Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Thursday, September 21, 2017 09:26:33 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

Ex-parte decree in Artha Rin cases unwelcome

By
07th-Jan-2017       
Comments
Share your thought
Post a comment »
Read all () »

High Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Zafar Ahmed J
Abdul Hamid Chowdhury  (Iqbal) and another …………. Petitioner
vs
Artha Rin Adalat  and  another. ..... Respondents
Judgment
November 5th, 2015
Artha Rin Adalat Ain (VIII of 2003)
 Section 10(2)
The law itself is a flexible one. We simply cannot understand when the law itself is so positive on the issue how the court below passed an ex-parte decree holding that though the defendant was given time to file written statement they did not file the same. Absolutely on a perverse finding and without applying judicial mind the Court below decreed the suit ex-parte where in so doing not even the plaintiff was examined. It baffles us. It pricks our judicial conscience when we see the issue which goes at the root of jurisdiction of the suit has been disregarded in such a manner without any subjective or objective consideration whatsoever which leads to absurdity and absolutely without any lawful authority.
Under the circumstances this argument has no legs to stand. The ex-parte decree passed upon the admitted facts has been absolutely vitiated by perversity. In this case the Adalat exceeded it's jurisdiction and acted in such a manner in deciding the issue that certainly added to have been passed without jurisdiction leading to perversity. It is a case of a kind where the rigidity of the Role of the Appellate Division and this Division that no writ lies against the judgment and decree of the Artha Rin Adalat shall not apply. …………(5 & 6)
Md Jamiruddin Sirkar, Senior Advocate with Md Farhad Hossain Kazal. Advocate-For the Petitioners.
Hosainal Kabir, Advocate-For the Respondent No. 2.
Judgment
Md Ashfaqul Islam J : At the instance of the petitioners. Abdul Hamid Chowdhury (Iqbal) and another, this Rule was issued in following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why the order and ex-parte decree dated 3-3-2014 passed by the Artha Rin Adalat & Joint District Judge, 2nd Court, Sylhet in Artha Rin Suit No.3 of 2013 rejecting the application of the petitioners to allow them contest in the suit by accepting the written statement (Annexure-C) should not be declared to have been done without lawful authority and is of no legal effect."
2. The background leading to the Rule, in short is that the respondent No.2- Agrani Bank Limited, Zinda Bazar. Sylhet as plaintiff filed Artha Rin Case No. 3/2013 before the Artha Rin Adalat and Joint District Judge, 2nd Court, Sylhet for recovery of Taka 65,16,608 (Sixty five lac sixteen thousand six hundred eight) against the CC loan of Taka 50,00,000 (fifty lac) earlier granted to the petitioners on 5-7-2010 stating inter alia that the petitioners took Taka 30,00,000 (thirty lac) CC loan from First Security Islami Bank Ltd. and the plaintiff after sanction of the loan and execution of registered deed paid Taka 11,00,000 (eleven lac) to the petitioners and repaid Taka 39,00,000 (thirty nine lac) to the First Security Islami Bank Ltd as per stipulated terms and conditions or the loan. But owing to nonpayment in part or full amount of the outstanding the respondent No.2 Agrani Bank Ltd. Zinda Bazar Branch, Sylhet through their engaged advocate served a legal notice upon the defendants notifying that due to nonpayment of any amount they will have to auction the mortgaged property. It is also stated that without having any response the plaintiff filed the instant suit for recovery of Taka 65,16,608 including the principal amount as well as the interest till 13-1-2012 (Annexure-"A"). It has been also stated that right after filing of the plaint formalities of serving of summons was heeded to. On 3-3-2014 the suit was fixed for ex-porte decree and the defendants on the same date i.e. on the date of fixed for ex-parte decree appeared with an application (Annexure-D) stating the reasons for delay in filing the written statement and made a positive prayer for hearing the suit on contest upon accepting the written statement.
3. Curiously enough we have found that the court without accepting the said application passed  the exparte decree on the same day observing as under:
"Heard the learned lawyer appearing on behalf of defendant No. 1/2. Perused the petition and record of the case. It is found that today is fixed for exparte trial, Previously, defendant took several times for submission of written objection. It is also found that stipulated time for submission of written objection has already been elapsed. At this stage there is no scope to admit written objection. So, the petition of defendant No. 1/2 is rejected."
4. In the said order the Adalat observed: "Previously defendant took several times for submission of written objection."
This assertion is absolutely wrong as it has been detected on our careful perusal of the entire order sheet (Annexure-"E") filed by the petitioner vide supplementary affidavit dated 5-5-2014 in as much as the defendant for the first time appeared in the proceeding on 3-3-2014. Further in order No. 15 dated 3-3-2014 the Adalat observed that the defendant entered appearance by filling a new Vokalatnama which is also a palpable wrong for the same reason since only on 3-3-2014 the defendant for the first time filed written statement. How come question of new Vokalatnama arises then?
Section 10 of the Ain enjoins:-
“১০. লিখিত জবাব দাখিলের সময়সীমা “ (১) উপ-ধারা (২) এর বিধান সাপেক্ষে অর্থ ঋণ আদালত, বিবাদী উপ¯ি'ত হওয়ার ৪০ দিবসের পরবর্তীতে বিবাদী কর্ত"ক দাখিলকৃত কোন লিখিত জবাব গ্রহণ করিবে না এবং এইরূপ ক্ষেত্রে আদালত অবিলম্বে একতরফা সূত্রে মামলা   নিষ্পত্তি করিবে।
(২) উপ-ধারা (১) এ বিধান সত্ত্বেও, অন্যূন ২০০০ (দুই হাজার) এবং অনূর্ধ্ব ৫০০০ (পাঁচ হাজার) টাকা পর্যন্ত খরচ প্রদানের পূর্বশর্ত সাপেক্ষে আদালত উপরি উক্ত সময়সীমা অনূর্ধ্ব  আরো ২০ (বিশ) দিবস পর্যন্ত বর্ধিত করিতে পারিবে।
(৩) এই ধারার অধীন প্রদেয় খরচ সরকারি রাজস্ব হিসাবে নির্ধারিত খাতে জমা করিয়া উহার চালান প্রমাণস্বরূপ আদালত দাখিল করিতে পারিবে।”
5. The law if be read with sub-section 2 it gives a clear picture that the law itself is a flexible one. We simply cannot understand when the law itself is so positive on the issue how the court below passed an ex-parte decree holding that though the defendant was given time to file written statement they did not file the same. Absolutely on a perverse finding and without applying judicial mind the Court below decreed the suit exparte where in so doing not even the plaintiff was examined. It baffles us.
It pricks our judicial conscience when we see the issue which goes at the root of jurisdiction of the suit has been disregarded in such a manner without any subjective or objective consideration whatsoever which leads to absurdity and absolutely without any lawful authority.
6. The learned counsel for the bank has tried to impress upon us that the petitioner should have filed appeal under section 19 of the Ain to Ventilate his grievances. Under the circumstances this argument has no legs to stand.
The ex-parte decree passed upon the admitted facts has been absolutely vitiated by perversity. In this case the Adalat exceeded it's jurisdiction and acted in such a manner in deciding the issue that certainly added to have been passed without jurisdiction leading to perversity. It is a case of a kind where the rigidity of the Rule of the Appellate Division and this Division that no writ lies against the judgment and decree of the Artha Rin Adalat shall not apply.
7. In the result, the Rule is made absolute with cost. The ex-parte decree dated 3-3-2014 is declared to have been passed without lawful authority and is of no legal effect and set aside. The case is sent back on remand to the Adalat to give a fresh decision after hearing the parties in accordance with law at the earliest.

Tariff
Add Rate

News Archive

Inside The New Nation

Editorial »

Suu Kyi`s speech cannot silence the critics


STATE Counsellor of Myanmar Aung San Suu Kyi finally broke her silence on the Rohingya refugee crisis Tuesday insisting that her country was not "afraid of international scrutiny." But her speech in Naypyidaw drew widespread criticism, such as; she did not denounce atrocities against Rohingyas and claimed the government needed ...

Football »

Bayern`s Arturo Vidal is celebrated after he scored the third goal for Bayern during the German Bundesliga soccer match between FC Schalke 04 and Bayern Munich at the Arena in Gelsenkirchen, Germany on Tuesday.


Football »

A moment of the match of the Marcel Bangladesh Championship League Football between Uttar Baridhara Club and Feni Soccer Club at the Bir Shreshtha Shaheed Sepoy Mohammad Mostafa Kamal Stadium in the city's Kamalapur on Wednesday. The match ended in a goalless draw.


Entertainment »

Feels good that like-minded people are in CBFC: Vidya Balan


Last month, much to the relief of filmmakers and the audience, the Censor Board of Film Certification underwent a revamp in August. Padma Shri recipient and lyricist Prasoon Joshi replaced Pahlaj Nihalani as the chairperson and revered film personalities like Vidya Balan and TS Nagabharana became board’s new members. Hopes ...

Entertainment »

Leonardo DiCaprio announces $20 million environmental grants


Actor Leonardo DiCaprio has announced that his Foundation will give $20 million in grants to more than 100 environmentally focused organisations. The new grants, ranging from wildlife and habit conservation and combating climate change to the defence of indigenous rights, increase the organisation's total direct financial impact to over $80 ...

International »

Iran in UN spotlight as Trump threatens nuclear deal


AFP, United Nations :Tehran will defend itself on the world stage on Wednesday with President Donald Trump threatening to trigger a new international crisis by pulling out of the Iran nuclear accord.Iran's President Hassan Rouhani is to address the United Nations General Assembly, where worried world leaders are fearful of ...

City »

Residents of Dolaipar area in the city facing acute water crisis as water with bad smell has been coming from the WASA line. People have to collect drinking water from the only WASA pump in the areas standing in long queue.


Editorial »

Our inactive diplomacy is deplorable : We shall need armed support


IT'S almost a month since Myanmar has started to push Rohingya Muslims illegally into Bangladesh; creating a burden for an economically weaker country like ours. Our government waiting eagerly for the international power houses to act quickly and solve the problem for us. But all our so-called proven friends like ...

Entertainment »

Antora Azim`s web series Basic Ali


Sheikh Arif Bulbon :Few years ago, Antora Azim started her acting career through Adnan Al Rajib’s a play titled Middle Class Sentiment. Under his direction Antora also performed as a model in a TV commercial of Banglalink. Later she took break from media for her study. She again started shooting ...

Entertainment »

Bhoomi item song by Sunny Leone faces Censor scissors - fans to face disappointment


The Censor Board always has a last laugh because of the immense powers vested with it. And with power comes responsibility. The Central Board of Film Certification is a statutory censorship and classification body under the Ministry of Information and Broadcasting, Government of India. Bhoomi has been at the receiving ...

City »

BNP Standing Committee Member Amir Khasru Mahmud Chowdhury, among others, at a discussion on `Bangladesh`s Position in Rohingya Crises` organised by Bangladesh Youth Forum at the Jatiya Press Club on Tuesday.


International »

Trump expresses his hopes for peaceful settlement to ME crisis


AFP, United Nations :US President Donald Trump again expressed his hopes for a peaceful settlement to the Middle East crisis Monday as he met Israel's Prime Minister Benjamin Netanyahu.Netanyahu was the first leader to have a one-on-one with Trump at the US president's first United Nations General Assembly, an annual ...

International »

Hong Kong leader demands end of independence talk


Reuters, Hong Kong  :Hong Kong's leader urged an immediate end to independence debates in the Chinese-ruled global financial hub on Tuesday, warning that the issue was harming the city's relationship with Beijing's Communist Party leaders.Insisting that the government did not want to intervene on university campuses, Chief Executive Carrie Lam ...

Sports »

Canada`s Brayden Schnur (right) and India`s Yuki Bhambri shake hands after the match during Davis Cup singles tennis tournament action in Edmonton, Alberta on Sunday.


Editorial »

Rice crisis must be resolved — police action not enough


THE government on day before yesterday directed the law enforcement agencies and Deputy Commissioners (DC) to arrest illegal rice hoarders in the country. The directive comes in the wake of introducing open market sales (OMS) of coarse rice at Tk. 30 per kg, double the previous year's price, across the ...

 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news