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Rule 6, the Regularisation and Seniority Fixation of Posts from Development Project to Revenue Budget, 2005 Rules clearly entitled an employee transferred from the development project to the revenue set up to enjoy salary, leave, pension and other service benefits from the date of his entry/joining the development project…..(20)
State Vs. Md. Sajjad Ali, 2014, 43 CLC (HCD)
AKM Fazlul Haq and anothers Vs. People’s Republic of Bangladesh and others, 2010, 39 CLC (HCD)
Shariful Alam (Babu) (Md.) Vs. State and another, 2014, 43 CLC (HCD)
Negotiable Instruments Act (XXVI of 1881); Section 118
Holder in Due Course for Consideration–
Whenever a person will be holder in due course he must become holder in due course for consideration and section 118 of the Act has given more privileges to the holder in due course which provides that until the contrary is proved it is to be presumed that every negotiable instrument was made or drawn for consideration, that is, the law itself prescribed a privilege in favour of the holder of a cheque that for consideration the cheque was drawn in his favour but this presumption is a rebutable presumption.
Presumption— A Rebutable Presumption—
Presumption means to take anything without verification or prove or in other words an idea that is taken to be true on the basis of probability. Whenever a cheque is drawn in favour of a person he enjoys a presumption that the cheque was drawn for some consideration but this presumption is a rebutable presumption. That is, the accused has a right to offer the evidence to prove that the said inference or presumption is not correct and the law has given the said privilege to the accused also as the very section 118 of the NI, Act starts with the words 'until the contrary is proved' that means the defence has the authority to prove the contrary fact of the presumption that every negotiable instrument was made or drawn for consideration in favour of the holder in due course. ...... (30 & 31)
Human Rights and Peace for Bangladesh and others Vs. Hon'ble Speaker, Bangladesh Jatiyo Sangsad and others, 2014, 43 CLC (HCD)
Mosharaf Hossain (Md.) Vs. Bangladesh and others, 2015, 44 CLC (HCD)
Sub-Sections 6(Kha) And (7) of the Artha Rin Adalat Ain, 2003 are followed as Separate Status—
Legislature has deliberately given sub-sections 6(Kha) and (7) a separate status. The provisions under sub-section 6(kha) are such that they can be followed even not withstanding whatever contained in the entire section 33. This means, once the right to enjoyment and possession of the mortgaged property is conferred on the decree holder, it will be at liberty to even immediately apply for conferment of title under sub-section (7). In which case, it will not be obligatory on it to try to sell the property through 2nd, 3rd or 4th auctions.
To obtain that special status under sub-section 6 (kha), the precondition is that the right to possession and enjoyment of the property is conferred on the decree holder in view of sub-section (5). ...... (9)
In the same way, sub-section (7) has also given a special leverage on the decree holder. According to the said provisions, not-with-standing the provisions under sub-sections (4) and (5), the decree holder will be at liberty to file an application for conferment of title on it by the Adalat, and once such application is made, the Adalat will even refrain from following the proceedings under subsections (4) and (5) and will confer such title on "the decree holder through a certificate of title issued by it declaring such title. The only hurdle in the said provisions under sub-section (7) is that the provisions under sub-sections (1), (2), 2(Ka), 2(Kha), 2(Ga) and (3) of section 33 cannot be jeopardized. In other words, it recognizes the mandatory nature of the 1st auction in view of subsections (1), (2), 2(Ka), 2(Kha), 2(Ga) and (3). Thus, once the 1st auction is done and it fails for any reason, the decree-holder bank will be at liberty to either proceed for the 2nd auction and then for conferment of right to possession and enjoyment under sub-section (5) or it can ask for conferment of tile under sub-section (7).
A Free Leverage to the Decree Holder—
This option of conferment of title can be exercised by the decree holder either immediately after the 1st auction or after conferment of right to possession and enjoyment of the mortgaged property or even after conclusion of the 2 auction, though un-successfully. This intention of the Legislature to give almost a free leverage to the decree holder is clear from the provisions mentioned under sub-section 6(Kha) and section (7) of section 33…….. (11)
Hossain Ali (Md.) and 22 others Vs. Bangladesh, represented the Secretary Ministry Education and others, 2014, 43 CLC (HCD)
Khan Mohammad Ameer Vs. Atiqur Rahman and others, 2014, 43 CLC (HCD)
Rejection of a Plaint—
When a plaint does not disclose any cause of action only then question of rejection of a plaint would arise.
A plaint with disclosure a cause of action, then the questions whether that cause of action was actually present, whether it was sufficient to file the suit etc., being question of fact cannot be decided at the initial stage and can be decided only on the basis of evidence at the time of trial.......(41)
The continuation of the suit is found to be an abuse of the process of the Court, if the suit is foredoomed or if the ultimate result of the suit is as clear as the daylight, the suit should be buried at its inception by rejecting the plaint by invoking inherent powers of the Court. ...(43)
Question of limitation being a mixed question of law and facts, should be decided at the time of trial on taking evidence.......(40)
A Hakim Gazi and others Vs. Md. Nasiruddin, Assistant Vice President/Manager and others, 2014, 43 CLC (HCD)
Bank’s Legal Power to Deal with Mortgaged Property—
Bank must have the legal power to sell the mortgaged property which is the condition precedent to take subsequent actions. ...... (30)
Absence of bank's legal power to sell the mortgaged property all the actions relating to sale of the same shall become void and will have no legal effect. Every action in the absence of such power shall fall apart. The protection given to the bank and the auction purchaser in section 12(8) does not override sections 12(1) and 12(3). This protection is only available when the bank has the legal right to sell the mortgaged property. ..(31)
Continuing Guarantee for Series of Transactions—
Section 129 of the Contract Act, 1872 defines continuing guarantee as a "guarantee which extends to the series of transactions". Section 133 of the same Act also provides that"any variance made without the surety's consent, in the terms of the contract between the principal debtor and the creditor, discharges the surety as to the transactions subsequent to the variance".
In
the instant case, whether the loan taken in 2003 has been merged in the
renewed and enhanced loan taken in 2009-2010, the guarantee given by
the plaintiff in 2003 is a continuing guarantee and thus under section
12 of the Ain, 2003 the bank had the legal right to sell the mortgaged
property as attorney of the plaintiff under the power of
attorney...........(34-35)
Oxinel Services Pte. Ltd Vs. SOM Kalimullah, MD, Bangla¬desh Telecommunication Com¬pany Limited (BTCL) and others, 2014, 43 CLC (HCD)
Constitution of Bangladesh, 1972 Article 108
Court–Contempt of Court—Ensuring effectiveness and workability of the
Administration of Justice System—
This Court should ensure effectiveness and workability of the administration of justice system and the rule of law to sustain in this country, by awarding appropriate punishment to the offenders, without discrimination as well as letting all concerned to hear the voice of this Court and to understand that the age old proverb that the hands of this court is long enough to reach any offender…………...... (28)
Accepted Rules in the special consideration of Justice in Relation to Contempt Cases—
The duty of a Judge sitting to punish the Court's own contempt, therefore, means to prevent and stifle any damage to public confidence in an important organ of the State and not the protection of the individual Judges.
No personal interest is therefore involved. These are accepted rules in the dispensation of justice in contempt cases. It may be emphasized here that in this context when the Judge takes up the proceedings or acts in response to direct contempt the proceedings are not to take the form of the trial and the same may be concluded brevi manu which means "summarily". It is not thus necessary that there be a written charge, framing of issues, or to hold regular trial or examination—No other proof is necessary when it is a case of direct contempt."….. (25)
Apology—there should be an admission as to the Commission of Contempt—
In contempt cases courts have never accepted the apology of a person who does not admit that he has committed any offence. What is called unconditional apology necessarily means that there should be an admission as to the commission of contempt....... (18)
Apology offered should not be accepted as a routine job or without taking into consideration the conduct of the contemners and its effect in defeating the course of justice…… (27)
Zahir Fakir (Md.) and oth¬ers Vs. Hahma Khatun and others, 2013, 42 CLC (HCD)
Ramjan Ali Tarafder (Md.) Vs. Bangladesh and others, 2015, 44 CLC (HCD)
Artha Rin Adalat Ain (VIII of 2003); Sections 12 & 33(2)
The compliance of provision of section 33(2) of Ain for the purpose of section 12 of the Ain even when read with subsection 4, is not at all mandatory rather it is directory—
Before institution of any suit against any borrower the bank shall have to arrange for an auction sale of the property mortgaged by any borrower. It is a precondition for filing a suit. Even if a suit is filed in violation of the said provision without going for such auction as aforesaid that shall have to be regularized in terms of section 12(2) of the Ain. The submission of the petitioner that in utter violation of section 12(4) read with 33(2) of Ain the auction was held has no legs to stand. Since the auction of the concerned property of the petitioner was not sold in auction in pursuance of a decree or order as envisaged under section 33 of the Ain but the auction was made prior to filing of the suit in pursuance to sub-section 1 of section 12 of the Ain, as such, under sub-section 4 of section 12, the provisions of section 33 are not mandatory………..(9)
Shafique Ahmed Vs. Md. Abdul Latif Bhuiyan, 2014, 43 CLC (HCD)
Mostafa Kamal Sazu and oth¬ers Vs. Secretary, Ministry of Finance, Bangladesh Secretariat, and others, 2014, 43 CLC (HCD)
Constitution of Bangladesh, 1972; Articles 27, 31, 36 & 40
Any kind of obstruction or impediment, which affects the business/trade/occupation of the petitioners in any way is, of course, unreasonable, arbitrary, unfair and unlawful, which is interfereable by this Court invoking its jurisdiction under Article 102 of the Constitution….. (18)
Customs Agents (Licensing) Rules, 2009; Rules 5 and 6
Once the petitioners obtain C & F license under Rules 5 and 6 of the Rules, there is no requirement for sitting in written and viva voice examination....... (8)
Since the petitioners did not get reference license in time by the action of respondent No. 6, the same has caused serious hamper and disruption in carrying out the business of the petitioners resulting in infringement of the fundamental right to business or trade as enshrined in Articles 27, 31, 36 and 40 of the Constitution....... (9)
C & F license granted to the petitioners under Rules 5 and 6 of the Rules, is not a privilege but it is a right to carry out their business and that right cannot be curtailed or throttled on a mere cause shown.
The Constitution is the supreme law of the land, and the trainers of the same in their wisdom have made some provisions protecting the right of the citizen. To do lawful business or trade, subject to restriction of law, is one of those provisions which cannot be curtailed or throttled in any manner by any authority………… (13)
Customs Agents (Licensing) Rules, 2009; Rule 12
High handedness of the licensing authority in dealing with the issuance of reference license guaranteed under Rule 12 of the Rules, which warrants for interference by this Court exercising its jurisdiction under Article 102 of the Constitution....... (17)
Ruhul Amin (Md.) and oth¬ers Vs. Mustafizur Rahman and others, 2014, 43 CLC (HCD)
Boundary Specification—
The description of the land must be specific with its boundary and if it is found that the land described in the schedule of the plaint suffers from any vagueness or unspecification the plaintiff must suffer.....(15)
Credible Evidence—
The
plaintiffs in order to succeed must establish their own case by
credible evidence and weakness of the defendants is no ground for
awarding a decree in favour of the plaintiffs….(15)
Sonali Bank Limited Vs. UT Garments Limited and others, 2014, 43 CLC (HCD)
Artha Rin Adalat — Its Jurisdiction— Execution of Decree—
In executing the decree Artha Rin Adalat follows the procedure laid down in Code of Civil Procedure and it is settled executing court cannot go beyond the decree.... (18)
Artha Rin Adalat shall follow and apply the Code as a Civil Court in exercising its jurisdiction, powers and functions while adjudicating any dispute between the parties before it including execution of its decree insofar as it is not inconsistent with the provisions of section 6(Ka) or any other provisions of the Ain. Section 6(Ka), has excluded the operation of Rules 3, 5, 6, 7, 8 and 9 in matters of execution of any decree. Artha Rin Adalat shall execute its decree applying the provisions of sections 55 and 56 of the Code read with Order XXI and the rules made thereunder except the rules 3, 5, 6, 7, 8 and 9. Application of section 56 of the Code, has not been excluded by section 6(Ka)…… (20)
Shafiqul Islam Vs. Bangladesh Bank and others, 2014, 43 CLC (HCD)
Bank Company Act (XIV of 1991) Section 5 GaGa
Declaratory and Clarificatory Amendment—"Defaulter-Borrower"
Substantive right of appeal accrued in favour of an individual cannot be taken away by amendment in view of section 6 of the General Clauses Act.
Amended definition of "defaulter-borrower" under section 5 GaGa is a declaratory and clarificatory amendment and, as such, it should be regarded to be already in place in the Act. This amended provision under section 5 Ga Ga should have retrospective effect and, as such, should apply to the petitioner retrospectively.
This retrospective application of the amended definition of "defaulter-borrower" may also be viewed as subsequent withdrawal of exemptions by the amended definition of 'defaulter-borrower' as provided by section 5 Ga Ga of the Act will also be applicable to the petitioner as the same is a declaratory and clarificatory amendment of the term 'defaulter-borrower........(25 & 27)
Yeamin Nobi (Md.) and others Vs. Moklesur Rahman and others, 2015, 44 CLC (HCD)
On long drop 16/17 years if a case is remanded to the trial Court below for deciding afresh in giving opportunity to the parties to add further evidence that will not improve the ultimate result of the case…......(26)
Rukunuddin Mollah (Md.) and others Vs. Artha Rin Adalat 2nd Court and others, 2015, 44 CLC (HCD)
The Auction Purchaser Acquired a Legal Right as Auction Purchaser for Valuable Consideration—
Once the auction is complete no relief is available against such auction sale but the mortgagor any proceed against the mortgagee bank for compensation if it is proved that there was illegality in the auction sale...... (24)
Onil Kuar Podder and others Vs. Mostafa Unuch, 2014, 43 CLC (HCD)
Muhammadan Law in Applying of Pre-Emption to A Non-Muslim, Particularly to a Hindu— Right of Pre-emption
Muhammadans can claim benefit of the law of pre-emption under Muhammadan Law but the Hindu purchaser cannot claim the benefit of that law.
In 1885 there was no corresponding statutory law governing the field of pre-emption and at that time pre-emption was governed as per provision of Muhammadan Law, pre-emptor be Hindu then also he could preempt the land under the provision of Muhammadan Law but now scenario has been changed and statutory law has come into operation giving right to all to pre-empt the land if law applies……....... (30)
The right of pre-emption comes into existence after a valid, complete and bonafide sale, i.e. after the title has passed to the purchaser, and cannot be exercised in the case of any other alienation. The right to pre-emption is very special in its character. It is founded on the supposed necessities of a Muhammadan family, arising out of their minute sub-division and inter-division of ancestral property. Before invasion of Muslim such right was not known to the people of the subcontinent. Right of pre-emption is not right of repurchase but a simple right of substitution to stand in the shoes of vendee. Before the British regime all the citizens of India followed Muhammadan Law. Mohammadan pre-emptor and Hindu Pre-emptee where Muhamma-dan law applied according to justice, equity and good conscience. During Muslim regime jamindars i.e. mostly Hindu had to invoke the right of pre-emption as per Muhammadan Law as during Muslim rule right of pre-emption was extended to all without any discrimination….(18)
Since the appellant could not invoke the provision of Muhammadan Law their purchase cannot be defeated by taking shelter of Muhammadan Law—
Here
in the instant case, Vendor is a Muslim and purchaser is a Hindu. By
this time much water follows in the river Buriganga and by this time
Pakistan was created and thereafter, Bangladesh got independence. State
Acquisition and Tenancy Act along with Non-Agricultural Tenancy Act came
into operation giving statutory right of pre-emption, and pre-emptor
could invoke the provision of statutory law but we do not understand why
the plaintiff being an Advocate instead of invoking statutory law
jumped to personal law against a non muslim. Since the appellant could
not invoke the provision of Muhammadan Law their purchase cannot be
defeated by taking shelter of Muhammadan Law…(28 & 29)