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. 6816 OF 2021. IN THE MATTER OF:

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

-AND -

IN THE MATTER OF:

Md. Sohelu Zaman and another.

  .....Petitioners -VS-

The Joint District Judge and Artha Rin Adalat No. 1, Narsingdi and others.

.....Respondents Mr. Md. Shumsul Islam, Advocate

…..For the Petitioners Mr. Md. Shahadat Alam, Advocate

..... For the Respondents

Heard on 13.03.2024 and Judgment on 18.03.2024.

Md. Akhtaruzzaman, J.

In this Rule Nisi, the petitioners called in question the legality of the

order No.16 dated 16.02.2021 passed by the respondent No.1, the learned Judge of Artha Rin Adalat No.1, Narsingdi in Artha Jari Case No. 10 of 2019 arising out of Artha Rin Suit No. 34 of 2015 issuing warrant of arrest upon the judgment-debtors under section 34(1) of the Artha Rin Adalat Ain, 2003. 

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

follows: 

Abdullah  Al  Mamun,  the  proprietor  of  Lagna  Fashion  Design availed  a  personal  loan  amounting  Tk.  5,46,126/-  from  the  respondent   No. 3 Brac Bank Limited, Madhabdi Unit Office, Madhabdi, Narsingdi by way of executing, among others, letter of hypothecation of present and future assets, letter of acknowledgement etc. with the assurance that he would pay the loan money within the time stipulated in the agreement. The borrower failed to repay the loan with interest. Thereafter, the Bank as plaintiff filed Artha Rin Suit No. 34 of 2015 before the Artha Rin Adalat No.1. Narsingdi (hereinafter referred to as the Adalat) for recovery of loan amounting  Tk.  10,69,528.12  as  stood  on  15.08.2015  against  the  said borrower. The suit was decreed ex parte by the judgment and decree dated 05.11.2018. The judgment-debtors failed to pay the dcreetal dues. So, the Bank filed Artha Jari Case No. 10 of 2019 before the Adalat for realization of the decreetal amount. In the execution case, the Bank on 16.02.2021 filed an application under section 34 of the Artha Rin Adalat Ain, 2003 (hereinafter stated as the Ain, 2003) praying for issuing warrant of arrest against  the  judgment-debtors.  The  present  petitioners  were  guarantor- defendant Nos. 4 and 6 in the Artha Rin case. In the writ petition the petitioners have stated that the application filed by the Bank was not signed by  any  authorized  officer  of  the  Bank.  Moreover,  the  application  was neither verified nor supported by affidavit. Further the Bank did not take any attempts to sale the hypothecated goods in auction under section 33 of the Ain before filing the application. Therefore, the application was not filed in compliance with the provisions of section 34(1) of the Ain. The

learned Judge of the Adalat without considering the said legal aspect of the case passed the impugned order for issuance of warrant of arrest against the judgment-debtor-petitioners which leads to file the instant writ petition.

Respondent No. 2, the Bank contested the Rule by filing an affidavit- in-opposition supporting the impugned order stating that defendant Nos. 1- 6  of  the  plaint  had  executed  different  charge  documents  but  did  not mortgage any property. So, the present respondent was not in a position to exhaust the provision of section 34(9) of the Ain and, as such, on an application filed by the Bank under the provision of section 34 of the Ain the impugned order has been passed lawfully and the Rule, is thus, liable to be discharged.

 Mr. Md. Shumsul Islam, the learned Advocate appearing for the petitioner invites our attention to the application filed by the Bank for issuance  of  warrant  of  arrest  and  submits  that  on  examination  of  the application  filed  under  section 34(1) of  the  Ain,  it  is  evident that  the application is neither verified nor supported by any affidavit and it is not also signed by the Manager or any authorized officer/person of the decree- holder-Bank and therefore, the application is not in proper form. He next submits that the Bank did not take any steps on the hypothecated assets for realizing the decreetal amount. The learned Advocate finally submits that the  impugned  order  on  an  unlawful  application  is  illegal  and  so,  the impugned order is liable to be set aside.

In reply, Mr. Md. Shahadat Alam, the learned Advocate appearing for the respondent No.2 contends that the petitioners are admittedly the guarantors for the loan and therefore, the suit was lawfully filed against them  and  it  was  also  lawfully  decreed  against  the  judgment-debtors including  the  present  petitioners.  He  further  contends  that  it  has  been clearly stated in the application filed by the Bank that no property was available for auction sale and so, the  Bank filed an application under section 34 (1) of the Ain, whereupon the impugned order was passed by the Adalat. Mr. Alam next submits that in paragraph Nos. 4-6 of the plaint it has been clearly stated that after putting signatures on different charge documents the borrower took the loan where the present petitioners were guarantors. The learned Advocate further submits that since the judgment- debtors did not mortgage any property to the Bank, so the decree holder was undone to  take  proper legal steps to  sell  and  adjust the decreetal amount and, as such, there is no scope to raise this question after the decree either before the executing Court or in writ jurisdiction. However, the learned  Advocate  appearing  for  the  respondent  No.  2  admits  that  the application has been filed by the learned Advocate for the Bank and it is neither verified nor supported by any affidavit. But the learned Advocate adds that if the Rule is made absolute an opportunity may be given to the Bank to file a fresh application under section 34(1) of the Ain in proper form.

We have heard the learned counsel for both sides. We have also gone through  the  petition,  affidavit-in-opposition-impugned  order  and  other related papers and documents with the petition carefully, nobody disputes the proposition of law relating to warrant of arrest, which is no longer a resintegra. Specifically in the case of Provat Kumar 15 MLR (AD) 96 = 15 BLC (AD) 113, our Appellate Division finally set at rest the proposition of law in respect of issuing order of warrant of arrest in a case under Artha Rin Adalat Ain 2003. But the fact remains that the application by which the proceeding of warrant of arrest has to be set in motion should be in the manner and in keeping with the provision of section 34(1). Section 34(1) runs thus:

“34| (1) DcÑaviv (12) Gi weavb mv‡c‡∂ , FY Av`vjZ, wWµx`vi

KZ©„K `vwLjK…Z `ii L c v‡w ¯i —‡cw∂ ‡Z, wWµxi UvKv cwi‡kv‡a eva¨ Kwievi cÖqvm wnmv‡e, `vwqK‡K 6(Qq) gvm ch©š— †`Iqvbx KvivMv‡i AvUK ivwL‡Z nB‡e|”

Admittedly, no property had been mortgaged in favour of the Bank and, as such, the decree holder-Bank has failed to realize the loan money by making auction sale thereof.

We have carefully examined the application filed by the Bank under section  34(1)  of  the  Ain  for  issuance  of  warrant  of  arrest  against  the judgment-debtors (Annexure-‘D’ to the writ petition). It appears that the application was filed on 16.02.2021 by the learned Advocate for the Bank under the provision of section 34(1) of the Ain, 2003. It further appears that the application is neither verified nor supported by any affidavit. Moreover, it is not also signed by the Manager or any authorized officer of the Bank concerned.

It transpires from the record that the application was not signed by the Manager or any authorized officer of the concerned Bank and it is neither verified nor supported by any affidavit, and, as such, the impugned order dated 16.02.2021 for issuance of warrant of arrest cannot be said to be lawful.

In the case of Sheikh Nazmul Haque v. Bangladesh and others, reported in 14 BLC 107 it has been observed by a Division Bench of this Court that:

“We have carefully examined the application under section 34 of the Ain, 2003, it appears that in the application under section 34 of the  Ain,  2003  for  issuing  warrant  of  arrest  against  the  judgment debtors the concerned official/authority of the Bank neither put his signature nor made any verification/affidavit thereto and therefore, it cannot be said that the application in question was filed by the decree- holder-Bank as per provision of section 34(1) of the Ain, 2003.”

Further in the case of Maezan Abedin v. Judge, Artha Rin Adalat No. 4, Dhaka and others reported in 65 DLR 79 another Bench of this Court held as under:

“In the context of section 34(1) of Ain it has been held that the application seeking warrant of arrest on behalf of the bank should be officially signed, verified and followed by affidavit. If the same is absent the application is not tenable under the law. We verily endorse the view taken  in  the  said  decision.  We  are  in  respectful  agreement  with  the decision. In the case in hand, we have found that the application by which warrant of arrest was sought cannot be treated as an application in the eye of law since the same had not been signed by the official or authority of the bank neither the same had any verification. Simply it was filed by the concerned  Advocate  of  the  Respondent-Bank  without  following  the procedure.”

On examination of the order dated 16.02.2021 passed by the learned Judge of the Adalat in the Artha Jari Case No. 10 of 2019, it transpires that the judgment-debtors did not take any steps to adjust the loan with the Bank. But on scrutiny of the plaint of the suit (Annexure-A to the writ petition), it transpires that it has been clearly stated in paragraph 4-6 of the plaint as under:

“4| F‡Yi UvKv M«n‡bi c~‡e© gÄyixc‡Îi kZ©vbyhvqx 2-6 bs we ev`xMY F‡Yi wbivcËv weav‡b m¤ú~b© FY mxgvi wecix‡Z e¨vs‡Ki Pvwn`vgZ wewfbœ PvR© WKy‡g›U, h_v-  GENERAL  LOAN  AGREEMENT,  DEMAND  PROMISSORY  NOTE,

LETTER  OF  UNDERTAKING,  LETTER  OF  ARRANGEMENT,  LETTER  OF INSTALLMENT,  LETTER  OF  DISBURSEMENT,  PERSONAL  LETTER  OF GUARANTEE, PERSONAL LETTER OF GUARANTEE, НУРОТНЕСА ГTION

OF  PRESENT  &  FUTURE  ASSETS I  cÖvwß—  ¯^xKvi  cÎ,  BZ¨vw`  WKz‡g›Um m¤úv`bc~e©K 1bs weev`xi gvwjKvbvaxb ewY©Z e¨emv c«wZôv‡bi F‡Yi wbðqZv ¯^iƒc

mnvqK RvgvbZ c~e©K wnmv‡e Mw”QZ iv‡Lb|

5| ev`x eª¨vK e¨vsK wjt, kZ©vbyhvqx weev`xMY KZ©…K c…_K c…_Kfv‡e kZ© †gvZv‡eK M…nxZ FY m~`m‡gZ wba©vwiZ I wbw`©ó FY M«nY cieZ©x wba©vwiZ gv‡mi gvwmK †gqv` g‡a¨ cwi‡kva K‡i bvB| 2bs weev`x Zvnvi e¨emv c«wZôvb 1bs weev`x A_©vr ewY©Z e¨emv c«wZôv‡bi bv‡g M…nxZ FY m~`m‡gZ wbi aZ ©vw wKw¯—‡Z cwi‡kv‡a

Rb¨ avh¨© wQj| wKš‘ `~‡jvf©x 2-6 bs weev`xMY Pyw³/kZ© †gvZv‡eK ev`x eª¨vK e¨vsK

wjt Gi F‡Yi UvKv cwi‡kva bv Kivq weev`xi FY wnmvewU †gqv` DËxY© nBqv hvq|

6|  ev`x  eª¨vK  e¨vsK  wjt,  weev`x‡K  evi  evi  †gŠwLK  ZvMv`v  Zje  I e¨w³MZfv‡e †hvMv‡hvMmn me©‡kl weMZ 15/08/2015Bs Zi v‡ wL AvBbRxex gva¨‡g P~ovš— †bvwUk w`‡jI weev`xMY †gqv` DËxY© FY wnmv‡e ev`x eª¨vK e¨vsK wjt, Gi wnmvevwqZ cvIbv cwi‡kva Kiv nB‡Z B”QvK…Z fv‡e wei_ Zv‡ K|”

Therefore,  it  is  evident  that  in  the  plaint,  the  Bank  repeatedly claimed the loan money to the defendant judgment-debtors but they did not repay  the  said  money.  The  judgment-debtors-defendants  had  put  their signatures on the charge documents before availing the loan. They did not mortgage any property to the Bank. It is redundant to state that the present petitioners were the guarantors to the abovementioned loan. They did not also take any steps for setting aside the  ex parte judgment and decree passed by the trial Court under section 19 of the Ain. That being the position  the  order  impugned  against  should  be  declared  to  have  been passed without lawful authority and is of no legal effect.

In the result, the Rule is made absolute without any order as to costs.

The impugned order No.16 dated 16.02.2021 passed by the learned Judge of the Artha Rin Adalat No. 1, Narsingdi in Artha Jari Case No.10 of 2019 is hereby declared to have been passed without lawful authority and is of no legal effect and hereby set aside. 

However, the respondent Bank may further file proper application under section 34(1) of the Ain, if so advised, in this regard.

Communicate the judgment to respondent No.1 at once.

Md. Iqbal Kabir, J.

 I agree.

Masum. ABO