ONE BANK LTD. Vs. CHAYA DEVELOPER (PVT.) LTD.

JUDGEMENT

(1.) These appeals by leave are directed against the judgment and order dated 19.01.11 passed by a Division Bench of the High Court Division in Writ Petition no. 1376 of 2009 making the Rule absolute and thereby setting aside Part of Order No. 1 dated 23-01-2008 except the registration of the Title Suit No. 7 of 2008, Order Nos. 13 dated 06-04-2008 and 49 dated 19-01-2009 passed by the Artha Rin Adalat, 1st Court, Chittagong in Artha Rin Suit No. 7 of 2008. The facts for disposal of these appeals, in short, are that the respondent No. 1 in Civil Appeal No. 175 of 2011 and the appellant in Civil Appeal No. 176 of 2011 as petitioner, filed Writ Petition No. 1376 of 2009 before the High Court Division challenging the above mentioned three orders passed by the Artha Rin Adalat in Artha Rin Suit No. 7 of 2008 on the ground that they were passed without lawful authority and jurisdiction. The writ petitioner being a private limited company incorporated under the Companies Act, 1994 deals with the business of property development. The Writ petitioner company proposed to develop the land at plot No. 8, Road No. 104, Gulshan Model Town, Dhaka by constructing multistoried building thereon. The land belonged to Writ respondent No. 4, Mohammad Yahya, who got the same from RAJUK in 1996 vide a deed of lease agreement dated 22.07.1996 for 99 years. The Writ respondent No. 4 informed the writ petitioner that the title deed of his land had been deposited with the Trust Bank, Gulshan Corporate Branch, Dhaka as equitable mortgage to secure credit facilities. By executing tripartite agreement between the Writ Petitioner, Writ respondent No. 4, Mohammad Yahya and the Trust Bank, the sale price of the land had been settled. As per such agreement the writ petitioner made payment of Tk. 6,00,000,00 (six crores) to the Trust Bank to make the land owner free from liability. The Writ petitioner also paid Tk. 14,00,000,00 (fourteen lacs) to the land owner. On receipt of the said amount the Trust Bank handed over the title deed of the land to the Writ petitioner. Subsequently, the land owner executed a General power of Attorney on 25.09.2007 in favour of the Writ petitioner in order to facilitate the construction work of multistoried building over the said land and also for exercising his right relating to that land. The Writ respondent No.3 appellant, One Bank Limited, on 23.01.2008, as plaintiff, filed Artha Rin Suit No. 7 of 2008 before the Artha Rin Adalat, 1st Court, Chittagong against the Writ respondent No. 4, Mohammad Yahya, claiming Tk. 9,00,000.00 (nine crores). On the same date the plaintiff- One Bank Limited, filed an application under Order, XXXVIII Rule 5 of the Code of Civil Procedure for attachment before Judgment. On that application show cause notices were issued upon the defendants, and pending hearing, by an ad-interim order passed on the same date (order No. 1 dated 23.01.2008) the said land had been attached. In January, 2009 the Writ petitioner filed an application under Order 1, Rule 10 of the Code of Civil Procedure for addition of party in the Artha Rin Suit which was rejected by the Court vide Order No. 49 dated 19.01.2009 on the ground that the petitioner had no locus standi under section 6(5) of the Artha Rin Adalat Ain, 2003. The Writ petitioner Chaya Developer (Pvt.) Limited challenging the authority of the concerned Judge (respondent No.2) in passing the said orders filed the Writ petition and obtained the Rule. To oppose the Rule, the Writ respondent No. 3, One Bank Limited, filed Affidavit-In-Opposition stating, inter-alia, that the petitioner has got no locus standi to file the Writ petition since the petitioner is no more the Attorney of the land owner as well as not yet acquired any title over the land.