ACKO INDUSTRIES AND COLD STORAGE LTD. Vs. PUBALI BANK LTD.
SUPREME COURT OF BANGLADESH
Acko Industries And Cold Storage Ltd.
Pubali Bank Ltd.
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MOHAMMAD ABDUR ROUF,J. -
(1.) The defendant appellants have preferred this appeal have on from the Judgment and order dated 18.7.96 passed by a Division Bench of the High Court Division rejecting the Memo of Appeal, F. A. T. No. 177 of 1996, on the ground that the half of decretal amount which were required to be deposited under the provision of Artha Rin Adalat Act, 1992 was not paid in time before filing the Memo of appeal.
(2.) The relevant facts are: - The plaintiff respondent No. 1- Pubali Bank got a money decree on 29.1.96 from Artha Rin Adalat, Dhaka in Money Suit No. 214 of 1990 against the appellants for realisation of a sum of Tk. 207,803.64 paisa with cost as well as 20% interest from 22.12.86 till realizations of the decretal amount On 24.4.96 the appellants filed Memorandum of Appeal in the High Court Division against the said money decree and it was registered as F.A.T. No. 177 of 1996. The Taxing Officer of the High Court Division detected that the plaintiff decree holder did not pay proper court fees in the trial court and accordingly by a report dated 8.5.96 the Stamp Reporter of the High Court Division reported that instead of court fees of Tk. 8,244/- as per valuation of the suit, the plaintiff paid court fees of Tk. 7,100/- and thereby there had been a deficit court fees of Tk. 1064/-, realisable from the plaintiff respondent. Upon the said report the Registrar of the Supreme Court by his order dated 11.6.96 send down the decree to the trial court for correction upon realisation of the said deficit court fees of Tk. 1064/- from the plaintiff decree holders. On 3.9.96 the decree holder deposited the said deficit court fees in the trial court. It appears that the trial court initially signed the decree on 7.2.96 calculating the realisable costs of the suit at Tk. 8,845/- including the court fees of Tk. 7,180/- and the decree was seal (as it appears from the paper book) on 18.2.96. The High Court Division by its office Memo. No. 1023 dated 20.6.96 send down the decree to the trial court. In pursuance thereof upon realisation of the deficit court fees from the plaintiff decree holder the trial court corrected the decree by its order dated 3.9.96. In the meantime the appellants by Chalan No. 13374 dated 23.5.96 deposited in Bangladesh Bank, Sadarghat Branch Dhaka half of the decretal amount as well as the costs of the suit, as assessed by the trial court as per decree signed on 7.2.96 amounting to Tk. 1,8,324/32 paisa, on 21.9.96 the defendant filed an application in the trial court for accepting the deposit of 50% of Tk. 1064/-. That is the deficit court fees paid by the plaintiff as part of the decretal costs and accordingly by Chalan No. 3183 dated 21.9.96 deposited Tk. 532/- in Banlgadesh Bank Sadarghat Branch, Dhaka in the account of the aforesaid money suit, Defendant No. 1 on 30.9.96 filed an application before the trial court praying for transmitting the decree in question to the High Court Division and accordingly corrected the decree was sent back to the High Court Division.
(3.) On 30.6.96 the appellant filed an application before the High Court Division under Sections 148/149 read with Section 151 of the Code of Civil Proceeding praying for acceptance of the deposit of half of the decretal amount and the costs as deposited in the trial Court on 23.5.96 stating inter alia, that due to abnormal situation, created during the non-cooperation movement, prevailing at the relevant time in Dhaka City, they failed to deposit the amount before filing the Memo, of appeal in the High Court Division on 24.4.96 and that as per Stamp Reporter's report dated 8.5.96 it appeared that the plaintiff respondents did not pay proper court fees in the trial court and the Registrar of the Supreme Court of Bangladesh by an order dated 11.6.96 directed the trial court to realise the deficit court fees of Tk. 1064/- from the plaintiff decree holder and to correct the decree accordingly. In the circumstances, the appellant prayed in the application for registration of the appeal. A Division Bench of the High Court Division by an order dated 18.7.96 rejected the said application of the appellant as well as the Memo of appeal holding, inter alia, that half of the decretal amount having not been deposited within time by the appellant as, required under Sub-Section 2 of Section 7 of the Artha Rin Adalat Act, 1992, the appeal was not entertainable. Mr. Abdul Wahab, learned Advocate appearing for the defendant appellants submits that the appellants preferred the appeal in the High Court Division within time but due to the then prevailing abnormal situation in the country for policed unrest the appellants could not make deposit of 50% of the decretal amount as was required to be deposited under Sub-Section 2 of Section 7 of the Act in the trial court prayed for extension of time before the High Court division to make such deposit and accordingly the High Court Division allowed time and thereafter the appellants make the deposit of the required amount by bank chalan on 23.5.96 and thereafter by filing an application on 30.6.96 under section 148/149 read with Section 151 of the Code of Civil Procedure prayed for registration of the appeal but the learned Judges of the High Court Division upon taking an erroneous view that the Artha Rin Adala Act being a special law Section 5 of the Limitation Act having not been made expressly applicable by the said Act rejected the application as well as Memo of the appeal Although Memo of appeal was filed in the High Court Division within time. The learned Advocate further submits that the learned Judges of the High Court Division committed an error of law in not considering that the decree in question was corrected by the trial Court on 3.9.96 upon accepting the deficit court fees from the plaintiff decree holders and as such the learned Judges of the High Court Division acted illegally and not treating that the appellants although preferred the appeal on 24.4.96 the appeal in time upon compliance with the provision of Sub-Section 2 of Section 7 of the Act within time and in accordance with law.;
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