IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 6624 OF 2022

IN THE MATTER OF:

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

-AND -

IN THE MATTER OF:

BASIC Bank Limited

       ... Petitioner -VS-

Judge, Artha Rin Adalat No. 1, Dhaka and others

.......Respondents Mr. M Mohiuddin Yousuf,

Advocate

…..For the Petitioner Mr. Md. Kamrul Alam (Kamal), Advocate

… For the respondent No. 2

   Present:

Mr. Justice Zafar Ahmed

      And

Mr. Justice Sardar Md. Rashed Jahangir

Heard on: 19.05.2024 and 03.07.2024 Judgment on : 10.07.2024

Zafar Ahmed, J.

In the instant writ petition, this Court issued a Rule

Nisi on 05.06.2022 calling upon the respondent Nos. 1-6 to show cause as to why Order No. 7 dated 20.04.2022 passed by the Artha Rin Adalat No. 1, Dhaka in Artha Rin

Execution Case No. 290 of 2021 arising out of Artha Rin Suit No. 95 of 2017 so far as it relates to accepting the bid of respondent No. 2 as the highest bidder in the auction held

on 18.04.2022 under Section 33(1) of the Artha Rin Adalat Ain, 2003 upon rejecting the application dated 20.04.2022 filed by the petitioner under Section 33(2Ga) of the said Ain should not be declared to have been passed without lawful authority and is of no legal effect.

At the time of issuance of the Rule Nisi, this Court passed an interim order staying all further proceedings of the Artha Rin Execution Case No. 290 of 2021 so far as it relates to accepting the bid of respondent No. 2.

BASIC Bank Ltd., which is the plaintiff and decree holder, is the petitioner before us. Respondent No. 2 Atiqur Rahman Khan, who is the 3rd party highest bidder in the auction, bid price being Tk. 65,00,000/-, contested the Rule by filling an affidavit-in-opposition.

The relevant portions of the impugned order dated 20.04.2022 passed by the Artha Rin Adalat No. 1, Dhaka in Artha Rin Execution Case No. 290 of 2021 are reproduced below:

[the  application  was  filed  under  Section  33(2Ga)]

I-

[respondent No. 2]....

Accept

It  appears  from  the  impugned  order  that  while

accepting  the  bid  of  the  respondent  No.  2  the  Adalat considered  the  market  rate  published  by  the  National Housing Authority on 07.03.2011 as well as the mouza rate of the year 2016 of Dhanmondi, Dhaka Sub-registry office. It further appears from the written objection filed by the bank under Section 33(2Ga) that the bank referred to a survey report  dated  19.04.2022  prepared  by  a  private  surveyor (Annexure-D2) in which the total forced sale value of the

auction property in question was shown to the tune of Tk. 1,36,49,600/-. Be that as it may, there is no reflection of the survey  report  and  the  value  mentioned  therein  in  the impugned order although the same was before the Adalat. The  survey  was  conducted  at  the  behest  of  the  decree- holder bank.

We have heard the learned Advocates of both sides, perused the materials on record, the relevant provision of the Ain, 2003 and case laws cited by the learned Advocate appearing for the petitioner bank.

Section 33(2Ga) of the Ain, 2003 runs as follows:

It is held in Duthc Bangla Bank Ltd. vs. Judge, Artha Rin Adalat No. 3, Dhaka and others, 68 DLR 340:

“Vide  sub-Section  2(ga)  of  Section  33  it  is  the requirement of law that if it has been informed by the decree holder bank that the proposed bid offer is shockingly  low  the  Adalat  upon  endorsing  the reason thereof may reject the proposal of the highest bidder. In the present case, such reason is absolutely

absent for the Adalat has accepted the highest bid in spite of objection being raised by the decree-holder bank observing, inter-alia,  

Thus it is apparent that the impugned order has been passed by the executing Adalat in derogation of the requirement as prescribed under Section 33(2ga) of the Ain, 2003.”

It is held in Agrani Bank Ltd. vs. Secretary, Ministry

of Law, Justice and Parliamentary Affairs and others, 20 BLC 329:

“Therefore, the Adalat is not obliged to sell the property  in  any  manner  or  at  any  price  for satisfaction  of  the  decree,  particularly  when  the decree  holder  specifically  raises  objection  to  the highest  offer  being  abnormally  low  and  that  the amount  is  too  inadequate  to  satisfy  the  decretal dues.”

It is held in Agrani Bank Ltd. vs. The Judge, Artha Rin

Adalat, 1st Court, Dhaka and others, 18 ALR 285: 

“Under  the  Artha  Rin  Adalat  Ain,  in  course  of realization  of  Banks’  loan  when  the  property  is mortgaged as security, the Adalat disposes the same for the interest of the Bank in order to recover its dues and in doing so the Adalat acts as an handling agent. By the decree under artha rin suit and on

failure to pay it by the judgment-debtor, the Act, 2003 provides procedure to dispose of mortgaged property by the Adalat under Section 33 of the said Act by way of selling the same through auction or by issuing certificate in favour of the decree-holder- Bank under Section 33(5) of the said provision whereby the Bank itself can again sell the said property through auction and thirdly, the Bank has

got another option to get the property by way of title certificate under Section 33(7) of the Act. Therefore, the Adalat is not obliged to sell the property even at the lower price, particularly, when

the Bank (decree-holder) raises objection to the value and it has the scope to dispose of the said property under Sections 33(5) and or 33(7) of the Act, 2003. But contrary to the said position, here the Adalat was in a hurry to sell the mortgaged property which raises a serious doubt in handling

the auction process by the Adalat in this particular case. This view of ours finds support from the case

of Agrani Bank Ltd. vs. Secretary, Ministry of Law, Justice and Parliamentary Affairs and others reported in 20 BLC 329=19 MLR 330.”

In view of the reported cases and the relevant

provisions of the Ain, 2003, we do not find merit in the submission advanced on behalf of the respondent No. 2 (highest bidder) that the Adalat committed no illegality in accepting the highest bid considering the mouza rate of 2016. On the contrary, we find force in the submission advanced on behalf of the petitioner bank that the Adalat committed illegality in accepting the bid in spite of written objection of the bank which appears to be reasonable based on cogent facts. The bid of the respondent No. 2, albeit the highest, is no doubt shockingly low inasmuch as the respondent No. 2’s bid was Tk. 65,00,000/-, whereas as per the survey report dated 19.04.2022 the forced sale value of the property was Tk. 1,36,49,600/-. However, we are also shocked that the survey report submitted by the bank before the Adalat was not mentioned in the impugned order.

In view of the foregoing discussions, we find merit in

the Rule.

In the result, the Rule is made absolute. The impugned Order No. 7 dated 20.04.2022 is set aside. The concerned Adalat is directed to return the bid money to the respondent No. 2 forthwith. The Adalat is directed to proceed with the matter expeditiously in accordance with law.

Sardar Md. Rashed Jahangir, J.

I agree.

Arif, ABO