The New Nation - Internet Edition

(To be continued)

3. The High Court Division, after hearing, : discharged the Rule. :

4. We have heard the learned Counsel for the petitioner and perused the records.

5. As it appears the High Court Division discharged the Rule holding that the provisions of sub-section (2) of section 12 of Ain 2003 do not apply to instant suit because no property of the company or the respondent No.8 was in possession and control of the bank by way of 1ien or mortgage; further sub-section (3) of section 12 provided that if any financial institution advances loan to the debtor by taking mortgage of immovable property or by way of hypothecation of movable property and if power of attorney is given to the financial institution at the time of mortgaging or hypothecating the property then, instead of selling the property and adjusting the sale proceeds against the loan amount, no suit can be filed by any financial institution before the Artha Rin Adalat and sub - section (1) of section 12 of Ain 2003 provided that if any financ1al institution does not follow the provisions as laid down in the proviso of the above sub-section (2) and (3) of section 12 of Ain 2003, the Court, on its own initiative or on the written application of the debtor, shall pass a decree deducting the value, if any shown by the financial institution and if the, valuation has not been shown, the Court may evaluate its price on the basis of report of the local Sub Registrar and pass decree deducting such an amount as claimed in the suit but in the suit in hand the provisions of sub-section (6) of section 12 of A in 2003 are not applicable as the instant suit being filed on 4.11.1999 there was no scope for compliance with the provisions of sub-section (3) of section 12 of the Ain, 2003 which came into force on 10.3.2003 and further the contents of the order daten 16.5.2003 passed in the instant suit reveals that the petitioner, though filed an application under section 49 of the Ain of 2003 praying for allowing him to repay the outstanding dues by installments but did not file any application before the Aliha Rin Adalat praying for selling the mortgaged property in terms of sub-section (3) of section 12 of Ain 2003 and now in the writ petition the petitioner, for the first time, tried to make out a case that the Artha Rin Adalat should have complied with the provision of sub-section (6) of section 12 of Ain, 2003.

6. It also appears, the High Court Division while discharging the Rule also relied on the case of Zahirul Islam vs. National Bank Limited 46 DLR(AD) 191, wherein this Division held that the question as to whether the suit against the debtor was barred by limitation or not may be agitated in appeal and not in writ jurisdiction.

7. Regarding the case of M.A. Hai vs. Trading Corporation of Bangladesh reported in 40 DLR(AD) 206 as referred to by the learned Counsel for the petitioner, the High Court Division found that in the above case, which arose out of a writ petition filed in relation to a criminal proceeding, this Division held that availability of alternative remedy by way of appeal or revision will not stand in the way of invoking writ jurisdiction raising purely question of law or interpretation of statute but the case in hand arose out of an Arth Rin Case and moreover, subsequently this Division in the case of Gazi M. Towfic vs. Agrani Bank and others, 54 DLR(AD)6 which arose out of Artha Rin case, held that as special provision for appeal has been provided against the judgment ad decree passed in Aliha Rin cases no application under Article 120 lies against such judgment and decree.

8. We are of the view that the High Court Division on due consideration of the materials on record and the law involved discharged the Rule. The learned Counsel for the petihoner could also not point out any infirmity of any kind calling for interference by this Division.

9. Accordingly, the petition is dismissed.

(Concluded)