(Civil Appellate Jurisdiction)
SM Emdadul Hoque J
Ahmed Sohet J
Islami Bank Bangladesh Limited and oters…………..Plaintiffs-Appellants
vs
Al-Mozadded Shipping Lines Co. and others…. Defendants-Respondents
Artha Rin Adalat Ain (VIII of 2003)
Section 19(2)
When facts are intentionally misrepresented or where a false statement is made intentionally, with the knowledge that it is false, with a view to deceive the other party, it is known as fraud. In the present case, it is clear that the respondents had knowledge of the ex-parte decree at least in the year of 2009, which is clearly suppression of facts and amounts to committing fraud upon the Court. …… (44)
Limitation Act (IX of 1908)
Section 3
Section 3 of the Act, which confers a duty upon the Court to see as to whether the suit/application is filed within time or not even if the issue of limitation has not been pressed, the Court is legally bound to see and decide such issue in disposing of the matter before it. .. …. (35)
Limitation Act (IX of 1908)
Section 5
Under a special law where a time limit has been given to file an appeal, the provision of Section 5 of Act will not apply and the Artha Rin Adalat Ain 2003, being a special law, the provisions of Section 5 of the Act will not apply and therefore the application for restoration shall be rejected outright. (36).
Fraud
In judicial proceedings, once fraud is proved, all advantages gained by playing fraud can be taken away. Suppression of any material fact/document amounts to a fraud upon the court. ……….(43)
Bangladesh Development Bank Ltd vs Judge Artha Rin Adalat, Jessore, 66 DLR 1; Pubali Bank Ltd vs Bangladesh, 66 DLR 317; Maneka Gandhi v Union of India, AIR 1978 (SC) 597; Zillur Rahman (Md) vs Md Abdul Quiyum Sarker, 18 BLC (AD) 2–3; Janata Insurance Company Ltd vs Commissioner, Customs, Excise and VAT, Dhaka 18 BLC 562 and United India Insurance Co. Ltd vs Rajendra Singh, AIR 2000 SC 1165 ref.
Ahsanul Karim with Khairul Alam Chowdhury with Md Kabir Iqbal Hossain with Farzana Khan Advocates-For the Appellants.
Md Reza-e-Murshed Kamal, Advocate -For the Respondents.
Judgment
Ahmed SoheI J : This First Miscellaneous Appeal filed by the appellant, Islami Bank Bangladesh Limited is directed’ against the impugned order No. 10 dated 6-1-2012, under Section 19(2) of the Artha Rin Adalat Ain, 2003, passed by the learned Judge Artha Rin Adalat No.4, Dhaka in Miscellaneous Case No.1 of 2012 arising out of Artha Rin Suit No. 619 of 2008 allowing the Miscellaneous Case and thereby setting aside the exparte judgment and decree dated 22-3-2009 passed in Artha Rin Suit No. 619 of 2008.
2. Facts necessary for disposal of the Appeal, in ‘short, is that the present appellants as plaintiffs filed Artha Rin Suit No. 619 of 2008 in the Court of Artha Rin Adalat No.4, Dhaka (hereinafter referred to as Adalat) against the respondents praying for a decree for recovery of outstanding loan of Taka 1,72,22461.
3. The defendants of the Artha Rin Suit did not appear and contested the suit although summons were duly served upon them as per the report of the process server.
4. The learned Judge, Artha Rin Adalat fixed the date on 22-3-2009 for ex-parte hearing of the Artha Rin Suit and on that date passed the ex-parte judgment and decree against the defendants which was drawn on 25-3-2009.
5. In pursuant to the ex-parte decree the appellant as decree-holder filed application for execution before the Artho Rin Adalat No.4, Dhaka describing in the schedule both immovable property and cargo vessel to be sold in execution for realization of decreetal sum and was registered as Artha Jari Case No. l06 of 2009 and in due compliance of law got a certificate in its favour under Section 33(5) of Artha Rin Adalat Ain 2003.
6. The decree-holder Bank published auction notice in the ‘Daily Songram’ and ‘Dainik Amar Desh’ to sell the mortgaged property fixing 13-4-2011 as the date of Auction. The Auction took place on the above date after completing all the formalities, delivery of possession of the Auction sold properties including the cargo vessel was completed and the decree-holder appellant Bank received the auction price in accordance with law.
7. That on 11-1-2012 the present respondents, the defendants of Artha Rin Suit No. 619 of 2008 filed a Miscellaneous case No.1 of 2012, under Section 19(2) of the Artha Rin Adalat Ain 2003 before the Adalar Dhaka for setting aside the ex-parte judgment and decree dated 22-3-2009 (decree signed on 25-3-2009) and also prayed for restoration of the suit to its original file and number stating inter alia that summons were not served upon them properly and that they knew nothing about the suit as well as the decree until 1-1-2012.
(To be continued)