UTTARA UNIVERSITY

ASSIGNMENT
ON
MERCANTILE LAW PART- I
COURSE CODE: LLB-801

Topic: A brief analysis on “Carriage of Goods by Land”

Submitted to
Mohammad Badruzzaman
Assistant Professor & Co-ordinator
Department of Law
Uttara University

Submitted by
Md. Arif Hossain
LL.B.(Hons) 8th Semester
Batch:43(B) Summer,20
ID: 2181261064
Uttara University

Submission date : 04-07-2020

 TABLE OF CONTENT
1. INTRODUCTION
2. DEFINED ARTHA RIN ADALAT 2003
3. THE KIND OF LOAN WHICH CAN BE RECOVERED
4. SPECIAL REORGANIZED COURT ESTABLISHED UNDER THIS ACT:
5. JURISDICTION OF THE ARTHA RIN ADALAT:
6. PRIOR CONDITION TO FILE ARTHA RIN MAMLA: (SECTION 12)
7. AFFIDAVIT AS SUBSTANTIVE EVIDENCE:(SECTION 6)
8. NO SET OFF OR COUNTER CLAIM (SECTION 18)
9. NO ANALOGOUS HEARING (SECTION 18)
10. NO DISMISSAL OF MAMLA (SECTION 19)
11. EX PARTE DECREE (SECTION 19)
12. SET ASIDE EX PARTE DECREE: (SECTION 19)
13. ALTERNATIVE DISPUTE RESOLUTION
14. EXECUTION
15. LIABILITY OF MORTGAGOR AND GUARANTOR
16. APPEAL
17. REVISION
18. ADVANTAGE OF ARTHA RIN ADALAT
19. CONCLUSION
 Acknowledgement

Firstly, I would like to express my profound sense of

gratitude towards the almighty Allah for providing me
with the authentic circumstances which were mandatory
for the completion of my Assignment.

Secondly, I am highly indebted to at Faculty of Law,

Uttara University, Dhaka for providing me with
constant encouragement and guidance throughout the
preparation of this Assignment.

My cardinal thanks are also for my parents, friends

and all teachers of law department in our University who
have always been the source of my inspiration and
motivation without which I would have never been able to
unabridged my Assignment.
Md. Arif Hossain
INTRODUCTION:

Artho Rin Adalat Ain 2003 covers the matters regarding recovery of loans by financial
institutions. These matters are regarded as matters of civil natures. Only financial institutions as
well as banks can file cases against the borrower under this Act. Loan-receivers/ borrowers
cannot file cases against the financial institutions or banks under this Act. It is a special type of
law and it has been enacted only to early recovery of bad loans of the financial institutions and
the banks. 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.

DEFINED ARTHA RIN ADALAT 2003 :

The law has defined 'loan' under section 2 (ga) wherein compensation as claimed by Islamic
banks has not been included. The Islamic banks have been claiming compensation along with
profit. Under the law of the land, compensation can be claimed as a remedial measure of breach
of contract.

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.
THE FORUMS FOR DISPUTE SETTLEMENT OF RECOVERY OF LOANS :
The power and jurisdiction of court according to Money Loan Act 2003

(1) Whatever contained in other law, Sub-section (5) and (6) of the provisions relating to
the realization of financial institution established under section 4 of the suit, filed in
court, shall be declared or deemed to be borrowing money, and the court shall dispose
of them.

(2) Under this Act, financial institutions, real estate as security for the mortgage loans
issued to testify against the mortgage of immovable property for sale or to disable the
completion of The Transfer of Property Act, 1882 (Act No. IV of 1882), and under
section 67 of The Code of Civil Procedure, 1908 (Act No. V of 1908) in accordance
with the provisions of Order XXXIV who wants a mortgage suit, the suit shall be
filed with the court established under this Act to borrow money; And in such case,
The Code of Civil Procedure, 1908 with the provisions of the provisions of this Act,
coordination will apply, as far as possible.

(3) The Public Demands Recovery Act, 1913 (Act No. III of 1913) whatever contained in
the provision, the recoverable debt and “Government debt”, shall be filed under this
Artha rin adalat 2003.

(4) Subsection (1) despite of the Acts, Nothing in this section for any financial institution
by Article II of the clause (a) of sub-clause (1), (13), (14), (15), (16) and (17) the
financial institutions by the government loans shall not be effective in convincing.

(5) The case has been filed under this act might be registration as money loan act.

(6) If a district has more than one money loan court, for the filling of the money loan case
will determined by the local jurisdiction of the District Judge.

(7) The petitioner will transferred his money loan case from proceedings court to Any
money loans court in his district by The Judge willing or in response to the petitioner
of any party to the case, if it appears essential in the interests of justice,

(8) The loan shall be regarded as the court in a civil court, is not inconsistent with the
provisions of this Act, subject to a civil court shall have all the powers and authority.
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 :

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
decretal money or any amount of them as the Hon’ble Court thinks fit and proper.

ADVANTAGE OF ARTHA RIN ADALAT 2003:

 The Act ensures the Financial Institution of their money.

 Reduce the loss of Bank and other financial institution.

 Divided the liability between a person and financial institution.

 Security of financial institutions.

 It is visualized from the preamble is that the existing laws relating to recovery of loans of
financial institutions/banks are needed to be amended and consolidated.

CASE REFERENCES :

1.Section 5—
 Adalat cannot entertain any execution case to execute the decree in the preliminary form
requiring final decree and, as such, continuation of the execution case is unlawful apparent
on the face of record without having any legal sanction.
Internationals Tannery vs Judge, Artha Rin Adalat 17 BLC 380.
2.Sections 6(5)—
 The provision of section 6(5) of the Artha Rin Adalat Ain, 2003 are applicable only when the
properties were mortgaged both by the principal debtor/ loanee and the third party mortgagor.
In the instant case, admittedly no property was mortgaged by the principal debtor-loanee but
the property was mortgaged by the petitioner. So, in absence of any other property
mortgaged by the principal-debtor in favour of the Bank, the mortgaged property of the
petitioner-judgment-debtor is to be sold to realise the decretal amount. Therefore, the Adalat
 was bound to sell the mortgaged property which was included in the schedule of the
plaint/decree.
Abdu’s Sattar Miah vs Bangladesh 14 BLC 412.

3.Sections 12(1)(2)(3)(4)(6)(7), 19 and 41—

 The petitioner being a defendant in the suit having not contested the same, preferring of the
writ petition without availing the forum of appeal as provided under section 41 of the Ain or
challenging the ex parte decree under section 19 of the Ain, the writ petition is not
maintainable.
KM Hamdor Rahman vs National Housing Finance & Investments Ltd 12 BLC 578.

CONCLUSION:

Apart from the aforementioned barriers, the law has been playing a very vital role in realizing the
loan from the defaulter(s). Its achievement in loan recovery has been so immense that the
scenario of defaulting loan has improved significantly with number of pending Artha Rin Suits
reducing with expectancy rate. The loan defaulting culture would further be reduced if the
barriers can be removed as soon as possible.