The New Nation - Internet Edition

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.