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Ex-parte decree is challengeable by proviso of law

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06th-May-2017       
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High Court Division :
(Civil Appellate Jurisdiction)
Md Nuruzzaman  J
Farid Ahmed J
Pubali Bank Ltd ............ ....Appellant
vs
Bangladesh Tea Limited and others
                    ......... ......... ... Respondents·
Judgment
February 25th, 20n
Artha Rin Adalat Ain (IV of 1990)
Section 6
Since the law is very much clear that the ex-parte decree would have challenged by filling the application  under Section 6 of the Artha Rin Adalat Ain by depositing 50% of the decreetal amount. besides that, our Appellate Division in many cases decided this very point. It is already noted that law itself is very much clear on this point involved in this case no decision  is necessary for reaching to conclusion of the case.     ....... (18)
Md Wasiq Khan vs Md Sabiq Khan, 31 DLR (AD) 51; Sumsun Naher Begum vs Salauddin Ahmed, 4 BLC (AD) 285; Raja Ram Singh vs Kanhaya Bai, AIR 1950 Patna Page-284 and Pubali Bank Ltd vs Ainin Iqbal Corporation, 17 BLC 500 ref.
Zakir Hussain Mazumder with Md Nazmul Hoque, Advocates-For the Appellant.
Shishir Kanti  Mazumder, Advocate - For the Respondents.
Judgment
Farid Ahmed J : This appeal is directed against the judgment and decree dated 23-10-1997 (decree signed on 30-10-1997) passed by the learned Subordinate Judge, (now Joint District Judge), 1st Commercial Court, Chittagong in Other Suit No. 31 of 1993 filed by the defendant respondent seeking declaration to the effect that the judgment of the ex-parte decree dated 19-3-1990 passed by the 1st Commercial Court, Chittagong in Money Suit No. 158 of 1988 is illegal, ineffective, null and void, fraudulent and not binding upon the plaintiff.
2. Facts relevant for disposal of the appeal in brief are that the plaintiff-appellant instituted Money Suit No, 158 of 1988 before the 1st Commercial Court, Chittagong for realizing Taka 6,86,055 with insufficient Court fee of Taka 13,750 and subsequently on 20-11-1988 the plaintiff deposited the Court fee and the Court issued as usual summons with postal summon to the defendants and fixed on 24-12-1988 for appearance. Though the summons has not been served on the fixed date but the process server altered the date of servicing summons and shown that summons has been served by putting the same on the table of the defendant's employee. On and from 24-12-1988 to 27-2-1990 till fixing the date of ex-parte hearing no summons were served upon the defendants. It was further averted in the plaint that the plaintiff-appellant Bank illegally managed the process server and in connivance with each other suppressed the summons. In this way by suppressing the summons and by practicing fraud upon misleading the trial Court obtained the ex-parte decree on 25-3-1990. Thereafter the plaintiff-appellant-Bank put the ex-parte decree for execution by filing Decree Execution Case No.84 of 1991 before the same Court. It is asserted in the plaint of Title Suit No.31 of 1991 that if the plaintiff would have received the summons of course he would contest the earlier suit by filling written statements.
3. It is averted that when they plaintiff-Bank issued a letter under Memo No. PBL/AGB/RD/ 4/4760/93 dated 15-9-1993 in the name of the defendant-respondent that is, after three years of passing the ex-parte decree the defendant came to know for the first time regarding the ex-parte decree. On receiving the Bank's notice on 15-9-1993 the plaintiff Tea Company the next day on 16-9-1993 applied for certified copy of the exparte decree and obtained the same on 10-10-1993 and being aware and details of the ex-parte decree plaintiff was constrained to file the present Title Suit No. 31 of 1991 for declaration against the Bank.
4. Defendant-Bank contested the suit by filing written statements denying the material statement made in the plaint. Defendant's case is that, it is a limited company, providing loan facility to the interested party. They provided loan facilities in various names i. e. CC, overdraft, Project Loan etc. The plaintiff of the Other Class Suit No. 31 of 1991 filed an application for seeking loan from the Bank. On examining all relevant papers the appellant-Bank sanctioned Taka 5,00,000 on 25-8-1978, which was scheduled to be paid off on 31-7-1979. Subsequently on a separate application of the plaintiff, defendant-Bank enhanced the loan amount to Taka 8,00,000 and it was scheduled to be repaid in the year of 1979. Plaintiff assured the Bank to repay the loan amount in several dates but failed. Then the Bank served required legal notices and was compelled to file Money Suit for realizing its outstanding dues. It is also the case of the Bank that the plaintiff Tea Company believed that Bank will decree in the Money Suit and upon receiving summons and knowing the result of the suit willingly did not appear to contest the suit. Now the plaintiff just to make delay to realize the loan money filed the instant suit for declaration.
5. The trial Court considering the pleadings framed the following issues:-
 (a)     whether the plaintiffs suit is maintainable in the present form,
(b)     whether the suit has cause of action,
 (c)     whether decree should passed in favour of the plaintiff as prayed for and
 (d)     whether the plaintiff should get more or further relief in the suit.
6. The plaintiff examined Mr Ali Asgar as PWI while the defendant examined Md Mostafa as DW 1 in justifying their respective case. The PW 1 exhibited some Bank document namely statements of accounts as Exhibh-1, order sheet of Money Suit No. 158 of 1988 dated 19-3-1990, certified copy of the ex-parte decree of Money Suit No. 158 of 1990, summon of the Money Suit and report of the process server as Exhibit-2, while defendant witness exhibited nothing.
7. The trial Court after proper appreciation of the evidences on record and depositions of the witnesses decreed the suit by its judgment and decree dated 23-10-1997 and 30-10-1997 respectively.
8. Being aggrieved by the judgment and decree passed by the 1st Commercial Court, Chittagong in Other Suit No. 31 of 1993 the plaintiff-appellant preferred this appeal before this Court.
9. Mr Zakir Hussain Mazumder, the learned Advocate appearing on behalf of the appellant has submitted that the defendant-respondent failed to prove the fact that the plaintiff-appellant suppressed the summons and by practicing fraud obtained the ex-parte decree in the Money Suit No. 158 of 1988. He has also submitted that the defendant respondent as a protecting Measure and to elude them to repay the loan money filed the instant suit and they did not appear before the Court to contest the suit knowing that they will lose in the suit. Referring the notification· dated 20th October, 1984 which has come into force on the same date the learned Advocate for the appellant has submitted that in view of this notification the then Subordinate Judge and 1 st Commercial Court, Chittagong had the, juris-diction in exercising the power 'to entertain the Artha Rin Case for recovery of loan.
10. He has further added and pointing section 6 of the Artha Rin. Adalat Ain, 1990 submitted that it was the specific provision for setting aside the ex-parte decree as provided in the Artha Rin Adalat Ain, '1990. The respondent instead of invoking the specific provision of law filed the instant suit for declaration which was not maintainable in the eye of law. He argued that Artha Rin Adalat Ain, 1990 has come into force on 20th January, 1990. The ex-parte decree passed by the 1 st Commercial Court, Chittagong on 25-3-1990 it was incumbent upon the Court to follow the procedure as provided in the Artha Rin Adalat Ain, 1990. In conclusion of his argument he has submitted that the defendant-respondent failed to apply the appropriate provision of law for setting aside the ex-parte decree, therefore the judgment and decree passed in Other Suit No. 31 of 1993 was not tenable in the eye of law.
11. Learned Advocate for the appellant cited several decisions, the case of Md Wasiq Khan vs Md Sabiq Khan, reported in 31 DLR (AD) 51, Sumsun Naher Begum vs Salauddin Ahmed, reported in 4 BLC (AD) 285, the case of Raja Ram Singh vs Kanhaya Bai reported in AIR 1950 Patna page-284 and the case of Publi Bank Ltd vs Amin Iqbal Corporation reported in 17 BLC 500.
12. Conversely, learned Advocate Mr Shishir Kanti Majumder appearing on behalf of the defendant respondent has submitted that the plaintiff-appellant in connivance with the process server suppressed the summons and by practicing fraud obtained the ex-parte decree on 25-3-1993. The defendant-respondent on  receiving the letter dated 14-3-1993 (Exbt-l) sent by the appellant- Bank, came to know for the first time regarding the ex-parte decree on 15-3-1993 and on receiving the certified copy of the decree filed in the Other Suit No. 31 of 1993 for declaration to set-aside the ex-parte decree on the grounds that appellant Bank suppressed the summons of Money Suit No. 158 of 1988 and by practicing fraud obtained the ex-parte decree and the defendant respondent rightly filed the suit and the trial Court upon assessing the evidence on record found that fraud practice had done in obtaining the ex-parte decree and rightly and lawfully declared that the ex-parte decree is illegal' null and void and not binding upon the defendant respondents.
13. On perusing the evidence of PW I we find that he has been serving as Principal Officer of the Company. He asserted in his deposition that his company had a separate section to receive all kind of letters and court summons. His office did not receive any summons of the Money Suit No. 158 of 1988. He has further asserted that definitely they would have contested the money suit if they received the summons. But he alleged that plaintiff-appellant Bank deliberately in connivance with the process server suppressed the summons and by misleading the Court below obtained the ex-parte decree on 25-9-1990. Long after three years of passing the decree appellant Bank served a letter informing the respondent regarding the ex-parte decree and the respondent on receiving the appellant's letter on 15-9-1993 and after receiving certified copy of the ex-parte decree filed the suit from the date of knowledge, within the period of limitation provided in Article 164 of the Limitation Act. This witness exhibited the Bank's letter as Exhibit-l and the copy of the judgment and the ex-parte decree, the summons with report of the process server as Exhibit-2 and the notice as Exhibit-3 of the case.
14. It appears from the plaint of Money Suit No. 158 of 1988 that initially the suit was filed before the Court of 1st Commercial and Subordinate Judge Chittagong on 28-9-1988 for passing a decree against the defendant of Taka 6,86,055 with cost and till recovery of the decreetal amount 20% interest should be levied. Long before that the government by publishing a gazette notification dated 20th October 1984 created 5 Courts including 1st Commercial Court, Chittagong to entertain case for realizing outstanding Bank's loan like the instant case and the Government on 27-5-1990 by publishing another notification No Gm Avi I 195 AvBb/90 A_© FY Av`vjZ AvBb 1990  established Artha Rin Adalat and the concern Judge also appointed as the Judge of Artha Rin Adalat.
15. According to aforementioned two gazette notification 1st Commercial Court, Chittagong declared as Artha Rin Adalat, considering the gazette notification this money suit was legally a nature of Artha Rin case and the provision of Artha Rin Ain must be applicable to try this nature of case. Though we find the decree passed by a Subordinate Judge Court but legally it was a Artha Rin Adalat by operation of the gazette notification. We find that for setting aside the ex-parte decree Section 6 of the Artha Rin Adalat Ain was applicable and the respondent could have availed the said law. There are long lines of decision in our Apex Court that the Code of Civil Procedure would be applicable subject to the Ain. Section 5(4) of the Ain 1990 is very much clear on this point. We feel to quote the Section 5(4) of the Ain 1990 herein below:
৫ (৪) অর্থ ঋণ আদালত একটি দেওয়ানী আদালত   (ঈরারষ ঈড়ঁৎঃ) বলিয়া গণ্য হইবে এবং (ঈড়ফব ড়ভ ঈরারষ চৎড়পবফঁৎব, ১৯০৮ (অপঃ ঠ ড়ভ ১৯০৮)  এ দেওয়ানী আদালতের যে সমস্ত ক্ষমতা ও এখতিয়ার আছে সেই সমস্ত ক্ষমতা ও এখতিয়ার, এই আইনের বিধান সাপেক্ষে অর্থ ঋণ আদালতেরও থাকিবে।”
16. On close reading of the above provision of law clearly suggest that the Code of Civil Procedure will be applicable subject to the provision of the Ain. Therefore, section  6 is very much clear on this point to apply for setting aside the ex-parte decree. We feel to quote the relevant section 6 of the Ain herein below : -
“ধারা-৬। অর্থ ঋণ আদালতের সিদ্ধান্ত  চুড়ান্ত ঃ (১) ধারা ৭ এর বিধান সাপেক্ষে, অর্থ ঋণ আধালতের কার্যধারা আদশে, রায় ও ডিক্রি সম্পর্কে কোন আদালত বা অন্য কোন কর্ত"পক্ষের নিকট প্রশ্ন করা যাইবে না।
(২) উপ-ধারা(১) এ যাহা কিছুই থাকুক না কেন, কোন অর্থ ঋণ আধালত কর্তৃক বিবাদীর বিরুদ্ধে প্রদত্ত কোন একতরাফা ডিক্রি রদ করার জন্য বিবাদী (ঈড়ফব ড়ভ ঈরারষ চৎড়পবফঁৎব, ১৯০৮ (অপঃ ঠ ড়ভ ১৯০৮)  এর  ঙৎফবৎ ওঢ এর ৎঁষব ১৩ এর বিধান মোতাবেক আদালতে দরখাস্ত করিতে চাহিলে তাহাকে তাহার বিরুদ্ধে ডিক্রিকৃত অর্থের অন্ততঃ অর্ধেক অর্থ বা উহার সমপরিমাণ অর্থের ব্যাংক জামানত দরখাস্তের সহিত আদালতে জমা করিতে হইবে,্ বেং উক্তরুপ জমা করা না হইলে তাহার দরখাস্ত গ্রহণযোগ্য হইবে না”।
17. In this case the defendant-appellant could have invoked provision of Section 6 of the Artha Rin Ain 1990 and filed the miscellaneous case for setting aside the ex-parte decree.
18. Considering the, Section 6 of the Artha Rin Adalat Ain, 1990 and also the Constitution of the Commercial Court by notification dated 20th October, 1984. and notification  dated 27 -5-1990 we are of the view that this Commerical Court has been treated as Artha Rin Court. Since the law is very much clear that the ex-parte decree would have challenged by filling the application under Section 6 of the Artha Rin Adalat Ain by depositing 50% of the decreetal amount. Besides that, our Appellate Division in many cases decided this very point. It is already noted that law itself is very much clear on this point involved in this case no decision is necessary for reaching to conclusion of the case.
19. In summing up the decision we find the appeal has got the merit.
20, In the result; the appeal is allowed and the judgment and decree passes on 23-10-1997 in Title  Suit No. 31 of  1993 is: hereby set aside.
21. Send down  the  Lower Court's records immediately.
Communicate the judgment and decree of this Court.

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