Tuesday, October 24, 2017 | ePaper
Acknowledgement of liability savesâ€˜barred by limitationâ€™
(Special Original Jurisdiction)
Md Rezaul Haque J
Md Khurshid Alam
Bangladesh Krishi Bank and another ............
Joint District Judge, 1st Court and Artha Rin Adalat & others Munshigonj......................
May 3rd, 2016
Limitation Act (IX of 1908)
Sections 19(1), 20, 180 and 182(2)
Artha Rin Adalat Ain (VIII of 2003)
Mere acknowledgement of liability and payment is enough, such acknowledgement and payment is the foundation of an action. It is well settled that the acknowledgement or payment must be made within time. It is not necessary to contain a promise to pay in an acknowledgment. Mere admission of statement of account by letter and payment saves limitation. . ..... (17)
Angels Corporation (Pvt) Ltd vs Bangladesh, 59 DLR 610 ref.
Quamrun Nesa, Advocate-For the Petitioner
AKM Asiful Haque Advocate-For the Respondent Nos. 3 to 5.
Md Rezaul Haque J : Upon an application under Article 102(2) of the Constitution of the People's Republic of Bangladesh filed by the petitioner, rule was issued in the following term.
"Let a Rule be issued calling upon the respondents to show cause as to why the impugned order dated 28-6-2010 (Annexure-C to the Writ Petition) passed by the learned Joint District Judge, First Court and Artha Rin Adalat, Munshiganj in Artha Rin Decree Execution Case No. 19 of 2003 dismissing the cases should not be declared to have been passed without jurisdiction and is of no legal effect and/or pass such other or further order or orders as to this court may deem fit and proper."
2. The relevant facts are that the petitioner as plaintiff filed Artha Rin suit No.3 of 1992 in the court of Subordinate Judge, Munshiganj, for recovery of loan amounting to Taka 1,71,00,311.50 (one crore seventy one lac three hundred Eleven and fifty paisa) stating that the respondent No.2 National Cold Storage Ltd. took loan of Taka 1,35,00,000 (One Crore Thirty Five lac) from the petitioner Bangladesh Krishi Bank, Betka Branch, Munshiganj, but the respondent failed to repay the loan within the stipulated time and then the petitioner bank instituted the suit for realization of loan money. The respondent No.5 who was defendant No.3 contested the suit by filing written statement stating, inter alia, that the company incurred huge loss due to sever flood in 1988 and moreover they suffered loss due to low price of potato in 1989 and thereafter following the application of the company the government enlisted the company as sick industry and the company got some facilities for repayment of loan as sick industry and, as such, the suit is liable to be dismissed.
3. During pendency of the suit the plaintiff and the defendant jointly filed Solenama for disposal of the suit as per terms of the Solenama.
4. Thereafter, the Subordinate Judge, Munshiganj by his judgment and decree dated 31-7-1993 and 8-8-1993 respectively decreed the suit on the basis of the said compromise/ Solenama.
5. The petitioner ultimately failed to pay the decreetal amount as per terms and conditions of the compromise decree and then the decree holder Bank being petitioner instituted execution case No. 19 of 2003 on 2-7-2003. That the attempt for selling the mortgaged property in auction failed in the Execution case and the court issued certificate under Section 33(5) of the Artha Rin Adalat Ain, 2003 in respect of mortgaged property in favour of the decreeholder bank vide order dated 25-1-2005 and 20-7-2005.
6. That the respondent company being aggrieved by the said order of the court filed Writ Petition No. 1493 of 2006 before the High Court Division challenging the legality of the aforesaid orders as well as the very proceedings of the Execution Case contending that the Execution case is barred by limitation.
7. The High Court Division after hearing the writ petition made the Rule absolute in part vide Judgment dated 4-2-2009 holing that the impugned order as to issuing certificate under Section 33(5) of the Artha Rin Adalat Ain 2003 before compliance of the provision of subsection (4) of Section 33 was illegal but the Hon'ble Court refrained from giving any finding on the point of limitation and left the question of limitation to be decided by the executing court itself.
8. Thereafter the executing court i.e. the joint District Judge, First Court, Munshiganj, vide his order dated 28-6-2010 dismissed the Execution Case No. 10 of 2003 on the ground of limitation.
9. Against which the decree holder Bank being petitioner filed this writ petition and obtained the instant Rule.
10. Mrs Quamrun Nesa, the learned Advocate appearing for the Petitioner submits that the decree of the Artha Rin Suit was drawn up on 31-7-1993 under the Artha Rin Adalat Ain 1990, where there was no special period of limitation for execution of a decree, so, the period for execution would be 3 years as per Article 182 of the Limitation Act and according to Article 182(7) the period of limitation would start from the date of payment fixed by the decree. Learned Advocate further submits that in the instant case decree was passed to pay the dccreetal amount in 6 equal installment i.e. by 7-8-1999 and the respondent paid some money as per decree upto 1997 and as per section 19(1) of the Limitation Act, when before the expiry of normal period of limitation in respect of any property or right an acknowledgement of liability is made in writing a fresh period of limitation shall be computed from the time when the acknowledgement was signed and in the case on hand the respondent Company paid some money upto 20-12-1997 and admitted its liability vide different letters upto 11-4-2001 before expiry of the period of limitation for instituting the execution case and according to the learned Advocate each acknowledgement has created fresh starting point of limitation and in that view of the matter the execution case is not barred by limitation.
11. On the contra, Mr AKM Asiful Haque the learned counsel for the Respondent submits that the earlier Ain of 1990 was repealed and new enactment came into force in the year 2003 and as per saving clause (Section 60) the decree passed by the Artha Rin Adalat in the earlier Ain will be governed under the present law, as such, the present Jari case has been filed after long lapse of limitation period which has been properly observed by the Artha Rin Adalat. Mr Haque further Submits that in view of the terms of the compromise decree last payment was made in the year 1997 and after that no payment has been made, thus, Section 28 of the Artha Rin Adalat Ain, 2003 is applicable in this case. Mr Haque further submits that though the learned Advocate for the Petitioner demands that there is an acknowledgment by the respondent but there was no Specific acknowledgement as to when he is going to pay the decreetal amount. So, the Execution case has been filed after the period of limitation, as such, the Rule is liable to be discharged. In support of his submission the learned counsel relied upon the case of Angels corporation (PVT) Ltd vs Bangladesh, reported in 59 DLR 610 he also referred one unreported case being civil Appeal No. 134 of 2007, Rupali Bank limited vs M/s Brick Linkers Ltd, passed on 15-2-2011 by the Appellant Division.
12. We have heard the Learned Advocate for both the parties, perused the application along with connected papers.
13. In the present matter the application for execution of the petitioner was rejected by the learned Judge, Artha Rin Adalat, Munshiganj, on point of limitation. It appears from the' record that Bangladesh Krishi Bank filed Artha Rin suit No. 3 of 1992 in the Court of Subordinate Judge, Munshigonj, for recovery of loan amount of Taka 171,00,311.50, as the respondent National Cold Storage took loan of an amount of Taka 1,35,00,000 from the Krishi Bank. The suit was contested by the defendant by filing written objection, the contention was that the company incurred loss due to severe flood in the year 1988, moreover they also met with loss in the following years and on the prayer of the company, Government enlisted the industry as sick industry and the company got some facilities for repayment of loan amount, thereafter, during pendency of the suit both parties filed a Solenama on the basis of which a decree was passed and the Solenam was made part of the decree vide Judgment and decree dated 31-7-1993 and 8-8-1993 respectively. The respondent company ultimately failed to repay the decreetal amount as per terms and conditions of the solenama and then the present petitioner filed Execution case but the attempt for selling the mortgaged property in auction was failed as such the learned Judge of the Artha Rin Adalat on the prayer of the petitioner issued certificate under Section 33(5) of the Artha Rin Adalat Ain , 2003. Against which the company filed Writ Petition before the High Court Division in which this Division observed that the impugned order of issuing certificate under Section 33(5) of the Artha Rin Adalat Ain 2003 before complying the provision of subsection 4 of Section 33 is illegal but refrained from giving any observation as to point of limitation and let this point to be decided by the executing Court.
14. It appears from the decree that the respondent Company got facilities of remissions of 75% simple interest and 100% penal interest amounting to Taka 85,45,471 accrued on the loan amount on condition that the respondent company would repay outstanding amount of Taka 95,54,602.25 by installments within 6 years. It also appears from the petition that the respondent company paid some money on different dates upto 1997, it is evident from record that the respondent Company applied to the petitioner Bank on 20-1-1996 praying for rescheduling the loan amount and accordingly, the Bank extended the period of payment which was earlier given to the respondent Company. The respondent Company also applied further to the Bank on 30-11-1996, 30-12-1997, 12-4-1998 and lastly on 11-4-2001 for extention of time to repay the loan amount, the Government also gave some facilities to the respondent as the industry became sick.
15. The moot question before us is whether the execution case is barred by limitation, as it has been initialed after long 10 years. From the Ain 1990 it appears that there was no specific period of limitation for filing Execution case of a decree; so, in that case the period of filing the 1st application for execution case is 3 years as after Article 182 of the Limitation Act. Article 182 provides the inner limit of filing the 1st application for execution whereas Section 48 of the Code of Civil Procedure prescribes the outer limit of filing any application for execution which is 12 years and which cannot be extended by any means except in a case of fraud or force, Article 182(7) provides that the period of limitation starts from when the Judgment debtor fails to pay the decreetal amount within the stipulated lime fixed by the decree. In the case on hand the respondent Company was asked to pay the decreetal amount by 6 installments in 6 years. So, as per decree the time for calculating limitation starts from 7-8-1999. This is normal calculation of starting point of limitation. Now let us see if we take a more strict view that the limitation starts from the date of 1st default and assuming that the Judgment debtor has so defaulted (though there was payments) then the starting point of limitation would be 7-8-1994 (as the decree was passed on 8-8-1993) and the expiry would be on 7-8-1997 but since from the record it is evident that there is acknowledgment, prayer for extension of time on 20-1-1996, 30-11-1996, 30-12-1997, 12-4-1998 and so on last of which was 11-4-2001 as well as payment was made up to 21-2-1997 then each of these applications and payment gave rise to a fresh start of limitation as per Section 19 and 20 of the limitation Act. Section 19(1) of the Limitation Act, provides as under
19 Effect of acknowledgment in writing- (1) Where, before the expiration of the period prescribed for a suit or application in respect of any properly or right, an acknowledgment of liability in respect of such property or right has been made in writing sinned by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed."
16. It is clear from explanation (iii) of Section 19 that this Section is also applicable in case of the execution of decree. On the other hand Section 20 of the Limitation Act provides as under:-
"20. Effect of payment on account of debt or of interest on legacy- (1) Where payment on account of J debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, or by his duly authorised agent, a fresh period of limitation shall be computed from the time when the payment was made:
Provided that, save in the case of a payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by the person making the payment.
(2) Effect of Receipt of Produce of Mortgaged land.
Where mortgaged land is in the possession of the Mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of Sub-section(l)."
17. As it is evident from record that the respondent Company paid some money upto 2-12-1997 and admitted its liability in writing as to repay the loan amount through different letters upto 11-4-2001 before expiry of the period of limitation of instituting of Execution case. From Plain reading of Section 19(1) and 20 of the Limitation Act. it appears that mere acknowledgement of liability and payment is enough, such acknowledgement and payment is the foundation of an action. It is well settled that the acknowledgement or payment must be made within time. It is not necessary to contain a promise to pay in an acknowledgment. Mere admission of statement of account by letter and payment saves limitation. Moreover, as the borrower made payment upto 2-12-1997 and admitted to pay the decreetal amount time to time (upto 11-4-2001), so the period of limitation has to be counted from the aforesaid date and the execution case was started on 2-7-2003, i.e. the execution case has been filed within 3 years from the last date of admission/ acknowledgment as to payment of the loan amount by the respondent borrower which is also not beyond 12 years from the decree., So, in our view the execution case has been filed within the period of limitation. The respondent Company has taken different pleas to drag the matter this way or that way, it has tried to delay the matter. The contention of the learned Advocate for the respondent Company as to that the period of limitation would be counted as per Artha Rin Adalat Ain, 2003 has no legal footing to stand as the right of the Decree holder bank accrued under the provision of Limitation Act and the Code of Civil Procedure and it was not beyond 1 year or 6 years from the date when the Artha Rin Adalat Ain, 2003 came to force. The decisions referred by him has no resemblance with this case.
18. Considering the facts and circumstances as discussed above, the relevant provisions of law and the finding and observation made herein above we are of the view that the writ petitioner has been able to substantiate the grounds taken in support of the Rule. Thus, the Rule succeeds.
In the result, the Rule is made absolute, however, there will be no order as to costs.