case of Nashir Ullah Master vs Bangladesh reported in 61 DLR 760, It appears that the said judgment was passed relying on the decisions relating to criminal cases.
He further submits that the loan in question was not secured by any mortgage of the property and no property of the borrower found available to be placed in auction. As such the Bank has/had no other alternative other than detention of the Judgment-debtors in civil jail. ‘He also submits that in the absence of any security and any other property owned by the judgment-debtor the executing Court on the prayer of the Decree Holder-Bank rightly passed the Impugned Order and there is no illegality.
It, is also, argued that the Respondent Bank tried to settle the dispute in various way but the Petitioners were not at all willing to settle the Bank dues. Consequentially, as a last resort the Bank has compelled to file an application praying for warrant of arrest and for detention of the petitioners in civil jail, accordingly, the Court passed the order.
He further submits that the Bank by its several correspondences requested SBC to settle the claim under policy and forwarded all the required documents as desired by them but on this and that plea SBC refrained from making payment of the money. In these circumstances finding no other way the Court at the instance of the Decree-Holder Bank issued and passed the impugned order.
6. Heard the learned Advocates for the parties, perused the Application, Affidavit-in-Opposition, Supplementary Affidavit-in-Opposition along with the annexures annexed thereto.
7. In the instant case the question raised by the petitioner’s lawyer regarding issuance of show cause as provided under Order XXI, rule 37 of the Code is not acceptable, in the present case as the matter already decided by this court in the case of ABM Shirajum Monir, vs Subordinate Judge reported in 14~BLC 716 wherein it has been held that, Artha Rin Adalat Ain, 2003 is a special law. Provisions of Artha Rin Adalat Ain shall prevail over other law.
As such the said provisions under Order XXI, rule 37 of the Code is not identical with the provisions laid down under section 34 of the Ain.
The Artha Rin Adalat is empowered to issue warrant of arrest and order of detention against the judgment-debtor subject to other provisions contained in sub-sections 2 to 13. 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 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 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| (1) ??? ????????? ????? ?? ??????? ?????? ????? ??? ??, ??? ???? ???????? ???? ???? ????? ???? ????? ???, ???? ???? ?????, ???? ????????? ?????? ????? ?????? ??? ?????, ????? ???? ???? ????? ?? ???? ??????? ??, ??? ???? ????????? ????? ???????? ???? ?????? ???????? ???? ????????? ???? ?????? ????? ??? ?????, ???? ???? ???? ????? ?? ? ???? ???? ???? ?????? ?????; ??? ???? ???? ?????? ? ??????? ??????? ???? ? ?????? ?????? ???? ???? ???? ????? ????? ??????
(?) ??????? ???? ??? ???? ???????? ????? ???? ????????, ??-???? (?) ?? ?????? ???????? ??? ??????-????? ??? ????? ????, ??????, ?????? ?????????? ?? ???????? ?? ???? ???? ??? ???? ????? ????, ????? ???? ????? ????, ??????, ?????? ?????????? ?? ???????? ?? ???? ?????? ???????? ???? ???? ?????? ????? ???????? ????, ???? ???? ????? ????? ???? ????? ?????? ; ??? ????????? ??? ??? ??, ??????? ????, ????? ????, ???? ??? ?????? ????, ???????, ??????????? ?? ?????? ???? ??? ????????????? ????? ?????? ??? ??? ?????? ???? ???
(?) ??-???? (?) ? (?) ?? ????? ????? ?????? ??????? ???? ?????? ????? ?????????? ??????? ?? ???????????? ???? ???????? ???? ???? ???????? ???? ??????? ?????? ????????? ????, ??? ??? ????? ????? ??????? ????????????? ????? ??? ??????????? ????????? ???? ???? ??????? ?????? ???? ??????
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 here in 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 4-32008 passed by the Artha Rin Adalat, 2nd Court, 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.
(Special Original Jurisdiction)
Zubayer Rahman
Chowdhury J
Mahmudul Hoque J
Judgment
April 30th, 2015
Abdul Jali1 (Md) & others
………………….Petitioners
vs
Judge, Artha Rin Adalat,
2nd Court, Dhaka, &
another…………. Respondents
Code of Civil Procedure (V of 1908)
Order XXI, rule 37
Artha Rin Adalat Ain (V111 of 2003) Section 34(1)
Bank without taking recourse to provisions of law directly filed an application praying for issuance of warrant of arrest and order of detention which is palpably illegal and contrary to the provisions of law. The 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 appeal 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. .. …. (8)
Nashir Ullah Master vs Bangladesh, 61 DLR 760 and ABM Shirajum Monir vs Subordinate Judge, 14 BLC 716 ref.
Julhasuddin Ahmed with Faisal Reza-For the Petitioners.
Md Forrukh Rahman-For the Respondents.
Judgment
Mahmudul Hoque J: In this application under Article 102 of the Constitution of Bangladesh a Rule Nisi has been issued at the instance of the Petitioner calling upon the Respondents to show cause as to why the Order No. 4 dated 4-3-2008 passed by the Artha Rin Adalat, 2nd Court, Dhaka in Artha Execution Case No. 27 of 2012 issuing warrant of arrest and order of detention against the petitioner as reproduced in paragraph No.9 of the writ petition should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Facts relevant for disposal of this Rule, in brief, are that the Respondent No.2, First Security Islami Bank Limited as plaintiff instituted Artha Rin Suit No. 29 of 2007 in the 2nd Court of Artha Rin Adalat, Dhaka for recovery of Taka 1,93,54,953.29 against the petitioners as defendants. The said suit was decreed ex parte on 19-82007 against the petitioners. Thereafter the Respondent No. 2 Bank put the said decree into execution by filing Artha Rin Execution Case No. 217 of 2007 on 25-10-2007.
The Respondent No. 2 Bank in the said Execution Case filed an application under section 34(1) of the Artha Rin Adalat Ain, 2003 (“Ain”) on 4-3-2008 for issuing order of warrant of arrest against the present judgment-debtors petitioners. The Artha Rin Adalat heard the said application and upon hearing vide its Order No. 4 dated 4-3-2008 issued warrant of arrest giving them detention for six months in the civil jail. It is in this backdrop, the petitioners filed this application challenging the validity and propriety of the said order and obtained the present Rule and order of stay.
3. The Respondent No. 2 Bank contested the Rule by filing an Affidavit-in-Opposition and supplementary Affidavit-in-Opposition denying all the material allegations made in the application contending, inter alia, that the judgment-debtorpetitioners furnished no security against loan in the form of mortgage and no property in the name of the petitioners was found after making search. In these circumstances the Respondent Bank has no other alternative other than detention of the petitioners in the civil jail to compel them to make payment of the Bank’s dues. It is also stated that the instant Execution Case was filed in the year 2007, but the Petitioners did not come forward to settle the Bank’s claim, cunningly avoiding arrest adopting various foul play.
It is also stated that in the absence of any mortgage property, the order of arrest was rightly passed by the Artha Rin Adalat with a view to compelling the Petitioner for making payment of the decretal amount and, as such, the present writ petition is not maintainable.
4. Mr Julhasuddin Ahmed with Mr Faisal Reza, the learned Advocates appearing for the petitioners submit that before passing the order’ of detention and issuance of warrant of’ arrest, no show cause was issued and served upon the petitioners as provided under Order XXI, rule 37 of the Code of Civil Procedure (“Code”). It is also argued that the order of detention was passed in violation of principles of natural justice and without giving an opportunity of being heard to the petitioners. Mr Ahmed further submits that the order of detention and arrest was passed by the Artha Rin Adalat also in violation of section 34 (9) of the Ain as no auction was held before issuance of such order of detention and warrant of arrest. As such the impugned order is illegal and unlawful. He further submits that the application filed by the Respondent No. 2 Bank praying for issuance of warrant of arrest against the petitioner is not followed by any affidavit and sufficient statement’ necessitating issuance of warrant and order of detention against the Petitioners. It is also argued that the loan in question has been insured with the Sadharan Bima Corporation, (“SBC”). Under the insurance policy, SBC undertook payment of the loan to the Respondent No., 2 Bank in the event of failure of the borrower to repay of the loan amount. In such a situation, the Bank, without exhausting process of recovery from SBC and adjustment of the amount to be received against the policy and finding any shortfall thereof, issued warrant of arrest detaining petitioners for six months in the civil jail.
5. Mr Forrukh Rahman, the learned Advocate appearing for the Respondent No. 2 Bank submits that the petitioners before this Court are fugitive in law and, as such, they cannot file this application seeking any relief against the issuance of warrant of arrest. In support of his submission, he referred to the case of Nashir Ullah Master vs Bangladesh reported in 61 DLR 760, It appears that the said judgment was passed relying on the decisions relating to criminal cases.
He further submits that the loan in question was not secured by any mortgage of the property and no property of the borrower found available to be placed in auction. As such the Bank has/had no other alternative other than detention of the Judgment-debtors in civil jail. ‘He also submits that in the absence of any security and any other property owned by the judgment-debtor the executing Court on the prayer of the Decree Holder-Bank rightly passed the Impugned Order and there is no illegality.
It, is also, argued that the Respondent Bank tried to settle the dispute in various way but the Petitioners were not at all willing to settle the Bank dues. Consequentially, as a last resort the Bank has compelled to file an application praying for warrant of arrest and for detention of the petitioners in civil jail, accordingly, the Court passed the order.
He further submits that the Bank by its several correspondences requested SBC to settle the claim under policy and forwarded all the required documents as desired by them but on this and that plea SBC refrained from making payment of the money. In these circumstances finding no other way the Court at the instance of the Decree-Holder Bank issued and passed the impugned order.
6. Heard the learned Advocates for the parties, perused the Application, Affidavit-in-Opposition, Supplementary Affidavit-in-Opposition along with the annexures annexed thereto.
7. In the instant case the question raised by the petitioner’s lawyer regarding issuance of show cause as provided under Order XXI, rule 37 of the Code is not acceptable, in the present case as the matter already decided by this court in the case of ABM Shirajum Monir, vs Subordinate Judge reported in 14~BLC 716 wherein it has been held that, Artha Rin Adalat Ain, 2003 is a special law. Provisions of Artha Rin Adalat Ain shall prevail over other law.
As such the said provisions under Order XXI, rule 37 of the Code is not identical with the provisions laid down under section 34 of the Ain.
The Artha Rin Adalat is empowered to issue warrant of arrest and order of detention against the judgment-debtor subject to other provisions contained in sub-sections 2 to 13. 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 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 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| (1) ??? ????????? ????? ?? ??????? ?????? ????? ??? ??, ??? ???? ???????? ???? ???? ????? ???? ????? ???, ???? ???? ?????, ???? ????????? ?????? ????? ?????? ??? ?????, ????? ???? ???? ????? ?? ???? ??????? ??, ??? ???? ????????? ????? ???????? ???? ?????? ???????? ???? ????????? ???? ?????? ????? ??? ?????, ???? ???? ???? ????? ?? ? ???? ???? ???? ?????? ?????; ??? ???? ???? ?????? ? ??????? ??????? ???? ? ?????? ?????? ???? ???? ???? ????? ????? ??????
(?) ??????? ???? ??? ???? ???????? ????? ???? ????????, ??-???? (?) ?? ?????? ???????? ??? ??????-????? ??? ????? ????, ??????, ?????? ?????????? ?? ???????? ?? ???? ???? ??? ???? ????? ????, ????? ???? ????? ????, ??????, ?????? ?????????? ?? ???????? ?? ???? ?????? ???????? ???? ???? ?????? ????? ???????? ????, ???? ???? ????? ????? ???? ????? ?????? ; ??? ????????? ??? ??? ??, ??????? ????, ????? ????, ???? ??? ?????? ????, ???????, ??????????? ?? ?????? ???? ??? ????????????? ????? ?????? ??? ??? ?????? ???? ???
(?) ??-???? (?) ? (?) ?? ????? ????? ?????? ??????? ???? ?????? ????? ?????????? ??????? ?? ???????????? ???? ???????? ???? ???? ???????? ???? ??????? ?????? ????????? ????, ??? ??? ????? ????? ??????? ????????????? ????? ??? ??????????? ????????? ???? ???? ??????? ?????? ???? ??????
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 here in 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 4-32008 passed by the Artha Rin Adalat, 2nd Court, 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.
