Monday, April 22, 2019 | ePaper

Properties of principal borrower should come first for recovery of bank's dues

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High Court Division :
(Special Original Jurisdiction)
Sheikh Hassan Arif J
Md Badruzzaman J
Elite Iron and Steel GP
Sheet Ltd and others .... Petitioners
vs
Judge, Artha Rin Adalat, 4th Court, Dhaka and another....Respondents
Judgment
March 12th, 2018
Artha Rin Adalat Ain (VIII of 2003)
Section 6(5)
Proviso--Proviso to Section 6(5) of the Ain authorizes the Adalat to attract the properties of the principal borrower at first for recovery of claim by way of execution by the financial institution and thereafter, respectively the properties of third party mortgagor and then third party guarantor for such realization.
Admittedly the Adalat without directing for selling the mortgage properties or other properties of the principal borrower issued attachment notice in respect of the property of third party guarantors to recover the decreetal dues by the impugned order. Adalat has committed gross illegally in passing the order and, as such, the same cannot be sustained.
...... (9)
Khadiza Begum vs Shahjalal Islami Bank Ltd, 67 DLR 583 ref.
Md Imam Hasan, Advocate-For the Petitioners.
ASM Abdur Razzaque, Advocate-For the Respondent No.2.
Judgment
Md Badruzzaman J: Initially Rule Nisi was issued at the instance of petitioner No. I,
Elite Iron and Steel GP Sheet Limited in the following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why order No. 27 dated 14-5-2017 (Annexure-G) passed by Artha Rin Adalat No.4, Dhaka in Artha Jari Case No. 167 of 2009 recalling order dated 11-5-2017 passed in the said case should not be declared to have been passed without lawful authority and is of no legal effect".
2. Thereafter, petitioners No.2 and 3 have been added as co-petitioners in this writ petition by order dated 25-2-2018 claiming that they are guarantors of the credit facilities obtained by petitioner No. 1.
3. The case of the petitioners in brief, is that, the petitioner No. 1 obtained credit facilities from respondent No.2, Uttara Bank Limited, Corporate Branch, Motijheel, Dhaka and to secure the loan mortgaged its properties situated within district Gazipur and being defaulted to pay the outstanding dues respondent No.2 as plaintiff instituted Artha Rin Suit No. 187 of 2005 before the Artha Rin Adalat, 4th Court, Dhaka against the petitioner and others for recovery of outstanding dues amounting to Taka 22,88,01,119.77 as on 24-7-2005. The suit was contested by the petitioners and other defendants by filing written statements and the Adalat decreed the suit by judgment and decree dated 10-9-2009 (decree signed on 15-9-2009). Thereafter, the respondent bank filed Execution Case No. 167 of 2009 for recovery of decreetal dues amounting to Taka 30,76,04,851.67 as on 10-11-2009. Since the mortgage properties are situated within the territorial jurisdiction of district Gazipur the executing Adalat by order dated 11-5-2017 transferred the execution case to the concern Court of Gazipur and directed 'to send the case records to the District Judge, Dhaka for necessary action. Respondent No.2 then filed an application before the said Adalat stating  that since the Adalat earlier vide order dated 7-2-2010 issued attachment notice for attracting the properties of the guarantors situated in Dhaka District, the said notice should be published in the newspaper and accordingly, prayed for recalling the order passed by the Adalat on 11-5-2017 and .the Adalat, after hearing, recalled its earlier order dated 11-5-2017 by the impugned order dated 14-5-2017 with a. direction to publish the attachment notice in the newspapers. Being aggrieved by the said order dated 14~5-2017, initially the petitioner No.1 filed this writ petition and obtained the instant rule as stated above. Thereafter, petitioners No. 2-3 have been added as co-petitioners in this writ petition.
4. At the time of issuance of rule this Court· vide ad-interim order dated 23-7-2017 stayed operation of the order dated 14-5-2017 for a period of 3 (three) months which was subsequently extended from time to time.
5. The rule is opposed by respondent No. 2 by filing affidavit-in-opposition contending inter alia, that since the price of the mortgage property is shockingly lower than the loan liabilities of the judgment debtors it was impossible to recover the decreetal dues by selling the mortgage properties and accordingly, the bank on 7-2-2010 filed application under Order XXI, rule 54 of the Code of Civil Procedure read with Section 57 of the Artha Rin Adalat Ain for attachment of other properties of the judgment debtors and thereafter, the Court by order dated 9-2-2010 issued show cause notice upon the judgment debtors for such attachment but inadvertently the show cause notices have not been returned before the Court. The respondent bank then filed application for recalling the order dated 11.5.2017 for giving an opportunity to the decree holder bank to pubiish such attachment notice in the daily newspaper which was allowed by the Adalat and, as such, committed no illegality.
6. Mr Imam Hasan, learned Advocate appearing for the petitioners submits that since the mortgage properties situated outside the territorial jurisdiction of the executing Adalat and the Adalat vide order dated 11-5-2017 directed to send the decree to the concerned Artha Rin Adalat at Gazipur District and accordingly, directed to send the case records to the District Judge, Dhaka for taking necessary action. Learned advocate further submits that after passing the said order dated 11-5-2017 the executing Adalat of Dhaka became functus officio and accordingly, no order can be passed by the Adalat in the said execution case' by recalling the said order to give an opportunity to the decree holder bank to publish attachment notice in the newspaper., Learned advocate further submits that the impugned order is a non-speaking order in that the same has been' passed without assigning any reason as to why the Adalat recalled its earlier order dated 11-5-2017 and, as' such" the Adalat committed illegality. Learned advocate further submits that the proviso to sub-section (5) of Section 6 of the Artha Rin Adalat Ain, 2003 empowers the  Adalat to attach the properties of the Principal debtor-defendant at first and thereafter, respectively, the Third party mortgagor and the Third party guarantor in the case of recovery of claim by execution of a decree but in the instant case the Adalat without taking any recourse to selling the mortgage properties or other properties of the Principal debtor most illegally and arbitrally issued show cause· notice for attachment of the properties of petitioners No. 2 and 3 who are admittedly Third party guarantors of the loan.
7. As against the above submission Mr ASM Abdur Razzaque, learned advocate appearing for respondent No.2 bank submits that since it revealed that the value of the mortgage property of .the Principal debtor, if sold in auction, could not satisfy the claim of the bank, it filed application for attachment of the properties of the Third party guarantors and if the property of the 3rd party guarantors are not attached they might transfer the same elsewhere and the bank would be deprived of recovery of the decreetal dues and accordingly, the Adalat committed no illegality in passing the impugned order.
8. We have heard the learned advocates and perused the records. Admittedly, to secure the credit facilities, the Principal borrower mortgaged immovable properties situated within the territorial jurisdiction of District Gazipur which have been described in the schedule to the plaint. It appears that the Adalat at Dhaka while passing the order dated 11-5-2017 considered that the mortgage property is situated within District Gazipur and upon such consideration and by relying upon the decision of this Court in the cases of S. Co. Cement Limited vs Artha Rin Adalat, 4th Court, Dhaka (Writ petition No. 5360 of 2010) and Khadiza Begum vs Shahjalal Islami Bank Ltd, reported in 67 DLR 583 directed to send the decree for execution to the competent Court of Gazipur District. On perusal of the impugned order dated 14-5-2017 it appears that while recalling the said order dated 11-5-2017 the Adalat did not assign any reason whatsoever as to why the same has been recalled by the Adalat. In that sense the impugned order is not tenable in law.
9. Moreover, proviso to Section 6(5) of the Artha Rin Adalat Ain authorizes the Adalat to attract the properties of the principal borrower at first for recovery of claim by way of execution by the financial institution and thereafter, respectively the properties of third party mortgagor and then third party guarantor for such realization. In the instant case admittedly the Adalat without directing for selling the mortgage properties or other properties of the principal borrower issued attachment notice in respect of the property of third party guarantors to recover the decreetal dues by the impugned order. Accordingly, we are of the view that the Adalat has committed gross illegally in passing the impugned order and, as such, the same cannot be sustained.
10. In view of the discussion made above we find merit in this Rule.
11. In the result, the Rule is made absolute.
The impugned order dated 14-5-2017 is declared to have been passed without lawful authority and set aside.
Communicate a copy of this judgment at once.

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