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 2015 IN THE MATTER OF : An application under Article 102 of Constitution of the People s Republic of Bangladesh. AND IN THE MATTER OF: Abdul Mannan Prodhan, Proprietor: New Moynamoti Dying and Printing Industries of Road No. 07, Plot No. 02, Rajuk R/A, Shyampur, Kadamtali, Dhaka PETITIONER. -V E R S U S- 1. Bangladesh Bank, represented by its Governor, Bangladesh Bank Bhaban, Motijheel, Dhaka.

2 =2= 2. Shahjalal Islami Bank Ltd., Head Office, Uday Sanz, Plot No. SE(A), 2/B, Gulshan South Avenue, Gulshan-1., Dhaka Shahjalal Islami Bank Ltd., Dhanmondi Branch, Dhaka, of Momotaz Plaza, 1 st floor, House No. 7, Road No. 4, Dhanmondi R/A, Dhaka-1205, represented by the Manager of the said Branch RESPONDENTS. AND IN THE MATTER OF: The process of auction sale of the properties belonging to the petitioner by means of auction notice published by the respondent No.3 in page No. 02 of the Daily Samakal dated (Annexure- B ) purportedly under section 12(3)(4) of the Artha Rin Adalat Ain, To Mr. Justice Surendra Kumar Sinha, the Hon ble Chief Justice of Bangladesh and his companion Justices of the said Hon'ble Court.

3 =3= The humble petition on behalf of the above-named petitioner most respectfully S H E W E T H : 1. That the petitioner is a renowned business enterprise having valid Trade Licence issued by the concerned government authority. The petitioner has been doing business by observing all legal formalities. 2. That the respondent No. 1 is the Bangladesh Bank, represented by its Governor, Bangladesh Bank Bhaban, Motijheel, Dhaka, the respondent No.2 is the Shahjalal Islami Bank Ltd., Head Office, Uday Sanz, Plot No. SE(A), 2/B, Gulshan South Avenue, Gulshan- 1., Dhaka-1212 and the respondent No.3 is the Shahjalal Islami Bank Ltd., Dhanmondi Branch, Dhaka, of Momotaz Plaza, 1 st floor, House No. 7, Road No. 4, Dhanmondi R/A, Dhaka-1205, represented by the Manager of the said Branch. 3. That the addresses given in the cause title are correct addresses for the purpose of service of serving notice etc., upon the parties.

4 =4= 4. That the petitioner being a renowned businessman maintained a good business relationship with the respondent No.3 bank for a along period for necessary banking transaction. During course of business, the petitioner availed credit facility from the respondent No.3 bank on several occasions on several terms and conditions. All those credit facilities were secured by way of mortgaged of valuable properties belonging to the petitioner, value of which are much higher then the amount of credit. Ultimately, the respondent No. 3 rescheduled the existing outstanding of Tk lac against Bai- Muajjal Commercial TR limit of Tk lac by extending validity for 12(twelve) months from the date of rescheduling. Photocopy of the latest renewal of Sanction Letter dated is annexed hereto and marked as ANNEXURE- A. 5. That it is stated that according to terms and conditions of the reschedulement letter dated , the petitioner kept mortgage of huge property in favour of the respondent No.3 and validity /expiry of the repayment of the credit facility is on That it is stated that the petitioner is a very sincere businessman and he maintained regular banking transaction with the

5 =5= respondent No.3 for a long period of time. But recently the petitioner incurred huge loss in his business due to hostile political situation of the country prevailing for more than 3 (three) years and for that reason, like many other businessman, the petitioner also failed to make repayment of some installments in due time. 7. That it is stated that the petitioner has keen interest to repay the loan amount but due to huge loss in business and also for non cooperation of the respondent No.3 he could not do so timely. 8. That it is stated that though the petitioner has been trying to make repayment of the loan amount by applying his highest capacity, on utter surprise and shock, on the respondent No.3 has published an auction notice in the daily Samakal for selling out the properties belonging to the petitioner now kept mortgaged in favour of the respondent No.3 as security of the aforesaid credit facilities. The clipping of the said news paper is annexed hereto and marked as ANNEXURE- B. 9. That it is stated that the respondent No.3 did not issue any notice /reminder upon the petitioner before publishing the aforesaid auction notice; and for that reason, the petitioner did not know about

6 =6= publishing of the auction notice for selling out his properties. Recently, on two persons came to the petitioner and told that they are going to purchase the properties mentioned in the schedules of the aforesaid auction notice very soon; and for that reason, they have come to visit the said properties. The petitioner instantly communicated with the respondent No.3 bank and he was verbally informed by some reliable employees of the bank that the properties of the petitioner would be sold very soon to the favourable persons. 10. That it is stated that thereafter, the petitioner came to know from the reliable sources belonging to the respondent No.3 bank that a vested quarter is working behind the auction process; and they have already managed the authority of the respondent bank to purchase the scheduled properties of the aforesaid auction notice in a minimum price abusing the process of section 12 of the Artha Rin Adalat Ain, It is mentionable here that the auction notice was published on fixing the last date of bidding on but no bidder participated in the auction process; and now the respondent No.3 is trying to sell out the properties to his

7 =7= favourable person at a minimum price showing back date of participation in the said tender process. 11. That it is stated that as per terms and conditions of the renewal sanction letter the validity period of the loan shall expire on ; and in view of the provision of section 5GaGa of the Bank Companies Act, 1991 the petitioner has not become defaulter on So, publication of the impugned auction notice clearly shows the malafide intention of the respondent No. 3 to grab the property of the petitioner. 12. That it is stated that the properties as mentioned in the schedules of the auction notice are valuable property. The current market price of the said property is at least valued at approximately Tk (six crores) which is several times higher than the outstanding loan amount. The respondent bank in connivance with a vested quarter is trying to grab the property of the petitioner on a minimum value abusing provisions of section 12(3) of the Artha Rin Adalat Ain, 2003.

8 =8= 13. That it is submitted that the publication of the auction notice for sale of the scheduled property of the petitioner is gross violation of the petitioner s right to hold property and to do lawful business as selling out of the said property is nothing but stoppage of the business and grabbing of his property. As such the impugned auction notice is liable to be declared illegal, without any lawful authority and is of no legal effect. 14. That it is submitted that as per terms and conditions of the renewal sanction letter the validity period of the loan shall expire on ; and in view of the provision of section 5GaGa of the Bank Companies Act, 1991 the petitioner has not become defaulter as yet. So, publication of the impugned auction notice clearly shows the malafide intention of the respondent No. 3 to grab the property of the petitioner. Hence, the impugned notice should be declared illegal, without lawful authority and is of no legal effect. 15. That it is submitted that the respondent bank has published the auction notice in connivance with a vested quarter only to grab the property of the petitioner in a minimum value in the name of recovery of loan amount. The respondent No.3 has published the

9 =9= auction notice without serving any prior legal notice / reminder upon the petitioner. Hence, the impugned auction notice is liable to declared illegal, without any lawful authority and is of no legal effect. 16. That it is submitted that the demand made by the respondent bank is incorrect and it is much higher than the actual outstanding loan amount and the same has been made out of malafide intention. The respondent bank in connivance with a vested quarter is trying to grab the petitioner s property by abusing provisions of section 12 of the Artha Rin Adalat Ain, Hence, the impugned auction notice is liable to declared illegal, without any lawful authority and is of no legal effect. 17. That it is submitted that it has been settled by the Apex Court that if a property is sold on auction under section 12 of the Artha Rin Adalat Ain, 2003, the original owner of the property shall have no right to get it back and the auction purchaser shall have the absolute ownership of the property. If the scheduled property of the auction notice is sold out by the respondent bank, the petitioner shall have no way to get the same back by any means. So, an interference of this

10 =10= Hon ble Court is required for securing the petitioner s property from illegal grabbing of the respondent bank. 18. That it is submitted that the petitioner is not an intentional defaulter. The petitioner has keen interest to repay the outstanding loan amount within reasonable time and he has made representation before the respondent No.3 in connection therewith. So, there is no justification for selling out the mortgaged property of the petitioner for realizing the outstanding loan amount. Hence, the impugned auction notice is liable to declared illegal, without any lawful authority and is of no legal effect. 19. That it is submitted that the petitioner has not received any reminder, legal notice or hearing before publication of the impugned auction notice which is blatant violation of the principles of natural justice. Moreover, publishing of notice for auction sale of the petitioner s property mentioning an illegal demand is also not justified in the eye of law. Hence, the impugned auction notice is liable to declared illegal, without any lawful authority and is of no legal effect.

11 =11= 20. That it is submitted that impugned auction notice for sale of the petitioner s property is nothing but colourable exercise of power by the respondent bank taking undue advantage of the provision of law i.e. section 12(3) of the Artha Rin Adalat Ain, 2003, nevertheless, the law does not allow any bank arbitrary and unilateral disposal of one s property in the name of realization of loan money. In that aspect, the impugned auction notice is illegal and without lawful authority. 21. That it is submitted that the impugned auction notice is illegal, malafide, arbitrary, violative of the petitioner s fundamental rights and that of the principles of natural justice as such the same is liable to be declared to have been published without lawful authority and is of no legal effect. 22. That it is submitted that the petitioner is willing to repay the outstanding amount on cooperation of the respondent bank. If the scheduled property is sold out without giving him opportunity of making payment it shall cause serious loss and injury to him. Hence, the impugned notice is liable to be declared without lawful authority and is of no legal effect.

12 =12= 23. That it is submitted that there is no bar to file Artha Rin Suit for recovery of the loan amount without selling the mortgaged property. So, the respondent bank has alternative way to recover the loan amount without prejudicing the petitioner. Hence, the impugned notice is liable to be declared without lawful authority and is of no legal effect. 24. That the petitioner craves leave of the Hon ble Court to swear affidavit with photocopies of the annexures, original copies of which are remained with the office of the respondents and they shall be bound to produce original copies as per order of this Hon ble Court. The petitioner undertakes that the photocopies annexures are to reflection of the original copies. 24. That in view of the above premises, there having no other equally effective, adequate and alternative remedy, the petitioner begs to file this writ petition on the following amongst other- =G R O U N D S= I. For that the publication of the auction notice for sale of the scheduled property of the petitioner is gross violation of the

13 =13= petitioner s right to hold property and to do lawful business as selling out of the said property is nothing but stoppage of the business and grabbing of his property. As such the impugned auction notice is liable to be declared illegal, without any lawful authority and is of no legal effect. II. For that as per terms and conditions of the renewal sanction letter the validity period of the loan shall expire on ; and in view of the provision of section 5GaGa of the Bank Companies Act, 1991 the petitioner has not become defaulter as yet. So, publication of the impugned auction notice clearly shows the malafide intention of the respondent No. 3 to grab the property of the petitioner. Hence, the impugned notice should be declared illegal, without lawful authority and is of no legal effect. III. For that the respondent bank has published the auction notice in connivance with a vested quarter only to grab the property of the petitioner in a minimum value in the name of recovery of loan amount. The respondent No.3 has published the

14 =14= auction notice without serving any prior notice / reminder upon the petitioner. Hence, the impugned auction notice is liable to declared illegal, without any lawful authority and is of no legal effect. IV. For that the demand made by the respondent bank is incorrect and it is much higher than the actual outstanding loan amount and the same has been made out of malafide intention. The respondent bank in connivance with a vested quarter is trying to grab the petitioner s property by abusing provisions of section 12 of the Artha Rin Adalat Ain, Hence, the impugned auction notice is liable to declared illegal, without any lawful authority and is of no legal effect. V. For that it has been settled by the Apex Court that if a property is sold on auction under section 12 of the Artha Rin Adalat Ain, 2003, the original owner of the property shall have no right to get it back and the auction purchaser shall have the absolute ownership of the property. If the scheduled property of the auction notice is sold out by the respondent bank, the

15 =15= petitioner shall have no way to get the same back by any means. So, an interference of this Hon ble Court is required for securing the petitioner s property from illegal grabbing of the respondent bank. VI. For that the petitioner is not an intentional defaulter. The petitioner has keen interest to repay the outstanding loan amount within reasonable time and he has made representation before the respondent No.3 in connection therewith. So, there is no justification for selling out the mortgaged property of the petitioner for realizing the outstanding loan amount. Hence, the impugned auction notice is liable to declared illegal, without any lawful authority and is of no legal effect. VII. For that the petitioner has not received any reminder, legal notice or hearing before publication of the impugned auction notice which is blatant violation of the principles of natural justice. Moreover, publishing of notice for auction sale of the petitioner s property mentioning an illegal demand is also not justified in the eye of law. Hence, the impugned auction notice

16 =16= is liable to declared illegal, without any lawful authority and is of no legal effect. VIII. For that impugned auction notice for sale of the petitioner s property is nothing but colourable exercise of power by the respondent bank taking undue advantage of the provision of law i.e. section 12(3) of the Artha Rin Adalat Ain, 2003, nevertheless, the law does not allow any bank arbitrary and unilateral disposal of one s property in the name of realization of loan money. In that aspect, the impugned auction notice is illegal and without lawful authority. IX. For that the impugned auction notice is illegal, malafide, arbitrary, violative of the petitioner s fundamental rights and that of the principles of natural justice as such the same is liable to be declared to have been published without lawful authority and is of no legal effect. X. For that the petitioner is willing to repay the outstanding amount on cooperation of the respondent bank. If the scheduled property is sold out without giving him opportunity

17 =17= of making payment it shall cause serious loss and injury to him. Hence, the impugned notice is liable to be declared without lawful authority and is of no legal effect. XI. For that there is no bar to file Artha Rin Suit for recovery of the loan amount without selling the mortgaged property. So, the respondent bank has alternative way to recover the loan amount without prejudicing the petitioner. Hence, the impugned notice is liable to be declared without lawful authority and is of no legal effect. WHEREFORE, it is most humbly prayed that your Lordships would graciously be pleased to: A) To issue Rule Nisi calling upon the respondents to show cause as to why the impugned process of auction sale of the properties belonging to the petitioner by means of auction notice published by the respondent No.3 in

18 =18= page No. 02 of the Daily Samakal dated (Annexure- B ) purportedly under section 12(3)(4) of the Artha Rin Adalat Ain, 2003 shall not be declared to have been published 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, be further pleased to stay operation of the process of auction sale of the properties belonging to the petitioner by means of auction notice published by the respondent No.3 in page No. 02 of the Daily Samakal dated (Annexure- B ).

19 =19= D) Pass such other or further order or orders as to your Lordships may seem fit and proper. And for this act of kindness, your petitioner as in duty bound shall ever pray. A F F I D AV I T I, Abdul Mannan Prodhan, Proprietor: New Moynamoti Dying and Printing Industries, son of late Habibullah and Sufia Begum of Road No. 07, Plot No. 02, Rajuk R/A, Shyampur, Kadamtali, Dhaka, by profession- Business, aged about- 50 years, by faith- Muslim, by Nationality- Bangladeshi, National ID No do hereby solemnly affirm and say as follows :- 1. That I am the petitioner of this Writ Petition and wellconversant with the facts of this case and competent to swear the Affidavit.

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