High Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Kashefa Hussain J
Ramjan Ali Tarafder (Md)
……….Petitioner
vs
Bangladesh and others ………..
…………… Respondents
Judgment
February 22th, 2015
Artha Rin Adalat Ain (VIII of 2003)
Sections 12(1)(2)(4) and 33
Since the auction of the concerned property of the petitioner was not sold in auction in pursuance of a decree or order as envisaged under Section 33 of the Ain but the auction was made prior to filing of the suit in pursuance to sub-section 1 of section 12 of the Ain, as such, under sub-section 4 of Section 12, the provisions of Section 33 are not mandatory. .. …. (9)
Artha Rin Adalat Ain (VIII of 2003)
Sections 12 and 33(2)
The compliance of provision of Section 33(2) of Ain for the purpose of Section 12 of the Ain even when read with sub-section 4, is not at all mandatory rather it is directory. …(11)
Zinnatul Ara vs Government of the People’s Republic of Bangladesh, 15 BLC (AD) 168; Banesa Bibi vs Senior Vice President, 63 DLR (AD) 160 and Rex Apparels (Pvt) Ltd, vs Bangladesh, 20 BLC 178 ref.
Obaidur Rahman Mostafa with Anwarul Islam, Advocates-For the Respondent No.2.
Judgment
Md Ashfaqul Islam J: At the instance of the petitioner, Md Ramzan Ali Tarafder, this Rule Nisi was issued in the following terms:
“Let a Rule Nisi be issued calling upon the respondent No. I to show cause as to why the Notice for auction under Section 12 of the Artha Rin Adalat Ain, 2003 published in the Daily Bhorer Dak dated 10-2-2011 (Annexure-A) and subsequent sale of the property vide registered sale deed No. 2092 dated 10-4-2011 (Annexure- B) of Sadar Sub-Registry Office, Khulna and sale deed No.5352 dated 25-4-2011 (Annexure-B-l) of Sadar Sub-Registry Office, Jessore should not be declared to have been made by the respondent No. 1 without any lawful authority and is of no legal effect.”
2. The background leading to the Rule, in short is that the petitioner availed credit facilities of Taka 2 lakh from the respondent No.2 Rupali Bank Limited, Khalishpur Khulna. The petitioner owned and possessed the same land which was mortgaged in favour of the respondent bank in order to secure the credit facilities. A notice under Section 12 of the Artha Rin Adalat Ain for selling the property of the petitioner was published by respondent No. 2 bank under the signature of the Manager (Annexure-A). Respondent No.3, one Abul Kalam Mollah participated in the bid and became the highest bidder. The respondent No.2 bank registered the sale deed’ No. 2092 dated 10-4-2011 with Sadar Sub-Registry Office, Khulna and sale deed No. 5251 dated 25-4-2011 to Sadar Sub-Registry Office of Jessore and sold out the mortgaged property of the petitioner in favour of respondent No.3 (Annexures-B & B-1). Further it has been stated that respondent No.2, Bank by letter dated 23-4-2011 (Annexure-C) requested the petitioner to take the additional amount from the sale proceed.
The letter dated 24-3-2011 reveals that the property of the petitioner was sold at Taka 6(six) lakh. The petitioner did not receive any amount pursuant to letter dated 24-3-2011. It has been also stated that property of the petitioner was sold out at a shockingly low price and as per present market rate value of the property stands at Taka 50(Fifty) lakhs. Precisely highlighting all these irregularities as stated in the petition the petitioner moved this writ petition and obtained this Rule and’ order of stay.
3. Mr Md Sohel Rana, the learned counsel appearing’ on behalf of the petitioner after placing the petition, the notice impugned against and other materials on record mainly argued that the respondent bank published the auction notice in Daily Bhorer Dak on 10-2-2011 fixing 27-2-2011 for auction asking for 20% earnest money to be deposited at the time of submitting the bid also allowing 30 days time for submitting: rest bid amount from the date of acceptance. He submits that the abovementioned condition has pot been backed up by section 33(2) of Ain, :2003 in asmuchas the, respondent No.2, published the notice without following the mandatory provision of section 33 of Ain, 2003 and, as such, the impugned auction notice (Annexure-A) is illegal and subsequent sale of the property vide Annexure-B, and B-l pursuant to that auction notice is also illegal and therefore, the same are liable to be declared without lawful authority and is of no legal effect.
4. The learned Advocate further submits that the property of the petitioner was sold at a shockingly, low price as, evident from the Annexures-‘B’ and ‘B-1’ wherein the value of the property in the sale deed was shown, Taka 11,00,000 (Eleven lakhs) but ‘in’ the body it was stated that property was sold at Taka 6,00,000 (Six lakhs). The respondent No .. 2′ by practicing fraud prepared the registered deed in such a way so as to deprive the petitioner from the additional sale proceed and also deprived the government from the registration feer. The sale deeds of the mortgage property Annexure- B and B-1 were executed by practicing fraud and as such, the same are liable ‘to be, declared without lawful authority and is of no legal effect.
5. Mr Obaidur Rahman Mostafa, the learned Advocate by filing Vokalatnama on behalf of the respondent No.2 bank on the other hand opposes the Rule. His bone, of contention’ is that this’ writ petition is misconceived specially in terms of section 12(8) proviso which clearly stipulates:
ÓAvcvZZ t ejer Ab¨ †Kvb AvB‡b wfbœviƒc hvnv wKQzB _vKzK bv †Kb, GB avivi Aaxb Avw_©K cÖwZôvb KZ…©K hypothecation A_ev Mortgage Gi Aaxb cÖvß ÿgZve‡j †Kvb AvgvbZx ¯’vei ev A¯’vei m¤úwË weµq Kiv nB‡j, D³ †µZvi AbyK~‡j ˆea ¯^Z¡ m…wó Kwi‡e 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, AvgvbZ cÖ`vbKvix FY-MÖwnZv Avw_©K cÖwZôv‡bi weiæ‡× ÿwZc~iY Kwi‡Z cvwi‡ebÓ|
6. The question that has to be addressed in this petition is whether the impugned auction notice and the subsequent sale pursuant to the same is wrong in terms of section 12(4) read with sections 33(1) & 2 of Ain, 2003 and also ‘on the ‘ground of irregularity.
7. We have heard the learned counsel’ of both sides and’ considered their submissions. Firstly, let us consider the submission whether for the non-compliance of section 12(4) of the Ain which has made the compliance of sections 31(1) & (2) of Ain mandatory, the impugned notice and sale can legally sustain which was not done. To appreciate the contention let us quote section 33(1)(2):
Ò33| wbjvg weµq t- (1) A_© FY Av`vjZ wWµx ev Av‡`k Rvixi mgq †Kvb m¤úwË weµ‡qi †ÿ‡Î ev`xi Li‡P weÁwß cÖPv‡ii ZvwiL nB‡Z Ab~¨b 15 (c‡bi) w`e‡mi mgq w`qv mxj‡gvniK…Z †UÛvi AvnŸvb Kwi‡e, D³ weÁwß Kgc‡ÿ eûj cÖPvwiZ GKwU evsjv RvZxq ˆ`wbK cwÎKvq, Z`ycwi b¨vq wePv‡ii ¯^v‡_© cÖ‡qvRb Kwi‡j ¯’vbxq GKwU cwÎKvq hw` _v‡K, cÖKvk Kwi‡e Ges Av`vj‡Zi †bvwUk †ev‡W© jUKvBqv I ¯’vbxqfv‡e †Xvj mniZ †hv‡MI D³ weÁwß cÖPvi Kwi‡e|
(2) cÖ‡Z¨K `i`vZv D×…Z 25% Gi mgcwigvb UvKv RvgvbZ ¯^iƒc e¨vsK WªvdU ev †c-AW©v‡ii AvKv‡i Av`vj‡Zi AbyK~‡j `ic‡Îi mwnZ `vwLj Kwi‡eb, `icÎ mivmwi `icÎ ev‡· wKsev †iwRw÷ªK…Z WvK‡hv‡M wba©vwiZ mg‡qi g‡a¨ wba©vwiZ KZ…©c‡ÿi wbKU †cÖi‡Yi gva¨‡g `vwLj Kwi‡eb ; Ges `i`vZv, `i M”nxZ nBevi cieZx© 10 (`k) w`e‡mi g‡a¨ mg~`q g~j¨ cwi‡kva Kwi‡eb Ges Zvnv Kwi‡Z e¨_© nB‡j, Av`vjZ Zuvnvi D³ Rvgvb‡Zi UvKv ev‡Rqvß Kwi‡e tÓ
8. Sub-section 12(1) to 4 of section 12 are also required to be quoted for the purpose :
Ò12t (1) Dc-aviv (2) Gi weavb mv‡c‡ÿ, †Kvb Avw_©K cÖwZôvb, Dnvi wbR `Lj ev wbqš¿‡Y _vKv weev`xi †Kvb m¤úwË hvnv cY ev eÜK (Lien or pledge) ivwLqv FY cÖ`vb Kiv nBqv‡Q Ges hvnv weµq Kwievi AvBbMZ AwaKvi ev`xi iwnqv‡Q ev ev`x‡K Ac©b Kiv nBqv‡Q hvnv weµq bv Kwiqv Ges weµqjä A_© FY cwi‡kva eve` mgš^q bv Kwiqv, A_© FY Av`vj‡Z †Kvb gvgjv `v‡qi Kwi‡e bv|
(2) Dc-aviv (1) Gi weavb m‡Ë¡I, †Kvb Avw_©K cÖwZôvb wbR `Lj ev wbqš¿‡Y _vKv cY ev eÜKx m¤úwË weµq bv Kwiqv gvgjv `v‡qi Kwi‡j AbwZwej‡¤^ D³ m¤úwË c~e©-ewY©Z g‡Z weµq Kwiqv weµqjä A_© F‡Yi mwnZ mgš^q Kwi‡e Ges welqwU Av`vjZ‡K wjwLZfv‡e AewnZ Kwi‡e|
(3) †Kvb Avw_©K cÖwZôvb, weev`xi wbKU nB‡Z †Kb ¯’vei m¤úwË (Immovable Property) eÜK (Mortgage) ivwLqv A_ev A¯’vei m¤úwË (Movable Property) `vqe× ivwLqv (Hypothecated) FY cÖ`vb Kwi‡j Ges eÜK cÖ`vb ev `vqe× ivLvi mgq eÜKx ev `vqe× m¤úwË weµq‡qi ÿgZv (Power of Attorney) Avw_©K cÖwZôvb‡K cÖ`vb Kiv nBqv _vwK‡j, Dnv weµq bv Kwiqv Ges weµqjä A_© FY cwi‡kva eve` mgš^q bv Kwiqv, A_ev weµ‡qi †Póv Kwiqv e¨_© bv nBqv, A_© FY Av`vj‡Z †Kvb gvgjv `v‡qi Kwi‡e bv|
(4) Dc-aviv (3) G DwjøwLZ weµ‡qi †ÿ‡Î Avw_©K cÖwZôvb GB AvB‡bi aviv 33-Gi Dc-aviv (1), (2) I (3) Gi weavb, hZ`~i m¤¢e, AbymiY Kwi‡e|
9. The essence of section 12 of Ain is absolutely wider. This law enjoins that before institution of any suit against any borrower the bank shall have to arrange for an auction sale of the property mortgaged by any borrower. It is a precondition for filing a suit. Even if a suit is filed in violation of the said provision without going for such auction as aforesaid that shall have to be regularized in terms of Section 12(2) of the Ain.
The submission of the petitioner that in utter violation of section 12(4) read with 33(2) of the Ain. The submission of the petitioner that in utter violation of Section 12(4) read with 33(2) of Ain the auction was held has no legs to stand. Since the auction of the concerned property of the petitioner was not sold in auction in pursuance of a decree or order as envisaged under section 33 of the Ain but the auction was made prior to filing of the suit in pursuance to sub-section 1 of Section 12 of the Ain, as such, under sub-section 4 of section 12, the provisions of section 33 are not mandatory. In the decision of Zinnatul Ara vs Government of the People’s Republic of Bangladesh, reported in 15 BLC (AD) 168 our Appellate Division clearly observed :
“It was argued before this Division that 75% of the rest of the bid money was not deposited by the auction purchaser within the period specified by sub-section 2 of section 33 of the Ain but it was reiterated that under sub-section 8 of Section 12, the auction-purchase cannot be questioned.”
10. It was further observed :
“It appears that after the auction, the rest of the bid money was not deposited within the period of 10 (ten) days as envisaged under sub-section 2 of section 33 of the Ain.
But it is to be noted that the auction of the concerned property of the petitioners was not sold in auction in pursuance of a decree or order as envisaged under Section 33 of the Ain but the auction was made prior to filing of the suit in pursuance to sub-section 1 of section 12 of the Ain, as such, under sub-section 4 of section 12, the provisions of Section 33 are not mandtory.”
11. In view of the said decision of the Appellate Division we hold that the complince of provision of section 33(2) of Ain for the purpose of section 12 of the Ain even when read with sub-section 4, is not at all mandatory rather it is directory.
12. To address the second contention of the petitioner that the impugned notice and sale had been vitiated on the ground of irregularity and fraud we consider that the proviso of sub-section 8 of Section 12 of the Aim has direct hearing on the point.
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. Our Appellate Divison has settled the issue clearly in the decision of Banesa Bibi vs Senior Vice President reported in 63 DLR (AD) 160. It has been observed :
“Be that as it may as per section 12(8) the Artha Rin Adalat Ain, 2003 and proviso thereof, which provided that in case of an auction sale held illegally or with irregularity, 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.
The provision of section 12(8) of the Artha Rin Adalat Ain, 2003 has been quoted above.
13. This Division also decided the case of Rex Apparels (Pvt) Ltd. vs Bangladesh reported in 20 BLC 178 applying the above decision of the Appellate Division.
14. Fortified with the two decisions of the Appellate Division focused on the two points raised by the petitioner we hold both the points adversely against the peittioner.
In the result, the Rule is discharged without any order as to cost.
Communicate this order at once.
