Thursday, September 19, 2019 | ePaper

Sale And Distribution Of Proceeds

Artha Rin Execution Adalat Is Superior Than That of Certificate Court

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High Court Division :
(Civil Revisional Jurisdiction)
Quazi Reza-ul Hoque J
Mohammad Ullah J
Abdul Hai Munshi...................Petitioner
vs
Deputy General Manager, Sonali Bank Limited, Dhaka and 3 (three) others. Opposite- Parties
Code of Civil Procedure (V of 1908)
Order VII, rule 11
It is true a plaint can be rejected only on the ground of maintainability and in the absence of any such ground the question of maintainability is to be decided at the time of hearing of the suit. There is no legal scope to similarly reject the plaint unless the plaint itself shows the want of cause of action or the suit is barred by law. .. .... (7)
Code of Civil Procedure (V of 1908)
Sections 63 and 73
The object of this provision that the distribution of sale proceeds is to be made by superior Court. The decree holders in all such cases will be entitled to ratable distribution under Section 73 of the Code. Since the Artha Rin Execution Adalat is superior than that of the certificate Court, the sale and distribution of proceeds is to be made by the former Court.  .......(9)
Code of Civil Procedure (V of 1908)
Order VII, rule 11
A plaint can be rejected if the court comes to a conclusion on a mere reading of the plaint that even all the allegations are proved the plaintiff will not be entitled any relief whatsoever. .. .... (7)

Code of Civil Procedure (V of 1908)
Section 151
In an exceptional situation, a plaint can be rejected under Section 151 of the Code even if it does not come within the mischief of Order VII, rule 11 of the Code. A suit may be specifically barred by law in which case the rule is attracted. .. .... (7)
Code of Civil Procedure (V of 1908)
Order VII, rule 11
When the ultimate result of the suit is clear as daylight such a suit should be barred at its inception so that no further time is consumed in fruitless litigation. .. (7)
MK Ranganathan vs Government of Madras, 1955 AIR 604 ref.
Md Idrisur Rahman with Md Shahidulla with Md Badiuzzaman with Md Asaduzzaman with Md Harun Al Kaioum and Mosammat Morsheda Parvin,  Advocates-For the Petitioner
Hosneara Begum, Advocate-For the Opposite-Party No. 1.

Judgment
Mohammad Ullah J : On an application under Section 115(1) of the Code of Civil Procedure (the Code), the Rule was issued calling upon the opposite-parties to show cause as to why the order dated 11-2-2010 passed by the Joint District Judge, 1st Court, Madaripur in Title Suit No.8 of 2008 rejecting an application filed by the defendant-petitioner under Order VII, rule 11 read with Section 151 of the Code shall not be set aside and/ or why such other or further order or orders should not be passed as to this Court may seem fit and proper.
2. At the time of issuance of the Rule, this Court had stayed all further proceedings of Title Suit No.8 of 2008 then pending in the 1st Court of the Joint District Judge, Madaripur till disposal of the Rule.
3. Facts leading to the disposal of the Rule are as follows:
The opposite-party No. 1 Sonali Bank Limited, Local Office, Mottjheel, Dhaka instituted Title Suit No.8 of 2008 on 26-5-2008 in the 1st Court of Joint District Judge, Madaripur for a declaration to the effect that the auction sale notice dated 28-2-2004 issued by the General Certificate Officer, Madaripur in Certificate Case No. 208 of 2001 and the proceeding thereof is illegal, void, without jurisdiction and not binding upon the plaintiff. The petitioner was the defendant No.3 in the said Title Suit No.8 of 2008 who on 5-10-2009 filed an application under Order VII, rule 11 read with Section 151 of the Code praying for rejection of the plaint contending, inter alia, that the suit is barred by law. The defendant No. 3 (petitioner herein) and others filed Labour Case No. 126 of 1985 in the 2nd Labour Court, Dhaka against their employer AR Howlader Jute Mills (Jute Mills) praying for recovery of arrear salary of Taka 13,18,349.20. The Labour Court allowed the said prayer of the petitioner and directed the Jute Mills to payoff the wages to the petitioner within 45 (forty-five) days, in default the labours would get the money as the public demand by filing a certificate case. Being aggrieved by the said order of the Labour Court, Jute Mills filed Writ Petition No. 500 of 1987 wherein at the inception a Rule Nisi was issued but subsequently it was discharged by an order dated 13-11-1996 of this Court. Thereafter the Jute Mills filed a review petition before the Labour Court which was also dismissed on 18-1-2001. When the Jute Mills kept silent about payment of the wages as ordered by the Labour Court, the labours again approached the Labour Court for realization of the wages, whereupon the Labour Court sent the matter to the District General Certificate Officer for realization of the wages by executing the decision of it urtder the Public Demartd Recovery Act, 1913. After receiving the case record, the General Certificate Officer registered it as General Certificate Case No. 208 of 2001 and at one stage of the proceeding of certificate case, it published an auction notice for selling the property of the Jute Mills. Therefore, the present suit was filed by the Sonali Bank seeking a decree as aforesaid. The petitioner filed an application for rejection of the plaint. The 1st Court of Joint District Judge, Madaripur by the impugned order dated 11-2-2010 rejected the said application of the petitioner. Thereafter the petitioner approached thb Court and obtained the present Rule and the order of stay as stated above.
4. The opposite-party No.1, Sonali Bank Limited contested the Rule and filed counter affidavit controverting the statements made in the petition contending, inter alia, that Sonali Bank filed Artha Rin Suit No. 240 of 2003 in the Artha Rin Adalat No.1, Dhaka on 29-4-2003 for realization of its debt of Taka 98,09,67,466.67 against the Jute Mills which was decreed on 29-9-2008. Pursuant to the decree, the Bank filed Artha Rin Execution Case No. 206 of 2009 in the Artha Rin Adalat No.1, Dhaka for realization of the decretal amount along with interest. It is the case of the opposite-party No.1, Bank that it got a decree from a competent Court against the Jute Mills, therefore the proceeding as initiated by the Certificate Adalat for sale of the property of the Jute Mills is liable to be declared to have been initiated illegally and not binding upon the Bank.
5. Mr Mohammad Idrisur Rahman, learned Advocate appearing for the petitioner submits that according to Section 350 of the Labour Act, 2006 the suit as filed by the Bank is not maintainable and it is barred by law. Mr Rahman further submits that any order passed by the Labour Court can be executed by the Certificate Court and accordingly the certificate proceeding was initiated by the petitioner to realize the wages according to the decision of the Labour Court; therefore such decision cannot be challenged in any subsequent suit, without considering this aspect of law, the trial Court rejected the application of the petitioner which has occasioned a failure of justice.
6. Mrs Hosneara Begum, learned Advocate appearing for the opposite-party No. I, Sonali Bank submits that the property of the Jute Mill in question is the subject matter of the certificate Adalat which has given charge to the Sonali Bank, therefore the Bank is entitled to get the decretal amount by selling the mortgaged property of the Jute Mills and thus the Rule is liable to be discharged. The learned Advocate Mrs. Hosneara Begum seeks to relying upon the decision in the case of MK Ranganathan vs Government of Madras reported in 1955 AIR 604.
7. We have heard the submissions of the learned Advocates for both the parties and perused the materials on record wherefrom it transpires that the trial Court rejected the application of the petitioner filed for rejection of the plaint. Since the matter is only an interlocutory one, we need not go through the factual aspect of the case but we should take initiative to resolve the dispute in order to come to a conclusion. It is true a plaint can be rejected only on the ground of maintainability and in the absence of any such ground the question of maintainability is to be decided at the time of hearing of the suit. There is no legal scope to similarly reject the plaint unless the plaint itself shows the want of cause of action or the suit is barred by law. In spite of the above aspect, a plaint can be rejected if the court comes to a conclusion on a mere reading of the plaint that even all the allegations are proved the plaintiff will not be entitled any relief whatsoever. In the instant case, the petitioner being a labour of the Jute Mills got an order from a competent Labour Court to pay his arrear salaries and accordingly under the provisions of law, the said order of the Labour Court was transferred to the Certificate Adalat, Madaripur to execute the same wherein proclamation of sale was issued under the provisions of the Public Demand Recovery Act, 1913. At that stage, Sonali Bank filed a suit claiming that the proceedings as initiated by the Certificate Adalat is not binding upon it. It means a case decided by a competent Labour Court and in order to execute the judgment and order of it when a certificate proceeding was initiated by the Certificate Adalat for realization of money as directed by the Labour Court upon selling the property of the Jute Mills, challenging the correctness of the earlier decision of the Labour Court subsequent suit of the Sonali Bank is barred. The Court always has inherent power to reject the plaint. In an exceptional situation, a plaint can be rejected under Section 151 of the Code even if it does not come within the mischief of Order VII, rule 11 of the Code. A suit may be specifically barred by law in which case the rule is attracted. But even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of the legal provisions, the Court has inherent jurisdiction to reject the plaint. It is a settled principle of law that when the ultimate result of the suit is clear as daylight such a suit should be barred at its inception so that no further time is consumed in fruitless litigation. In the instant case, if the suit is proceeded what will be the outcome of the same. The trial Court cannot pass a decree in favour of the plaintiff on the prayer as made by it simply because the labours have the right to get the fruit of the judgment of the Labour Court.
8. Now the question what will be the decree of the Bank who got it from a competent Artha Rin Adalat. It appears that in order to satisfy the Artha Rin Decree, Execution Case is pending between the Jute Mills who is the judgment debtor and the decree holder Bank. In this extraneous situation, we can take recourse to the provision of Section 63 of the Code in order to distribute ratably the proceeds of execution sale of the common property namely the assets of the Jute Mills. For better understanding Section 63 of the Code is reproduced below:
"Section 63(1) where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.
(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees."
9. The fundamental object of this section is to prevent unnecessary multiplicity of the execution proceedings involving separate attachment and separate sell and to secure equitable distribution by placing both the parties i.e. the labour and the Bank on the same footing regardless of any priority in attachment or of the application for ratable distribution. The object of this provision that the distribution of sale proceeds is to be made by superior Court. The decree holders in all such cases will be entitled to ratable distribution under Section 73 of the Code. Since the Artha Rin Execution Adalat is superior than that of the Certificate Court, the sale and distribution of proceeds is to be made by the former Court. The petitioner is at liberty to make claim to get their money as ordered by the Labour Court to the Artha Rin Execution Adalat, if so advised. Under the circumstances discussed above and in the context of episode involved herein we consider , it prudent to dispose of the matter once for all with the following directions:
(1) The executing Adalat, namely, 1st Artha Rin, Dhaka is hereby directed to put the property and assets of the Jute Mill in auction with full compliance of the legal formalities and sale proceeds received out of such sale should be distributed to the labours including the petitioner at the first point of time with 10% interest starting from the date of judgment passed by the Labour Court since it is the labours who should get their arrear salaries at first.
(2) Secondly the balance amount of the sale proceeds shall be paid to the Sonali Bank opposite-party No. 1 herein from the date of delivery of the judgment of the Artha Rin Suit, i.e. 29-9-2008 or attachment of the said property together with interest at the rate as prescribed in Artha Rin Adalat Ain, 2003 and thereafter surplus money, if any, shall go to the Jute Mills.
10. The certificate proceedings would be kept in abeyance till distribution of the sale proceeds by Artha Rin Execution Adalat as directed above. At the end of the process as stated above, the labours are directed not to proceed with the said certificate case.
11. It may not be out of place to mention that in view of the resolute directions given above we refrain from evaluating the applicability of the decisions cited by the learned Advocates with a view to avoid a mere academic discourse. Turning to the merit of the Rule and in the facts and circumstances as stated above, we find merit of the same.
12. Accordingly, the Rule is made absolute.  The plaint of Title Suit No. 8 of 2008 then pending in the 1st Court of Joint District Judge, Madaripur is rejected under section 151 of the Code.

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