IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
CIVIL REVISION NO. ________OF _________
X Trading Company
Managing Director, Uttara Bank Limited and others
COUNTER AFFIDAVIT ON BEHALF OF THE OPPOSITE-PARTIES
I, A, son of late B, an officer of Uttara Bank Limited, Satmasjid Road Branch, 748 Satmasjid Road, P.S. Dhanmondi, Dhaka, by faith Muslim, Bangladeshi by birth, profession service, aged about 44 years, do hereby solemnly affirm and say as follows:
01. That I am an officer of Uttara Bank Limited and Tadbirkar of this case and conversant with the facts and circumstances of the case and competent and authorised to swear this affidavit.
02. That I have gone through the revisional petition (hereinafter referred to as “the petition”) whereupon the instant Rule has been issued and an ad-interim order has been passed. Having understood the contents of the said petition I have been advised by my learned lawyer to controvert those statements which are necessary for disposal of the instant Rule and those statements which I do not hereinafter specifically admit shall be deemed to have been denied by the opposite-parties.
03. That the statements made in paragraph No. 1 of the petition is matters of record. In this regard it is submitted that Title Suit No. 12 of 2000 has been filed by the petitioner with a malafide intention to delay the recovery process of the loan availed by the petitioner from the opposite-parties.
04. That the statements made in paragraph No. 2 of the petition is misrepresentation of facts and as such denied by the opposite-parties.
05. That the statement made in paragraph Nos. 3 and 4 of the petition are matters of record.
06. That the statements made in paragraph Nos. 5 and 6 of the petition are baseless, fictitious and frivolous and hence denied by the opposite-parties. In this regard it is submitted that the learned Court below no illegality in directing the parties to maintain status quo until next date.
07. That the statements made in paragraph Nos. 7-9 of the petition are matters of record.
08. That the statements made in paragraph No. 10 of the petition are matters of record. In this regard it is submitted that the copy of the written objection could not be served upon the learned lawyer of the petitioner due to unavailability of the learned lawyer of the petitioner and as such the copy was filed in the Court.
09. That the statements made in paragraph Nos. 11 to 13 of the petition are matters of record. In this regard it is submitted that the written objection was filed in the Court on 30.05.2000 along with the copy. The same was informed to the learned lawyer of the petitioner. As such on 11.06.2000 when the matter was fixed for hearing the ground that copy of the written object was not served was a vague ground for filing application for adjournment of hearing. Therefore, the learned Court below has not committed any error of law in rejecting the said application filed by the petitioner for adjournment of hearing. Hence, the said order dated 11.06.2000 does not result in an error in the decision occasioning failure of justice and as such section 115 of the Code of Civil Procedure is not attracted in the instant case.
10. That the statements made in paragraph No. 14 of the petition are matters of record.
11. That the submissions made in paragraph Nos. 15 to 17 of the petition are misrepresentation of both facts and law and as such denied by the opposite-parties. In this regard it is submitted that the copy of the written objection could not be served upon the learned lawyer of the petitioner due to unavailability of the learned lawyer of the petitioner and as such the copy was filed in the Court on 30.05.2000. It is further submitted that the adjournment of hearing is discretion of the Court and as such the impugned order is not subject to interference by this Hon’ble Court.
12. That the grounds shown in the petition are untenable and as such the Rule is liable to be discharged.
13. That the brief background of the case is as under:-
a) That the petitioner availed Overdraft Facility of Tk. 2,50,00,000.00 only from Uttara Bank Limited, Shatmasjid Road Branch (hereinafter referred to as the “Uttara Bank”) under Head Office Sanction Letter dated 25.01.98 in addition to another Overdraft facility of Tk. 40,00,000.00 only availed by the petitioner as per Sanction Letter dated 05.11.94 and 05.02.95 with interest @14.50% for the purpose of completion of the construction works including earth filling works under eight different Work Orders awarded by the Dhaka Housing Settlement Division-1 and 2 (hereinafter referred to as the “Housing Settlement”) in favour of the petitioner. As per the Sanction Letter, the loan was to be adjusted @ 15% from the running bills under the Work Orders and balance amount, if any, in lump sum within the validity period.
b) That although the Sanction Letter dated 25.01.98 did not mention separately any interest rate, Uttara Bank and the petitioner both agreed that interest will be charged at the rate of 16.50% subject to any change from time to time and as per the said understanding all charge documents (security documents) stipulated payment of interest by the petitioner at the rate of 16.50% per annum. The petitioner agreeing and accepting payment of interest at the rate of 16.50% (with quarterly rest) on the loan amount executed the said security/charge documents. Therefore, the loan amount was repayable with interest at the rate of 16.50%.
c) That the repayment of the loan was secured by, inter alia, hypothecation over the proceeds of an aggregate amount of Tk. 29,33,08,000.00 only receivable against different Work Orders awarded by the Housing Settlement in favour of the petitioner. The petitioner also executed two Irrevocable General Powers of Attorney in favour of Uttara Bank empowering it, inter alia, to collect the bills, money including security money payable to the petitioner by the Housing Settlement against the concerned Work Orders, etc. All the security/charge documents stipulate that the petitioner will pay interest at the rate of 16.50% per annum with quarterly rests.
d) That at the request of the petitioner the validity of the credit facility was extended on two occasions vide Head Office Letter dated 31.01.2000 up to 30.06.2000 and vide Head Office Letter dated 16.10.2000 up to 30.06.2001.
e) That the petitioner availed the credit facility, but from the very beginning he was irregular in repayment of the loan. With a malafide intention to defeat the realisation of the loan by Uttara Bank, the petitioner in violation of the terms and conditions of the Sanction Letter and the Security Documents/Charge Documents was protesting the realisation of interest by Uttara Bank from the running bills. Since Uttara Bank was realising interest, the petitioner on 24.01.2000 filed Title Suit No. 12 of 2000 in the Court of Subordinate Judge, 3rd Court, Dhaka for declaration, inter alia, that Uttara Bank is liable to pay to the petitioner 85% of each running after deduction of 15%.
f) That in the said suit the petitioner filed an application for injunction along with prayer for ad-interim injunction restraining Uttara Bank from deducting more than 15% from each running bill under the Work Orders in question. But the learned Court below vide order dated 25.01.2000 directed the parties to maintain status quo till the next date fixed on 10.02.2000.
g) That challenging the said order dated 25.01.2000 the petitioner filed F. M. A. No. 49 of 2000 in the Hon’ble High Court Division. The petitioner also filed Civil Rule No. 76 (FM) of 2000 and obtained ad-interim order of the Hon’ble High Court Division dated 31.01.2000 modifying the order dated 25.01.2000 passed by the learned Court below in Title Suit No. 12 of 2000 to the extent that the opposite-parties shall be allowed to deduct only 15% of the running bill till the disposal of the application for injunction by the trial Court.
h) That the opposite-parties appeared in the suit and filed written objection against the application for injunction on 30.05.2000. Copy of the written objection could not be served upon the learned lawyer of the petitioner due to unavailability of the learned lawyer of the petitioner and as such the copy was filed in the Court as well.
i) That on 11.06.2000 the learned Court below took up the application for injunction for hearing. But the petitioner filed application for adjournment on the ground that the petitioner did not receive copy of the written objection. Since the copy was filed in the Court on 30.05.2000, the learned Court did not find any sufficient reason for adjournment of hearing and as such rejected the application for adjournment. However, the petitioner filed another application for adjournment on the ground that the petitioner will move the High Court Division. The said application was allowed and the next date was fixed on 13.07.2000.
j) That challenging the order dated 11.06.2000 rejecting the application for adjournment the petitioner filed the instant case whereupon the instant Rule has been issued by the Hon’ble Court.
14. That from the above facts it is clear that the petitioner filed all these cases with the malafide intention to disrupt the realisation process of the loan availed by the petitioner from Uttara Bank. In order to succeed in disrupting the realisation process the petitioner first filed the Title Suit No. 12 and prayed for ad-interim injunction restraining Uttara Bank from realising more than 15% from the running bills received by Utara Bank from the Housing Settlement under the Work Orders whereupon the learned Court directed the parties to maintain status quo until next date. Challenging the said order the petitioner filed F. M. A. No. 49 of 2000 and Civil Rule No. 76 (FM) of 2000 in this Hon’ble Court and obtained ad-interim order on 31.01.2000 modifying the order dated 25.01.2000 passed by the learned Court below in Title Suit No. 12 of 2000 to the extent that the opposite-parties shall be allowed to deduct only 15% of the running bill till the disposal of the application for injunction by the trial Court. The ad-interim order was passed till hearing of the injunction application. The petitioner then with malafide intention filed the instant revisional petition challenging order dated 11.06.2000 rejecting the application for adjournment and on 14.06.2000 obtained Rule and order of stay further proceedings of Title Suit No. 12 of 2000. Thus the petitioner obtained an interim order from this Hon’ble Court till disposal of the injunction application pending in Title Suit No. 12 of 2000 and subsequently succeeded in obtaining another order staying further proceedings of the Title Suit No. 12 of 2000.
15. That the petitioner after obtaining all these orders of the Court devised another mechanism to defeat the realisation process of the loan by Uttara Bank. The petitioner managed to get all cheques issued by the Housing Settlement directly to the petitioner. In such circumstances Uttara Bank had to file Title Suit No. 264 of 2001 in the Subordinate Judge, 2nd Court at Dhaka against the petitioner and others on 11.07.2001. In the said Title Suit No. 264 of 2001 Uttara Bank obtained an ad-interim injunction restraining the petitioner and the Housing Settlement to issue any cheque directly to the petitioner under the Work Orders.
16. That it is further submitted that Uttara Bank is a commercial bank, which receives money as deposits from different depositors against interest and invests/lends the said money in different manners against profit/interest. It is totally inconceivable that Uttara Bank being a commercial bank will lend money without interest while it has to pay huge interest to its depositors. In the instant Uttara Bank lent money to the petitioner against interest. The petitioner is fully aware of the fact that he borrowed money against interest. The Sanction Letter did not mention any interest rate, but all the charge documents executed by the petitioner unequivocally mention interest at the rate of 16.50% per annum with quarterly rests. As such any order restraining the opposite-parties from realising interest will adversely affect the business of the opposite-parties, which has an indirect implication upon the depositors whose money has been received by Uttara Bank as deposits.
17. That under the above circumstance your Lordships may be pleased to discharge the rule and/or pass such further order or orders as the court may deem fit and proper.
18. That the statements of facts made above are true to the best of my knowledge and belief and the rest are submissions before this Hon’ble Court.
|Prepared in my office :||DEPONENT|
|Advocate||The deponent is known to
me and identified by me.
|Solemnly affirmed before me by the aforesaid deponent on this the ____th day of ________________.||ADVOCATE|
|Commissioner of Affidavits
Supreme Court of Bangladesh
High Court Division