13/11/2021
SUPREME COURT DECISIONS:
Artha Rin Adalat Ain, 2003
Section 34 sub-sections (2) and (11)
The Code of Civil Procedure
Order XXI Rule 37
Exempting a woman judgment-debtor– The High Court Division observed that there was no requirement under provisions of the Artha Rin Adalat Ain, 2003 to issue show cause notice and that the provisions of Order XXI of the Code are applicable in ex*****on cases where the prayer is for ex*****on of a money decree. Mst. Sufia Khatun =VS= Artha Rin Adalat, Khulna & others, (Civil), 2016-[1 LM (AD) 151]
Arthe Rin Adalat Ain (VIII OF 2003)
Section 33
Against the order of discharge for default– The Appellate Division held that it appears from the record that earlier both the Rules were discharged for default in the High Court Division and those were restored .second time, both the appeared in the list with the names of the learned Advocates of the petitioner but he did not turn –up when those were taken up for hearing. Consequently .both the Rules were again discharged for default. In view of the facts of the case and other circumstances, the Appellate Division does not find any illegality in the orders of the High Court Division in rejecting the prayers to recall the orders of discharged for default. Accordingly both the petitions are dismissed. Md. Nuruzzaman =VS= Artha Rin Adalat & others, (Civil), 2016-[1 LM (AD) 416]
Artha Rin Adalat Ain, 2003
Section 34 sub-sections (2) and (11)
Artha Rin Adalat Ain, 2003 for exempting a woman judgment-debtor from being arrested for the purpose of realisation of the decretal amount as per section 34 of the special law. Section 34 sub-sections (2) and (11) have exempted certain other persons from being arrested and non-inclusion of a woman judgment-debtor in the list of exempted persons indicates that this category is not exempted from being arrested. Mst. Sufia Khatun =VS= Artha Rin Adalat, Khulna & others, (Civil), 2016-[1 LM (AD) 151]
Artha Rin Adalat Ain
Judgment and decree passed by the Artha Rin Adalat was not maintainable– The Appellate Division held that it is now well settled that a writ petition challenging the judgment and decree passed by the Artha Rin Adalat was not maintainable and moreover, respondent No.1 as defendant No.4 contested the suit. Such a decree can only be challenged by filing an appeal within the statutory period of limitation on depositing 50% of decretal amount. Agrani Bank =VS= Mrs. Hosne Ara Begum & another, (Civil), 2016-[1 LM (AD) 334]
Artha Rin Adalat Ain (VIII of 2003)
Section 50
Bank interest will have to be calculated according to the prevailing interest rate.
The Appellate Division is of the view that the interest to be paid by the judgement debtor will have to be calculated according to the prevailing interest rate or rates, which may be different for different periods, from the time of filing of the suit till the payment of the decretal amount by the judgement debtor. M/S. Rajib Traders =VS= Artha Rin Adalat & another, (Civil), 2016-[1 LM (AD) 186]
Artha Rin Adalat, suit for realisation of loan–
The Appellate Division observed that the claim of the plaintiff is against two sets of defendants. Defendant Nos. 1 and 2 are the borrowers. Defendant Nos. 3 and 4 are parties to a tripartite agreement by which the goods purchased with the loan money were to be stored in a cold storage belonging to defendant No. 4. With regard to the liability of defendant Nos. 3 and 4 the High Court Division came to a finding that the tripartite agreement may gave rise to liability of defendant Nos. 3 and 4 but that liability is not related to the loan and the proper course would be for the plaintiff bank to sue defendant Nos. 3 and 4 for realisation of money and compensation in a money suit. So far as it relates to the claim against defendant Nos. 1 and 2 the High Court Division observed that although morabaha loan was granted by the bank in favour of defendant Nos. 1 and 2 there was no allegation against defendant Nos. 1 and 2 for non-payment of claimed money. The High Court Division upheld the decision of the trial Court observing that since defendant Nos. 1 and 2 did not get the remaining 844 bags of potatos, they have no liability to pay the price of the said goods. Appellate Division does not find any illegality. Accordingly, the civil petition for leave to appeal is dismissed. Islami Bank =VS= M/S Ahsanuddin Ahmed & others, (Civil), 2016-[1 LM (AD) 82]
Artha Rin Adalat Ain
Section 6(5)
Third party– A third party is neither a necessary nor a proper party in a suit for realisation of ‘FY’ against debtors. Therefore, neither section 19 nor section 41 has provided any provision to redress the grievances of a third party in respect of a mortgaged property. If someone takes loan from a bank by mortgaging another’s property by way of deceitful means or by resorting to forgery or collusion or by misrepresentation, the Adalat cannot adjudicate the issue. Sub-section (5) of section 6 has specifically provided the parties against whom a suit under the Ain can be filed. Other than those persons, there is no scope under the Ain to implead any person to add as defendant in the suit. Sekandar (Md.) =VS= Janata Bank Ltd., (Civil), 2017 (2)– [3 LM (AD) 448]
Artha Rin Adalat Ain
Section 32– The High Court Division held that if it could be shown that the decree was obtained by practicing fraud, the aggrieved party had its remedy under the Artha Rin Adalat Ain under section 32 by depositing 10% of the decreetal amount and that an independent suit is not maintainable. Sekandar (Md.) =VS= Janata Bank Ltd., (Civil), 2017 (2)– [3 LM (AD) 448]
Agreement for sale of Property– The judgment and decree passed by the trial Court is restored with modification of the amount of compensation which will now be Tk. two crores. The respondent is directed to execute and register the sale deed in question on receipt of this amount from the appellant within three months from date, failing which, the appellant will be at liberty to get the kabala deed executed and registered through Court on deposit of the said amount in Court. If the Purchaser fails to pay the amount ordered by us within the time allowed by us, then the agreement for sale in question shall stand cancelled and the Vendor will be entitled to regain vacant possession of the suit property within one month thereafter. Mahua Khair =VS= Amena Begum Ali Ispahani, (Civil), 2017 (2)– [3 LM (AD) 246]
50 lacs as damage and compensation penalising the bank– The High Court Division found that the exigencies demanded an expeditious disposal of the proposal made by the plaintiff company for sale of some of the land mortgaged with the bank with a view to salvaging the plaintiff Mills, and hence, since the bank did not act promptly, it should be made liable to pay Tk. 50 lacs to the plaintiff company. The High Court Division felt that had the bank taken prompt action with regard to the proposed sale of the land then the bank’s loan could have been managed preventing litigation between the parties. W. Rahman Jute Mills Ltd. =VS= Rupali Bank Ltd., (Civil), 2017 (2)– [3 LM (AD) 499]
The Artha Rin Adalat Ain, 2003
Section 19 (2)(3) & (4)
Ex parte decree– Sub-sections (2)(3) and (4) of section 19 of the Ain is that if a proper application is made by the defendant for setting aside an ex parte decree in accordance with law a right accrues to the defendant to have the ex parte decree set aside. In the present case the only point in issue is whether or not the defendant filed the application for setting aside the ex parte decree within the time stipulated by law. Admittedly miscellaneous case was not filed within 30 days from the date of the decree. Whether or not it was filed within 30 days from the date of knowledge of the ex parte decree is a matter to be decided with the help of evidence, adduced by the parties. It is our considered view that the view taken by the High Court Division that the appellant had knowledge through her constituted attorney is absolutely misconceived since knowledge of any party to the suit is a matter personal to that party. Knowledge can only be ascertained upon taking evidence. There is no evidence on record to indicate that even the attorney was examined to ascertain whether or not this defendant had received notices of the suit. The judgement and order of the High Court Division is hereby set aside. The artha rin miscellaneous case is sent back to the Artha Rin Adalat, First Court, Chittagong, where the appellant (defendant No.8) is to be given an opportunity to prove her knowledge as contemplated in section 19(2)of the Ain by adducing evidence. The Artha Rin Adalat is directed to dispose of the miscellaneous case within four months of receipt of this judgement. Dilruba Morshed (Mrs.) =VS= Artha Rin Adalat, (Civil), 2018 (1) [4 LM (AD) 104]
Artha Rin Adalat Ain, 2003
Section 33(7)
Judgment-debtor can always settle the matter with the decree- holder Bank arranging the payment of the decretal amount– The impugned order of the High Court Division and those of the executing Court dated 31-5-2006 and 26-2-2008 are set aside. The executing Court is directed to hold fresh auction of the property in question in accordance with law. The decree-holder is directed to take positive step in the matter in that regard. It does not require any direction/order by this Court, because the judgment-debtor can always settle the matter with the decree- holder Bank arranging the payment of the decretal amount. Ellal Textile Mills Limited =VS= Artha Rin Adalat, (Civil), 2018 (1) [4 LM (AD) 110]
The Artha Rin Adalat Ain, 2003
Section 60(3)
In discharging the Rule, the High Court Division held that when the ex*****on case was pending in the Artha Rin Adalat constituted under the Artha Rin Adalat Ain of 1990,the 2003 Act of the same nomenclature came into force, by virtue of section 60(3) of which all proceedings, including ex*****on cases, pending in Artha Rin Adalats created by the repealed Act of 1990, stood transferred to the Artha Rin Adalats created by the Act of 2003, and hence there was no lack of jurisdiction. We are left in no doubt that the legislators meant to have all proceedings pending under the 1990 Ain to be transferred intact to the Adalats constituted under the Ain of 2003. Shahidul Islam =VS= Artha Rin Adalat, (Civil), 2018 (1) [4 LM (AD) 329]
The Artha Rin Adalat Ain, 1990
Section 6(ka), 5(4) & (5) read with
The Code of Civil Procedure
Section 56
Section 5(4) and (5) of the Artha Rin Adalat Ain, 1990 has clothed the Artha Rin Adalat with the power to exercise its jurisdiction as a Civil Court following the provisions of the Code of Civil Procedure in so far as it is not inconsistent with any provision of the Artha Rin Adalat Ain, the legislature was required to make express provision in section 6(Ka) to exclude the operation of section 56 of the Code of Civil Procedure, but it was not done so. Section 6(Ka) of the Artha Rin Adalat Ain, 1990 can not, therefore, be construed to exclude the operation of section 56 of the Code of Civil Procedure in matters of ex*****on of any decree passed by the Artha Rin Adalat. Hazera Begum =VS= Artha Rin Adalat, (Civil), 2018 (1) [4 LM (AD) 225]
