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Maintainability of writ petition under Bankruptcy Act

High Court Division

(Special Original Jurisdiction)

Zinat Ara J }

Sheikh Abdul

Awal J }

Judgment August 9th, 2007 }

Mir Niaz Mohammad t..

ttttttt Petitioner

vs

Additional District Judge and ors ………….Respondents*

Constitution of Bangladesh, 1972

Article 102

Bankruptcy Act (X of 1997)

Section 96

The petitioner has miserably failed to cross the first hurdle as to the question of maintainability of the instant writ petition mainly on two counts. Firstly, since the Bankruptcy Act is a special law and special provision having been provided in section 96 of the Bankruptcy Act, 1997 for preferring appeal against the judgment and decree passed by the Bankruptcy Court and therefore, the question of entertaining an application under Article 102 of the Constitution does not arise at all. Secondly, whether notices/summons were properly served or not or whether the petitioner was a guarantor/mere a shareholder of the borrower company or borrowed money from the bank or not are disputed question of fact and for which remedy lies in the Civil Court and not under summary Writ Jurisdiction.

Emdadul Haque Bhuiyan vs Bankruptcy Court 5 MLR (AD) 297; Zahirul Islam vs National Bank Ltd 46 DLR (AD) 191; Gazi M Towfic vs Agrnii Bank 54 DLR (AD) 6 and Bangladesh Agricultural Development Corporation vs Artha Rin Adalat 59 DLR (AD) 6 ref.

Md Idrisur Rahman, Advocate-For the Petitioner,

Md Mamnur Rashid, Advocate-For Respondent No.2.

Judgment

Sheikh Abdul Awal J: By this Rule Nisi the respondents were called. upon to show cause as to why the impugned judgment and decree dated 13-9-1999 passed by the learned Additional District Judge and Bankruptcy Court, Dhaka in Bankruptcy Suit No. 14 of 1999, so far it relates to the petitioner, should not be declared to have been made without lawful authority and is of no legal effect and why the said impugned judgment and decree dated 13-9-1999 should not be set aside so far it relates to the petitioner and/or such other or further order or orders passed in to this Court may seem fit and proper.

2. The facts of the case need not be stated in detail for the purpose of disposal of this Rule. On 24-6-1999 the respondent No.2 as plaintiff bank filed Bankruptcy Suit No. 14 of 1999 in the Bankruptcy Court, Dhaka against the petitioner and 5 others impleading him as defendent No.6 in that suit for declaration that the defendants are defaulters to the plaintiff bank for loan outstanding amounting to Taka 2,31,06,370.48 and are severally and jointly liable to be declared bankrupts/insolvent. The petitioner is the full brother of the contesting defendant No.2 and respondent No.4 in this writ petition. The petitioner stated in the writ petition that on 18-10-1999 the receiver came to his house and on that date the petitioner for the first time came to know about the claim of the bank as well as the judgment and decree dated 13-9-1999 passed by the learned Additional District Judge and Bankruptcy Court, Dhaka in Bankruptcy Suit No. 14 of 1999 and soon thereafter he contacted with his lawyer and after obtaining necessary papers he filed an application under section 40 of the Bankruptcy Act praying for review of the judgment and decree dated 13-9-1999 of the Bankruptcy Suit No. 14 of 1999. Ultimately, the learned Judge of the Bankruptcy Court, Dhaka on consideration of the said application rejected the same by his order 2-1-2000.

3. Being aggrieved and dissatisfied with the said order the petitioner moved this Court challenging the judgment and decree dated 139-1999 passed by the learned Judge of the Bankruptcy Court, Dhaka in Bankruptcy Suit No. 14 of 1999.

4. Mr Md Idrisur Rahman, the learned Advocate appearing for the petitioner, takes us through the writ petition along with the impugned judgment and decree of the Bankruptcy Suit No. 14 of 1999 and the application under section 40 of the Bankruptcy Act, other materials on record and then submits that the petitioner is mere share-holder of the borrower company and he did not borrow money from the plaintiffs bank. The learned Advocate further submits that the contesting defendant No. 2 in the suit (respondent No. 4) is the step-brother of the petitioner, who fraudulently in collusion with the bank obtained loan beyond the knowledge of the petitioner and the plaintiff bank (respondent No. 2) with the active help of defendant No. 2 (respondent No. 4) showing service of notices||summons upon the petitioner (defendant No. 6) and thereupon, the plaintiff bank (respondent No. 2) fraudulently obtained the impugned Judgment and decree against the petitioner and others. The learned Advocate further submits that during trial of the suit the petitioner was totally unaware about the suit, on 1&-10-1999 for the first time the petitioner came to know about the impugned judgment and decree while the receiver came to the petitioner's house and thereafter, finding no other way the petitioner filed an application under section 40 of the Bankruptcy Act seeking for review of the judgment and decree dated 13-9-1999 but the learned trial Judge without appreciating the matter from a correct angle most illegally rejected the said application in a summary manner. Mr Idrisur Rahman, further submits that the respondent bank being a secured creditor acted malafide in filing suit under Bankruptcy Act, 1997 without disclosing of the actual market price of the mortgaged land, which is clear violation of section 12(2) of the Act and hence, the proceeding is without lawful authority.

Finally, the learned Advocate submits that since the petitioner did not borrow any money from the bank and as per mandatory provisions of section 9(1)(jha) of the Bankruptcy Act no notice/summon was served upon the petitioner and, as such, the impugned judgment and decree, so far it relates to the petitioner, is liable to be set aside.

5. Mr Md Mamnur Rashid, on the other hand, appearing on behalf of the respondent bank, by filing an affidavit-in-opposition opposes the Rule. The learned Advocate in the course of his argument after placing the impugned judgment and decree of the Bankruptcy Court as evidenced by "Annexure-B" to the writ petition relying on the decisions reported in 5 MLR (AD) 297, 46 DLR (AD) 191, 54 DLR (AD) 6 and 59 DLR (AD) 6 straightforward submits that since there was specific statute for filling appeal under section 96 of the Bankruptcy Act against the impugned judgment and decree passed by the Bankruptcy Court, the present writ petition is not maintainable.

The learned Advocate further, on referring the plaint of the suit as evidenced by Annexure-'A' to the writ petition, submits that the present petitioner is the full brother of the contesting defendant No. 2 (respondent No.4) and they in collusion with each other with intent to frustrate the judgment and decree of the Bankruptcy Suit filed the application under section 40 of the Bankruptcy Act before the Bankruptcy Court stating preposterous facts which are, in fact, beyond the scope of law and accordingly, the learned Judge of the Bankruptcy Court rightly and legally rejected same by his order dated 2-1-2000 and thereafter the petitioner without challenging said order dated 2-1-2000 filed the writ petition challenging the judgment and decree dated 13-9-1999 passed by the learned Judge of Bankruptcy Court, Dhaka in Bankruptcy Suit No. 14 of 1999 which demonstrates that the petitioner did not come before this court with clean hands. Finally, Mr Mamnur Rashid submits that the allegation made by the petitioner in the Writ Petition involves determination of question of facts and for which remedy lies in the Civil Court not under the summary Writ Jurisdiction. Moreover, there was special provision for appeal against the judgment and decree passed by the Bankruptcy Court and thus, for all these reasons, the Writ Petition is incompetent and not maintainable.

6. We have perused the writ petition, affidavit-in-opposition and the relevant papers as annexed therewith and also considered the submissions made by the learned Advocates for the respective parties. To appreciate the submissions made by the learned Advocates, it requires us to decide the question of maintainability of the instant writ petition before entering into the merit of the writ petition.

7., We have studied the cited decisions namely, the decisions reported in 46 DLR (AD) 191, 54 DLR (AD) 6 and 59 DLR (AD) 6 and 5 MLR (AD) 297 to the best of our ability. In those decisions, we find our Appellate Division clearly spelt out that (I) while the claim of the parties giving rise to a disputed question of fact cannot be decided in writ jurisdiction, of the High Court Division (II) the law is now well settled that since there being special provision for appeal in the Artha Rin Adalat Act, 1990 no application under Article 102 of the Constitution lies against the judgment and decree of the said Adalat.

8. However, on the point of maintainability of the writ petition Mr Idrisur Rahman, the learned Advocate for the petitioner, has expressed his inability to show any decision before this Court.

9. In view of the above well settled proposition of law as to the question of maintainability of the Writ petition, we have no hesitation to hold that the petitioner has miserably failed to cross the first hurdle as to the question of maintainability of the instant writ petition mainly on two counts.

Firstly, since the Bankruptcy Act is a special law and special provision having been provided in section 96 of the Bankruptcy Act, 1997 for preferring appeal against the judgment and decree passed by the Bankruptcy Court and therefore, the question of entertaining an application under Article 102 of the Constitution does not arise at all. Secondly, whether notices/summons were properly served or not or whether the petitioner was a guarantor/mere a shareholder of the borrower company or borrowed money from the bank or not are disputed question of facts and for which remedy lies in the Civil Court and, not under summary Writ Jurisdiction. So, in order to save the valuable public time since the petitioner could not cross the first hurdle, we do not think it wise to adveit to the lengthy arguments made by Mr Md Idrisur Rahman for the petitioner.

10. In the result, the Rule is discharged without any order as to costs. The order of stay granted at the time of issuance of the Rule stands vacated.

Communicate the order at once.

Enlistment of property as enemy property

Appellate Division

(Civil)

Md. Ruhul Amin-J.

M.M. Ruhul Amin-J.

Civil Petition for leave to appeal No.30 of 2002.

(From the judgment and order dated 21.10.2001 passed by the High Court Division in Civil Revision No.80 of 1996.)

Abdul Majid Molla

tttttt.Petitioner.

Vs.

Biswajit Chandra (minor) & others

ttttttttt..Respondents.

For the Petitioner Mr. A. J.

Mohammad Ali, Senior-Advocate instructed by Mrs. Sufia Khatun, Advocate-on Record.

For the Respondent: Mr A.S.M.

Khalequzzaman. Advocate

on-Record.

Judgment: 11 February 2004

Defence of Pakistan Rules,

1965-

Property of a person who did not leave the country cannot be treated as enemy property (now vested property)-

The Defence of Pakistan Rules, 1965 was repealed on 16th February 1969 and as such, no property can be enlisted as enemy property after 16th February 1969.

When no basis could be produced and on the contrary it is established that the property of the plaintiff cannot be treated as enemy property. Report of a Magistrate without his examination by the court is not admissible in evidence.

It appears that the first order was passed on 09.07.1970 in the lease Case No.X1I-E-129/.1969-70. It further appears that there was no evidence to show that census list was produced before the Court to substantiate that property in suit was enemy property (Para 5)

It is needless to mention here that no property can be enlisted. afresh after 16th February, 1969. It further appears as back as in the year· 1973 Biraj took objection against the lease granted in favour of defendant No.1. From 'record it further appears that Manitara personally appeared before' the local Tahshil Office in 1970 and paid rent for the suit land. Record further shows that the appellate Court mainly relied on the report of a Magistrate 1st Class, Exts. B(I) dated 10.02.1973 in coming to the conclusion that the land in suit is enemy property. It 'appears that the Magistrate in the report stated. that some old men who were examined by him stated before him that Manitara, mother of Biraj left for India about 4 years back i.e. on or about 10.05.1969. If this report of the Magistrate is taken as it is for argument's sake then also it is clear that Manitara left this country after 16th February, 1969 and from this point also the suit land could not be enlisted as enemy property. The trial Court took into consideration inquiry report without examining the Magistrate which was not legal and it was an inadmissible evidence. It also appears that the homestead of Monitara has not been declared enemy property up till nowttttt(Para 6)

It further appears that the '-High Court Division on correct assessment and proper consideration of the evidence on record arrived at the conclusion regarding possession of the plaintiff. The High Court Division also considered the documentary evidence namely Exhibit l a certificate regarding nationality of the plaintiff and Exhibit 2 the voter list of the locality prepared in 1973 and came to the finding that Biraj was a national of this country and the plaintiffs are in possession

ttt (Para 7)

Judgment

M.M. Ruhul Amin, J:- This petition for leave to appeal is directed against the judgment and order dated 21.10.2001 passed by a Single Bench of the High Court Division in Civil Revision No.80 of 1996 reversing the judgment and decree dated 12.09.1995 passed by the learned Subordinate Judge. (now Joint District Judgege). 1st Court.' Madaripur in Title Appeal No.63 of 1991 and restoring the judgment and decree dated 23.04.1991 passed by the learned Senior Assistant Judge. Sadar Madaripur in Title Suit No.' 53 of 1986 decreeing the suit.

2. Short facts are that the plaintiff instituted the suit for declaration of title. confirmation of possession and for further declaration that the lease granted in favour of defendant No.1 in lease Case No.XII-E-129/1969-70 is illegal. void and without jurisdiction on the assertions. inter alia, that the suit land described in the schedule-l to the plaint belonged to Manitara Chanda and the schedule-II land belonged to Biraj Mohan Chanda, son of Manitara. Chanda. Manitara and Biraj Mohan had been in possession of schedule-I and II lands and during the War of Liberation. Manitara died on the way to India. and Biraj Mohan came back in this country after the liberation of the country and died leaving behind the plaintiffs as his successive heirs. The plaintiffs have been possessing the suit land through borgaders including the defendant No. 1 who did not give borga crop to the plaintiffs regularly. Subsequently. defendant No. 1 in collusion with the Enemy Property Authority managed to obtain an order of lease in respect of some portion of the suit land as enemy property. Neither Manitara nor Biraj left this country in 1965 after the promulgation' of the' Defence of Pakistan Rules. 1965. So the suit property is not enemy property (now vested property).

3. Defendant Nos. l.2 & 3 contested the suit by filing separate written statements. They denied the material allegations made in the plaint. Their cases are almost similar and hence these are discussed together. They contended that Kali Charan. Biraj, Satish Chandra and Jogeshar in two groups were the owners of the Suit land. Manitara left this country and Biraj also left this country in 1947 Manitara never returned to this country and she died in India as Indian National The suit land was enlisted as enemy property and Abdul Latif Molla who was borgader applied for lease and was granted lease by the Government on 9.7.1970. After the liberation of the country Biraj came back to Bangladesh and filed objection against the lease granted in favour of defendant No.1 but his objection was rejected by the then Sub-Divisional Officer and hence the suit is liable to fail.

4. We have heard Mr. A J, Mohammad Ali, the learned Counsel for 1he petitioner and perused the record.

5. It appears that the first order was passed on 9.7.1970 in the lease Case No.XII-E-129/1969-70. If further appears that there was no evidence to show that census list was produced before the Court to substantiate that property in suit was enemy property.

6. It is needless to mention here that no property can be enlisted afresh after 16th February. 1969. It further appears as back, as in the year 1973 Biraj took objection against the Lease granted in favour of defendant No.1. From record it further' appears that Manitara personally appeared before the Local Tahshil Office in J 970 and paid rent for the suit land. Record further shows that the appellate Court mainly relied on the report of a Magistrate 1st Class, Exts. B(l) dated 10.2.1973 in coming to the conclusion that the land in suit is enemy property. It appears that the Magistrate in the report stated that some old men who were examined by him stated before him that Manitara. mother of Biraj) left for India about 4 years back i.e. on or about 10.5.1969. If this report of the Magistrate is taken as it is for argument's sake then also it is clear that Manitara left this country after 16th February. 1969 and from this point also the suit land could not be enlisted as enemy property. The trial Court took into consideration inquiry report without examining the Magistrate which was not legal and it was an inadmissible evidence. If also appears that the homestead of Monitara has not been declared enemy property up till now.

7. If further appears that the High Court Division on correct assessment and proper consideration of the evidence on record arrived at the conclusion regarding possession of the plaintiff. The High Court Division also considered the documentary evidence namely, Ext. I a certificate regarding nationality of the plaintiff and Ext.2 the voter list of the locality prepared in 1973 and came to the finding that Biraj was a national of this country and the plaintiffs are in possession.

8. The learned Advocate for the petitioner could not point out any legal infirmity in the judgment of the High Court Division.

9. Accordingly. the leave petition is dismissed.

Claim for pension and gratuity benefits

APPELLATE DIVISION (Civil)

Syed JR Mudassir

Husain CJ

MM Ruhul Amin J

Amirul Kabir

Chowdhury J

Judgment May 24th, 2006

Government of Bangladesh, represented by the Secretary, Ministry of Housing and Public Works and others …….Petitioners

vs

Md Aftabuddin Fakir. tttt Respondent*

Constitution of Bangladesh, 1972 Articles 102, 103

Administrative Tribunal Act (VII of 1981) Section 4

It appears that the Administrative Appellate Tribunal considered a number of government circulars issued by the Ministry of Establishment and the office orders issued by the PWD in this connection and arrived at the decision. There is no cogent reason to interfere with the same t. (7)

Fida M Kamal. Additional Attorney-General, instructed by Md Ahsan Ullah Patwary, Advocate-on-Record-For the Petitioners.

Md Nawab Ali. Advocate-on-Record-For the Respondent.

Judgment

MM Ruhul Amin J: This petition for leave to appeal' is directed against the judgment and order dated 13-7-2005 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 52 of 2001 allowing the same.

2. Short facts are that the petitioner, Md Aftabuddin Fakir, a retired UD Assistant of the PWD instituted AT Case No. 262 of 1997 before the Administrative Tribunal-I, Dhaka for a declaration that he was entitled to get pension and gratuity benefits from 17-10-1968 to 30-6-1978 as regular Government employee in continuation to his subsequent services till 30-12-1996. He was 'appointed temporarily as Work Assistant by PWD's Superintending Engineer's order dated 17:10-1968 and was posted in the Office of the Superintending Engineer against Sub-Division No.1 of Development (Bldg) Division No.1, Dhaka. Though he was appointed temporarily as a work-charged employee, the petitioner enjoyed all facilities of a regular employee of the Department like other regular employees. While he was rendering his services as work charged employee, the Government issued a memo dated 28-3-1969 for conversion of certain temporary posts into permanent posts and contingent and work-charged staff into regular establishment: Accordingly, the petitioner was absorbed in regular establishment and appointed as LD Assistant. He was promoted to the post of LD Assistant-by office order dated 27-7-1995 and lastly retired from service on 30-12-1996. The petitioner had rendered 28 years 1 month and 9 days of services with effect from the date of his appointment as temporary Work Assistant but the respondents most illegally and arbitrarily excluded his work-charged period of services from 11-10-1968 to 30-6-1978 for the purpose of not giving him pension benefit to the said period.

3. The respondent contested the case by filing a written statement contending, inter alia, that the petitioner was serving as a work-charged employee for about 9 years and 9 months on temporary basis and thereafter he was appointed afresh as LD Assistant on 30-6-1978 against the regular substantive post of the Department and accordingly, he was refused pension benefits for the period he served temporarily as work-charged employee.

4. The Administrative Tribunal No.1, Dhaka dismissed the case. On appeal being Appeal No. 52 of 2001: the Administrative Appellate Tribunal allowed the appeal as noticed earlier.

5. We have heard Mr Fida M Kamal, the learned Additional Attorney-General for the petitioner and Mr Md Nawab Ali, the learned Advocate-on-Record for the respondent and perused the judgment of the Administrative Appellate Tribunal and other connected papers.

6. There is no dispute that the petitioners rendered 9 years. 9 months, continuous service as work-charged basis and, thereafter he was absorbed against 'regular substantive post in the Department without any break of service. It is also undisputed that one Md. Harun-ur-Rashid, UD Assistant of the same department who rendered 6 years 2 months and 27 days of service on work charged basis, on his retirement was given' full pension benefits covering the period of his services as an work-charged employee but in the case, of the petitioner the same benefit was denied. Thus there has been palpable discrimination in respect of the petitioner.

The Administrative, Appellate Tribunal further found that in case of one Shafiuddin Ahmed UD Assistant-cum-Typist of the same Department the authority concerned granted him full pension and gratuity benefits covering the period of his services on work-charged basis but in case of the petitioner a different view was taken and his pension and gratuity, etc, for the period of his service on work charged: basis was denied most arbitrarily and without any lawful basis.

Accordingly, Administrative Appellate Tribunal held' that the petitioner was entitled to get pension and gratuity benefits covering the period of 9 years and 9 months on work charged basis it appears that the Administrative Appellate Tribunal considered a number of government circulars issued by the Ministry of Establishment and the office orders issued by the PWD in this connection arid arrived at the decision. There is no cogent reason to interfere with the same.

The leave petition is dismissed upon condonation of delay.