12:00 AM, October 25, 2016 / LAST MODIFIED: 12:39 AM, October 26, 2016


unavoidable dilemma for judges

Section 37(1) of the Artha Rin Adalat Ain, 2003 (also known as Money Loan Court Act, 2003) provides that subject to the provision of Sub-section (2), an execution suit under the Artha Rin Adalat Ain, 2003 (ARAA) would be settled within 90 days or an additional 60 days only after recording reason/s for the failure to settle it within the stipulated time. However, Section 37(2) explains that if some time is spent in settling the claim of anyone who is not a party to the suit or some time is allowed to the judgment-debtor for making payment in instalments, those periods would be excluded from the calculation of the total time. At the outset, let us make this point very clear that a textual reading of the provision would indicate that the drafters have viewed the disposal of execution suits beyond 150 days (except when a third party has intervened under Section 32 or the court has allowed time for satisfaction of the decree in instalments) as a 'failure' and imposed a duty on the money loan courts to assign reasons for such a 'failure'. It would also seem that the drafters have not foreseen any execution suit under this Act to run for more than 150 days.

In Md. Abul Basher v The Judge, First Artha Rin Adalat, Chittagong and Others, (2009) 29 BLD (HCD) 517, the petitioner claimed, that a strict compliance with Section 37(1) of the ARAA is mandatory and when an execution suit is not disposed of within the stipulated period, it would automatically come to an end. The High Court Division (HCD) has taken note of the intention of the legislature in promulgating the law (the prompt recovery of loans) and also noted that the statute has not provided for any consequence of an execution suit running beyond 150 days. Hence, the HCD has rejected the petitioner's claim by holding that the provision in Section 37(1) concerning the time limit for disposal of an execution suit under the ARAA is only a directory one.

While the reasons for non-following of the mandatory time limit for settling cases are understandable and it would be argued here justifiable, there are some concerns about this. Indeed, this essay would argue that had the HCD accepted the contention by the appellant; it could have been blamed for defeating the purpose of the law that is to ensure the prompt recovery of loans disbursed by financial institutions. Let us first explore the justifications for the approach taken by the HCD. The HCD's relaxed approach may be because of the workload of the judges and officers of the money loan courts. It is unrealistic to expect that judges would always be able to settle all suits of a particular type within a rigid time-frame. The HCD's approach may also be justifiable because, in an execution suit, at least three set of actors would be involved: namely the judge and the court officials under the direct control and supervision of the judge, the financial institution and its lawyer/s, and the judgment-debtor/s and lawyers representing them. And the delay in disposal of the execution suit may be attributable to the fault of any of these groups and hence, putting an end to the suit itself simply for the delay would be harsh and absurd.

Again, had the court taken the route as contended by the appellant, clearly the HCD would have incentivised the judgement-debtors to resort to all sorts of delaying tactics. This is not to say that in absence of a directory time limit for settling execution suits, the judgement-debtors would have an incentive for not trying to delay the execution suit. But when the judgment-debtors would know that if the execution suit can be dragged beyond 150 days, it would be dismissed, the judgement-debtors having a weak case would have every reason to clutch on to all sorts of delaying tactics. 

However, despite these merits in the finding of the HCD, apparently, there are reasons to surmise the unintended (probably even unavoidable) consequences of the method. The transformation of the seemingly mandatory time limit for disposal of suits to a directory time limit may confuse ordinary litigants who could expect an execution suit to be disposed of within 150 days. Because the unequivocal nature of the provision may create such an expectation, however, impractical that may be. Now, a question should arise, who is to be blamed for this? It would be argued that it is the drafters. The paradox for the judges here is that if they follow a textual approach, they become unrealistic and if they follow a purposive approach, they have to defy or at least dilute fairly straightforward words of the law and may confuse ordinary litigants. It would be argued here that this paradox has been created by quite a slapdash drafting.

The task of the drafters of law is almost always a complex one. They have to be precise, clear, and at the same time, have to provide for a myriad of unforeseen circumstances which have to be tried to be foreseen. Indeed, the drafters may have wanted to send a message to the judges of the loan courts that it is expected by the Parliament that the money loan courts would dispose of the execution suits within 150 days. But for signifying that intention, a much less stringent wording should have been used. Language which would indicate that the courts would try their best to settle an execution suit within 150 days would have sufficed, something along the lines of 'the money loan court would endeavour to settle an execution suit within 150 days and if it is unable to do so, the reason for the inability would be recorded'.

There is no doubt that law in this country as well in most other countries in the contemporary world, requires specialist skills and much of the practice of the law will only be the realm of persons skilled in the art of professional practice of law. But the drafters of law have to remember that laws are binding on the citizens. When the apparently unambiguous connotations of plain words push the court to such implausibility that they have little option but to take the legal provisions as directory and not mandatory, the public may not only be confused about legal provisions but their faith regarding the binding force of the law may also be somewhat dented.

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