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. 2104 OF 2024. IN THE MATTER OF:

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

-AND -

IN THE MATTER OF:

The  Oriental  Bank  Limited  (At  present  ICB Islamic Bank Limited).

  .....Petitioner. -VS-

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

.....Respondents Mr. Khokon Pervez, Advocate

…..For the petitioner Mr. Al Faishal Shiddique, Advocate

..... For the respondent No. 3.

Heard on 15.05.2024 and Judgment on 30.07.2024.

Md. Akhtaruzzaman, J.

In this Rule Nisi, the petitioner called in question the legality of Order

No.18 dated 21.11.2023 (Annexure-E) passed by the learned Judge, Artha Rin Adalat, Khulna in Artha Decree Execution Case No. 59 of 2022 arising out of Artha Rin Suit No. 104 of 2006 rejecting the application of the decree-holder Bank raising objection to the intended auction sale being low price and also rejecting the prayer for allowing the decree-holder Bank/ petitioner to take steps under section 33(5) of the Artha Rin Adalat Ain, 2003 (as amended up to date) and thereby accepting the offer of the highest

bidder violating the provision of Section 33(2C) and 33(5) of the Artha Rin Adalat Ain, 2003.

The facts of the case as narrated in the writ petition, in brief, are that the petitioner being plaintiff instituted Artha Rin Suit No.104 of 2006 before the Artharin Adalat, Khulna for recovery of Tk. 3,35,95,429.70 (Three Crore Thirty Five Lacs Ninety Five Thousand Four Hundred Twenty Nine and Paisa Seventy) only till 18.10.2006 against the Respondent Nos.03-09 as defendants. Respondent No. 4 as defendant contested the suit by filing a written  statement  denying  all  the  material  facts.  The suit  was  fixed  for hearing.  Both  the  parties  adduced  evidence  and  upon  considering  the evidence  and  materials  on  record,  the  suit  was  decreed  on  10.02.2022 Decree was drawn up on 17.02.2022. Thereafter, the decree holder instituted Artha Decree Execution Case No.59 of 2022. In the Execution Case auction under Section 33(1) of the said Ain, 2003 was held on 22.05.2023 and one Md. Abul Hossain became the highest bidder offering Tk.11,00,00,000.00 (Eleven Crore) as price money for the scheduled mortgaged properties but the Artha Rin Adalat, Khulna did not pass any order on that day regarding acceptance of the said highest bid, rather fixed 22.08.2023 for hearing and further  passing  an  order  directing  the  Sub-Registrar,  Sadar,  Khulna  for submitting Mouja rate of the scheduled properties and also passed an order to keep the pay-order amounting to Tk. 11,00,00,000 (Eleven Crore) and to give  back  the  other  two  pay-orders  of  the  other  two  low-bidders. Subsequently, on 22.08.2023 the decree-holder Bank filed an application praying for cancellation of the bid for auction sale dated 22.05.2023 and allowing the decree-holder Bank to take further steps. In the meantime, the

Sub-Registrar  submitted  the  Mouja  rate  of  the  concerned  locality,  The learned Judge of the  Executing  Court upon  considering  the  Mouza  rate opined that the present market value of the disputed properties is much higher than the highest bidding price and therefore cancelled the order of auction dated 22.05.2023 and fixed 14.09.2023 for taking next steps by the decree-holder Bank. On the date fixed for hearing, the decree-holder Bank took steps under Section 33(4) of the Ain, 2003 for second auction of the scheduled mortgaged properties. The petition was allowed and the decree- holder Bank on 01.11.2023 submitted copies of the newspapers containing auction notices and the Court fixed 21.11.2023 for auction. Thereafter, on the date fixed for auction, the sealed tender box was opened and the Court found that one Md. Faysal Hossain (Respondent No.03) became the highest bidder offering Tk. 11,05,00,000.00 (Eleven Crore Five Lac) as price money for the mortgaged properties. At this stage the decree-holder Bank filed an application making objection that until 20.11.2023 total outstanding dues amount is  Tk.11,07,09,960.70  (  Eleven Crore  Seven  Lac  Nine  Hundred Sixty and Seventy Paisa). The extent of scheduled mortgage property is 43 decimal  land  with  two  storied  building  on  it  and  surrounding  wall,  the market value of which is much higher in comparing to the price offered by the highest bidder and if the intended bid is accepted by the Court, then after deducting 10% money at source as VAT the total claim of the decree-holder Bank will not be satisfied and the purpose of auction would not be served. It is also contended by the writ petitioner that after taking hearing from the respective  parties  the  Executing  Court  vide  its  Order  No.18  dated 21.11.2023 most arbitrarily and illegally accepted the offer of the highest

bidder ignoring the objection raised by the decree-holder Bank and thus rejected the prayer of the petitioner Bank to take steps under Section 33(5) of the Ain, 2003 and fixed 28.11.2023 directing the Respondent No.3 to submit Tk. 11,05,010.00 (Eleven Lac Five Thousand Ten) only as sale fees. Upon receiving the sale fees the Court directed the decree-holder Bank to deposit 10% of the auction price as VAT and fixed 29.02.2024 for receiving the  balance  amount  of  the  auction  money.  The  petitioner  Bank  further contends that until 20.11.2023 total outstanding claim of the petitioner Bank is Tk. 11,07,09,960.70 (Eleven Crore Seven Lac Nine Hundred Sixty and Seventy Paisa) and the market value of the mortgaged property is much higher than the price offered in auction but ignoring the facts the Executing Court most illegally accepted the said offer which is liable to be declared to have been passed without lawful authority and is of no legal effect. The decree-holder Bank also submitted a supplementary affidavit contending that since the respondent No.3 had failed to deposit the whole amount of auction price within the stipulated time, therefore, as per provision of law there is no option left before the Adalat below but to forfeit the security money of the respondent  No.3  and  issue  certificate  to  the  decree-holder  Bank  under section 33(5) of the Ain, 2003.

Mr. Khokon Pervez, the learned Advocate appearing for the petitioner submits that till 20.11.2023 total outstanding claim of the decree-holder Bank is Tk. 11,07,09,960.70 (Eleven Crore Seven Lac Nine Hundred Sixty and Seventy Paisa) and the market value of the mortgaged properties is much higher than the price offered in the tender bid which is abnormally shocking and insufficient in comparing with the claim of the decree-holder Bank.  He  also  submits  that  the  impugned  order  is  bad  in  law  and  the Executing Court without applying his judicial mind had illegally passed the impugned order only to deprive the decree-holder Bank from getting the outstanding money due to the judgment-debtor. In support of his submission, the learned Advocate put reliance on the decisions reported in 20 BLD 329 and 68 DLR 340.

In reply, Mr. Al Faishal Shiddique, the learned Advocate appearing for  respondent  No.3  submits  that  the  plaintiff  decree  holder  Bank  filed Artharin Suit No.104 of 2006 for recovery of Tk. 3,35,95,429.70 (Three Crore Thirty Five Lacs Ninety Five Thousand Four Hundred Twenty Nine and Paisa Seventy). The suit was decreed on 10.02.2022. Thereafter, the decree  holder  instituted  Artha  Decree  Execution  Case  No.59  of  2022 claiming Tk. 9,66,40,742.70 and subsequently, as per direction of the Court auction of the mortgaged property was held on 22.05.2023 and one Md. Abul  Hossain  became  the  highest  bidder  offering  Tk.11,00,00,000.00 (Eleven  Crore)  as  the  price  of  the  mortgaged  properties.  The  learned Advocate further submits that subsequently the decree holder bank filed an application for cancellation of the auction process mentioning that highest bidding  price  is  abnormally  low  and  insufficient.  Thereafter,  the  Court directed that Sub-register of the concern locality for submitting mouja rate of the schedule property and after receiving the said rate the Court allowed the application of the decree holder and thus cancelled the auction process. The learned Advocate also submits that subsequently another auction was held and the price of mortgaged properties was offered Tk. 11,07,00,000/-(Eleven Crore and Seven Lac). The learned Advocate finally submits that the price offered by the second bidder is not less in comparing to the mouja rate submitted by the concerned Sub-Registrar but the petitioner with a malafide intention preferred the writ petition only to harass the judgment debtor.  

Heard  the  learned  Advocates  appearing  for  both  the  parties  and perused  the  petition  as  well  as  the  materials  on  record  including  the impugned order as well. It is on record that the petitioner filed Artharin Suit No.104 of 2006 before the Artharin Adalat, Khulna for recovery of Tk. 3,35,95,429.70 (Three Crore Thirty Five Lacs Ninety Five Thousand Four Hundred Twenty Nine and Paisa Seventy) against the respondent Nos. 3-9. The suit was decreed against the defendant judgment-debtors. Thereafter, the decree holder bank filed Artha Decree Execution Case No. 59 of 2022 for realization  of  Tk.  9,66,40,742.70/-  (Nine  Crore  Sixty  Six  Lac  Forty Thousand Seven Hundred Forty Two and Paisa Seventy). It is on record that on the prayer of the decree holder the Court held auction of the mortgaged property and one Md. Abul Hossain became the highest bidder offering Tk.11,00,00,000.00 (Eleven Crore) as the price of the property. Thereafter, on the basis of objection made by the decree holder Bank the said auction process was cancelled and subsequently second auction was held. In this auction, one Md. Foysal Hossain offered Tk. 11,07,00,000/- (Eleven Crore Seven Lac) which was the highest among the three bidders. At this stage, the decree-holder  Bank  again  made  an  objection  claiming  that  the  amount offered by the auction bidder is shockingly low than the actual value of the property and, as such, the same auction process would be cancelled. At this juncture,  the  Executing  Court  directed  the  concerned  Sub-Registrar  to submit mouza rate of the scheduled property and upon receiving the mouza rate as well as considering the position of record, the Court disallowed the petition of the decree holder vide the impugned order against which the bank being  petitioner  filed  the  instant  writ  petition.  We  have  meticulously scrutinized the materials on record and of the view that the Bank being decree  holder  filed  Artha  Decree  Execution  Case  No.  59  of  2022  for realization  of  Tk.  9,66,40,742.70/-.  But  the  auction  bidder  offered  Tk. 11,07,00,000/- which is higher than the money claimed in the Exaction Case by the decree-holder Bank. We have considered the case laws submitted by the respective parties along with the relevant laws. Considering the position of  record  we  do  not  find  that  the  price  offered  by  the  highest  bidder amounting Tk. 11,07,00,000/- is less in comparing to the claim of the decree holder bank in the said Execution case. Moreover, the price offered by the highest bidder does not appear shockingly low.  

Therefore, considering the facts and circumstances of the case we are of view that there is no substance in the submission put forward by the learned  Advocate  of  the  petitioner.  As  such,  the  Rule  is  liable  to  be discharged.

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

The impugned Order No. 18 dated 21.11.2023 passed by the learned Judge, Artha Rin Adalat, Khulna in Artha Decree Execution Case No. 59 of 2022 is affirmed.

Communicate the judgment to respondent No.1 at once.

Md. Iqbal Kabir, J.

I agree.

Masum. ABO