IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Present

Mr. Justice Md. Iqbal Kabir And

Mr. Justice Md. Akhtaruzzaman

WRIT PETITION NO. 4965 OF 2019. IN THE MATTER OF:

An  application  under  Article  102  of  the Constitution  of  the  People’s  Republic  of Bangladesh.

-AND -

IN THE MATTER OF:

M/s Rupon Enterprise and another.

.....petitioners

-Vs-

The Government of the People’s Republic of Bangladesh and others.

.....respondents

Mr. A.K.M. Rezaul Karim Khandaker, Advocate

…..for the petitioners Mr. Md. Sameer Sattar with

Mr. Mahbub Hasan, Advocates

..... for the respondents

Heard on 10.03.2024, 11.03.2024 and 19.03.2024 Judgment on 23.04.2024.

Md. Akhtaruzzaman, J.

This Rule at the instance of the defendant-judgment debtor was

issued calling upon the respondents to show cause as to why order No.16 dated 25.03.2019 passed by Artha Rin Adalat, Bogura in Artha Rin Suit N o. 288 of 2017 decreeing the suit under section 13 of the Artha Rin Adalat  Ain,  2003  (Annexure-1  to  the  writ  petition)  should  not  be declared to be without lawful authority and of no legal effect and/or pass

such other or further order or orders as to this Court may seem fit and proper. 

The facts of the case as narrated in the writ petition, in brief, are as

follows: 

The petitioner No.1 opened a Current Deposit (CD) Account with the City Bank Ltd. Bogura Branch and availed over draft (OD) loan facilities  of  Tk.  25,00,000/-  and  revolving  short  term  loan  (RSTL) limiting Tk. 5,00,000/-. The petitioner executed a mortgage deed as well as  a  power  of  attorney  against  the  loan  money  in  favour  of  the respondent Bank. Defendant No. 3 being 3rd party guarantor executed a letter of guarantee as well. The petitioner No. 1 failed to repay the loan with interest. Therefore, the Bank, as plaintiff, filed Artha Rin Suit No. 288 of 2017 before the Artha Rin Adalat, Bogura (hereinafter referred to as the Adalat) for recovery of loan amounting to Tk. 67,29,66/91 as stood on 14.09.2017. Defendant Nos. 1/2 contested the suit by filing a written statement. Subsequently, the suit was decreed on 25.03.2019 as per provision of section 13 of the Artha Rin Adalat Ain, 2003 (in short, the Ain). On the same day, the petitioner filed an application under section 57 of the Ain for withdrawing the suit from the stage of hearing it under section 13 of the Ain but upon hearing it was rejected by the Adalat.

Being aggrieved by the said order, the petitioners moved before this Court and obtained the Rule and order of stay.

Respondent  No.  3,  the  Bank,  contested  the  Rule  by  filing  an affidavit-in-opposition supporting the impugned judgment and decree dated 25.03.2019 passed by the Adalat contending, amongst others, that the appropriate forum against the decree passed by the Adalat below is an appeal filing under section 41 of the Ain, The petitioners without revoking the recourse of law illegally filed the instant writ petition which is not at all maintainable and, as such, the Rule is liable to be discharged.

 Mr.  A.K.M.  Rezaul  Karim  Khandaker,  the  learned  Advocate appearing for the petitioners submits that after availing the loan facilities the petitioners had paid total Tk. 23,00,000/- on different occasions to the Bank. He next submits that the Bank filed the suit for realization of Tk. 67,29,661/09 against the defendant-petitioners but at the time of mediation  the  Bank  claimed  Tk.  25,71,822/-  which  is  a  clear contradiction and thus would be settled after recording evidence adduced by the contending parties. But the learned Judge of the Adalat below illegally decreed the suit under section 13 of the Ain which is illegal, malafidey, arbitrary, without lawful authority and of no legal affect. In support of his submission Mr. Khandaker put reliance on the decisions reported in 15 BLT(HCD) 343, 18 BLT (HCD) 202 and 30 BLD (HCD) 636.

Per contra, Mr. Md. Sameer Sattar with Mr. Mahbub Hasan, the learned Advocates appearing for the respondent No.3 contends that the petitioners are borrowers and personal guarantors of the loan. They had mortgaged property and also executed power of attorney in favour of the Bank and therefore, the suit was lawfully decreed against them. He next submits that in the written statement the petitioner had admitted the availed credit facilities from the Bank and upon considering the facts and circumstances the learned Judge of the Adalat below decreed the suit under  section  13  of  the  Ain  which  cannot  be  challenged  by  the petitioners in the writ jurisdiction. In order to buttress up his submission, the learned Advocate placed reliance in the cases reported in 46 DLR (AD) 191, 59 DLR (AD) 6, 6 ADC 383 and 19 ALR (AD) 176.

Heard the submissions put forward by the learned Advocates of both the sides at length, perused the impugned judgment and decree with other connected materials available in the record and also considered the facts and circumstance contended in the writ petition and the affidavit- in-opposition as well as the cited cases minutely.

Admittedly, the suit was instituted against defendant No.1/2 as the principal borrowers and against defendant No. 3 as third party guarantor in securing the loan. It is also admitted fact that in obtaining the loan facilities, the contending defendants had executed a mortgaged deed and a  power  of  attorney  in  favour  of  the  Bank.  Accordingly  the  Bank sanctioned  Tk.  25,00,000/-  as  Over  Draft  (OD)  limit  loan  and  Tk. 5,00,000/- as revolving short term loan (RSTL). It is also admitted in the writ  petitioner  that  after  obtaining  the  loan  facilities,  the  judgment debtor-petitioners on different occasions had paid Tk. 23,00,000/- to the Bank against the said loan.

The petitioners contended that in the suit they had filed a written statement denying the  averments  made  in the plaint  but the  learned Judge of the Adalat below without examining the witnesses illegally decreed the suit under section 13 of the Ain which is apparently illegal in the  eye  of  law.  The  learned  Advocate  appearing  for  the  petitioners submits  that  the  petitioners  have  admitted  the  loan  but  denied  the claimed amount mentioned in the plaint. He further submits that the petitioners are agreed to pay the amount settled in the mediation held during the trial of the suit.

Refuting the submission, the learned Advocate appearing for the Bank contends that the petitioners had availed the loan facilities from the Bank and subsequently failed to repay the outstanding liabilities. The findings arrived by the Adalat below at the time of disposal of the suit under section 13 of the Ain was in accordance with law and therefore, the instant Rule is liable to be discharged.

It is provided in section 13 of the Ain that if after perusing the plaint  and  the  written  statement,  it  appears  to  the  Adalat  that  the defendant had admitted the claim of the plaintiff, in that case the Adalat may pass a judgment on the basis of such admission.

Section 13 of the Ain runs as under:

Ò13| (1) weev`x KZ©…K wjwLZ Reve `vwLj nIqvi ciZ e  Za ©x‡vh© GKwU wba©vwiZ Zvwi‡L Av`vjZ Dfq c¶‡K, hw` Dcw¯’Z _v‡K, ïbvbx Kwiqv Ges AviwR I wjwLZ eY©bv ch©v‡jvPbv Kwiqv gvgjvi wePvh© welq, hw` _v‡K, MVb Kwi‡e; Ges hw` wePvh© welq bv _v‡K, Av`vjZ Awej‡¤^ ivq ev Av‡`k c«`vb Kwi‡e|

2. Dc-aviv (1) G wba©vwiZ Zvwi‡L, ‡Kvb ev Dfq c¶ hw` Abycw¯’Z _v‡K,

Zvnv nB‡j Av`vjZ, AviwR I wjwLZ eY©bv ch©v‡jvPbv Kwiqv gvgjvi wePvh© welq, hw` _v‡K, MVb Kwi‡e; Ges, hw` wePvh© welq bv _v‡K, Av`vjZ Awej‡¤^ ivq ev Av‡`k c«`vb Kwi‡e|

3. gvgjvi ‡h ‡Kvb ch©v‡q, wjwLZ eY©bvq wKsev Ab¨ ‡Kvbfv‡e weev`x KZ©…K

ev`xi AvwR©i e³e¨ ¯^xK…Z nBqv _vwK‡j, Ges D³iƒc ¯Z ^xKi … wf wwˇZ ‡hiƒc ivq ev Av‡`k cvB‡Z ev`x AwaKvix, ‡miƒc ivq ev Av‡`k c«v_©bv Kwiqv ev`x Av`vj‡Zi wbKU `iLv¯— Kwi‡j, Av`vjZ, ev`x I weev`xi g‡a¨ we`¨gvb Acivci wePvh© welq wb®úwËi Rb¨ A‡c¶v bv Kwiqv, Dchy³ ivq ev Av‡`k c«`vb Kwi‡ e|

4.   gvgjvi ïbvbxi Rb¨ avh© c«_g Zvwi‡L A_ev gvgjvi ‡h ‡Kvb ch©v‡q hw`

Av`vj‡Zi wbKU c«Zxqgvb nq ‡h, c¶Ø‡qi g‡a¨ NUbv A_ev AvBbMZ wel‡q ‡Kvb weev` bvB, Zvnv nB‡j, Av`vjZ, Awej‡¤^ ivq ev Av‡`k c«`vb Kwiqv gvgjv P~ovš— fv‡e wb®úwË Kwi‡e|Ó

In the written statement the contesting defendants stated that they have availed the loan facilities amount total Tk. 30,00,000/- from the Bank. Last date of repayment of the loan was on 30.11.2011. In the written statement they admitted that on 06.12.2010 they have executed mortgaged deed No. 24186 and Power of attorney No. 24187 regarding 0337 Ajutansa land in favour of the Bank. In the written statement it was further contended that they have renewed the loan on 13.11.2011 and the Bank fixed 30.11.2010 for adjustment of the loan money.

The  learned  Judge  of  the  Adalat  below  has  considered  the statements made in the written statement and having found admission of loan by the defendants decreed the suit under section 13 of the Ain.

The contesting defendants in their written statement as well as in the instant writ petition claimed that the suit is barred by limitation. But on perusal of the order dated 25.03.2019 passed by the Adalat that at the time of hearing the suit, the learned Advocate engaged on behalf of the defendants admitted that the suit was not barred by limitation. Since the loan amount was admitted by the defendants and since the suit was not barred by limitation, the learned Judge of the Adalat refrained to frame the issue in the suit dismissing the application filed by the defendants under section 57 of the Ain and accordingly disposed of the suit under section 13 of the Ain. It further appears from the record that on the date of judgment the defendants filed an application under section 57 of the Ain for setting aside the decree passed on the same day which was eventually rejected by the Adalat below.

Under section 41 of the Ain the appropriate forum available for the judgment debtor-defendants is to prefer appeal against the impugned judgment and decree. Section 41 of the Ain is reproduced below:

41| (1) gvgjvi ‡Kvb c¶, ‡Kvb A_© FY Av`vj‡Zi Av‡`k ev wWµx Øviv ms¶yä nB‡j, hw` wWµxK…Z UvKvi cwigvY 50 (cÂvk) j¶K Uv  vA‡c¶v AwaK nq, Zvnv nB‡j Dc-aviv (2) Gi weavb mv‡c‡¶, 1[cieZ©x 60 (lvU) w`e‡mi] g‡a¨ nvB‡KvU© wefv‡M, Ges hw` wWµxK…Z UvKvi cwigvY 50 (cÂvk) j¶ UvKv A_ev Z`&A‡c¶v Kg nq, 2[Zvnv nB‡j cieZ©x 30 (wÎk) w`e‡mi g‡a¨ ‡RjvRR Av`vj‡Z Avcxj Kwi‡Z cvwi‡eb|]

2.   AvcxjKvix, wWµxK…Z UvKvi cwigv‡Yi 50% Gi mgcwv iY g UvKv ev`xi

`vexi AvswkK ¯^xK…wZ¯^iƒc bM` wWµx`vi Avw_©K c«wZôv‡b, A_ev ev`xi `vex ¯^xKvi bv Kwi‡j,  RvgvbZ¯^iƒc  wWµx  c«`vbKvix  Av`vj‡Z  Rgv  Kwiqv  D³iƒc  Rgvi  c«gvY `iLv¯— ev Avcx‡ji ‡g‡gvi mwnZ Av`vj‡Z `vwLj bv Kwi‡j, Dc-aviv (1) Gi Aaxb ‡Kvb Avcxj Kvh©v‡_© M…nxZ nB‡e bv|

3.    Dc-aviv (2) Gi weavb m‡Ë¡I, weev`x-`vwqK BwZg‡a  ¨19(3) avivi

weavb g‡Z 10% (`k kZvsk) cwigvY UvKv bM` A_ev RvgvbZ wnmv‡e Rgv Kwiqv _vwK‡j, AÎ avivi Aax‡b Avcxj `v‡q‡ii ‡¶‡Î D³ 10% (`k kZvsk) UvKv Dcwi- Dwj−wLZ 50% (cÂvk kZvsk) UvKv nB‡Z ev` nB‡e|

4.     Dcwi-Dwj−wLZ weavbvejx m‡Ë¡I, ev`x-Avw_©K c«wZô vbGB avivi

Aax‡b ‡Kvb Avcxj `v‡qi Kwi‡j, Dnv‡K Dcwi-Dwj−wLZ g‡Z ‡Kvb UvKv ev RvgvbZ Rgv `vb Kwi‡Z nB‡e bv|

5. ‡Rjv RR ‡Kvb Avcxj M«nY Kiv gvÎB wjwLZfv‡e D‡j−L Kwi‡eb ‡h,

wZwb wb‡RB D³ Avcxj ïbvbx Kwi‡eb wK bv, Ges wZwb wb‡R D³ Avcxj ïbvbx bv Kwi‡Z wm×vš— M«nY Kwi‡j, AbwZwej‡¤^ D³ AvcxjwU ïbvbxi Rb¨ Zvnvi Awa‡¶‡Îi Aaxb ‡Kvb GKRb AwZwi³ ‡Rjv R‡Ri wbKU, hw` _v‡K, ‡c«iY Kwi‡eb; Ges ‡Kvb AwZwi³ ‡Rjv RR bv _vwK‡j, ‡Rjv RR wb‡RB D³ Avcxj k«eY Kwi‡eb|

6.   Avcxj Av`vjZ, Avcxj M…nxZ nBevi cieZ©x 90 (beŸ Bw` )e‡mi g‡a¨

Dnv wb®úwË Kwi‡e, Ges 90 (beŸB) w`e‡mi g‡a¨ AvcxjwU wb®úwË Kwi‡Z e¨_© nB‡j, Av`vjZ, wjwLZfv‡e KviY D‡j−Lc~e©K, D³ mgqmxgv AbwaK Av‡iv 30 (wÎk)

w`em ewa©Z Kwi‡Z cvwi‡e|Ó

On perusal of the record it is evident that the defendants without preferring appeal against the impugned judgment and decree filed the instant writ petition which, in our view, is not at all maintainable in law. This view of ours, also got support from the decision reported in 46 DLR (AD) 191, 59 DLR (AD) 6, 6 ADC 283 and 19 ALR(AD) 176.

In view of the above discussion, we do not find any merit in this writ petition.

In the result, the Rule is discharged without any order as to costs. The order of stay stand vacated. 

Communicate the judgment and order to the respondents at once. 

Md. Iqbal Kabir, J.

 I agree.

Masum. ABO