M.M. STEEL MILLS LTD. Vs. ARTHA RIN ADALAT
SUPREME COURT OF BANGLADESH
M.M. Steel Mills Ltd.
Artha Rin Adalat
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SHAH ABU NAYEEM MOMINUR RAHMAN, J. -
(1.) Instant leave petition under Article 103 of the Constitution is for granting leave to appeal against the judgment and order dated 21.08.2007 passed in Writ Petition No.7258 of 2007 by the High Court Division summarily rejecting the petition.
(2.) The Writ Petition No.7258 of 2007 was filed challenging the order No.12 dated 26.06.2007 passed in Artha Rin Execution Case No.08 of 2007 by the Artha Rin Adalat, Chittagong, rejecting the writ petitioner's application filed under Sections 28 and 29 of the Artha Rin Adalat Ain, 2003 for dismissing the Execution Case on the ground of limitation.
(3.) The Islami Bank Limited as plaintiff filed Artha Rin Suit No.02 of 2005 in the Artha Rin Adalat, Chittagong, against the defendant for recovery of Tk.39,71,334/-contending, amongst others, that the defendant, though enjoyed the loan facilities from the bank, failed to repay the same within time or thereafter, inspite of repeated demands made for repayment. The suit was decreed for Tk.39,71,334/- with cost fixing Tk.43,297/-, payable in four equal installments with interest @ 8% p.a. and in case of default of payment of any installment the decree could be satisfied through execution case. As the defendant judgment-debtor failed to make repayment of any installment the decree holder bank filed Artha Rin Execution Case No.8 of 2007 in the Court of Artha Rin Adalat-1, Chittagong. The judgment debtor entered appearance and on 09.05.2007 filed an application under Sections 28 and 29 of the Artha Rin Adalat Ain, 2003 for dismissing the Execution Case asserting to be barred by limitation and that the application was heard on 26.06.2007. The executing Court on hearing the contesting parties rejected the application observing, amongst others, that the judgment debtors submitted that in terms of the decree the first installment was to be paid within three months from the date of the decree and as the judgment debtors failed to make the payment within the said period, the execution case, as per Section 28 of the Artha Rin Adalat Ain, 2003, required to be filed within 180 days from the expiry of the last day of the period allowed for payment of the first installment and as per Section 29 of the Artha Rin Adalat Ain. 2003 the period is to be counted from the last day of the period allowed for making payment of the defaulted installment, as allowed by the Court, and that in the instant case, the suit was decreed on 26.07.2005 and as such the first installment was due within three months thereafter i.e. within 25.10.2005. But the execution case has been filed on 24.01.2007 i.e. after about 474 days.
Therefore the execution as filed is ex facie time barred The Decree holder resisted the application contending, amongst others, that the learned Court ordered for payment of the decreetal amount in 4 equal installments within one year without specifying the dates for payment of the installments and the judgment debtor was allowed to make the payment of the decreetal amount in four installments within the period of One year and as such the installments could be paid even within the last four months of the year or last four days of the year. The court did not specify the period or time-frame on which the installments were to be paid. There is no order for making payment of quarterly equal installments as claimed by the judgment debtor-petitioners. The Executing Court accepted the submissions of the decree holder and accordingly rejected the application. However the Executing Court allowed time for payment of the decreetal amount within 20.02.2007. Being aggrieved the judgment debtors filed the Writ Petition No.7258 of 2007 challenging the aforesaid order of rejection in the High Court Division and that the Rule issued therein was heard and disposed of by the impugned judgment and order dated 21.08.2007. On behalf of the writ petitioner it was submitted that the decree in question was passed on 26.07.2005 ordering payment of the decreetal amount in four equal installments within one year and that the judgment debtor-petitioners failed to pay any of the installments and as such the period for payment of the first installment expired with the expiry of three months from the date of passing of the decree, hence the period of limitation for filing execution case started to run from the expiry date of such three months from the date of decree, and that the execution case ought to have been filed within six months after the expiry of said three months from the date of the decree and thereby the execution case ought to have been filed within nine months from the date of the decree i.e. within 25.04.2006, whereas the execution case was filed on 24.01.2007 and thus the execution case as filed was barred by limitation and hence the execution case is liable to be dismissed.
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