X Apparels Limited -Versus- K International Limited and others

IN THE COURT OF 1st JOINT DISTRICT JUDGE, DHAKA

TITLE SUIT NO: __________ OF _____

                                                                                     X Apparels Limited

PLAINTIFF

-Versus-

   K International Limited and others

     DEFENDANTS

WRITTEN STATEMENT ON BEHALF OF DEFENDANT NOS. 4 AND 5:

  1. That the suit filed by the X Apparels Ltd. (“the plaintiff”) is not maintainable in    its present form and nature.
  1. That there is no cause of action to file the suit against the defendant Nos. 4 and 5 (hereinafter referred to as “the defendant”) and as such the suit should be dismissed with costs.
  1. That the suit has been filed in malafide intention to make illegal gain from the defendant. Since the suit has been filed with malafide motive, the suit is liable to be dismissed.
  1. That the suit is barred by the principles of waiver, acquiescence and estoppel.
  1. That the suit is framed on wrong conception of law and facts.
  1. That the suit is bad for non-joinder and mis-joinder of parties.
  1. 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.
  1. That the statements made in the suit which are not specifically admitted hereinafter shall be deemed to have been denied by the defendant.
  1. That the statements made in paragraphs 1 to 3 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.
  1. That it is submitted that defendant no. 4 is incorporated in Hongkong under the relevant laws and that defendant no. 5 is the local office for the purpose of carrying on banking business on behalf of defendant no. 4 in Bangladesh, which is properly incorporated under the relevant laws of Bangladesh. The last sentence of the paragraph no. 4 of the plaintPlaint is mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.
  1. That the statements made in paragraph no. 5 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.
  1. That the first two sentence of the paragraph no. 6 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments. It is submitted that the defendant no. 1 was the beneficiary of a Letter of Credit/Documentary Credit (LC/DC), opened by Bankshaus Lampe KG, Hamburg, Germany on 21.09.2006. The defendant no. 1 (transferor) was the customer of the defendant and requested the transfer of it. According to the request, the defendant no. 4 transferred the LC to the plaintiff (Transferee) on 29.09.2006 on terms and condition that, payment would only be made by the defendant no. 4 if they receive payment from Bankshaus Lampe KG (The issuer of LC). The transfer DC number is HIA500249-1HK6 and transfer DC amount was USD 80,000 i.e. the first beneficiary of the DC was defendant no. 1 and the second beneficiary was plaintiff. The last sentence of the paragraph no. 6 of the plaint is mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.
  1. That the statements made in paragraph 7 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.
  1. That the statements made in paragraph no.8 are partly admitted and partly denied. It is denied that the defendant issued any letter of credit. The letter of credit was originally issued by the Bankshaus Lampe KG; the Number of Master Documentary Credit (DC) HIA500249 on 06.09.2006. It is mentioned in the paragraph no. 12 of this written statement that the defendant no. 4 transferred the letter of credit on the request of defendant no. 1 to the plaintiff on 29.09.2006, not on 21.09.2006 as alleged by the plaintiff, on the paragraph no. 8 of the plaint. It is admitted that the Letter of Credit was sent to Export Import Bank of Bangladesh Limited on 29.09.2006 (Bank dealing with transferee) i.e. on the 27.09.2006 the LC was amended, in fact, the amount was increased to USD 81,280 from original USD 80.000, as requested by the defendant no. 1.
  1.  That the defendant neither added their own payment undertaking nor undertaken any responsibility or engagement on the LC i.e. according to the additional condition no. 3 on LC the transferred letter of credit remained payable at sight at the issuing Bank (Bankshaus Lampe KG) in Hamburg only. The last paragraph of the transferred LC also states that the defendant does not have any responsibility and that the letter of credit is only payable at the counters of the issuing bank on their receipt of conforming documents.
  1. That the Paragraph no. 9 of the plaint is mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.
  1. That the defendant no. 1 requested to amend the latest date of shipment to 25.12.2006 and expiry date to 08.01.2007 by their application for amendment to DC on 16.12.2006, which was received by the defendant in a while. The amendment was made on 27.12.2006. It is humbly submitted that the last date for shipment being 15.12.2006 was already expired, hence that amendment was pointless. Furthermore, unless corresponding amendments had been made to the LC issued by Bankhaus Lampe, amendments to the transferred LC would have been valueless.
  1. That the Paragraph nos. 10 to 17 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.
  1. That the defendant denied that they were under any obligation to reject or accept the documents received from proforma defendant no. 8 on 01.02.2007 as stated in the paragraph no. 18 of the plaint. The defendant sent acknowledgement to proforma defendant no. 8 on the same day and informed them that the documents they sent did not match the document on their collection schedule. The defendant was waiting for reply from the proforma defendant no 8. On 07.02.2007 the defendants received cable from proforma defendant no. 8 stating they have referred the matter to the plaintiff taking up the issue with credit applicant and shall revert back to the defendant soon. The proforma defendant no. 8 also requested the defendant to approach Credit Applicant for their waiver of the discrepancies mentioned in the defendant’s message and to arrange remit funds to them.  It is denied that plaintiff is entitled to the payment under the transferred L.C. from defendant no. 4. That swift message did not purport to be a notice of rejection or advice of discrepancies. The defendant did not waive any discrepancies.  It is not the defendant’s role to raise any discrepancies. The defendant duly sent the said documents to Bankhaus Lampe as per request of proforma defendant no 8.  The issuing bank rejected the documents on 16.02.2007 and advised the discrepancies of late shipment, late presentation and one document issued by the beneficiary instead of applicant.
  1. That the defendant had not undertaken any payment obligation, per the terms of  the transferred LC “ Notwithstanding article 14 of UCP 500, in the event that documents are presented to us with discrepancies and unless expressly advised by you to the contrary, we will forward documents to the DC issuing bank for approval and payment”. The defendant received the documents on the 01.02.2007 through proforma defendant no. 8. The defendant sent acknowledge on the same day and informed them about the discrepancy and request them to clarify the plaintiff position.  The defendant did not do any act or took any action which violates the provisions of Uniform Customs and Practice for Documentary Credit 500 (UCPDC 500) as alleged in the paragraph no. 18 of the plaint. It is humbly submitted that that, paragraph no. 18 of the plaint is full of contradiction, misinterpretation and false allegation. Therefore the defendants deny it.
  1. That the statements made in paragraph nos. 19 to 20 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.
  1. That it is denied that the defendant is equally liable for making the payment to the plaintiff under the said LC as the LC was never issued by the defendant. The defendant no. 5 was never involved with the said LC in any stage of the transaction.
  1. That the statements made in paragraph nos. 22 to 25 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.
  1.  That it is denied that the defendant made any representation to the plaintiff other then set out in the transferred LC, therefore, it is denied that defendant is liable to plaintiff as stated in the paragraph nos. 26 and 27 of the plaint.
  1. That the statements made in paragraph no. 28 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.
  1. That it is denied that the defendant raised any discrepancies on 03.02.2007 as stated in the paragraph no. 29 of the plaint. It is submitted that the defendant simply passed the discrepancies raised by the issuing bank on 16.02.2007.
  1. That the real fact is that the LC/DC was never issued by the defendant. It was originally issued by the Bankhaus Lampe KG, Hamburg, Germany on 21.09.2006. The defendant was requested by the defendant no. 1 to transfer the LC to the plaintiff, which they did on 29.09.2006, under the terms that the payment would only be made if the defendant receives payment from the issuing bank. It is humbly submitted that the defendant neither added their own payment undertaking nor undertook any responsibility or engagement i.e. according to the additional conditions no. 3 on LC the transferred letter of credit remained payable at sight at the issuing Bank (Bankshaus Lampe KG) in Hamburg only.
  1. That the disputed matter is the matter between the defendant no.1 and the plaintiff and they are obliged to settle themselves without involving the defendant.
  1. That the defendant only transferred the LC/DC under the conditions that they would only pay the plaintiff if they receive payment from the issuing bank. Therefore, it was the plaintiff’s responsibility to present the appropriate and proper documents (as mentioned in the LC/DC) in due course and on time to the issuing bank which they have failed to do. They were informed by the defendant about discrepancies in their documents. They were reluctant to take necessary action promptly. Moreover, it was never defendant’s liability to pay the plaintiff. The defendant made it clear in the LC/DC that they will present the documents to the issuing bank. The defendant denies any liability to pay the plaintiff. So the suit filed by the plaintiff is liable to be rejected.

 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 defendant.

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

VERIFICATION

That the statements made above are true to our knowledge and matters of record, whereof, we put our signature on this the____ day of ___________, ___________