High Court Division :
(Special Original Jurisdiction)
Md Miftah Uddin
Chowdhury J
Md Mozibur Rahman
Miah J
Moniruzzaman (Md) …
……..Petitioner
vs
Bangladesh and others ……….. Respondents
Judgment
November 23rd, 2015
Artha Rin Adalat Ain (VIII of 2003)
Section 12
Since the mortgaged property has already been sold having no issue of illegality or irregularity ever raised and the auction purchaser has already taken possession thereof vide registered sale deed executed by the bank as a legal attorney of the mortgagor, so there is no scope to interfere with that very sale because no violation of the provision of section 12 of the Ain, has ever been made .. …. (31)
Abdul Momen Bhuiyan vs District Judge, Dhaka passed in Civil Petition for Leave to Appeal No. 2228 of 2011 ref.
AKM Nurul Alam, Advocate–For the Petitioner.
Khondaker Iqbal Ahmed, Advocate–For the Respondent No.4.
Mohiuddin Ahmed, Advocate-For the Respondent No.–5
SM Maniruzzaman, DAG with Mosammat Khairun Nessa, AAG and Suchira Hossain, AAG–For the State.
Judgment
Md Mozibur Rahman Miah J: On an application under Article 102 of the constitution, the petitioner called in question the propriety of the auction sale dated 12-1-2015 pursuant to auction notice that was held under section 12 of the Artha Rin Adalat Ain, 2003 so published by the respondent No.4 in the ‘Daily Rupashi Bangla’ dated 20-12-2014. The petitioner also sought direction upon the respondent Nos. 3 and 4 to receive the outstanding dues of Taka 57,45,452 along with 5% of the sale proceed amounting to Taka 4,10,000 for respondent No. 5 on the heels of the auction sale dated 12-1-2015 so made to the respondent No.5 by registered kabala being Nos. 457 dated 21-1-2015.
2. At the time of issuance of Rule an order of injunction was also granted restraining the respondents from dispossessing and disturbing the peaceful possession of the petitioner in respect of the schedule land which has been sold in auction under section 12 of the Artha Rin Adalat Ain, 2003.
3. Relevant facts as has been figured in the Writ Petition in short are:
That the petitioner is the owner of ‘Mis Prity Dairy Farm’ and availed of term loan facility amounting to Taka 40,00,000 on 12-9-2012 from the respondent No. 4 for running his live stock business by mortgaging his property as a security to repayment of the said loan. He though repaid certain amount to the creditor-Bank, so stipulated in the sanction letter but ultimately he failed to repay the dues as per repayment schedule consequent which, the respondent No. 4 Bank issued a legal notice asking the petitioner to adjust the outstanding dues. But as the petitioner failed to comply with the demand so made by the respondent bank, it then proceeded with by publishing auction notice in pursuant to section 12 of the Artha Rin Adalat Ain, 2003 (have in after referred to as “the Ain”) on 12-2-2014 fixing the date of auction sale on 5-3-2014. But as no bidder came forward to purchase the property the very auction sale was not materialized.
4. Thereafter the respondent bank for the second time on 17-5-2014 published auction notice under Section 12 of the Ain for realization of outstanding dues to the tune of Taka 57,45,452 (fifty seven lac forty five thousand four hundred fifty two) fixing the auction on 11-6-2014.
5. Challenging the very auction notice the petitioner then moved this Court by filing a Writ Petition being Writ Petition No. 5201 of 2014 and in that very Writ Petition, this Court, Comprising Madam Justice Farah Mahabub and Mr Justice Kazi Md Ejarul Hoque Akondo issued Rule and stayed the operation of auction notice directing the petitioner to repay the claim amount by eight equal installments with a default order-that, in case of failure in repaying single installment, the Rule will have to be discharged and eventually, Rule of that Writ Petition was discharged on 18-11-2014 for non-compliance of that order.
6. The learned Judges of that bench also asked the respondent-bank to proceed with the matter by selling the mortgaged property through auction for realization of the outstanding dues.
7. In view of the said observation so made by that Bench, the respondent-bank then published an auction notice for the 3rd time on 20-12-2014 fixing the date for auction sale on 12-1-2015 for realization of the dues at Taka 57,45,452 (fifty seven lac forty five thousand four hundred fifty two) as on 30-9-2014. By virtue of that very auction notice, 3 (three) bidders participated in the auction to purchase the said mortgaged property and out of those 3 bidders the price quoted by the respondent No. 5 was found to be highest, amounting to Taka 82,00,000 (eighty two lac). The bank then accepted the said highest bid at Taka 82,00,000 (eighty two lac) and accordingly, vide kabala dated 21-1-2015 registered the mortgaged property in favour of the respondent No.5, auction purchaser.
8. On the following date i.e. on 22-1-2015 the respondent bank handed over the possession of the mortgaged property to respondent No.5 it is then, the petitioner filed this Writ Petition challenging the very auction sale and obtained the instant Rule as well as order of injunction.
9. Mr AKM Nurul Alam, the learned counsel appearing for the petitioner upon taking us to the Writ Petition and other materials on record submits that, the respondent No. 4,-bank without complying with the mandatory provision so enunciated in Section 33(1), (2) and (3) of the Ain, sold out the mortgage property through auction and thus the said auction cannot be sustained.
10. He next submits that, under the provision of Order XXI, rule 89 of the Code of Civil Procedure if any property in sold in auction in that case, the Judgement-Debtor is entitled to have the said property upon depositing 5% of the purchased value and as the petitioner was ready to pay the claim amount shown in the auction notice accompanied by 5% of the quoted price so offered by the auction purchaser, the impugned auction sale is liable to be set-aside and he is entitled to get the land back.
11. The learned counsel for the petitioner goes on to submit that, possession of the mortgage property has not yet been handed over to the auction purchaser rather, he is still in possession over the mortgaged property, so if this Hon’ble Court is pleased to direct the respondent No. 5, auction purchaser to receive 5% above the quoted price, he would not be prejudiced.
12. Mr Nurul Alam also submits that, the price quoted by the respondent No.5 for the mortgaged property is exorbitantly low in terms of the prevailing market value which presently stands at Taka 2 (two) crores but the bank is going to sell the said property at a very low price in favour of the auction purchaser which smacks malafide intention.
13. In countenance of such submission Mr Alam then cited an un-reported Judgement passed by our Apex Court on the case of Abdul Momen Bhuiyan vs District Judge, Dhaka passed in Civil Petition for leave to Appeal No. 2228 of 2011. In asserting that decision, the learned counsel tried to stress upon that, in that decision their Lordships’ allowed the Judgement-Debtors to give compensation to the auction purchaser for an amount of Taka 12,00,000 (twelve lac) over the decreetal dues. Since the petitioner clearly stands in the same footing, so he may also be given same opportunity by directing the Artha Rin Adalat-2 to receive 5% above of the quoted price made in the auction notice.
14. With such submissions, the learned counsel prays for making the Rule absolute.
15. Conversely, Mr Khondaker Iqbal Ahmed, the learned counsel appearing for the respondent No.4 by filing an affidavit-in-opposition controverter the materials statements so made in the Writ Petition contending, inter alia, that, in-compliance of the mandatory provision of section 12 (3) of Artha Rin Adalat Ain, the Creditor-Bank published the notice and 3 bidders participated in the auction bid and out of those bidders, the bank found respondent No.5 as the highest bidder and thereby accepted his bid having no illegality therein.
16. Mr Ahamed next submits that since the mortgage property has already been sold out to the respondent No.5 in fullest-compliance of the provision of Section 12 of the Ain-2003 so the Writ Petition itself is not maintainable.
17. Learned counsel further submits that by virtue of the very sale deed registered ‘in favour of the respondent No. 5 on 21-1-2015, the possession of the property has already been handed over to the respondent No.5 on 22-1-2015 having no scope to re-deem the said property in favour of the petitioner.
18. Mr Ahmed, further submits that, the learned counsel for the petitioner has consciously suppressed some material facts while filing this writ petition and obtained the Rule and order of injunction. In support of his such contention, the learned counsel avers that, the delivery of possession of the mortgaged property has been handed over to the auction purchaser on 21-1-2015 but that very fact has never mentioned in the entire writ petition and by suppressing that vital facts the petitioner obtained an order of injunction from this Court on 17-2-2015 even though, long before that very order, the property went to the auction purchaser.
19. To buttress all those assertion, the learned counsel cited two decisions in that regard reported in 18 BLT (AD) 507 as well 20 BLT (AD) 64.
20. On going though the decisions so reported in 18 BLT (AD) 507 we find that, their Lordships in the very Judgement held that–
“if a mortgaged property is sold by virtue of section 12 of the Artha Rin Adalat Ain, the mortgagor cannot raise any objection regarding the very irregularity or illegality of auction sale as section 12(8) of the Ain, has given remedy to the mortgagor in that score”.
21. So, it has been settled in that decision that, if there happens any illegality in selling the mortgaged property of the borrower in that case, the borrower is at liberty to file separate suit for his redressal.
22. By citing the decision reported in 20 BLT (AD) 64 the learned counsel further contends that, in that decision it has already been settled that since the mortgagor by furnishing power of attorney to the mortgagee authorizing to sale the mortgaged property, in such a case, the bank has rightly sold out the mortgaged property without any intervention of any court.
23. Learned counsel lastly cited a decision reported in 20 BLT (AD) 84 where their lordships have taken similar view as of the decision reported in 18 BLT (AD) 507 holding that–
“Once an auction sale is complete no relief is available against such auction sale but the mortgage may proceed against the mortgagor bank for any compensation, if it is proved that, there was illegality in the auction sale.”
24. On relying upon those decisions claiming to have commensurate with his assertion, the learned counsel for the respondent No. 4 eventually pressed for discharging the Rule.
25. On the other hand, Mr Mohiuddin Ahmed, the learned counsel appearing for the respondent No. 5 by filing an affidavit-in-opposition contested the Rule. On going through his affidavit-in opposition we find that, he echoed the assertion so made by the learned counsel for the respondent No. 4. Since the learned counsel in his affidavit-in-opposition adopted the submission so made by the learned counsel for the respondent No. 4 we ourselves thus refrain from repeating those submission here.
26. However, we have heard the learned counsels of the contending patties, perused the Writ Petitions, affidavit-in-opposition, decisions so cited by the parties and other materials available on record. There is no gainsaying the fact that, the respondent bank earlier on two occasions published auction notice for selling the mortgaged propel1y. Out of those two auction notices, the petitioner challenged the very propriety of auction notice dated 17-5-2014 before this Court and upon considering the submission so advanced by the learned counsel for the petitioner this Court rendered the petitioner opportunity to adjust the outstanding dues by 8 equal installments. But it is petitioner, for whose failure this Court eventually discharged the Rule on 18-11-2014 allowing the respondent No. 4 bank to proceed with the auction of the schedule property under section 12 of the Artha Rin Adalat Ain in the following terms:
– “In view of the same we are of the view that this Rule stood discharged on 1-7-2014. In view of the above backdrop, the respondent-bank is at liberty to proceed with the process of auction, of the schedule property of the petitioner in accordance with law.”
27. Having complied with the said observation made by this Court the respondent bank-4 then published the impugned auction notice under section 12 of the Artha Rin Adalat Ain and by virtue of that very auction notice the property mortgaged with the bank has been sold in auction.
28. Now let us look in to the core submission of the petitioner who asserts that, in view of the provision provided in Order 21, rule 89 of the Code of Civil Procedure, petitioner should be given a chance to re-pay the decreetal dues along, with 5% of the quoted price the auction purchaser offered but under the provision of Artha Rin Adalat Ain, 2003 particularly under section 12 there is no such provision to be followed by the respondent-bank. Because there is a non obstante clause in section 3 of the Artha Rin Adalat Ain, 2003 where the provision of the Ain, has been given precedence over any other existing laws.
29. Moreover, in the instant case the respondent-bank has resorted to realize the outstanding dues before filing of the suit under section 12 of the Ain, but the provision as raised by the petitioner appears to have applied during the auction proceedings by putting a decree passed by an ordinary Civil Court in to execution so, the submission so made by the learned counsel for the petitioner simply falls through.
30. Then again, the petitioner also raised a dispute by questioning that the quoted price offered so by the auction purchaser is shockingly low but the point is squarely a disputed question of fact as on going through the valuation statement so filed by the respondent No.4 we further find that, after investigation on the valuation of the ‘mortgage property’ the Creditor-Bank furnished a certificate finding the price of the mortgage property at Taka 96,50,000 and the instant value of the property at Taka 82,00,000 so the point raised by the learned counsel for the petitioner appears to be unsustainable on the face of the record.
31. Over and above, since the mortgaged property has already been sold having no issue of illegality or irregularity ever raised and the auction purchaser has already taken possession thereof vide registered sale deed executed by the respondent-bank as a legal attorney of the mortgagor, so there is no scope to interfere with that very sale because no violation of the provision of section 12 of the Ain, has ever been made.
32. Though the learned Advocate for the petitioner has cited an un-reported decision of our Apex Court, as mentioned hereinabove, but on going through the Judgement meticulously, we find the facts and the points involved in that cited decision is quite distinguishable with the facts and circumstances available in the instant case and accordingly that very Judgement being inapplicable in the present case. On the contrary, the decisions cited by the respondent No.4 are found to be applicable in Support of his assertion.
33. Given the above discussion and observation, we do not find any merit in the Rule.
34. In the result, the Rule is discharged however, without any order as to costs.
35. The order of injunction granted at the time of issuance of the Rule is hereby recalled and vacated.
Let a copy of this Judgement and order be transmitted to the Managing Director of respondent No.3, Sonali Bank limited.
(Special Original Jurisdiction)
Md Miftah Uddin
Chowdhury J
Md Mozibur Rahman
Miah J
Moniruzzaman (Md) …
……..Petitioner
vs
Bangladesh and others ……….. Respondents
Judgment
November 23rd, 2015
Artha Rin Adalat Ain (VIII of 2003)
Section 12
Since the mortgaged property has already been sold having no issue of illegality or irregularity ever raised and the auction purchaser has already taken possession thereof vide registered sale deed executed by the bank as a legal attorney of the mortgagor, so there is no scope to interfere with that very sale because no violation of the provision of section 12 of the Ain, has ever been made .. …. (31)
Abdul Momen Bhuiyan vs District Judge, Dhaka passed in Civil Petition for Leave to Appeal No. 2228 of 2011 ref.
AKM Nurul Alam, Advocate–For the Petitioner.
Khondaker Iqbal Ahmed, Advocate–For the Respondent No.4.
Mohiuddin Ahmed, Advocate-For the Respondent No.–5
SM Maniruzzaman, DAG with Mosammat Khairun Nessa, AAG and Suchira Hossain, AAG–For the State.
Judgment
Md Mozibur Rahman Miah J: On an application under Article 102 of the constitution, the petitioner called in question the propriety of the auction sale dated 12-1-2015 pursuant to auction notice that was held under section 12 of the Artha Rin Adalat Ain, 2003 so published by the respondent No.4 in the ‘Daily Rupashi Bangla’ dated 20-12-2014. The petitioner also sought direction upon the respondent Nos. 3 and 4 to receive the outstanding dues of Taka 57,45,452 along with 5% of the sale proceed amounting to Taka 4,10,000 for respondent No. 5 on the heels of the auction sale dated 12-1-2015 so made to the respondent No.5 by registered kabala being Nos. 457 dated 21-1-2015.
2. At the time of issuance of Rule an order of injunction was also granted restraining the respondents from dispossessing and disturbing the peaceful possession of the petitioner in respect of the schedule land which has been sold in auction under section 12 of the Artha Rin Adalat Ain, 2003.
3. Relevant facts as has been figured in the Writ Petition in short are:
That the petitioner is the owner of ‘Mis Prity Dairy Farm’ and availed of term loan facility amounting to Taka 40,00,000 on 12-9-2012 from the respondent No. 4 for running his live stock business by mortgaging his property as a security to repayment of the said loan. He though repaid certain amount to the creditor-Bank, so stipulated in the sanction letter but ultimately he failed to repay the dues as per repayment schedule consequent which, the respondent No. 4 Bank issued a legal notice asking the petitioner to adjust the outstanding dues. But as the petitioner failed to comply with the demand so made by the respondent bank, it then proceeded with by publishing auction notice in pursuant to section 12 of the Artha Rin Adalat Ain, 2003 (have in after referred to as “the Ain”) on 12-2-2014 fixing the date of auction sale on 5-3-2014. But as no bidder came forward to purchase the property the very auction sale was not materialized.
4. Thereafter the respondent bank for the second time on 17-5-2014 published auction notice under Section 12 of the Ain for realization of outstanding dues to the tune of Taka 57,45,452 (fifty seven lac forty five thousand four hundred fifty two) fixing the auction on 11-6-2014.
5. Challenging the very auction notice the petitioner then moved this Court by filing a Writ Petition being Writ Petition No. 5201 of 2014 and in that very Writ Petition, this Court, Comprising Madam Justice Farah Mahabub and Mr Justice Kazi Md Ejarul Hoque Akondo issued Rule and stayed the operation of auction notice directing the petitioner to repay the claim amount by eight equal installments with a default order-that, in case of failure in repaying single installment, the Rule will have to be discharged and eventually, Rule of that Writ Petition was discharged on 18-11-2014 for non-compliance of that order.
6. The learned Judges of that bench also asked the respondent-bank to proceed with the matter by selling the mortgaged property through auction for realization of the outstanding dues.
7. In view of the said observation so made by that Bench, the respondent-bank then published an auction notice for the 3rd time on 20-12-2014 fixing the date for auction sale on 12-1-2015 for realization of the dues at Taka 57,45,452 (fifty seven lac forty five thousand four hundred fifty two) as on 30-9-2014. By virtue of that very auction notice, 3 (three) bidders participated in the auction to purchase the said mortgaged property and out of those 3 bidders the price quoted by the respondent No. 5 was found to be highest, amounting to Taka 82,00,000 (eighty two lac). The bank then accepted the said highest bid at Taka 82,00,000 (eighty two lac) and accordingly, vide kabala dated 21-1-2015 registered the mortgaged property in favour of the respondent No.5, auction purchaser.
8. On the following date i.e. on 22-1-2015 the respondent bank handed over the possession of the mortgaged property to respondent No.5 it is then, the petitioner filed this Writ Petition challenging the very auction sale and obtained the instant Rule as well as order of injunction.
9. Mr AKM Nurul Alam, the learned counsel appearing for the petitioner upon taking us to the Writ Petition and other materials on record submits that, the respondent No. 4,-bank without complying with the mandatory provision so enunciated in Section 33(1), (2) and (3) of the Ain, sold out the mortgage property through auction and thus the said auction cannot be sustained.
10. He next submits that, under the provision of Order XXI, rule 89 of the Code of Civil Procedure if any property in sold in auction in that case, the Judgement-Debtor is entitled to have the said property upon depositing 5% of the purchased value and as the petitioner was ready to pay the claim amount shown in the auction notice accompanied by 5% of the quoted price so offered by the auction purchaser, the impugned auction sale is liable to be set-aside and he is entitled to get the land back.
11. The learned counsel for the petitioner goes on to submit that, possession of the mortgage property has not yet been handed over to the auction purchaser rather, he is still in possession over the mortgaged property, so if this Hon’ble Court is pleased to direct the respondent No. 5, auction purchaser to receive 5% above the quoted price, he would not be prejudiced.
12. Mr Nurul Alam also submits that, the price quoted by the respondent No.5 for the mortgaged property is exorbitantly low in terms of the prevailing market value which presently stands at Taka 2 (two) crores but the bank is going to sell the said property at a very low price in favour of the auction purchaser which smacks malafide intention.
13. In countenance of such submission Mr Alam then cited an un-reported Judgement passed by our Apex Court on the case of Abdul Momen Bhuiyan vs District Judge, Dhaka passed in Civil Petition for leave to Appeal No. 2228 of 2011. In asserting that decision, the learned counsel tried to stress upon that, in that decision their Lordships’ allowed the Judgement-Debtors to give compensation to the auction purchaser for an amount of Taka 12,00,000 (twelve lac) over the decreetal dues. Since the petitioner clearly stands in the same footing, so he may also be given same opportunity by directing the Artha Rin Adalat-2 to receive 5% above of the quoted price made in the auction notice.
14. With such submissions, the learned counsel prays for making the Rule absolute.
15. Conversely, Mr Khondaker Iqbal Ahmed, the learned counsel appearing for the respondent No.4 by filing an affidavit-in-opposition controverter the materials statements so made in the Writ Petition contending, inter alia, that, in-compliance of the mandatory provision of section 12 (3) of Artha Rin Adalat Ain, the Creditor-Bank published the notice and 3 bidders participated in the auction bid and out of those bidders, the bank found respondent No.5 as the highest bidder and thereby accepted his bid having no illegality therein.
16. Mr Ahamed next submits that since the mortgage property has already been sold out to the respondent No.5 in fullest-compliance of the provision of Section 12 of the Ain-2003 so the Writ Petition itself is not maintainable.
17. Learned counsel further submits that by virtue of the very sale deed registered ‘in favour of the respondent No. 5 on 21-1-2015, the possession of the property has already been handed over to the respondent No.5 on 22-1-2015 having no scope to re-deem the said property in favour of the petitioner.
18. Mr Ahmed, further submits that, the learned counsel for the petitioner has consciously suppressed some material facts while filing this writ petition and obtained the Rule and order of injunction. In support of his such contention, the learned counsel avers that, the delivery of possession of the mortgaged property has been handed over to the auction purchaser on 21-1-2015 but that very fact has never mentioned in the entire writ petition and by suppressing that vital facts the petitioner obtained an order of injunction from this Court on 17-2-2015 even though, long before that very order, the property went to the auction purchaser.
19. To buttress all those assertion, the learned counsel cited two decisions in that regard reported in 18 BLT (AD) 507 as well 20 BLT (AD) 64.
20. On going though the decisions so reported in 18 BLT (AD) 507 we find that, their Lordships in the very Judgement held that–
“if a mortgaged property is sold by virtue of section 12 of the Artha Rin Adalat Ain, the mortgagor cannot raise any objection regarding the very irregularity or illegality of auction sale as section 12(8) of the Ain, has given remedy to the mortgagor in that score”.
21. So, it has been settled in that decision that, if there happens any illegality in selling the mortgaged property of the borrower in that case, the borrower is at liberty to file separate suit for his redressal.
22. By citing the decision reported in 20 BLT (AD) 64 the learned counsel further contends that, in that decision it has already been settled that since the mortgagor by furnishing power of attorney to the mortgagee authorizing to sale the mortgaged property, in such a case, the bank has rightly sold out the mortgaged property without any intervention of any court.
23. Learned counsel lastly cited a decision reported in 20 BLT (AD) 84 where their lordships have taken similar view as of the decision reported in 18 BLT (AD) 507 holding that–
“Once an auction sale is complete no relief is available against such auction sale but the mortgage may proceed against the mortgagor bank for any compensation, if it is proved that, there was illegality in the auction sale.”
24. On relying upon those decisions claiming to have commensurate with his assertion, the learned counsel for the respondent No. 4 eventually pressed for discharging the Rule.
25. On the other hand, Mr Mohiuddin Ahmed, the learned counsel appearing for the respondent No. 5 by filing an affidavit-in-opposition contested the Rule. On going through his affidavit-in opposition we find that, he echoed the assertion so made by the learned counsel for the respondent No. 4. Since the learned counsel in his affidavit-in-opposition adopted the submission so made by the learned counsel for the respondent No. 4 we ourselves thus refrain from repeating those submission here.
26. However, we have heard the learned counsels of the contending patties, perused the Writ Petitions, affidavit-in-opposition, decisions so cited by the parties and other materials available on record. There is no gainsaying the fact that, the respondent bank earlier on two occasions published auction notice for selling the mortgaged propel1y. Out of those two auction notices, the petitioner challenged the very propriety of auction notice dated 17-5-2014 before this Court and upon considering the submission so advanced by the learned counsel for the petitioner this Court rendered the petitioner opportunity to adjust the outstanding dues by 8 equal installments. But it is petitioner, for whose failure this Court eventually discharged the Rule on 18-11-2014 allowing the respondent No. 4 bank to proceed with the auction of the schedule property under section 12 of the Artha Rin Adalat Ain in the following terms:
– “In view of the same we are of the view that this Rule stood discharged on 1-7-2014. In view of the above backdrop, the respondent-bank is at liberty to proceed with the process of auction, of the schedule property of the petitioner in accordance with law.”
27. Having complied with the said observation made by this Court the respondent bank-4 then published the impugned auction notice under section 12 of the Artha Rin Adalat Ain and by virtue of that very auction notice the property mortgaged with the bank has been sold in auction.
28. Now let us look in to the core submission of the petitioner who asserts that, in view of the provision provided in Order 21, rule 89 of the Code of Civil Procedure, petitioner should be given a chance to re-pay the decreetal dues along, with 5% of the quoted price the auction purchaser offered but under the provision of Artha Rin Adalat Ain, 2003 particularly under section 12 there is no such provision to be followed by the respondent-bank. Because there is a non obstante clause in section 3 of the Artha Rin Adalat Ain, 2003 where the provision of the Ain, has been given precedence over any other existing laws.
29. Moreover, in the instant case the respondent-bank has resorted to realize the outstanding dues before filing of the suit under section 12 of the Ain, but the provision as raised by the petitioner appears to have applied during the auction proceedings by putting a decree passed by an ordinary Civil Court in to execution so, the submission so made by the learned counsel for the petitioner simply falls through.
30. Then again, the petitioner also raised a dispute by questioning that the quoted price offered so by the auction purchaser is shockingly low but the point is squarely a disputed question of fact as on going through the valuation statement so filed by the respondent No.4 we further find that, after investigation on the valuation of the ‘mortgage property’ the Creditor-Bank furnished a certificate finding the price of the mortgage property at Taka 96,50,000 and the instant value of the property at Taka 82,00,000 so the point raised by the learned counsel for the petitioner appears to be unsustainable on the face of the record.
31. Over and above, since the mortgaged property has already been sold having no issue of illegality or irregularity ever raised and the auction purchaser has already taken possession thereof vide registered sale deed executed by the respondent-bank as a legal attorney of the mortgagor, so there is no scope to interfere with that very sale because no violation of the provision of section 12 of the Ain, has ever been made.
32. Though the learned Advocate for the petitioner has cited an un-reported decision of our Apex Court, as mentioned hereinabove, but on going through the Judgement meticulously, we find the facts and the points involved in that cited decision is quite distinguishable with the facts and circumstances available in the instant case and accordingly that very Judgement being inapplicable in the present case. On the contrary, the decisions cited by the respondent No.4 are found to be applicable in Support of his assertion.
33. Given the above discussion and observation, we do not find any merit in the Rule.
34. In the result, the Rule is discharged however, without any order as to costs.
35. The order of injunction granted at the time of issuance of the Rule is hereby recalled and vacated.
Let a copy of this Judgement and order be transmitted to the Managing Director of respondent No.3, Sonali Bank limited.
