Vugis He can, therefore, maintain his suit in an ordinary civil Court for relief. One of our client did not pay last two years any installment and as such became defaulter and his name was listed in the CIB. An application is not to be decided only on the basis of the provision of law mentioned in the application but on the basis of the materials contained in the application and an application banglladesh not to he rejected because of wrong mentioning of the provisions of law. Sections 12 , 20, 41 and 47 —.
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Thus, the provisions of section 51 and Order XXI, rule 37 of the Code are in conflict with the provisions of section 34 1 9 10 of the Ain. Under section 26 of the Ain the provision of the Code is applicable so far as it is not inconsistent with the provisions of the Ain which includes the provisions of section 34 of the Ain.
Moreover, under section 30 of the Ain special provision has been made for publishing notice after filing of the execution case undtv rrrUun circumstances. From the sub-sections 9 and 10 of section 34 of the Ain, there is nothing to show that there is any scope of issuing any show cause notice before issuing warrant of arrest rather it appears that warrant of arrest may be issued directly.
What is not in the law itself, cannot be imported in the law by way of interpretation. With the object to circumscribe said defaulted culture of the borrowers some deterrent provisions like sections 19,41,42,44, including 34, have been incorporated in the Act VIII of which is absolutely within the wisdom and domain of the legislature. Moreover, the notice as required under Order XXI, rule 37 of the Code is also not indispensable, rather it was followed by a proviso where the Court preserved the power not to issue such notice if it comes within the knowledge that in order to cause delay the judgment-debtor has been adopting dilatory tactics.
Moreso, the said provision stands for money decree passed in a Money Suit but not in a suit for recovery of bank loan which may also be called a money decree for which special law exists for the said purpose e. Act VIII of Section 5— Adalat cannot entertain any execution case to execute the decree in the preliminary form requiring final decree and, as such, continuation of the execution case is unlawful apparent on the face of record without having any legal sanction. Sections 5 4 and 60 3 — The decree for realisation of money was passed on as per provision of the Artha Rin Adalat Ain, The Execution Case No.
From saving clause of section 60 3 of the Artha Rin Adalat Ain, it appears that the proceeding which were filed under the Artha Rin Ain but proceeded when the Artha Rin Adalat Ain, came into force, shall proceed as per provision of the Artha Rin Adalat Ain, as far as it practical. So, from this provision it appears that the execution case has been proceeding in accordance with law. Per M.
Moazzam Husain J dissenting. Arab Bangladesh Bank Ltd vs Md. In the instant case, admittedly no property was mortgaged by the principal debtor-loanee but the property was mortgaged by the petitioner. Sections 12 1 2 3 4 6 7 , 19 and 41— The petitioner being a defendant in the suit having not contested the same, preferring of the writ petition without availing the forum of appeal as provided under section 41 of the Ain or challenging the ex parte decree under section 19 of the Ain, the writ petition is not maintainable.
The point raised in this Writ Petition has also been challenged in various other cases under the previous law before this court and the issue has been settled by the High Court Division as well as by the Appellate Division in several decisions. The High Court Division on due consideration of the materials on record and the law involved discharged the Rule.
Thus, there is no illegality or impropriety in the impugned order of the learned Judge of Artha Rin Adalat No. Hence, the Rule fails. So, there is no legal mandate to stop or dismiss the Artha Rin suit if the trial of the same be not concluded within the period of 90 days and further extended period of 30 days.
The only purpose is for speedy disposal of the suit, otherwise the defaulting borrowers of the financial institutions with their best efforts will cause delay in the process of trial. Section 13— The petitioner being the defendants may still raise the question of liability which they did not raise at the time of framing of issues in the suit by filing an application under section 13 of the Artha Rin Adalat Ain, and the Court may, on such application, adjudicate upon the question of liability of the present petitioners as issues of law.
Section 17 1 2 — Section 17 1 2 of the Ain albeit provided time limit to conclude the trial firstly within 90 days if not; extend the period for further period of 30 days, if not concluded within the aforesaid period; the Ain does not provide any consequential effect or procedure or resulting use of the suit and, as such, the time limit as provided under section 17 1 2 of the Artha Rin Adalat Ain is not mandatory as it has no consequential effect or resulting use laid down in the Act itself even if the suit is not disposed of within the time limit.
Artha Rin Adalat is a civil Court having limited jurisdiction. Instant suit was filed in and it has crossed Artha Rin Adalat Ain, and now continuing under the provisions of Artha Rin Adalat Ain, and by the law it is the intention of the legislature to dispose of the suit on merit and also with an intention to dispose of the suit expeditiously or on priority basis and, as such, the provisions as laid down in section 17 of the Ain is merely directory one. The provision cannot be said to be violative of fundamental right of the petitioner guaranteed by Article 27, 31, 40 and 42 of the Constitution.
Section 19 2 — The petitioner can only get any relief if, and only if, the petitioner did not have any knowledge as to the exparte decree or as to the Jari Case. Sections 19 and 41— The statutory requirement to deposit legal requirements particularly in case of Artha Rin Adalat being a special law is mandatory.
There cannot be any escape from fulfillment of legal necessity as envisaged in section 19 or likewise section 41 of the Ain. Section 20— No form of word seeking to limit the jurisdiction of the ordinary court protects a nullity. Salauddin 16 BLC Section 20— Since the intention of law is not to put a person unconnected with loan transaction into the rigorous procedure of a special statute for protection of his property.
He can, therefore, maintain his suit in an ordinary civil Court for relief. Sections 20 and 19— No question shall be raised before any court or authority about any pending proceeding in Artha Rin Adalat or its order, judgment or decree.
Per Sheikh Abdul Awal, J delivering the main judgment. Sections 20 and 41— Section 6 of the Artha Rin Adalat Ain, or for that matter Section 20 of Ain, create a bar in proceeding with a subsequent suit making a prayer for setting-aside an ex-parte decree even on the ground of fraud or even with a prayer for another declaration for the Power of Attorney and Memorandum of Deposit of Title Documents as forged, fabricated and false rather the only remedy available for the opposite-party No.
Section 26— Section 26 of the Ain of has expressly debarred application of the provisions of other statutes including the Code of Civil Procedure pending execution proceedings so far it is inconsistent with the provisions of the Ain of In other words, the relevant provisions of the Code of Civil Procedure so far it relates to the procedure to make the suit ready for holding trial of Artha Rin Suit as well as for execution of decrees are applicable which are not in conflict with the Ain of Section 27 1 — Rule 58 of Order XXI of the Code of Civil Procedure requires an executing Court to investigate the claim or objection of an objector as if he was a party to suit.
Such investigation is dispensed with only when the court considers the claim or objection was designedly or unnecessarily delayed. The court did not find the claim or objection of AB Bank was delayed. In the facts and circumstances of the case and in the interest of justice, the Fourth Artha Rin Adalat which now holds the property must dispose of both execution cases under section 27 of the Ain.
In the result, the appeal is disposed of without however any order as to cost. Arab Bangladesh Bank Ltd vs Janata Bank 11 BLC Section 28 3 4 — According to section 28 3 4 of the Ain, the second execution case is to be filed within one year from the date of disposal of the previous execution case, and or within 6 years from the date of filing of the first execution case.
Iftekhar Uddin Ahmed vs Artha Rin Adalat 17 BLC Sections 26 and 33 4 5 7 9 — in the instant case, the learned Judge ought to have taken necessary steps to put the decree-holder in physical possession of the concerned property of the Judgment-debtor as prayed for.
Since specific provision is not available in the Act enabling the Artha Rin Court to put the decree-holder into possession, the Court may exercise its such jurisdiction as provided in rules 97 and 98 under Order XXI of the Code read with section 26 of the Act, and give necessary directions to execute its order.
Sections 28 3 , 37 and 60 3 — Since there was no suit of the Financial Institutions pending before any Commercial Court after Thereafter, Artha Rin Adalat Ain having come into force on upon repealing the Ain of , the said execution case was transferred to the Artha Rin Adalat constituted under the Ain pursuant to section 60 3 of the said Ain.
As such, dismissal of the said execution case on for default was made by the Adalat constituted under Ain Hence, filing of the second execution case on is very much within one year of the dismissal of the earlier case and is wholly within the scope of section 28 3 of the said Ain of Moreover, the time limit fixed by section 37 of the Ain , for disposal of execution case within days being "directory" not "mandatory", as decided in Writ Petition No. Khurshid Alam Md vs Judge, Artha Rin Adalat 12 BLC Section 28 2 — After the passing of the preliminary decree in final decree was signed on and it is also admitted that the Execution was filed on which is beyond the prescribed limitation for filing the same under section 28 of the Ain and for that reason the executing Court acted illegally in not holding that the Execution Case is barred under section 28 2 of the Ain.
Sections 33 1 2 3 4 5 7 8 — When the decree-holder filed an application as required under sub-section 7 of section 33 of the said Ain the Court is at liberty to issue certificate when plainiflf" application has been filed by the decree-holder.
So, there is no illegality or infirmity in the order of issuance of the certificate dated , which is awaiting for registration under sub-section 8 of section 33 of the said Ain. Section 32— The Adalat by exercising its discretion under order XXI, rule and of the Code entertained the application and after delivery of possession of the schedule property to the petitioner-auction-purchaser, the Adalat has not become functus-officio.
Section 32 2 is one which gives a right to any third party to file application against any grievance that to be remedied. But the law enjoins a strict compliance of the provision in its true purport and spirit. It has to be borne in mind that this special provision of law cannot be circumvent by bringing some fallacious argument that would negate the main spirit of law as propounded by the legislature in its wisdom.
Whether there was any fraud or not itself is also disputed question of fact and its answer will depend on the answer to the question whether the petitioner is the real owner of the flats or whether she is only custodian of the flats and the judgment-debtor No. Sections 33 5 and 34— In Civil Revision No.
The petitioners did not appear before the Court. But within a period of one month from the date of issuance of the impugned order they have filed the present revisional application and obtained the present Rule and an interim order of stay.
Further, considering the relevant provisions of Artha Rin Adalat Ain, and in the facts and circumstances of the case this Court cannot invoke its inherent power under section of the Code of Civil Procedure. Sections 33, 38 and 49— The parties in their petition can provide for re-payment of the entire agreed dues in one installment. The learned Judge can still consider such a prayer within the ambit of section Section 34 is not dependent upon section Provisions of section 34 of the Artha Rin Adalat Ain, that the law provides for simple civil imprisonment of the judgment-debtor to compel to make the payment for satisfaction of the decree and is not an alternative punishment in lieu of payment of the decretal amount.
Civil imprisonment will not exempt payment of the decretal amount. Section 33 7 —Going through the provision laid down in Article 42 and 31 of the Constitution but it appears that there is no scope to say that the provision laid in section 33 7 in any way is found to be inconsistent the provision laid down in the Constitution and hence there is no merit in the Rule in that Count. In the result, the Rule is made absolute without any order as to cost.
The impugned order dated insorfar as it relates to warrant of arrest is hereby declared to have been made without lawful authority and is of no legal effect. However, the decree-holder-Bank shall still approach before the Adalat for issuance of warrant of arrest as per provisions of section 34 1 of the Ain, if he so likes. Section 34— Since the legislature has authorised the Adalat vide section 34 of the Ain of to issue warrant of arrest to detain him in civil prison as a mode of recovery of the decretal amount speedily hence it is not unjust, unfair or unreasonable, resulting to declare it ultra vires the Article 31 of the Constitution.
In view of the above, there is no requirement to issue another notice before issuance of the process of arrest under section 34 1 of the Ain of at the execution stage in the name of natural justice.
Section 34— It appears that warrant of arrest has been issued against the judgment debtor petitioner after following the provisions of section 34 of the Artha Rin Adalat Ain, Hence the Rule fails.
ARTHA RIN ADALAT AIN 2003 BANGLADESH PDF
Artha Rin Adalat, Chittagong and others This is the maximum sentence and also the minimum because if we glean Section 34 1 which enjoins that a person can be detained in the civil jail up to 6 six months and then Section 5 of Section 34 clearly provides for two situations in a disjunctive manner- l that a person can be confined in the civil jail till the realization of the entire decretal amount or 2 till serving 6 six months in the custody, whichever is earlier, that is to say that if a person has been detained in the civil custody for a period of 6 six months and during the said period, the decretal amount has been paid up in its entirety then at once he will be released from the civil imprisonment. But if the decretal amount is not paid off then he has to suffer civil imprisonment up to 6 six months……. There is no ambiguity in the statute on that score. So other interpretation can be given other than, this. It is the only literal interpretation which can be well perceived from the scheme of Section 34 of Ain, as whole. If the decretal amount cannot be realized during the said period of 6 six months, the incumbent shall have to be in civil custody till completion of 6 six months period of civil imprisonment nothing more, nothing less.
Artha Rin Adalat Ain (VIII of 2003)
Tojagore Since specific provision is not available in the Act enabling the Artha Rin Court to put the decree-holder into possession, the Court may exercise its such jurisdiction as provided in rules 97 and 98 under Order XXI of the Code read with section 26 of the Act, and give necessary directions to execute its order. Sonali Food Products Pvt Ltd. Neither he can counterclaim or put any claim of set off against the financial institution while filing the written statement section 18 2 of ARAA. The Adalat by exercising adslat discretion under order XXI, rule and of the Code entertained the application and after delivery of possession of the schedule property to the petitioner-auction-purchaser, the Adalat has not become functus-officio. Because of fault and , the plaintiff bank suffered loss, if any, the defendants cannot be made liable for such loss. It must be conferred by law either specifically or by necessary implication no application for review under Order 47 Rule 1 of the Code of Civil Procedure lies in the Artha Rin Adalat.