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 2014 IN THE MATTER OF : An application under Article 102 of Constitution of the People s Republic of Bangladesh. AND IN THE MATTER OF: Md. Nurul Islam Talukder, Son of late Alhaj Yunus Ali Talukder, Proprietor- (i) Messers Talukder Pipe Industries, (ii) Messers Talukder Light Casting and (iii) Messers Talukder Enterprise of Shasti Kuthi, M.M. Ali Road, Jessore Town, Police Station- Kotwali, District- Jessore PETITIONER.

2 =2= -V E R S U S- 1. Bangladesh Bank, represented by its Governor, Bangladesh Bank Bhaban, Motijheel, Dhaka. 2. Prime Bank Ltd., Head Office: Adamjee Court Annex Building- 2, , Motijheel Commercial Area, Dhaka- 1000, Bangladesh. 3. Prime Bank Ltd., Jessore Branch, 47, Netajee Subhash Chandra Road, Jessore, represented by its Vice President and Branch Manager RESPONDENTS. AND IN THE MATTER OF: Impugned action of the respondent No.3 in publication of auction notice in page No. 4 of the Daily Ittefaque dated and in page No. 3 of the Loksamaj dated (Annexure- F & F-1 ) purportedly under section 12(3) of the Artha Rin Adalat Ain, 2003 for sale of the properties described in the schedules thereto in violation of

3 =3= mandatory provision of section 12(4) read with section 33(1) and section 48 of the Artha Rin Adalat Ain, 2003; and thereby violating petitioner s fundamental right to hold property and to conduct lawful business as guaranteed under Chapter III of the Constitution of the People s Republic of Bangladesh. To Mr. Justice Md. Muzammel Hossain, the Hon ble Chief Justice of Bangladesh and his companion Justices of the said Hon'ble Court. 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 businessman having valid Trade Licence issued by the concerned government authority. He is proprietor of several business enterprises having utmost honesty, sincerity and reputation all over the country. The petitioner has been doing business by observing all legal formalities.

4 =4= 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 Prime Bank Ltd., Head Office: Adamjee Court Annex Building-2, , Motijheel Commercial Area, Dhaka- 1000, Bangladesh and the respondent No. 3 is the Prime Bank Ltd., Jessore Branch, 47, Netajee Subhash Chandra Road, Jessore, represented by its Vice President and Branch Manager.. 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. That 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. Photocopy of the sanction letter vide memo No. Prime/ JSR / CR/ Composite / 2011 / 3673 dated is annexed hereto and marked as ANNEXURE- A.

5 =5= 5. That subsequently, the aforesaid credit facility was revised by the respondent Nos. 2 and 3 vide memo No. Prime/ JSR / CR/ / 2013 /1042 dated Photocopy of the said revised sanction letter dated is annexed hereto and marked as ANNEXURE- B. 6. That due to political unrest prevailing in the country during 2013, the petitioner, like many other entrepreneurs of the country, incurred huge loss in his business and failed to make repayment of the required down payment as per condition of the aforesaid revised sanction letter. In the meantime, considering the financial condition of the investors and entrepreneurs, the respondent No.1 issued BRPD Circular No. 15 dated to reschedule the outstanding loan amount on the basis of bank client relationship even without taking any down payment. In view of the aforesaid BRPD Circular dated , the petitioner made an application to the respondent No.3 for rescheduling of the outstanding loan amount without having any down payment vide letter dated Photocopies of the BRPD circular dated and letter dated are annexed hereto and marked as ANNEXURE- C AND C-1.

6 =6= 7. That the respondent Nos. 2 and 3 did not made any response to the petitioner in connection with the aforesaid representation dated ; in that situation the petitioner made another representation dated to the respondent No. 3 for considering the reschedulement of outstanding loan amount on 0% down payment as per directives of the Bangladesh Bank. Photocopy of the said letter dated is annexed hereto and marked as ANNEXURE- D. 8. That it is stated that by issuing BRPD Circular dated , Bangladesh Bank has instructed the respondent Nos. 2 and 3 to consider the entire business aspect of the petitioner and to rescheduled the outstanding loan amount of the petitioner for betterment of his business and the investment took place in connection with the business of the petitioner. This circular has binding force upon the respondent Nos. 2 and 3 to consider the representation of the petitioner objectively. But the respondent Nos. 2 and 3 failed to apply their mind and there by violated the statutory obligation as imposed by the respondent No.1 upon them under the aforesaid BRPD circular; and due to such kind of arbitrariness and

7 =7= non application of mind, the petitioner became bound to shut down his entire business. 9. That in the meantime, the petitioner some how manage to arrange some working capital for running his business from other sources and requested the respondent No.3 to allow him 2 (two) months time to over come the financial problem and also requested not to take any legal action against him within that period vide letter dated Photocopy of the said letter dated is annexed hereto and marked as ANNEXURE- E. 10. 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 Ittefaque and the Loksamaj 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 clippings of the said news papers containing the auction notice are annexed hereto and marked as ANNEXURE- F & F-1.

8 =8= 11. That it is stated that the aforesaid auction notice was published on and last date of the bidding has been fixed on Between the publication of auction notice and last date of bidding, there are only 2 (two) working days of the Court which are 1 st and 5 th days of January, 2015; and all other days are government holidays for the Artha Rin Adalat. So, it is clear that the respondent No.3 has published the auction notice violating the mandatory provisions of section 12(4) read with section 33(1) and section 48 of the Artha Rin Adalat Ain, 2003 only to grab the valuable properties of the petitioner in collusion with a vested quarter even without allowing 15 days required time of auction process as provided by the law. 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 (eighty 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.

9 =9= 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 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 auction notice without giving 15 days time as required under section 12(4) read with section 33(1) and 48 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. 15. 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.

10 =10= 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. 16. 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 Hon ble Court is required for securing the petitioner s property from illegal grabbing of the respondent bank. 17. 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

11 =11= 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. 18. 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. 19. 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.

12 =12= 20. 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. 21. 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. 22. 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.

13 =13= 23. 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 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 the respondent bank has published the auction notice in connivance with a vested quarter only to grab the property

14 =14= of the petitioner in a minimum value in the name of recovery of loan amount. The respondent No.3 has published the auction notice without giving 15 days time as required under section 12(4) read with section 33(1) and 48 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. III. 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. IV. 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

15 =15= 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 Hon ble Court is required for securing the petitioner s property from illegal grabbing of the respondent bank. V. 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. VI. 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. VII. 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. VIII. 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. IX. 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 of making payment it shall cause serious loss and injury to

17 =17= him. Hence, the impugned notice is liable to be declared without lawful authority and is of no legal effect. X. 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 action of the respondent No.3 in publication of auction notice in page No. 4 of the Daily Ittefaque dated and in page No. 3 of the Loksamaj dated (Annexure- F & F-1 ) purportedly under section 12(3) of the Artha Rin Adalat Ain,

18 =18= 2003 for sale of the properties described in the schedules thereto in violation of mandatory provision of section 12(4) read with section 33(1) and section 48 of the Artha Rin Adalat Ain, 2003; and thereby violating petitioner s fundamental right to hold property and to conduct lawful business as guaranteed under Chapter III of the Constitution of the People s Republic of Bangladesh 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 auction notice published by the respondent No.3 in page No. 4 of the Daily Ittefaque dated and in page No. 3 of the Loksamaj

19 =19= dated (Annexure- F & F-1 ). 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, Md. Nurul Islam Talukder, Son of late Alhaj Yunus Ali Talukder and late Tahura Khatun, Proprietor- (i) Messers Talukder Pipe Industries, (ii) Messers Talukder Light Casting and (iii) Messers Talukder Enterprise of Shasti Kuthi, M.M. Ali Road, Jessore Town, Police Station- Kotwali, District- Jessore, by profession- Business, aged about- 58 years, by faith- Muslim, by Nationality- Bangladeshi, National ID No do hereby solemnly affirm and say as follows :- 01. That I am the petitioner of this Writ Petition and wellconversant with the facts of this case and competent to swear the Affidavit.

20 =20= 02. That the statements of facts made in this petition are true to my knowledge and matters of record, which I verily believe to be true and the rests are submissions before this Hon ble Court. Prepared in my office. (Shah Monjurul Hoque) Advocate DEPONENT The deponent is known to me and identified by me. Solemnly affirmed before me by the said on this the... th day of, 201 at the Supreme Court premises, Dhaka (Shah Monjurul Hoque) at A.M./P.M. Advocate Membership No Hall Room No.2, Supreme Court Bar Association Building Mobile: COMMISSIONER OF AFFIDAVITS SUPREME COURT OF BANGLADESH HIGH COURT DIVISION, DHAKA.