BANESA BIBI Vs. SENIOR VICE-PRESIDENT
SUPREME COURT OF BANGLADESH
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SHAH ABU NAYEEM MOMINUR RAHMAN, J. -
(1.) This leave petition is directed against the judgment and order dated 14.05.2008 passed in Writ Petition No. 4196 of 2007 by the High Court Division discharging the Rule.
(2.) The petitioner hereof filed the writ petition challenging the auction sale of the property consistence of 495 ajutangsha in C.S. Plot No.1418, in C.S. Khatian No.62, J.L.No.271, Mouza-Joarshahara, Police Station-Badda under sub-registry office Gulshan, District- Dhaka, with a 5(five) storied building standing thereon, vide sale deed No.18040 dated 12.12.2004 executed by the mortgage Al-Arafah Islami Bank Limited, as appointed attorney of Mrs. Banesa Bibi, the owner-mortgagor of the property in favour of Jabiullah Siddique, the auction purchaser. The aforesaid Banesa Bibi enjoyed a loan facility from Al Arafah Islami Bank Ltd. securing the said loan mortgaging the property described hereinabove being owner thereof as far back in December, 2002 but she failed to make repayment of installments in terms of the loan and as per section 12 of the Artha Rin Adalat Ain, 2003. The bank put the said property in auction inviting bid through publication of notice in the Daily National newspapers in September, 2004 and the property has been auction sold against Tk. 17,10,000/- and in due course the required sale deed was executed and registered on 12.12.2002 in favour of the auction purchaser by the bank, as attorney of owner-mortgagor Banesa Bibi. The auction notice was published in the Daily Inquilab on 01.09.2004 and 29.09.2004 and in Daily Jugantor on 29.09.2004 and that the auction purchaser subsequently sold out the auction purchased property to Messrs Md. Shahidul Islam, Abul Khaier, Abdus salam Mattabor, Md. Omar Faruk Khan and Md. Bazlur Rahman Vide deed No. 6912 dated 29.03.2007 registered with Gulshan Sub-Registration Office. The petitioner being a lady had no knowledge about auction process i.e. the alleged demands made by the bank for adjustment of the outstanding loan amount, the publication of notice under Section 12 of the Artha Rin Adalat Ain. 2003 for sale of the property in the Daily Inquilab on 01.09.2004 and 29.09.2004 and in Daly Jugantor on 29.09.2004 and the sale of the property in auction in favour of the highest auction bidder Jabiullah Siddique and about the subsequent sale by said Jabiullah Siddique inasmuch as the petitioner is in possession of the said property. The petitioner filed the writ petition alleging violation of principle of natural justice and alleging that the auction sale by the bank is in fact an arbitrary, mala fide and discriminatory action and is illegal, without lawful authority and of no legal effect and that the property has been sold at a shockingly low value alleging the value of the property was around Tk. 50000/- in the year 2004 and that the bank has filed the suit in violation of the terms of the loan inasmuch as the loan refund period was extended for 10 years payable in monthly installments effective from July 2003.
(3.) The High Court Division after hearing the parties discharged the Rule issued, considering the provisions of section 12(8) of the Artha Rin Adalat Ain, 2003 which provides as under:
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This debars challenging of any auction sale made under Section 12 of the Artha Rin Adalat Ain, 2003. The High Court Division also observed that the writ petitioner did not come up with clean hand inasmush as the writ petitioner did not mention about the Writ Petition No. 4105 of 2005 filed earlier on the same issue, which was dismissed for default, in the instant writ petition, and that the learned Advocate appearing for the writ petitioner could not substantiate the allegation of illegalities and irregularities in the auction process as alleged and that the auction sale has been made after proper publication of auction sale notice in the daily National Newspaper and following the provision of law.
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