Dr. X. verses National Bank Ltd.

IN THE COURT OF JOINT DISTRICT JUDGE, 2ND COURT, DHAKA

TITLE SUIT NO. _____OF _____

Dr. X

PLAINTIFF

-Versus-

Manager, National Bank Ltd., Motijheel Branch & others

DEFENDANTS

WRITTEN STATEMENT ON BEHALF OF DEFENDANT NOS. 1 & 2:

02. That the Suit filed by the Plaintiff is not maintainable in its present form and nature.

03. That there is no cause of action to file the Suit against the Defendant Nos. 1 and 2 (the “Defendants”) as such the Suit should be dismissed with costs.

04. That the Suit has been filed with mala fide intention to make illegal gain from the defendants. Since the Suit has been filed with mala fide motive, the Suit is liable to be dismissed.

05. That the Suit is barred by the principles of waiver, acquiescence and estoppel.

06. That the suit is framed on wrong conception of law and facts.

07. That the Suit is bad for non-joinder and mis-joinder of parties.

08. That the Suit is not maintainable as it did not comply with the legal formalities preceding the filing of a Suit. The Suit is liable to be dismissed summarily on the face of the plaint as the Plaintiff filed the said Suit without any cause of action.

09. That the statements made in the Suit which are not specifically admitted hereinafter shall be deemed to have been denied by the Defendants.

10. That the statements made in paragraph Nos. 1, 2 & 3 of the Plaint are a matter of record hence calls for no comments.

11. That the statements made in paragraph Nos. 4, 5 & 6 of the Plaint are also a matter of record. The burden of proving the statements lies strictly upon the Plaintiff and therefore, the Defendants refrain from making any comments.

12. That the statements made in paragraph No. 7, 8 & 9 are false, incorrect, misleading and misconstrued. In this regard it is submitted that the Plaintiff is brother-in-law of Defendant No. 3 and they have excellent relation with each other. As such they help each other by providing financial and social support in their respective business. On application of Defendant No.3, the Defendant No. 1 issued different Letters of Credit (the “L/C”) with margin of some percentage within Branch delegation in favour of importer of Defendant No. 3 from time to time and the said L/Cs were availed and all L/C amount were adjusted. At the request of Defendant No. 3, lastly on 05.03.2006 the Defendant No. 1 again issued a L/C being No. 094906010016 for USD 40,000.00 only for import rice, wheat in favour of exporter of Defendant No. 3. In order to convert the said L/C dated 05.03.2006 into Revolving L/C Limit for certain period against the security inter alia, mortgage of land, personal guarantee and usual charge documents, the Defendant No. 1 issued Sanction Letter No. NUA/NBL/HMT/MZ/06-01 dated 21.05.2006 (the “Sanction Letter”). The Defendant No. 3 accepted the said Sanction Letter and agreed with the terms and conditions stated therein till the issuance of Sanction Letter dated 21.05.2006, the Defendant No. 1 has not accorded L/C amount under the said L/C dated 05.03.2006 to any exporter of the Defendant No. 3. Thereafter as security of the said L/C facility under Sanction Letter dated 21.05.2006 the Plaintiff knowingly and willingly, inter alia, has mortgaged his land vide Deed of Mortgage No. 11694 dated 01.06.2006, executed personal guarantee dated 25.06.2006 in favour of Defendant No. 1 and Defendant No. 3 has executed usual charge documents all dated 25.06.2006 in favour of Defendant No. 1. After importing rice and wheat by the Defendant No. 3 against the said L/C, the L/C documents were sent to Defendant No. 1. Upon receiving the L/C document, the Defendant No. 1 informed the Defendant No. 3 and requested him to make payment against the L/C, but he did not make any payment against the said L/C. Then as per UCPDC-500 the defendant No. 1 is bound to make payment to the exporter against the L/C. The Defendant No. 1 make payment of Tk. 28,12,000.00 (Taka twenty eight lac twelve thousand) only to the Exporter upon creating PAD Loan of Tk. 28,12,000.00 (Taka twenty eight lac twelve thousand) only on 25.06.2006. Since the Plaintiff mortgaged his land and executed Personal Guarantee, he is liable for the said PAD Loan (the “Loan”) and there is no scope of relieving the Plaintiff from his obligation as mortgagor and guarantor against the said loan and the mortgaged property cannot be redeemed unless full adjustment of liability of Defendant No. 1.

13. That with regard to the statement made in paragraph No. 10 of the Plaint are partly false and partly matter of record. In this regard it is submitted that the Plaintiff has intentionally started hypocrisy to evade from his obligation and trying to create a new case so that he can mislead the Court.

14. That in reply to the statements as made in paragraph No. 11 & 12 of the Plaint are partly false, fabricated and misconceived and party matter of record, hence the Defendants denied the same. In this regard it is submitted that since the Plaintiff mortgaged his land as security of loan of Defendant No. 1, before adjustment of loan and then redemption of mortgage, the mortgagor cannot request the mortgagee to return mortgage deed and property documents.

15. That with regard to the statement made in paragraph No. 13 of the Plaint are matter of record. In this regard it is submitted that it is immaterial and needless to send a letter or legal notice illegally to the Defendant No. 1.

16. That the statements made in paragraph No. 14 of the Plaint are incorrect and misleading. The Defendants through their learned Advocate gave a reply on 14.02.2007 to the legal notice sent earlier by the Plaintiff. In that reply the Defendants categorically denied all the incorrect and illegal claims of the Plaintiff.

17. That the statements made in paragraph No. 15-18 of the Plaint are incorrect, misleading and misconstrued and are denied by the Defendants.

18. The real facts are as follows:

(a) The Plaintiff is brother-in-law of Defendant No. 3 and they have excellent relation with each other. As such they help each other by providing financial and social support in their respective business. On application of Defendant No.3, the Defendant No. 1 issued different Letters of Credit (the “L/C”) with margin of some percentage within Branch delegation in favour of importer of Defendant No. 3 from time to time and the said L/Cs were availed and all L/C amount were adjusted. At the request of Defendant No. 3, lastly on 05.03.2006 the Defendant No. 1 again issued a L/C being No. 094906010016 for USD 40,000.00 only for import rice, wheat in favour of exporter of Defendant No. 3. In order to convert the said L/C dated 05.03.2006 into Revolving L/C Limit for certain period against the security inter alia, mortgage of land, personal guarantee and usual charge documents, the Defendant No. 1 issued Sanction Letter No. NUA/NBL/HMT/MZ/06-01 dated 21.05.2006 (the “Sanction Letter”). The Defendant No. 3 accepted the said Sanction Letter and agreed with the terms and conditions stated therein till the issuance of Sanction Letter dated 21.05.2006, the Defendant No. 1 has not accorded L/C amount under the said L/C dated 05.03.2006 to any exporter of the Defendant No. 3. Thereafter as security of the said L/C facility under Sanction Letter dated 21.05.2006 the Plaintiff knowingly and willingly, inter alia, has mortgaged his land vide Deed of Mortgage No. 11694 dated 01.06.2006, executed personal guarantee dated 25.06.2006 in favour of Defendant No. 1 and Defendant No. 3 has executed usual charge documents all dated 25.06.2006 in favour of Defendant No. 1. After importing rice and wheat by the Defendant No. 3 against the said L/C, the L/C documents were sent to Defendant No. 1. Upon receiving the L/C document, the Defendant No. 1 informed the Defendant No. 3 and requested him to make payment against the L/C, but he did not make any payment against the said L/C. Then as per UCPDC-500 the defendant No. 1 is bound to make payment to the exporter against the L/C. The Defendant No. 1 make payment of Tk. 28,12,000.00 (Taka twenty eight lac twelve thousand) only to the Exporter upon creating PAD Loan of Tk. 28,12,000.00 (Taka twenty eight lac twelve thousand) only on 25.06.2006. Since the Plaintiff mortgaged his land and executed Personal Guarantee, he is liable for the said PAD Loan (the “Loan”) and there is no scope of relieving the Plaintiff from his obligation as mortgagor and guarantor against the said loan and the mortgaged property cannot be redeemed unless full adjustment of liability of Defendant No. 1.

(b) That in this regard it is submitted that the Plaintiff has intentionally started hypocrisy to evade from his obligation and trying to create a new case so that he can mislead the Court.

(c) That the Plaintiff mortgaged his land as security of loan of Defendant No. 1, before adjustment of loan and then redemption of mortgage, the mortgagor cannot request the mortgagee to return mortgage deed and property documents.

(d) That the Defendants through their learned Advocate gave a reply on 14.02.2007 to the legal notice sent earlier by the Plaintiff. In that reply the Defendants categorically denied all the incorrect and illegal claims of the Plaintiff.

(e) That the Plaintiff created all the charge documents on various dates with his full knowledge. The Defendants published the alleged Auction Notice on 27.04.2007 in the Daily Jugantor as per the provisions and right lies in Section 12 of the Artha Rin Adalat Ain, 2003.

(f) That the Defendants are neither wasting, damaging or wrongfully alienating or selling any property in disputing in this suit nor committing any breach of contract.

Wherefore, it is humbly prayed that your Honour would graciously be pleased to dismiss the Suit filed by the Plaintiff with compensatory costs in favour of the Defendants.

And for this act of kindness the defendant as in duty bound shall ever pray.

 AFFIDAVIT

I, _______________________, son of _________________, aged about ____ years, National Bank, Motijheel Branch, 3, Rajuk Avenue, Motijheel Commercial Area, Dhaka-1000, by occupation Service, by faith ___________, Nationally Bangladeshi by birth, do hereby solemnly affirm and say as follows:

1) That I am an officer of the Defendants and fully acquainted with the facts and circumstances of the case and competent to swear this Affidavit.

2) That the statements made above are true to my knowledge and belief and the rest are submission before the Hon’ble Court.

DEPONENT

The deponent is known to me and identified by me.

ADVOCATE