IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION)

Transcription

1 IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION) WRIT PETITION NO. OF IN THE MATTER OF: An application under Article 102 of the Constitution of the People s Republic of Bangladesh. AND IN THE MATTER OF: Md. Billal Hosen, Son of Haji Md. Habib Ullah Prodhan, Proprietor and Mortgagor of M/S. Monihar Textile Industries of 45, School Road (2 nd floor), Mynamoti, Kadamtoli, Police Station- Shyampur, District- Dhaka. Permanent address: Village- Nischintapur, Police Station- Kachua, District- Chandpur PETITIONER.

2 =2= -VERSUS - 1. Judge, Artha Rin Adalat No.4, Dhaka. 2. Islami Bank Bangladesh Ltd., Head office- 40, Dilkusha Commercial Area, Police Station- Motijheel, District-Dhaka. 3. Islami Bank Bangladesh Ltd., Ramna Branch of Don Plaza, 9, Bangabandhu Avenue, Gulistan Circle, Police Station- Paltan, District- Dhaka.... RESPONDENTS. AND IN THE MATTER OF: Order No. 36 dated passed by the learned Judge, Artha Rin Adalat No. 4, Dhaka in Artha Rin Suit No. 134 of 2012 violating the provisions of Order XI Rule 14 of the Code of Civil Procedure, 1908 read with Section 52 and 57 of the Artha

3 =3= Rin Adalat Ain, 2003 (Annexure- F ). To Mr. Justice Surendra Kumar Sinha, the Hon ble Chief Justice of Bangladesh and his companion Justices of the said Hon ble Court. The humble petition of the petitioner above-named most respectfully S H E W E T H: 1. That the petitioner is a renowned businessman having proprietorship of M/s. Monihar Textile Industries Ltd. The petitioner has been doing his business obtaining Trade License from the concerned authority and maintaining all legal formalities. 2. That the respondent No. 1 is the Judge, Artha Rin Adalat No.4, Dhaka, the respondent No. 2 is the Islami Bank Bangladesh Ltd., Head office- 40, Dilkusha Commercial Area, Police Station- Motijheel, District-Dhaka and the respondent No.3 is the Islami Bank Bangladesh Ltd., Ramna Branch of Don Plaza, 9, Bangabandhu Avenue, Gulistan Circle, Police Station- Paltan, District- Dhaka.

4 =4= 3. The addresses of the respondents given in the cause title are corrected addresses for purpose of issuing summons/ notices upon them. 4. That on the respondent No.3 filed an Artha Rin Suit being No.134 of 2012 before the Artha Rin Adalat No.4, Dhaka, against the petitioner and others praying inter alia for a decree of Tk. 3,53,40, as on against the defendant Nos. 1-3 along with an order of reparation thereon as pendente lite. Certified copy of the said plaint is annexed hereto and marked as ANNEXURE- A. 5. That the petitioner made his appearance in the suit and now has been contesting therein by filing written statement dated In the written statement, the petitioner denied the material averments of the plaint and stated that he was never wilful defaulter and he had to face huge loss and damages due to non-cooperation of the plaintiff bank. Certified copy of the said Written Statement dated is annexed hereto and marked as ANNEXURE- B. 6. That it is stated that subsequently the case was sent for adjudicating by means of mediation but the mediation process became unsuccessful due to non cooperation of the plaintiff bank.

5 =5= 7. That it is stated that subsequently on the petitioner filed an application under Order 11 Rule 14 read with section 57 of the Artha Rin Adalat Ain, 2003 before the learned Judge, Artha Rin Adalat No. 4, Dhaka praying for direction upon the defendant bank to supply some important documents to the petitioner which are necessary for hearing on framing of issues. In the said application the petitioner specifically mentioned for the following documents- 1 evb gyivevnv GwMÖ g U Gi Kwc 2 weev`x KZ K cwi kvwaz I Acwi kvwaz we ji KvMRvw`i Kwc 3 ev`x gyivevnv BÛvwóªqvj I evb gyivevnv wu.avi GwMÖ g U Gi Kwc 4 wjm vj gu MR Ad gwkbvwir I www Ad nvb cvw_ Kkb Gi Kwc 5 cö Z KwU wewb qvm c wzi Avjv`v wnmve weeiyx Gi Kwc 6 cwi kvwaz I Acwi kvwaz wewb qv Mi wnmve weeiyxi Kwc ÕÕ Certified copy of the said application dated is annexed hereto and marked as ANNEXURE- C. 8. That the aforesaid application was heard by the learned Court and the same was allowed vide order dated in following terms:

6 =6= Heard granted. As for is possible the bank plaintiff directed to supply. (V.O.P). AvMvgx 7/1/15 Bs ZvwiL Bmy MVb ÕÕ Certified copy of the said order dated is annexed hereto and marked as ANNEXURE- D. 9. That it is stated that though the learned Judge, Artha Rin Adalat No. 4, Dhaka passed an order of direction allowing the application of the petitioner to supply the necessary documents, the defendant bank did not comply with the order of the learned Court. In this situation, the petitioner filed another application dated praying for necessary action against the defendant bank. Certified copy of the said application dated is annexed hereto and marked as ANNEXURE- E. 10. That on utter surprise, the defendant bank without supplying the documents as prayed for by the petitioner and which was also allowed by the learned Court, on the defendant bank filed an application before the learned Court for passing order directing the petitioner to collect the documents from the record. But without considering the application of the petitioner, the respondent No.1

7 =7= passed order dated keeping the applications with the record, framing issues in the suit and fixing next date of the suit on for peremptory hearing. Certified copy of the said order dated is annexed hereto and marked as ANNEXURE- F. 11. That it is stated that by passing the order dated , the respondent No. 1 has violated its earlier order dated and also deprived the petitioner from hearing on issues of the suit. Such an arbitrary order is against the principle of fair justice and for that reason; the petitioner has to suffer immensely. 12. That it is submitted that the impugned order is ex-facie illegal, arbitrary and malafide in view of the facts that the same has been passed in violation of the provisions of Order XI Rule 14 read with section 52 and 57 of the Artha Rin Adalat Ain, 2003 and also violating the order dated passed by the same Court. Hence, the impugned order should be declared illegal, without lawful authority and is of no legal effect.

8 =8= 13. That it is submitted that the impugned order has clearly deprived the petitioner from opportunity of hearing on framing of issues of the suit which will cause serious loss and injury to the petitioner and the same could not be removed by any means. Hence, the impugned order should be declared illegal, without lawful authority and is of no legal effect. 14. That it is submitted that the impugned order has been passed without applying judicial mind and in violation of the provisions laid down under Article 31, 40 and 42 of the Constitution of the People s Republic of Bangladesh. Hence, the impugned order should be declared illegal, without lawful authority and is of no legal effect. 15. That it is submitted that due to passing of the impugned order without allowing the petitioner on hearing of issues, the entire proceedings falls under serious procedural illegality and for that reason, all further proceedings of the suit should be stayed till disposal of the present writ petition. 16. That in the premises aforesaid the petitioner being aggrieved by and dissatisfied with the illegal and arbitrary action of the respondent

9 =9= No. 1 and finding no other alternative equally efficacious remedy, begs to file this writ petition before this Hon ble Court on the following amongst other G R O U N D S I. For that the impugned order is ex-facie illegal, arbitrary and malafide in view of the facts that the same has been passed in violation of the provisions of Order XI Rule 14 read with section 52 and 57 of the Artha Rin Adalat Ain, 2003 and also violating the order dated passed by the same Court. Hence, the impugned order should be declared illegal, without lawful authority and is of no legal effect. II. For that the impugned order has clearly deprived the petitioner from opportunity of hearing on framing of issues of the suit which will cause serious loss and injury to the petitioner and the same could not be removed by any means. Hence, the impugned order should be declared illegal, without lawful authority and is of no legal effect.

10 =10= III. For that the impugned order has been passed without applying judicial mind and in violation of the provisions laid down under Article 31, 40 and 42 of the Constitution of the People s Republic of Bangladesh. Hence, the impugned order should be declared illegal, without lawful authority and is of no legal effect. IV. For that due to passing of the impugned order without allowing the petitioner on hearing of issues, the entire proceedings falls under serious procedural illegality and for that reason, all further proceedings of the suit should be stayed till disposal of the present writ petition. WHEREFORE, it is humbly prayed that your Lordships would be graciously pleased: A. To issue Rule Nisi calling upon the respondents to show cause as to why the order No. 36 dated

11 =11= passed by the learned Judge, Artha Rin Adalat No. 4, Dhaka in Artha Rin Suit No. 134 of 2012 violating the provisions of Order XI Rule 14 of the Code of Civil Procedure, 1908 read with Section 52 and 57 of the Artha Rin Adalat Ain, 2003 (Annexure- F ) shall not be declared to have been passed without lawful authority and is of no legal effect. B. After hearing the parties and perusing the cause shown, if any, make the Rule absolute. C. Pending hearing of the Rule, stay further proceedings Artha Rin Suit No. 134 of 2012 now pending before the learned Judge, Artha Rin Adalat No.4, Dhaka.

12 =12= D. Pass such other or further order or orders as your Lordships may seem fit and proper. ever pray. And for this act kindness, the petitioner as in duty bound shall A F F I D AV I T I, Md. Billal Hosen, Son of Haji Md. Habib Ullah Prodhan and Sufia Khatun, Proprietor and Mortgagor of M/S. Monihar Textile Industries of 45, School Road (2 nd floor), Mynamoti, Kadamtoli, Police Station- Shyampur, District- Dhaka, permanent address: Village- Nischintapur, Police Station- Kachua, District- Chandpur, by profession- Business, aged about- 45 years, by faith- Muslim, by Nationality- Bangladeshi, National ID No do hereby solemnly affirm and say as follows :- 1. That I am the petitioner in this case and well-conversant with the facts of this case and competent to swear the Affidavit.