THE ARTHA RIN AIN, 2003 Generally Money Suit is filed before the Civil Courts in order to realize outstanding demand. But these general provisions of law proved to be inadequate in many respects. Especially the Financial Institutions were suffered a lot for want of effective and speedy machinery to realize their unpaid claim. In consequence thereof the economic flow of the country was going to be paralyzed. Being realized these facts; a special legislation was at first promulgated in the name of Artha Rin Adalat Ordinance, 1989 and subsequently the said Ordinance replaced with the enactment of Artha Rin Ain of 1990 for realization of outstanding demand of Financial Institutions. But in course of time that very Act seemed to be again inadequate to face various new problems during the trial and execution proceedings. Thus, with a view to make the said Act more amended and consolidated, the Arhta Rin Adalat Ain, 2003 has been enacted for recovery of dues by Financial Institutions. THE KIND OF LOAN WHICH CAN BE RECOVERED: The following kind of Loans can be recovered under this Act as defined in Section 2 of the Act: • Advance, credit, cash credit, overdraft, bank credit, discounted or purchased bill, investment made by the financial institutions regulated in accordance with Islamic Sharia or any other financial favour or facilities described in whatever name; • Guarantee, indemnity, letter of credit or any other financial arrangement, which any financial institution grants or issues in favour of the borrower or accepts as liability. • Loan granted by financial institutions to any of its officer or servants. • Legally imposed any interest, penalty interest or profit or lease upon the above-mentioned debt or in some cases investment made by the financial institutions regulated in accordance with Islamic Sharia. SPECIAL REORGANIZED COURT ESTABLISHED UNDER THIS ACT: Sections 4 & 5 of the Act provide for the provisions of establishment of distinct Artha Rin Adalat. This court shall have exclusive jurisdiction to try the suits filed by the financial institutions for realization of debt. This court has been excluded from exercising any other civil or criminal jurisdiction. JURISDICTION OF THE ARTHA RIN ADALAT: All suits relating to the realization of loan of a financial institution including Mortgage Suit for foreclosure and sale and even public demand of more than Tk. 50,000.00 (Taka fifty thousand) are exclusively triable by the Artha Rin Adalat. A Financial Institution cannot file a Mamla before the Adalat accusing its employees for misappropriation of money labeled it as debt. A borrower is not entitled to file any Mamla before this Adalat against any Financial Institution though the cause of action may arise from debt. PRIOR CONDITION TO FILE ARTHA RIN MAMLA: (SECTION 12) No financial institution is entitled to file an Artha Rin Mamla before the Adalat without adjusting the liability by selling the property (movable or immovable) under lien, pledge, hypothecation or registered mortgage of which the financial institution is lawfully authorized to sell by dint of irrevocable notarized power of attorney in case of movable property and registered power of attorney in case of immovable property. For selling the above-mentioned property, the financial institutions shall follow the procedure of auction sale provided in Section 33 of the Ain so far as it is possible. After selling the property in question, if the financial institution fails to make delivery of possession to the purchaser, it can take recourse to the District Magistrate and the District Magistrate or his nominated Magistrate of the First Class upon satisfaction of mortgage against debt, shall take necessary step to transfer the possession of the property to the concerned purchaser on behalf of the Financial Institution. • AFFIDAVIT AS SUBSTANTIVE EVIDENCE: (SECTION 6) Every plaint and written statements has to be attached with an affidavit and this affidavit shall be treated as substantive evidence so that the trial court may make instant order or pass judgment only upon perusing the concerned plaint or written statement together with other documentary evidence without deposition of any witness. NO SET OFF OR COUNTER CLAIM (SECTION 18) The borrower-defendant is not entitled to claim set off or counter claim by filing written statement in a Mamla filed against him by the Financial Institution. NO ANALOGOUS HEARING (SECTION 18) If a borrower files a suit against any Financial Institutions before the general court and the Financial Institution again files another Mamla before the Artha Rin Adalat, then the two suits shall not be heard analogously in any of the said court in spite of the fact that the suits have been arisen out of the same cause of action. NO DISMISSAL OF MAMLA (SECTION 19) No pending Mamla before the Artha Rin Adalat shall be dismissed on account of non-appearance of the plaintiff or any kind of failure on the part of the plaintiff. In this case the Adalat shall adjudicate the Mamla upon verification of the documentary evidence. EX PARTE DECREE: (SECTION 19) The Adalat shall hear the suit ex parte and pass a decree against the defendant if the defendant does not appear before the court on the day fixed for hearing or when the Mamla is taken for hearing but the defendant is not available at that very time. SET ASIDE EX PARTE DECREE: (SECTION 19) The defendant may file an application for setting aside the ex parte decree within 30 days from the day passing of the ex parte decree or from the day when the defendant come to know about the ex parte decree. In order to setting aside the ex parte decree, the defendant is required deposit 10% of the decreetal amount within 15 days from day of filing the application- • by cash payment to the concerned Financial Institution as recognition of claim made by the plaintiff, or • by Bank Draft, Pay Order or any kind of Negotiable Instrument to the Court as security. Upon payment of the said 10% decreetal amount, the ex parte decree shall be set aside and the Mamla will be immediately restored in the original number and file; failing which the Adalat shall straightly dismiss the application for setting aside the ex parte decree. ALTERNATIVE DISPUTE RESOLUTION The provisions of alternative dispute resolution (ADR) is a unique feature of the Artha Rin Adalat Ain, 2003. After filing the written statement, the proceeding of ADR shall start by adjourning the next procedure of the suit. Only two kinds of ADR are recognized by the Act: 1. Settlement Conference; and 2. Mediation. Settlement Conference: Settlement Conference means a conference presided over by the judge of the Adalat in which the parties to the suits, their appointed lawyers and their representatives may be present. The judge shall play co-operative role with a view to settle the dispute on the basis of cooperation, sympathy and mutual understanding in a informal, non-contesting, non-obligatory and confidential environment. Mediation: Instead of Settlement Conference, the Adalat may forward the suit to the appointed lawyers or the parties tot the suits for resolving the dispute through Mediation. The lawyers shall mutually appoint a mediator upon consultation of the parties to the suit among the following kinds of person: 1. Any lawyer who is not engaged by the parties 2. Any retired judge 3. Any retired officer of a Financial Institution 4. Any other competent person other than a person employed in the profitable service in the Republic. Delegation of power to the local officers: In order to make the provisions of ADR effective, the Financial Institution may pass resolution by its Board of Directors empowering the central, regional or local officer/mangers to take necessary action in this regard and issue a circular to that effect. The Circular shall precisely contain • The limitation of delegated power or authority; • The principle and procedures to enforce that power. The Financial Institutions shall submit a copy of that circular to the respective Artha Rin Adalat. EXECUTION Enforcement of the Code of Civil Procedure: The provisions of the Code of Civil Procedure shall be applicable in the execution suit so far as they are not contradicting with the provisions of the Ain. LIABILITY OF MORTGAGOR AND GUARANTOR (SECTION 6): Generally the principal debtor, third party mortgagor and third party guarantor are jointly and severally liable for making repayment of the outstanding liability to the Financial Institution. Nevertheless when the dues are realized through execution, the principal debtor, third party mortgagor and third party guarantor are liable to pay the decreetal amount consecutively. That is, at first the principal debtor, then third party mortgagor and at last third party guarantor shall be liable to pay the decreetal amount. Principal debtor third party mortgagor third party guarantor. APPEAL: Upon deposit of Tk. 50% of the decreetal money to the decree holder or to the Court, the aggrieved party may prefer an appeal against the order or decree of the Artha Rin Adalat before- The Court of District Judge: Where the decreetal amount is upto 50 lac. The High Court Division: Where the decreetal amount is more than 50 lac. But the Financial Institution need not to deposit any money or security to prefer any appeal against the judgement or order of Artha Rin Adalat. The appellate court shall dispose of the appeal procedure within 90 days from the date of acceptance of appeal and in some cases another 30 days may be extended. REVISION: Upon deposit of Tk. 75% (including 50% during appeal) of the decreetal money to the decree holder or to the Court, the aggrieved party may file a revisional application against the judgment or decree of the appellate court. The revisional court shall dispose of the revisional procedure within 60 days from the date of acceptance of revision and in some cases another 30 days may be extended. APPEAL BEFORE THE APPELLATE DIVISION OF THE SUPREME COURT: The aggrieved party may prefer an appeal before the Appellate Division of the Supreme Court against the judgement, decree or order passed by the High Court Division in an appellate or revisional procedure. In this case the Appellate Division may order to deposit the rest of the decreetal money or any amount of them as the Hon’ble Court thinks fit and proper. _____________________________________
Posted on: Thu, 06 Mar 2014 07:36:13 +0000
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