High Court Division (Special Original Jurisdiction)
Md Ashfaqul Islam J
Md Ashraful Kamal J
Shakwat Hossain (Md)
……………..Petitioner
Judgment
June 6th, 2013.
Vs
The Artha Rin Adalat No. 2 Dhaka and another…….Respondents
The Artha Rin Adalat Ain (VIII of 2003)
Section 12(2)(3)
Rin suit cannot be filed by any financial institution without selling of a mortgage property or any other institution first. Even if the suit has been filed wrongly or by mistake but in course of trial that has to be cured in terms of section. 12(2) of Ain. Further section 12(3) of Ain provides that if owing any reason a suit cannot be filed by the financial institution even then a suit can well be filed afterwards without any restriction.. . ….. (9)
Khan Ziaur Rahman, Advocate- Advocate-For the Petitioner
Md Khurshed Alam, Advocate-For the Respondent
No.2.
Judgment
Md Ashfaqul Islam J: At the instance of the petitioner Md Shakwat Hossain, this Rule Nisi was issued calling upon the respondents to show cause as to why the impugned Order No.1 dated 7-6-2012 passed by the respondent No.1 so far it relates to sale of the Cargo Vessel MV Shawon-2 under section 33 of the Artha Rin Adalat Ain, 2003 (hereinafter referred to as Ain) by way of auction shall not be declared to have been passed without lawful authority and is of no legal effect.
2. The background leading to the Rule, in short, is that the petitioner availed of a loan facility from the respondent No.2 the Premier Bank Limited Saver Branch, Saver, Dhaka. Subsequently he became defaulter in paying off the loan for which the respondent-bank as the plaintiff filed Artha Rin Suit No. 145 of 2012 before the respondent No.1 Artha Rin Adalat No.2, Dhaka stating inter alia that the plaintiff bank sanctioned a term loan facility for an amount of Taka 1,00,00,000 (one crore) in favour of the petitioner’s business firm for purchasing a steel body cargo vessel. The said loan was secured by mortgaging of land measuring 33 decimals situated in the District of Gazipur and 3.63 decimals of land situated in the District Dhaka unde Police Station Sabujbagh and ‘ another 7.50 decimals of land situated in the District Dhaka under Police Station Khilgaon and the petitioner also executed letter of hypothecation dated 11-2-2009.
3. Thereafter, Artha Rin Suit was filed on 76-2012 by the respondent bank and from the plaint that has been annexed to the petition it appears in paragraph 16 that the respondent bank in compliance of section 12 of the Ain on ( 19-4-2012 published auction notice in the “Daily Prothorn Alo” to sell the mortgaged property but the bank could not able to sell the property as the order of auction sale was stayed by a Division Bench of this Court in a Writ proceeding. Therefore, the bank in compliance with section 12(2) read with section 12(3) proceeded on and accordingly issued order No.2 dated 7-6-2012 (Annexure-B) for selling of the Cargo vessel MV Shawon-2. It is at this stage challenging the said order the petitioner moved this Division and obtained the present Rule and order of stay.
4. Mr Khan Ziaul Rahman, the learned counsel appearing for the petitioner after placing the petition, impugned order and the relevant Annexures with it mainly submits that the impugned order has been passed in gross violation of Artha Rin Adalat Ain, 2003 in that, without following provision of section 33(1) the order has been passed which is a clear abuse of process of the Court.
5. Mr Md Khurshed Alam, the learned Advocate, on the other hand, by filing affidavit in-opposition opposes the Rule and pressed paragraphs 6 and 6(A) of the same. The sum and substance of his submissions is that the respondent-bank before filing the suit on 19-4-2012 published notice in the “Daily Prothom Alo” for auction sale of the mortgaged property but the said notice was challenged in Writ Petition No.4768 of 2012 and a Division Bench of this Court stayed the notice for which the respondent-bank could not exhaust the provision of section 12 of Ain. Further he submits that in all fairness the execution should proceed in accordance with law.
6. Be that as it may, we have heard the learned counsel of both sides at length and considered their submissions. We have gone through the petition, impugned order, the different Annexures to the petition and the affidavit-in-opposition carefully.
7. Only question that calls for consideration in this petition is whether the facts and circumstances of the case the order impugned against can sustain.
8. In this respect we thinks it profitable to quote the provisions of section 12(1)(2)(3) of Ain.
“(?) ??-???? (?) ?? ????? ????????, ??? ?????? ??????????, ???? ??? ??? ?? ?????????? ???? ??????? ??? ???????? ???? ?? ?? ????? (Lien or pledge) ?????? ?? ?????? ??? ??????, ??? ???? ?????? ?????? ????? ?????? ????? ??????? ?? ?????? ????? ??? ??????, ??? ?????? ?? ????? ??? ?????????? ?? ?????? ???? ?????? ?? ?????, ???? ?? ?????? ??? ????? ????? ????? ??? ( emphasis added )
(?) ??-???? (?) ?? ????? ????????, ??? ?????? ?????????? ??? ??? ?? ?????????? ???? ?? ?? ?????? ???????? ?????? ?? ????? ????? ????? ????? ??????????? ???? ???????? ?????-?????? ??? ?????? ????? ?????????? ???? ???? ???? ?????? ????? ??? ?????? ??????? ????????? ????? ??????
(?) ??? ?????? ??????????, ??????? ???? ???? ??? ?????? ???????? (Immovable Property) ????? ?????? ???????? (???????) ?????? ???? ??????? ???????? (Movable Property ) ??????? ?????? (Hypothecated) ?? ?????? ????? ??? ????? ?????? ?? ??????? ????? ??? ????? ?????? ?? ??????? ???????? ???????? ?????? ? [***] ?????? ???????????? ?????? ??? ???? ?????, ??? ?????? ?? ????? ??? ?????????? ???? ?? ?????? ???? ?????? ?? ????? ???? ???????? ?????? ????? ?????? ?? ????, ???? ?? ?????? ??? ????? ????? ????? ???” ( emphasis added)
9. On a plain reading of the above provisions we get a clear picture of the law as it stands. The essence of section 12 is that the Artha Rin suit cannot be filed by any financial institution without selling of a mortgage property or any other institution first. Even if the suit has been filed wrongly or by mistake but in course of trial that has to be cured in terms of section 12(2) of Ain. Further section 12(3) of Ain provides that if owing any reason a suit cannot be filed by the financial institution even then a suit can well be filed afterwards without any restriction.
10. In that view of the above discussions as based upon analysis of law governing the subject we are of the view that the Artha Rin Adalat vide its order No.2 dated 7-6-2012 (Annexure B) passed an order to take recourse of section 33 of the Ain and accordingly published notice in the newspaper dated 14-6-2012 (Annexure-C). May be section 33 of Ain was wrongly quoted but that does vitiate the proceeding under section 12 of Ain. Artha Rin Adalat will proceed as unusal in accordance with law. This Rule should be discharged being devoid of any substance.
In the results, 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 at once.
Md Ashfaqul Islam J
Md Ashraful Kamal J
Shakwat Hossain (Md)
……………..Petitioner
Judgment
June 6th, 2013.
Vs
The Artha Rin Adalat No. 2 Dhaka and another…….Respondents
The Artha Rin Adalat Ain (VIII of 2003)
Section 12(2)(3)
Rin suit cannot be filed by any financial institution without selling of a mortgage property or any other institution first. Even if the suit has been filed wrongly or by mistake but in course of trial that has to be cured in terms of section. 12(2) of Ain. Further section 12(3) of Ain provides that if owing any reason a suit cannot be filed by the financial institution even then a suit can well be filed afterwards without any restriction.. . ….. (9)
Khan Ziaur Rahman, Advocate- Advocate-For the Petitioner
Md Khurshed Alam, Advocate-For the Respondent
No.2.
Judgment
Md Ashfaqul Islam J: At the instance of the petitioner Md Shakwat Hossain, this Rule Nisi was issued calling upon the respondents to show cause as to why the impugned Order No.1 dated 7-6-2012 passed by the respondent No.1 so far it relates to sale of the Cargo Vessel MV Shawon-2 under section 33 of the Artha Rin Adalat Ain, 2003 (hereinafter referred to as Ain) by way of auction shall not be declared to have been passed without lawful authority and is of no legal effect.
2. The background leading to the Rule, in short, is that the petitioner availed of a loan facility from the respondent No.2 the Premier Bank Limited Saver Branch, Saver, Dhaka. Subsequently he became defaulter in paying off the loan for which the respondent-bank as the plaintiff filed Artha Rin Suit No. 145 of 2012 before the respondent No.1 Artha Rin Adalat No.2, Dhaka stating inter alia that the plaintiff bank sanctioned a term loan facility for an amount of Taka 1,00,00,000 (one crore) in favour of the petitioner’s business firm for purchasing a steel body cargo vessel. The said loan was secured by mortgaging of land measuring 33 decimals situated in the District of Gazipur and 3.63 decimals of land situated in the District Dhaka unde Police Station Sabujbagh and ‘ another 7.50 decimals of land situated in the District Dhaka under Police Station Khilgaon and the petitioner also executed letter of hypothecation dated 11-2-2009.
3. Thereafter, Artha Rin Suit was filed on 76-2012 by the respondent bank and from the plaint that has been annexed to the petition it appears in paragraph 16 that the respondent bank in compliance of section 12 of the Ain on ( 19-4-2012 published auction notice in the “Daily Prothorn Alo” to sell the mortgaged property but the bank could not able to sell the property as the order of auction sale was stayed by a Division Bench of this Court in a Writ proceeding. Therefore, the bank in compliance with section 12(2) read with section 12(3) proceeded on and accordingly issued order No.2 dated 7-6-2012 (Annexure-B) for selling of the Cargo vessel MV Shawon-2. It is at this stage challenging the said order the petitioner moved this Division and obtained the present Rule and order of stay.
4. Mr Khan Ziaul Rahman, the learned counsel appearing for the petitioner after placing the petition, impugned order and the relevant Annexures with it mainly submits that the impugned order has been passed in gross violation of Artha Rin Adalat Ain, 2003 in that, without following provision of section 33(1) the order has been passed which is a clear abuse of process of the Court.
5. Mr Md Khurshed Alam, the learned Advocate, on the other hand, by filing affidavit in-opposition opposes the Rule and pressed paragraphs 6 and 6(A) of the same. The sum and substance of his submissions is that the respondent-bank before filing the suit on 19-4-2012 published notice in the “Daily Prothom Alo” for auction sale of the mortgaged property but the said notice was challenged in Writ Petition No.4768 of 2012 and a Division Bench of this Court stayed the notice for which the respondent-bank could not exhaust the provision of section 12 of Ain. Further he submits that in all fairness the execution should proceed in accordance with law.
6. Be that as it may, we have heard the learned counsel of both sides at length and considered their submissions. We have gone through the petition, impugned order, the different Annexures to the petition and the affidavit-in-opposition carefully.
7. Only question that calls for consideration in this petition is whether the facts and circumstances of the case the order impugned against can sustain.
8. In this respect we thinks it profitable to quote the provisions of section 12(1)(2)(3) of Ain.
“(?) ??-???? (?) ?? ????? ????????, ??? ?????? ??????????, ???? ??? ??? ?? ?????????? ???? ??????? ??? ???????? ???? ?? ?? ????? (Lien or pledge) ?????? ?? ?????? ??? ??????, ??? ???? ?????? ?????? ????? ?????? ????? ??????? ?? ?????? ????? ??? ??????, ??? ?????? ?? ????? ??? ?????????? ?? ?????? ???? ?????? ?? ?????, ???? ?? ?????? ??? ????? ????? ????? ??? ( emphasis added )
(?) ??-???? (?) ?? ????? ????????, ??? ?????? ?????????? ??? ??? ?? ?????????? ???? ?? ?? ?????? ???????? ?????? ?? ????? ????? ????? ????? ??????????? ???? ???????? ?????-?????? ??? ?????? ????? ?????????? ???? ???? ???? ?????? ????? ??? ?????? ??????? ????????? ????? ??????
(?) ??? ?????? ??????????, ??????? ???? ???? ??? ?????? ???????? (Immovable Property) ????? ?????? ???????? (???????) ?????? ???? ??????? ???????? (Movable Property ) ??????? ?????? (Hypothecated) ?? ?????? ????? ??? ????? ?????? ?? ??????? ????? ??? ????? ?????? ?? ??????? ???????? ???????? ?????? ? [***] ?????? ???????????? ?????? ??? ???? ?????, ??? ?????? ?? ????? ??? ?????????? ???? ?? ?????? ???? ?????? ?? ????? ???? ???????? ?????? ????? ?????? ?? ????, ???? ?? ?????? ??? ????? ????? ????? ???” ( emphasis added)
9. On a plain reading of the above provisions we get a clear picture of the law as it stands. The essence of section 12 is that the Artha Rin suit cannot be filed by any financial institution without selling of a mortgage property or any other institution first. Even if the suit has been filed wrongly or by mistake but in course of trial that has to be cured in terms of section 12(2) of Ain. Further section 12(3) of Ain provides that if owing any reason a suit cannot be filed by the financial institution even then a suit can well be filed afterwards without any restriction.
10. In that view of the above discussions as based upon analysis of law governing the subject we are of the view that the Artha Rin Adalat vide its order No.2 dated 7-6-2012 (Annexure B) passed an order to take recourse of section 33 of the Ain and accordingly published notice in the newspaper dated 14-6-2012 (Annexure-C). May be section 33 of Ain was wrongly quoted but that does vitiate the proceeding under section 12 of Ain. Artha Rin Adalat will proceed as unusal in accordance with law. This Rule should be discharged being devoid of any substance.
In the results, 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 at once.
