Tuesday, January 17, 2017 01:09:51 PM
High Court Division
(Civil Appellate Jurisdiction)
Khandker Musa Khaled J
SH Md Nurul Huda
AM Mostafiz Meah
United Commercial Bank Ltd and others ... ............. Defendants Respondents
February 13th, 2012
Code of Civil Procedure (Vol of 1908)
Sections 9 and 151
Order VII, rule 11(d)
Artha Rin Adalat Ain (VIII of 2003)
Since there is specific restriction in Section 12(8) of the Ain, which is a special law, to challenge auction sale by filing any suit, the question of lenient construction of the law does not arise. The special law enacted for certain purpose and it shall always prevail over the general law. Suit being barred under Section 12(8) of the Ain, rejection of plaint is justified under Order VII, rule ll(d) read with Section 151 of the Code. . ..... (20 & 21)
Dwarka Prasad Agarwal vs Ramesh Chandra Agarwala, AIR 2003 SC 2696; Mohammad Julfikar vs Abul Kalam Chowdhury. 42 DLR (AD) 83: Mozammel Hoque vs Sonali Bank, 15 BLD (AD) 35 and Abdul Jalil vs Islamic Bank Ltd Bangladesh, 53 DLR (AD) 12 ref.
Probir Neogi and Minhazul Haque, Advocates-For Appellant.
TIM Nur Nabi Chowdhury, Advocate-For Respondent Nos. 1-2.
Taz Mohammad, Advocate -For the Respondent No.3
Khondker Musa Khaled J: This First appeal, is directed against the judgment and decree dated 26-10-2010 passed by the learned Joint District Judge, First Court, Rajshahi in Other Class Suit No. 15 of 2010 allowing an application under Order VII, rule 11(d) of the Code of Civil Procedure filed by the defendants 1-2 for rejection of the plaint.
2. After filing the appeal, the appellant preferred an application for temporary injunction on which, a Rule was issued calling upon the defendant-respondents to show cause as to they should not be restrained by an order of temporary injunction from dispossessing the appellant petitioner from the land mentioned in the schedule. At the time of issuance of the Rule, the parties were directed to maintain status-quo in respect of title and possession of the land mentioned in the schedule of the application.
3. The First Appeal alongwith the connected Rule No. 605(F) of 2010 are taken up together for disposal by this judgment.
4. The facts relevant for disposal of the appeal and the above mentioned Rule, in short, are that the plaintiff-appellant AM Mostafiz Meah instituted the above mentioned suit on 2-2-2010 against the defendants United Commercial Bank Ltd for having a declaration that the alleged auction sale of the schedule land on 16-7-2009 is illegal, void, fraudulent and not binding upon the plaintiff. Because, the auction sale was held against the provisions contained in the Artha Rin Adalat Ain, 2003. According to the plaint case, the plaintiff received a loan of Taka 9 lac which was subsequently increased to Taka 32,22,633.09 on 31-3-2009 due to accumulation of interest and charges thereon. At the time of taking loan, the plaintiffs three kathas of land specified in the schedule was mortgaged with the defendants- Bank under a registered deed on 27-1-2002 and a separate deed of Power of Attorney was also executed and registered on the same date. Without considering the plaintiffs prayer for remission of interest, the defendant-Bank published tender notice of auction sale in respect of the mortgaged land in the Daily Protham Alo on 1-7-2009 and thereafter, sold the property on auction on 16-7-2009 for a consideration of Taka 16 lac before the expiry of 15 days from the date of publication of notice. So, the auction sale was illegal and contrary to the provisions of the Artha Rin Adalat Ain.
5. When the suit was pending before the trial Court, the defendant-Bank filed an application on 3-10-2010 under Order VII, rule 11(d) of the Code of Civil Procedure for rejection of plaint on the ground that since it is admitted in the plaint that the suit relates to recovery of loan by financial institution, it is barred under Section 18(2) of the Artha Rin Adalat Ain, 2003. In view of such legal bar, the plaint was liable to be rejected.
6. After hearing both the parties, the learned trial Judge was pleased to reject the plaint allowing the application of the plaintiff bank by the impugned judgment and decree dated 26-10-2010, against which, the plaintiff preferred this appeal and obtained the Rule and injunction order in the manner already stated above.
7. Mr Probir Neogi, the learned Advocate appearing on behalf of the plaintiff- appellant, submits that inherent power of adjudication of all the suits of civil nature cannot be easily ousted even by provision of a statue. Section 9 of the Code of Civil Procedure confers jurisdiction upon the Civil Court to determine all disputes of civil nature unless expressly barred by a statue and that normally the Civil Court would give interpretation of the statute in favour of upholding retention of civil Court's jurisdiction and it is the Civil Court which is legally empowered to see whether the auction sale was held in accordance with the provisions of Artha Rin Adalat Ain, 2003. In this respect, the learned Advocate has referred to the case of Dwarka Prasad Agarwal vs Ramesh Chandra Agarwala reported in AIR 2003 SC 2696 and also case of Mohammad Julfikar vs Abul Kalam Chowdhury reported in 42 DLR (AD) 83.
The learned Advocate has also relied on the case of Md Mozammel Hoque vs Sonali Bank reported in 15 BLD (AD) 35 to show that separate suit to challenge a decree of Artha Rin Adalat is not also barred in certain cases. It is further submitted that Section 18(2) of the Artha Rin Adalat Ain, 2003, does not create any legal bar to file a separate suit relating to recovery of loan in the civil court. Rather Section 18(3) of the said Ain clearly indicates that the borrower can also file such a suit against the Bank of Financial Institution in the Civil Court. So in his opinion, there is no legal bar to maintain the suit challenging loan recovery process in the Civil Court and the trial Judge has committed mistake in rejecting the plaint in Order rule VII(d) of the Code of Civil Procedure showing legal bar to file a separate suit in the Civil Court under 18(2) of the Artha Rin Adalat Ain, 2003. As such, the impugned Judgment and decree is liable to be set aside.
8. Mr TIM Nurun Nabi Chowdhury, learned Advocate appearing on behalf of the respondent Nos. 1-2 (United Commercial Bank Ltd.) has submitted in support of the impugned judgment stating that the borrower is specifically barred from instituting any suit against the financial Institution under Section 18(2) of the Artha Rin Adalat Ain, 2003. So, there is no scope to go for a lenient interpretation of the statue in favour of the plaintiff-appellant in this case.
The learned Advocate has also made reference to sections, 12(8) and 5 and 20 of the Artha Rin Adalat Ain, 2003 in support of this contention that a suit of such mature in the ordinary Civil Court is not maintainable. It is contended that when it is admitted fact that the plaintiff-appellant received loan from the defendant-bank against his mortgaged property and also executed a Power of Attorney in favour of the defendant-bank, the mortgaged property was naturally sold in auction to the respondent No.1 in exercise of lawful authority under Section 12 of the Artha Rin Adalat Ain 2003. So, the learned trial Judge passed the impugned Judgment in the right direction and that the appeal has no ground to succeed, the learned Advocate added.
9. Mr Taz Mohammad, the learned Advocate appearing on behalf of respondent No. 3 (auction purchaser), however, concedes that Section 18(2) of the Artha Rin Adalat Ain, 2003 is not applicable in rejecting the plaint of this suit. He submits that though the section was misquoted in the application for rejection of plaint and also in the impugned judgment and order, the fact remains that the borrower cannot maintain the suit challenging auction purchase of the respondent No. 3 as it is specifically barred under Section 12(8) of the Artha Rin Adalat, 2003.
(To be continued)
The learned Advocate further submits that the respondent No. 3 is a bonafide purchaser for value thorough the auction sale held and conducted in accordance with the provisions of law and, as such, he has already acquired right which cannot be frustrated by filing a separate suit in the Civil Court. The learned Advocate has relied on the case decision reported in Abdul Jalil vs Islamic Bank Ltd Bangladesh 53 DLR (AD) 12 and to put an end to the frivolous litigation in order to give effect to the actual sprit of the Special Law.
10. We have gone through the impugned judgment, plaint of the suit for declaration, application for rejection of the plaint and other documents available on record.
11. Evidently the Plaint has been rejected under Order VII, rule 11(d) of the Code of Civil Procedure stating that section 18(2) of the Artha Rin Adalat Ain, 2003 stands as a legal bar to interfere any suit of this nature by any Civil Court. section 18(2) of the said Ain runs as follows:
Ò†Kvb FYMÖnxZv, †Kvb Av`vjZ cÖwZôv‡bi weiæ‡×, GB AvB‡bi Aaxb Av`vj‡Z, mswkøó FY nB‡Z D™¢~Z †Kvb wel‡q, †Kvb cÖwZKvi `vex Kwiqv gvgjv `v‡qi Kwi‡Z cvwi‡e bv, Ges FYMÖnxZv-weev`x, ev`x-Avw_©K cÖwZôvb KZ…©K `v‡qiK…Z gvgjvq wjwLZ Reve `vwLj Kwiqv, D³ wjwLZ Rev‡e cÖwZMYb ( Set-off) ev cvív`vex (counter claim) AšÍf©~³ Kwi‡Z cvwi‡e bvÓ|
(Underline is made by us)
12. Clearly the aforesaid section puts restriction on the borrower to file any suit in the Artha Rin Adalat over the loan related matter of the financial institution.
13. But the instant suit for declaration was not filed in the Artha Rin Adalat Ain constituted under the Artha Rin Adalat Ain, 2003. So, this section has no manner of application for the purpose of rejection of plaint in this case.
14. Mr Taz Mohammad, the learned Advocate for the respondent No.3 also concedes to the submission of Mr Probir Neogi in this respect. But he has strenuously argued that the suit is actually barred under Section 12(8) of the Artha Rin Adalat Ain, 2003 and according to his contention, mere misquoting of section cannot prevent the Court from upholding plaint rejection order when the plaint is found non-maintainable by any other provision of law.
15. Accepting the contention of Mr Taz Mohammad, let it be examined whether section 12(8) of the Artha Rin Adalat Ain, 2003 is a legal bar for rejection of plaint under Order VII, rule II (d) of the Code of Civil Procedure.
16. Section 12(8) of the said Ain may be
quoted below for ready reference:
ÒAvcvZZt ejer Ab¨ †Kvb AvB‡b wfbœiƒc hvnv wKQzB _vKzK bv †Kb, GB avivi Aaxb Avw_©K cÖwZôvb KZ…©K lien, pledge, hypothecation A_ev Mortgage Gi Aaxb cÖvß ÿgZve‡j †Kvb RvgvbwZ ¯'vei ev A¯'vei m¤úwË weµq Kiv nB‡j, D³ weµq †µZvi AbyK~‡j ˆea ¯^Z¡ m"wó Kwi‡e Ges †µZvi µq‡K †Kvbfv‡eB ZwK©Z Kiv hvB‡e bv t
Z‡e kZ© _v‡K †h, Avw_©K cÖwZôvb KZ…©K weµq Kvh©µ‡g †Kvbiƒc A‰eaZv ev c×wZMZ Awbqg _vwK‡j, RvgvbZ cÖ`vbKvix-FY MÖnxZv Avw_©K cÖwZôv‡bi weiæ‡× ÿwZc~iY `vwe Kwi‡Z cvwi‡eb|
17. It is admitted in the plaint that the plaintiff received loan from the defendant-Bank against mortgage of his land property and he also gave authority to the bank to sell the mortgaged property for the purpose of realisation of dues by executing a separate registered Power of Attorney on the same date. When such authority to sell the mortgaged land is given by the borrower, the Bank naturally has become legally empowered to transfer the land for the purpose of realisation of the loan and section 12(8) of the said Ain, 2003 operates, as a clear bar to challenge the auction sale in any manner as the auction purchaser acquired absolute right, title and interest to the land in question by operation of law. In this case, the respondent No. 3 Robiul Awal already purchased the mortgaged land in auction sale held on 16-7-2009, which is called in question in the suit of the plaintiff before the Civil Court.
18. It appears from the plaint that the auction sale was called in question merely on the ground that it was held before expiry of the stipulated 15 days from the date of publishing auction tender notice on 1-7-2009 and, as such, the auction was held in violation of sections 34(1) & 33(1) of the Artha Rin Adalat Ain, 2003. It appears that if the date of publishing tender notice is taken to be inclusive of the specified 15 days, then apparently such allegation does not stand at all. Even if there is any procedural defect or illegality in the auction sale process, the borrower can at best file a suit claiming compensation from the Bank according to the provision of Section 12(8) of the Artha Rin Adalat Ain, 2003 as quoted above, but he is not in position to challenge the very auction sale in any manner in view of the above mentioned proviso to the Section 12(8). Moreover, apparently we do not find any acceptable ground to challenge the auction sale. So the present suit for declaration challenging the legal auction sale is barred under Section 12(8) of the Artha Rin Adalat Ain, 2003. We have also perused the cited case of Md Mozammel Hoque vs Sonali Bank 15 BLD (AD) 35 where a suit challenging the decree of the Artha Rin Adalat Ain was found maintainable in a very exceptional circumstances. The relevant part of the finding may be quoted below:
"When the petitioner's allegation of nonservice of summons of the suit before the Artha Rin Adalat is correct, his remedy of a separate suit to challenge the decree is not barred under the facts an circumstances of the case, provided his remedies under the Artha Rin Adalat Act stood barred at the time of the filing of the suit for no fault of his own".
19. Evidently there is no such a extraordinary situation in this case. Actually no suit was filed by the Bank for recovery of any loan in this case. The question of fraudulent suppression of summons does not arise here. Rather the Bank had, to sell the mortgaged property in accordance with the Section 12 of the Artha Rin Adalat Ain, 2003. The aforesaid citation, therefore, has no manner of application here in this case.
20. So far jurisdiction of the Civil Court under Section 9 is concerned, we hold the view that since there is specific restriction in Section 12(8) of the Artha Rin Adalat Ain, 2003, which is a special law, to challenge auction sale by filing any suit, the question of lenient construction of the said law does not arise. The Special Law enacted for certain purpose and it shall always prevail over the general law. On the question ouster of Civil Court's Jurisdiction, the cited case of Mohammad Juljikar vs Abul Kalam Chowdhury 42 DLR (AD) 83 and AIR, 2003 SC 2696 as has been referred to by the learned Advocate for the appellant, are not applicable in the instant case. Rather we hold the view that the suit of the plaintiff as has been framed is not at all maintainable in view of the provisions of the Artha Rin Adalat Ain, 2003 as already discuss above; and that being the legal position, the case of Abdul Jalil vs Islamic Bank Ltd Bangladesh reported in 53 DLR (AD) 12 as referred to in the impugned judgment appears to be appropriate having binding effect in this case.
21. Considering all aspects, we hold the view that the suit of the plaintiff being barred under Section 12(8) of the Artha Rin Adalat Ain, 2003, rejection of plaint is justified Under Oruer VII, rule 11 (d) read with section 151 of the Code of Civil Procedure. So, the impugned judgment and decree may also be affirmed with the aforesaid modification by putting the correct section of the Artha Rin Adalat Ain, 2003.
22. In the result, First Appeal is dismissed without any order as to costs. The impugned judgment and decree passed by the learned Subordinate Judge is maintained with the modification that the suit is barred by under Section 12(8) and not section 18(2) of the Artha Rin Adalat Ain, 2003. Accordingly, the connected Civil Rule No. 605(F) of 2010 is discharged and the ad-interim order dated 10-11-2010 directing the parties to maintain status-quo stands vacated.
Send down the LCR along with a copy of the judgment to the Court below immediately.
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