SHAMSHAD ASIF Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) These five Rules were issued at the instance of the petitioner Shamshad Asif calling upon the respondents to show cause as to why orders dated 18-8-98 passed in Bankruptcy Case Nos.1 to 5 of 1998 pending in the Bankruptcy Court, Dhaka should not be declared to have been made without lawful authority and of no legal effect. At the time of issuance of Rules further proceedings of the Bankruptcy cases in question were stated.

(2.) Respondent No.2 Al-Baraka Bank (Bangladesh) Ltd. filed aforesaid five Bankruptcy Cases against the petitioner and others praying for declaring them Bankrupt, to appoint receiver to take possession of the mortgaged properties and other properties of the petitioner and other defendants and other reliefs on presentation of the plaints on 20-5-98. Court registered the cases and fixed 19-7-98 for hearing and directed plaintiff to publish the summary of the plaint and copy of the order in the Daily Ittefaq and Daily Inqilab. Thereafter on 19-7-98 Court fixed 26-7-9 for hearing about the plaint. Thereafter on 26-7-98 petitioner filed an application under section 28 of the Bankruptcy Act, 1997 praying for dismissal of the plaint. Court also directed the petitioner to produce books of accounts of his business and list of his properties and of his creditors and debtors. But the petitioner failed to comply with the said order. Thereafter on 9-8-98 the applications for dismissal of the plaints were heard and on 12-8-98 applications under section 28 were rejected. Being aggrieved by the same petitioner moved this court and obtained the Rules. In all the Rules common question of law having been raised these are being disposed of by this judgment.

(3.) Learned Advocate for the petitioner after placing the petition and other materials on record submitted that court below acted illegally in rejecting the applications under section 26 of the Bankruptcy Act, 1997 without considering that after passing of decrees against the petitioner and other guarantor mortgagor in the concerned Suits filed by the Artha Rin Adalat and execution proceedings against the same being pending bankruptcy proceeding for realisation of the decretal dues before the Bankruptcy Court were without is jurisdiction. He further submitted that after passing of the decrees by the Artha Rin Adalat the creditor respondent bank has been transformed into decree holder and no longer is creditor and the guarantor mortgagors are no longer debtors and judgment debtors and as such notices under section 9(1) (i) of the Bankruptcy Act, 1997 upon the petitioner and other guarantor mortgagors are without lawful authority and the Bankruptcy Court acted illegally in not dismissing the plaints of the Bankruptcy Suits. He further submitted that section 11 of the Code of the Civil Procedure being applicable in respect of Bankruptcy proceedings under the provisions of section 8 of the said Act Bankruptcy cases against the self same guarantor mortgagors against whom decrees were passed at the instance and in favour of the self same respondent creditor bank Bankruptcy Cases are barred by the principles of res judicata.