High Court Division :
(Special Original Jurisdiction)
Zinar Ara J
Kazi Md Ejarul Haque
Akondo J
Abdul Kader (Md…………Petitioner
Vs
Government of Bangladesh represented by the Secretary Ministry of Law, Justice and Parliamentary Affairs and others ………Respondents
Judgment
May 14th, 2017
Artha Rin Adalat Ain (VIII of 2003)
Sections 33, 34(1)(9) and (10)
Attempt was taken for auction of the mortgaged property under Section 33 of the Ain and due to non-participation of the bidder, the property could not· be sold in a auction. Thereafter, on application of the decree-holder-Bank, the Adalat passed order for six months’ civil prison of the judgment-debtors and issued warrants of arrest against the judgment-debtors accordingly.. (11)
Muntasir Uddin Ahmed Advocate-For the Petitioner.
Md Imam Hasan Advocate-For Respondent No.3
Judgment
Zinat Ara J : In this Rule Nisi, the petitioner has challenged the legality of Order No. 43 dated 6-1-2015 passed by the learned Judge of Artha Rin Adalat No.4, Dhaka (shortly, the Adalat) in Artha Jari Case No, 612 of 2004 issuing warrants of arrest against the judgment-debtor-petitioner. The petitioner also challenged Order No. 45 dated :25-2-2015 passed by the learned Judge of the Adalat in the aforesaid Artha Jari Case rejecting an application filed by the petitioner for bail.
Admitted Facts
1. Respondent No. 3- Rupali Bank Limited, Office, Dilkusha Commercial Area, Motijheel, Dhaka (hereinafter stated as the Bank), as plaintiff, on 29-4-2004, instituted Artha Rin Suit No. 507 of 2004 before Artha Rin Adalat No. 4 Dhaka for recovery of loan amounting to Taka 13,58,73,076 as stood on 31-3-2004 with interest till recovery thereof impleading the petitioner Md Abdul Kader and others as defendants of the suit. Eventually, the suit was decreed under Section of the Artha Rin Adalat Ain, 2003 (thereinafter referred to as the Ain) by judgment and decree dated 15-1-2005. The petitioner and other Judgment-debtors having failed to pay the decretal dues, the decree-holder-Bank filed Artha Jari Case No. 612 of 2005 on 29-8-2005 before the Adalat. In the execution case, the Bank filed application for amendment of the application of Artha Jari Case No. 612 of 2005 under Order. VI, rule 17 of the Code of Civil Procedure, 1908 (the Code, in short) read with Section 57 of the Ain and also filed another application for civil prison/ issuance of warrants of arrest against the judgment-debtors in their amended new addresses. The said applications were allowed and warrants of arrest were issued against the petitioner and other judgment-debtors. Whereupon, the petitioner was arrested on 20-2-2015. Thereupon, the petitioner on 25-2-2015 filed an application for bail before the Adalat, but it was rejected. Rupali Bank Limited, Sirajgonj Branch, Sirajgonj (briefly, Sirajgonj Branch) earlier filed Artha Rin Suit No. 163 of 1992 against the petitioner and others for recovery of another loan amounting to Taka 11.05 crores before the Artha Rin Adalat, Sirajgonj (shortly, Sirajgonj Adalat). The said suit was re-numbered as Artha Rin Suit No. 138 of 2004 and the said suit was also decreed against the–petitioner and others. The petitioner and other judgment-debtors having failed to pay the decretal dues, the Sirajgonj Branch filed Artha Jari Case No. 54 of 2007 for recovery of decretal dues of Taka. 24.69 crores and in the said execution case also warrants of arrest were issued against the judgment-debtors. The petitioner then filed Writ Petition No. 12250 of 2014 before the High Court Division and in the said writ petition order was passed staying operation of order of arrest for a period of six months and for release of the petitioner from jail relating to the Artha Jari Case No. 54 of 2007, which is not the subject matter of this writ petition.
Petitioner’s Case
3. Earlier the petitioner filed Writ Petition No. 12250 of 2014 before the High Court Division challenging the warrants of arrest and a Rule Nisi was issued and the petitioner was released from jail; that the Bank filed an application for correction of the addresses of the petitioner as well as other judgment-debtors and also filed an application for issuance of warrants of arrest against the judgment-debtors, which were allowed by the impugned orders. The petitioner’s subsequent application for bail was rejected. The Bank without mentioning the correct address of the petitioner obtained the ex-parte judgment and decree illegally. Artha Jari Case was once rejected due to default of the Bank in taking proper steps for warrants of arrest, but it was subsequently restored on application made by the Bank. The provision of Section 33(9) of the Ain has not been complied with before issuance of warrants of arrest and therefore, the order of warrants of arrest is unlawful and liable to be struck down.
Respondent No. 3’s Case
4. Respondent No.3-the Bank contested the Rule by filing an affidavit-in-opposition controverting the statements made in the writ petition contending, inter-alia, that Sirajgonj Spinning and Cotton Mills Limited (the Company, in short) availed loan of Taka 11.15 crores from Rupali Bank Limited, Sirajgonj Branch, Sirajgonj, but the Company and its directors failed to pay the said loan whereupon, the Bank filed Artha Rin Suit No. 163 of 1992 which was subsequently re-numbered as Artha Rin Suit No. 138 of 2004. After the decree, the judgment-debtors having failed to pay the decretal dues, the Sirajgonj Branch lawfully filed Artha Jari Case No. 54 of 2007 for recovery of Taka 24.69 crores and after completion of the legal formalities, the learned Judge of the Adalat issued warrants of arrest against the judgment-debtors including the petitioner; that the petitioner filed Writ Petition No. 12250 of 2014 challenging the said order; that the said writ petition is not related to the instant Artha Jari Case No. 612 of 2004 and completely relating to a different suit and execution case; that the Bank by giving correct addresses of the petitioner and other defendants, as per the Bank’s record, had filed Artha Rin Suit No. 507 of 2004 and obtained the judgment and decree, but the petitioner and other judgment-debtors for avoiding arrests changed their residential addresses and after collecting the present addresses of the petitioner and other judgment-debtors, the Bank filed application before the Adalat for issuance of warrants of arrest and the petitioner was lawfully arrested by the police of the concerned police station; that attempts were taken for auction sale of the mortgaged property in auction, but failed; that the writ petition is misconceived and an attempt to delay/defeat recovery of huge amount of outstanding decretal dues; that the petitioner has not come up in clean hands and filed the writ petition with false and vexatious statements and therefore, the Rule is liable to be discharged with heavy costs.
Arguments of the Contending Parties
5. Mr Muntasir Uddin Ahmed, the learned Advocate for the petitioner, takes us through the writ petition, the connected materials on record and submits that the judgment and decree was obtained by the Bank by giving incorrect addresses of the petitioner and others without service of summons. He next submits that once the execution case was rejected for not taking steps for issuance of warrants of arrest by the Bank, but subsequently, on application made by the Bank, the execution case was restored to its file and number and in the execution case, the Bank filed an application for correction of the addresses of the defendant-judgment-debtors. He further submits that the warrants of arrest were issued without complying with the provision of Section 33 of the Ain and therefore, the order for issuance of warrants of arrest is illegal and liable to be struck down.
6. In reply, Mr Md Imam Hasan, the learned Advocate for respondent No.3, takes us through the affidavit-in-opposition, the connected materials on record and contends that the Bank filed the suit by correctly mentioning the addresses of the petitioner and other defendants as per the Bank’s record. He next contends that after the judgment and decree, during the execution proceedings, the petitioner and others, had changed their addresses for avoiding warrants of arrest but the Bank after collecting their subsequent addresses filed an application for amendment of the execution petition which was legally allowed by the Adalat and the warrants of arrest were legally issued against the petitioner and other judgment-debtors in view of the provisions of Section 34(9) & (10) of the Ain, as mortgaged property could not be sold in auction. He further contends that the statements made in the writ petition have been denied by the Bank and the disputed questions of facts raised by the petitioner cannot be decided in writ jurisdiction and therefore, the writ petition is not – maintainable. He also contends that the suit was filed in the year 2004 and the execution case was filed in the year 2005 for recovery of decretal dues of more than taka thirteen crores and the petitioner and other judgment-debtors without paying the huge amount of the Bank’s decretal dues filed the writ petition to avoid payment of huge amount of the decretal dues. He finally crotends that in the facts and circumstances, the Rule is liable to be discharged with heavy costs.
Points for Determination
7. In view of the arguments as advanced by the learned Advocates for the contending parties, the moot question to be decided in the Rule is the legality of impugned Orders No. 43 dated 6-1-2015 and 45 dated 25-2-2015 passed by the learned Judge of the Adalat.
Examination of the Records
8. We have examined the writ petition, the supplementary affidavit thereto, the affidavit-in-opposition the supplementary affidavit-in opposition and the connected materials on record. We have also studied the relevant provision of Section 34 of the Artha Rin Adalat Ain, 2003.
Deliberation of the Court
9. Let us examine the impugned order dated 6 -1-2015 first.
10, In paragraph 9 of the supplementary affidavit-in-opposition, it has been clearly stated by the Bank that Artha Rin Suit. No. 507 of 2004 filed by Rupali Bank Limited, Local Office, Dhaka and it was decreed on 15-1-2005 against the petitioner and others, but the judgment-debtors did not pay the decretal dues. Whereupon, the Bank filed Artha Jari Case No. 612. of 2005 before the Adalat and in the execution case, auction notice was published by the Bank in two dailies, namely, the Daily Ittefaq and the Daily Khabar Patra for auction sale of the mortgaged property, but no bidder participated in the auction and therefore, auction sale was not possible. It has been further stated that in the circumstances, the Bank filed an application for issuance of warrants of arrest against the judgment-debtors which was allowed. But the Bank failed to collect the present addresses of the judgment-debtors and thereafter, after collection of the present addresses of the judgment-debtors by the Bank, Artha Jari Case was restored and warrants of arrest were issued against the judgment-debtors in their new addresses.
11. From the certified copy of the order-sheets of Artha Jari Case No. 612 of 2005 (Annexure-1 to the supplementary affidavit), it appears that on 6-3-2006, the learned Judge of the Adalat passed order for publication of auction sale notice in two news papers fixing 30-4-2006 for auction. Then on 30-4-2006, in presence of one of the judgment-debtors, the decree-holder-Bank submitted paper-cuttings before the Adalat relating to auction sale, but no one participated in the auction. Therefore, it is evident that attempt was taken for auction of the mortgaged property under Section 33 of the Ain and due to nonparticipation of the bidder, the property could not be sold in auction. Thereafter, on application of the decree-holder-Bank, the learned Judge of the Adalat passed order for six months’ civil prison of the judgment-debtors and issued warrants of arrest against the judgment-debtors accordingly. Thus, it appears that the impugned order has been passed inconsonance with the provision of Sections 34(1), (9) & (10) of the Ain. Therefore, the impugned order dated 6-1-2015 appears to be legal.
12. Now, let us examine the impugned order dated 25-2-2015.
13. From the order dated 25-2-2015, it appears that the judgment-debtor-petitioner neither paid 25% of the decretal dues nor furnished any bond for payment of the Bank’s dues as required under the provision of Section 34(6) of the Ain. Therefore, the learned Judge of the Adalat legally passed the impugned order dated 25-2-2015 refusing bail of the judgment-debtor-petitioner for non-compliance with the provision of Section 34(6) of the Ain.
14. In view of the discussions made hereinbefore, vis-a-vis the law, we find no merit in the submissions of Mr Muntasir Uddin Ahmed, the learned Advocate for the petitioner and we find merit and force in the submissions of Mr Md Imam Hasan, the learned Advocate for the Bank.
15. In such view of the matter, we find no legal infirmity in the impugned orders passed by the learned Judge of the Adalat,
16. Accordingly, the Rule is discharged without any order as to costs.
17. The order of bail granted to the petitioner at the time of issuance of the Rule is, hereby, recalled.
18. The petitioner is directed to surrender to his bail bonds at once.
Communicate the judgment to respondents No.2, 3 and 4 at once.
(Special Original Jurisdiction)
Zinar Ara J
Kazi Md Ejarul Haque
Akondo J
Abdul Kader (Md…………Petitioner
Vs
Government of Bangladesh represented by the Secretary Ministry of Law, Justice and Parliamentary Affairs and others ………Respondents
Judgment
May 14th, 2017
Artha Rin Adalat Ain (VIII of 2003)
Sections 33, 34(1)(9) and (10)
Attempt was taken for auction of the mortgaged property under Section 33 of the Ain and due to non-participation of the bidder, the property could not· be sold in a auction. Thereafter, on application of the decree-holder-Bank, the Adalat passed order for six months’ civil prison of the judgment-debtors and issued warrants of arrest against the judgment-debtors accordingly.. (11)
Muntasir Uddin Ahmed Advocate-For the Petitioner.
Md Imam Hasan Advocate-For Respondent No.3
Judgment
Zinat Ara J : In this Rule Nisi, the petitioner has challenged the legality of Order No. 43 dated 6-1-2015 passed by the learned Judge of Artha Rin Adalat No.4, Dhaka (shortly, the Adalat) in Artha Jari Case No, 612 of 2004 issuing warrants of arrest against the judgment-debtor-petitioner. The petitioner also challenged Order No. 45 dated :25-2-2015 passed by the learned Judge of the Adalat in the aforesaid Artha Jari Case rejecting an application filed by the petitioner for bail.
Admitted Facts
1. Respondent No. 3- Rupali Bank Limited, Office, Dilkusha Commercial Area, Motijheel, Dhaka (hereinafter stated as the Bank), as plaintiff, on 29-4-2004, instituted Artha Rin Suit No. 507 of 2004 before Artha Rin Adalat No. 4 Dhaka for recovery of loan amounting to Taka 13,58,73,076 as stood on 31-3-2004 with interest till recovery thereof impleading the petitioner Md Abdul Kader and others as defendants of the suit. Eventually, the suit was decreed under Section of the Artha Rin Adalat Ain, 2003 (thereinafter referred to as the Ain) by judgment and decree dated 15-1-2005. The petitioner and other Judgment-debtors having failed to pay the decretal dues, the decree-holder-Bank filed Artha Jari Case No. 612 of 2005 on 29-8-2005 before the Adalat. In the execution case, the Bank filed application for amendment of the application of Artha Jari Case No. 612 of 2005 under Order. VI, rule 17 of the Code of Civil Procedure, 1908 (the Code, in short) read with Section 57 of the Ain and also filed another application for civil prison/ issuance of warrants of arrest against the judgment-debtors in their amended new addresses. The said applications were allowed and warrants of arrest were issued against the petitioner and other judgment-debtors. Whereupon, the petitioner was arrested on 20-2-2015. Thereupon, the petitioner on 25-2-2015 filed an application for bail before the Adalat, but it was rejected. Rupali Bank Limited, Sirajgonj Branch, Sirajgonj (briefly, Sirajgonj Branch) earlier filed Artha Rin Suit No. 163 of 1992 against the petitioner and others for recovery of another loan amounting to Taka 11.05 crores before the Artha Rin Adalat, Sirajgonj (shortly, Sirajgonj Adalat). The said suit was re-numbered as Artha Rin Suit No. 138 of 2004 and the said suit was also decreed against the–petitioner and others. The petitioner and other judgment-debtors having failed to pay the decretal dues, the Sirajgonj Branch filed Artha Jari Case No. 54 of 2007 for recovery of decretal dues of Taka. 24.69 crores and in the said execution case also warrants of arrest were issued against the judgment-debtors. The petitioner then filed Writ Petition No. 12250 of 2014 before the High Court Division and in the said writ petition order was passed staying operation of order of arrest for a period of six months and for release of the petitioner from jail relating to the Artha Jari Case No. 54 of 2007, which is not the subject matter of this writ petition.
Petitioner’s Case
3. Earlier the petitioner filed Writ Petition No. 12250 of 2014 before the High Court Division challenging the warrants of arrest and a Rule Nisi was issued and the petitioner was released from jail; that the Bank filed an application for correction of the addresses of the petitioner as well as other judgment-debtors and also filed an application for issuance of warrants of arrest against the judgment-debtors, which were allowed by the impugned orders. The petitioner’s subsequent application for bail was rejected. The Bank without mentioning the correct address of the petitioner obtained the ex-parte judgment and decree illegally. Artha Jari Case was once rejected due to default of the Bank in taking proper steps for warrants of arrest, but it was subsequently restored on application made by the Bank. The provision of Section 33(9) of the Ain has not been complied with before issuance of warrants of arrest and therefore, the order of warrants of arrest is unlawful and liable to be struck down.
Respondent No. 3’s Case
4. Respondent No.3-the Bank contested the Rule by filing an affidavit-in-opposition controverting the statements made in the writ petition contending, inter-alia, that Sirajgonj Spinning and Cotton Mills Limited (the Company, in short) availed loan of Taka 11.15 crores from Rupali Bank Limited, Sirajgonj Branch, Sirajgonj, but the Company and its directors failed to pay the said loan whereupon, the Bank filed Artha Rin Suit No. 163 of 1992 which was subsequently re-numbered as Artha Rin Suit No. 138 of 2004. After the decree, the judgment-debtors having failed to pay the decretal dues, the Sirajgonj Branch lawfully filed Artha Jari Case No. 54 of 2007 for recovery of Taka 24.69 crores and after completion of the legal formalities, the learned Judge of the Adalat issued warrants of arrest against the judgment-debtors including the petitioner; that the petitioner filed Writ Petition No. 12250 of 2014 challenging the said order; that the said writ petition is not related to the instant Artha Jari Case No. 612 of 2004 and completely relating to a different suit and execution case; that the Bank by giving correct addresses of the petitioner and other defendants, as per the Bank’s record, had filed Artha Rin Suit No. 507 of 2004 and obtained the judgment and decree, but the petitioner and other judgment-debtors for avoiding arrests changed their residential addresses and after collecting the present addresses of the petitioner and other judgment-debtors, the Bank filed application before the Adalat for issuance of warrants of arrest and the petitioner was lawfully arrested by the police of the concerned police station; that attempts were taken for auction sale of the mortgaged property in auction, but failed; that the writ petition is misconceived and an attempt to delay/defeat recovery of huge amount of outstanding decretal dues; that the petitioner has not come up in clean hands and filed the writ petition with false and vexatious statements and therefore, the Rule is liable to be discharged with heavy costs.
Arguments of the Contending Parties
5. Mr Muntasir Uddin Ahmed, the learned Advocate for the petitioner, takes us through the writ petition, the connected materials on record and submits that the judgment and decree was obtained by the Bank by giving incorrect addresses of the petitioner and others without service of summons. He next submits that once the execution case was rejected for not taking steps for issuance of warrants of arrest by the Bank, but subsequently, on application made by the Bank, the execution case was restored to its file and number and in the execution case, the Bank filed an application for correction of the addresses of the defendant-judgment-debtors. He further submits that the warrants of arrest were issued without complying with the provision of Section 33 of the Ain and therefore, the order for issuance of warrants of arrest is illegal and liable to be struck down.
6. In reply, Mr Md Imam Hasan, the learned Advocate for respondent No.3, takes us through the affidavit-in-opposition, the connected materials on record and contends that the Bank filed the suit by correctly mentioning the addresses of the petitioner and other defendants as per the Bank’s record. He next contends that after the judgment and decree, during the execution proceedings, the petitioner and others, had changed their addresses for avoiding warrants of arrest but the Bank after collecting their subsequent addresses filed an application for amendment of the execution petition which was legally allowed by the Adalat and the warrants of arrest were legally issued against the petitioner and other judgment-debtors in view of the provisions of Section 34(9) & (10) of the Ain, as mortgaged property could not be sold in auction. He further contends that the statements made in the writ petition have been denied by the Bank and the disputed questions of facts raised by the petitioner cannot be decided in writ jurisdiction and therefore, the writ petition is not – maintainable. He also contends that the suit was filed in the year 2004 and the execution case was filed in the year 2005 for recovery of decretal dues of more than taka thirteen crores and the petitioner and other judgment-debtors without paying the huge amount of the Bank’s decretal dues filed the writ petition to avoid payment of huge amount of the decretal dues. He finally crotends that in the facts and circumstances, the Rule is liable to be discharged with heavy costs.
Points for Determination
7. In view of the arguments as advanced by the learned Advocates for the contending parties, the moot question to be decided in the Rule is the legality of impugned Orders No. 43 dated 6-1-2015 and 45 dated 25-2-2015 passed by the learned Judge of the Adalat.
Examination of the Records
8. We have examined the writ petition, the supplementary affidavit thereto, the affidavit-in-opposition the supplementary affidavit-in opposition and the connected materials on record. We have also studied the relevant provision of Section 34 of the Artha Rin Adalat Ain, 2003.
Deliberation of the Court
9. Let us examine the impugned order dated 6 -1-2015 first.
10, In paragraph 9 of the supplementary affidavit-in-opposition, it has been clearly stated by the Bank that Artha Rin Suit. No. 507 of 2004 filed by Rupali Bank Limited, Local Office, Dhaka and it was decreed on 15-1-2005 against the petitioner and others, but the judgment-debtors did not pay the decretal dues. Whereupon, the Bank filed Artha Jari Case No. 612. of 2005 before the Adalat and in the execution case, auction notice was published by the Bank in two dailies, namely, the Daily Ittefaq and the Daily Khabar Patra for auction sale of the mortgaged property, but no bidder participated in the auction and therefore, auction sale was not possible. It has been further stated that in the circumstances, the Bank filed an application for issuance of warrants of arrest against the judgment-debtors which was allowed. But the Bank failed to collect the present addresses of the judgment-debtors and thereafter, after collection of the present addresses of the judgment-debtors by the Bank, Artha Jari Case was restored and warrants of arrest were issued against the judgment-debtors in their new addresses.
11. From the certified copy of the order-sheets of Artha Jari Case No. 612 of 2005 (Annexure-1 to the supplementary affidavit), it appears that on 6-3-2006, the learned Judge of the Adalat passed order for publication of auction sale notice in two news papers fixing 30-4-2006 for auction. Then on 30-4-2006, in presence of one of the judgment-debtors, the decree-holder-Bank submitted paper-cuttings before the Adalat relating to auction sale, but no one participated in the auction. Therefore, it is evident that attempt was taken for auction of the mortgaged property under Section 33 of the Ain and due to nonparticipation of the bidder, the property could not be sold in auction. Thereafter, on application of the decree-holder-Bank, the learned Judge of the Adalat passed order for six months’ civil prison of the judgment-debtors and issued warrants of arrest against the judgment-debtors accordingly. Thus, it appears that the impugned order has been passed inconsonance with the provision of Sections 34(1), (9) & (10) of the Ain. Therefore, the impugned order dated 6-1-2015 appears to be legal.
12. Now, let us examine the impugned order dated 25-2-2015.
13. From the order dated 25-2-2015, it appears that the judgment-debtor-petitioner neither paid 25% of the decretal dues nor furnished any bond for payment of the Bank’s dues as required under the provision of Section 34(6) of the Ain. Therefore, the learned Judge of the Adalat legally passed the impugned order dated 25-2-2015 refusing bail of the judgment-debtor-petitioner for non-compliance with the provision of Section 34(6) of the Ain.
14. In view of the discussions made hereinbefore, vis-a-vis the law, we find no merit in the submissions of Mr Muntasir Uddin Ahmed, the learned Advocate for the petitioner and we find merit and force in the submissions of Mr Md Imam Hasan, the learned Advocate for the Bank.
15. In such view of the matter, we find no legal infirmity in the impugned orders passed by the learned Judge of the Adalat,
16. Accordingly, the Rule is discharged without any order as to costs.
17. The order of bail granted to the petitioner at the time of issuance of the Rule is, hereby, recalled.
18. The petitioner is directed to surrender to his bail bonds at once.
Communicate the judgment to respondents No.2, 3 and 4 at once.
