High Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Md Ruhul Quddus J
Rex Apparels (Pvt) Ltd. and others …………..
……………..Petitioner
vs
Government of Bangladesh and others ………… Respondents
Judgment
January 27th, 2015.
Constitution of Bangladesh, 1972
Article 102(2)
If an auction sale has been held to be illegal or irregular, the same cannot be challenged under Article 102 of the Constitution. However the owner may sue the bank concerned for any loss, if suffered because of such illegal or irregular auction sale. . ….. (12)
Banesa Bibi vs Senior Vice President, 63 DLR (A D) 160 ref.
Md Obaidur Rahman Mostafa with Lutfor Rahman, Advocates-For the Respondent No.2-Bank.
Judgment
Md Ashfaqul Islam J: At the instance of the petitioners Rex Apparels (Pvt) Ltd. and others, this Rule Nisi was issued in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the impugned auction advertisement dated 2-10-2014 published in the “Daily Jugantor” newspaper (Annexure-E) for selling the mortgaged properties of the petitioner No. 4 which was given mortgage to Rupali Bank Limited, SK Road, Narayangonj Branch as Security and realization of the outstanding loan liabilities of the petitioner Nos. 1-3 should not be declared to have been made without lawful authority and is of no legal effect and why a direction should not be given upon the respondent Nos. 2-5 to allow I give all kinds of banking facilities by opening back to back Letter of Credit (L/C) in favour of the petitioner Nos.1-3 to run the business smoothly and make payment to the bank for adjustment of the outstanding liabilities from the export proceeds.
2. At the time issuance of the Rule operation of the impugned advertisement dated 2-10-2014 published in the “Daily Jugantor” (Annexure-E) was stayed by this Division.
3. The background leading to the Rule, in short, is that the petitioners are engaged in the business of 100% manufacturing and exporting readymade garments in abroad and their banking transactions are with the respondent No.2 Rupali Bank Limited.
4. The respondent No.5 Assistant General Manager sent a letter on 5-2-2014 vide Memo No.Gb‡K Gb/BmKwc/mvaviY/14/97 to the petitioner No.4 to deposit Taka 50,73,148 as down payment against outstanding loan for rescheduling the termed and forced loan at the rate of 5%. The above reschedulement for payment of loan money would have been operative from 3-2-2014 on making a down payment of Taka 50,73,148 for a period of 12 (twelve) months as it could be clearly found in (Annexure-A) to the petition. Due to financial crisis since 2012 the petitioners’ business was seriously affected and ultimately the industry became sick. The petitioners thereafter requested orally and also in writing to the Manager, respondent bank and its management for further rescheduling of the liabilities but the bank did not allow further banking facilities of such kind to the petitioner.
5. The respondent bank then published an auction advertisement in the “Daily Shomokal” newspaper on 28-8-2014 to sell the mortgage properties of the petitioner No.4 and 15-9-2014 was fixed for auction (Annexure-C).
6. The petitioners thereafter came to know about such auction advertisement and the petitioner No.4 talked to the Managing Director of the Rupali Bank Limited (respondent No.3) and the Deputy General Manager Rupali Bank Limited (Branch Manager) respondent No.4. The respondent No.3 and the petitioners verbally came to a amicable settlement in that the petitioners would deposit as the down payment of Taka 50,73,148 before 15-9-2014 i.e. before the auction as per condition of the Bank’s letter dated 5-2-2014 for reschedulement of payment of the loan money, and if the amount is so deposited the Bank authority would cancel the auction sale proceedings.
7. As per the above amicable settlement the petitioners deposited Taka 94,99,000 (instead of Taka 50,73,148) to respondent No.4 Bank on 10-9-2014 and the petitioners made an intimation to respondent No. 4 about such deposit of down payment and also requested the Branch Manager to give chance to open back to back L/C to run the business smoothly and make payment of loan money from export proceeds (Annexure-D & D-1).
The Bank’s authority received the said intimation dated 10-9-2014 on 11-9-2014 and was pleased to cancel the proceeding of auction sale after receiving Taka 94,99,000. But without giving any banking facilities to open back to back L/C for running the business, the bank very arbitrarily and illegally published further auction advertisement to sell the mortgaged properties of the petitioner No.4 in the “Daily Jugantor” newspaper on 2-10-2014 fixing 30-10-2014 for dropping the auction bids for interested bidders. It is at this stage the petitioner challenging the said Auction Notice moved this Division and obtained the present Rule and order of stay.
8. None appears for the petitioners though the matter came up in the list for hearing on several occasions.
9. Mr Md Lutfor Rahman, the learned counsel by filing Vokalatnama on behalf of respondent No.2 Rupali Bank opposes the Rule and submits that this writ petition is not maintainable since it is the pre-condition under Sections 12(1) and (2) of the Artha Rin Adalat Ain, 2003 that before filing a suit the bank must go for an auction of the property mortgaged with it in keeping with the said provision and for that purpose the impugned auction notice was advertised in the “Daily Jugantor” newspaper which is absolutely in consonance with the provision governing the issue. He further submits that as per section 12(8) of the Artha Rin Adalat Ain, 2003 and proviso thereof even if an auction sale has been held to be illegal or irregular, the same cannot be challenged under Article 102 of the Constitution. However, the owner may sue the bank concerned for any loss, if suffered because of such illegal or irregular auction sale. The learned counsel mainly pressed into service above two arguments.
10. We have heard the learned counsel for the respondent-bank and gone through the petition, the notice impugned against and other materials on record carefully.
11. Section 12(8) enjoins-
AvcvZZt ejer Ab¨ †Kvb AvB‡b wfbœiƒc hvnv wKQzB _vKzK bv †Kb, GB avivi Aaxb Avw_©K cÖwZôvb KZ©…K lien, pledge, hypothecation A_ev Mortgage Gi Aaxb cÖvß ÿgZve‡j †Kvb RvgvbZx ¯’vei ev A¯’vei m¤úwË weµq Kiv nB‡j, D³ weµq †µZvi AbyK~‡j ˆea ¯^Ë¡ m…wó Kwie Ges †µZvi µq‡K †Kvbfv‡eB ZwK©Z Kiv hvB‡e bv t
Z‡e kZ© _v‡K †h, Avw_©K cÖwZôvb KZ©„K weµq Kvh©µ‡g †Kvbiƒc A‰eaZv ev c×wZMZ Awbqg _vwK‡j, RvgvbZ cÖ`vbKvix FY-MÖnxZv Avw_©K cÖwZôv‡bi weiæ‡× ÿwZc~ib `vex Kwi‡Z cvwi‡eb|
(underlined by me)
12. The law is very specific and well circumscribed. Therefore, if an auction sale has been held to be illegal or irregular, the same cannot be challenged under Article 102 of the Constitution. However the owner may sue the bank concerned for any loss, if suffered because of such illegal or irregular auction sale.
13. This issue has been well settled by our Appellate Division which is no longer a resintegra. In the decision of Banesa Bibi vs Senior Vice President, 63 DLR (AD) 160 our Appellate Division under the similar circumstances held in clear terms:
“It thus appears that the mortgagee bank has auction sold the property following the provision of Section 12 of the Artha Rin Adalat Ain, 2003. Be that as it may as per section 12(8) of the Artha Rin Adalat Ain, 2003 and proviso thereof, which provided that in case of an auction sale held illegally or with regularity, the same cannot be challenged. However, owner may sue the bank concerned for any loss, if suffered because of such illegal or irregular auction sale.”
14. That being the position, we are of the view that this Rule does not merit any substance which should be discharged outright.
15. In the result, the Rule is discharged
with cost. The order of stay granted earlier by this Court is recalled and vacated.
Communicate at once.
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Md Ruhul Quddus J
Rex Apparels (Pvt) Ltd. and others …………..
……………..Petitioner
vs
Government of Bangladesh and others ………… Respondents
Judgment
January 27th, 2015.
Constitution of Bangladesh, 1972
Article 102(2)
If an auction sale has been held to be illegal or irregular, the same cannot be challenged under Article 102 of the Constitution. However the owner may sue the bank concerned for any loss, if suffered because of such illegal or irregular auction sale. . ….. (12)
Banesa Bibi vs Senior Vice President, 63 DLR (A D) 160 ref.
Md Obaidur Rahman Mostafa with Lutfor Rahman, Advocates-For the Respondent No.2-Bank.
Judgment
Md Ashfaqul Islam J: At the instance of the petitioners Rex Apparels (Pvt) Ltd. and others, this Rule Nisi was issued in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the impugned auction advertisement dated 2-10-2014 published in the “Daily Jugantor” newspaper (Annexure-E) for selling the mortgaged properties of the petitioner No. 4 which was given mortgage to Rupali Bank Limited, SK Road, Narayangonj Branch as Security and realization of the outstanding loan liabilities of the petitioner Nos. 1-3 should not be declared to have been made without lawful authority and is of no legal effect and why a direction should not be given upon the respondent Nos. 2-5 to allow I give all kinds of banking facilities by opening back to back Letter of Credit (L/C) in favour of the petitioner Nos.1-3 to run the business smoothly and make payment to the bank for adjustment of the outstanding liabilities from the export proceeds.
2. At the time issuance of the Rule operation of the impugned advertisement dated 2-10-2014 published in the “Daily Jugantor” (Annexure-E) was stayed by this Division.
3. The background leading to the Rule, in short, is that the petitioners are engaged in the business of 100% manufacturing and exporting readymade garments in abroad and their banking transactions are with the respondent No.2 Rupali Bank Limited.
4. The respondent No.5 Assistant General Manager sent a letter on 5-2-2014 vide Memo No.Gb‡K Gb/BmKwc/mvaviY/14/97 to the petitioner No.4 to deposit Taka 50,73,148 as down payment against outstanding loan for rescheduling the termed and forced loan at the rate of 5%. The above reschedulement for payment of loan money would have been operative from 3-2-2014 on making a down payment of Taka 50,73,148 for a period of 12 (twelve) months as it could be clearly found in (Annexure-A) to the petition. Due to financial crisis since 2012 the petitioners’ business was seriously affected and ultimately the industry became sick. The petitioners thereafter requested orally and also in writing to the Manager, respondent bank and its management for further rescheduling of the liabilities but the bank did not allow further banking facilities of such kind to the petitioner.
5. The respondent bank then published an auction advertisement in the “Daily Shomokal” newspaper on 28-8-2014 to sell the mortgage properties of the petitioner No.4 and 15-9-2014 was fixed for auction (Annexure-C).
6. The petitioners thereafter came to know about such auction advertisement and the petitioner No.4 talked to the Managing Director of the Rupali Bank Limited (respondent No.3) and the Deputy General Manager Rupali Bank Limited (Branch Manager) respondent No.4. The respondent No.3 and the petitioners verbally came to a amicable settlement in that the petitioners would deposit as the down payment of Taka 50,73,148 before 15-9-2014 i.e. before the auction as per condition of the Bank’s letter dated 5-2-2014 for reschedulement of payment of the loan money, and if the amount is so deposited the Bank authority would cancel the auction sale proceedings.
7. As per the above amicable settlement the petitioners deposited Taka 94,99,000 (instead of Taka 50,73,148) to respondent No.4 Bank on 10-9-2014 and the petitioners made an intimation to respondent No. 4 about such deposit of down payment and also requested the Branch Manager to give chance to open back to back L/C to run the business smoothly and make payment of loan money from export proceeds (Annexure-D & D-1).
The Bank’s authority received the said intimation dated 10-9-2014 on 11-9-2014 and was pleased to cancel the proceeding of auction sale after receiving Taka 94,99,000. But without giving any banking facilities to open back to back L/C for running the business, the bank very arbitrarily and illegally published further auction advertisement to sell the mortgaged properties of the petitioner No.4 in the “Daily Jugantor” newspaper on 2-10-2014 fixing 30-10-2014 for dropping the auction bids for interested bidders. It is at this stage the petitioner challenging the said Auction Notice moved this Division and obtained the present Rule and order of stay.
8. None appears for the petitioners though the matter came up in the list for hearing on several occasions.
9. Mr Md Lutfor Rahman, the learned counsel by filing Vokalatnama on behalf of respondent No.2 Rupali Bank opposes the Rule and submits that this writ petition is not maintainable since it is the pre-condition under Sections 12(1) and (2) of the Artha Rin Adalat Ain, 2003 that before filing a suit the bank must go for an auction of the property mortgaged with it in keeping with the said provision and for that purpose the impugned auction notice was advertised in the “Daily Jugantor” newspaper which is absolutely in consonance with the provision governing the issue. He further submits that as per section 12(8) of the Artha Rin Adalat Ain, 2003 and proviso thereof even if an auction sale has been held to be illegal or irregular, the same cannot be challenged under Article 102 of the Constitution. However, the owner may sue the bank concerned for any loss, if suffered because of such illegal or irregular auction sale. The learned counsel mainly pressed into service above two arguments.
10. We have heard the learned counsel for the respondent-bank and gone through the petition, the notice impugned against and other materials on record carefully.
11. Section 12(8) enjoins-
AvcvZZt ejer Ab¨ †Kvb AvB‡b wfbœiƒc hvnv wKQzB _vKzK bv †Kb, GB avivi Aaxb Avw_©K cÖwZôvb KZ©…K lien, pledge, hypothecation A_ev Mortgage Gi Aaxb cÖvß ÿgZve‡j †Kvb RvgvbZx ¯’vei ev A¯’vei m¤úwË weµq Kiv nB‡j, D³ weµq †µZvi AbyK~‡j ˆea ¯^Ë¡ m…wó Kwie Ges †µZvi µq‡K †Kvbfv‡eB ZwK©Z Kiv hvB‡e bv t
Z‡e kZ© _v‡K †h, Avw_©K cÖwZôvb KZ©„K weµq Kvh©µ‡g †Kvbiƒc A‰eaZv ev c×wZMZ Awbqg _vwK‡j, RvgvbZ cÖ`vbKvix FY-MÖnxZv Avw_©K cÖwZôv‡bi weiæ‡× ÿwZc~ib `vex Kwi‡Z cvwi‡eb|
(underlined by me)
12. The law is very specific and well circumscribed. Therefore, if an auction sale has been held to be illegal or irregular, the same cannot be challenged under Article 102 of the Constitution. However the owner may sue the bank concerned for any loss, if suffered because of such illegal or irregular auction sale.
13. This issue has been well settled by our Appellate Division which is no longer a resintegra. In the decision of Banesa Bibi vs Senior Vice President, 63 DLR (AD) 160 our Appellate Division under the similar circumstances held in clear terms:
“It thus appears that the mortgagee bank has auction sold the property following the provision of Section 12 of the Artha Rin Adalat Ain, 2003. Be that as it may as per section 12(8) of the Artha Rin Adalat Ain, 2003 and proviso thereof, which provided that in case of an auction sale held illegally or with regularity, the same cannot be challenged. However, owner may sue the bank concerned for any loss, if suffered because of such illegal or irregular auction sale.”
14. That being the position, we are of the view that this Rule does not merit any substance which should be discharged outright.
15. In the result, the Rule is discharged
with cost. The order of stay granted earlier by this Court is recalled and vacated.
Communicate at once.
