Arab Bangladesh Bank Limited -Versus- M/s. Z Brothers

IN THE ARTHA RIN ADALAT, 3RD COURT, DHAKA

ARTHA RIN SUIT NO. OF 2006

Arab Bangladesh Bank Limited

Motijheel Corporate Branch

BSB Bhaban

8, RAJUK Avenue

P.S. Motijheel

Dhaka-1212

PLAINTIFF

-Versus-

1. Mr. X

Proprietor of

M/s. Z Brothers

i) Business Address:

32, Purana Paltan (5th Level)

Dhaka-1000

ii) Residence Address:

Mr. X

Son of _______________________

Flat # B-6, Aziz Cooperative Housing

72, Purana Paltan Lane

Dhaka- 1000

2. Mr. K

Deputy Director

Department of Banking Inspection

Annex Building

Bangladesh Bank

Head Office

Motijheel C/A

Dhaka-1000

ii) Residence Address:

Mr. K

Son of __________________

35/B, Borodia Bari

Mirpur-1

Dhaka

DEFENDANTS

SUIT FOR RECOVERY OF MONEY BY SALE OF MORTGAGED PROPERTY

SUIT VALUED AT TK. 51,03,974.63 (TAKA FIFTY ONE LAC THREE THOUSAND NINE HUNDRED SEVENTY FOUR AND PAISA SIXTY THREE) ONLY INCLUSIVE INTEREST AS ON 30.09.2006.

The plaintiff above-named most respectfully states as

FOLLOWS:

1. That the plaintiff is a banking company incorporated under the relevant Companies Act. It carries on banking business within the territory of Bangladesh through its various branches including the Motijheel Corporate Branch, Dhaka as stated in the cause title (hereinafter referred to as the “plaintiff Bank”).

2. That the defendant No.1 is a businessman by profession and carries on business under the name and style of his Proprietorship concern M/s. Z Brothers and availed the credit facilities as described hereinafter from the plaintiff Bank and executed various charge documents to secure the repayment of the credit facilities. The defendant No.2 is the mortgagor and guarantor, who mortgaged his property as security and give guarantee for the loan availed by the defendant No.1. The defendants’ addresses given in the cause title are correct to the best of the plaintiff Bank’s knowledge.

3. That in the course of business, the plaintiff bank opened a bank account, being No. 499021-000 in the name of proprietorship concern of the defendant No.1, i.e. M/s. Z Brothers. Pursuant to the letter dated 20.08.2000 submitted by the defendant No. 1, the plaintiff bank sanctioned Time Loan of Tk. 20,00,000.00 (Taka twenty lac) only in favour of the defendant No.1 vide Sanctioned Letter No. MJ/CR/SANC/SKS/1375/2000 dated 11.10.2000 with validity up to 30.06.2001 for execution of 03 (three) Work Orders valuing aggregately an amount of Tk. 74 lac only. The said Work Orders were awarded by the Ministry of Education, Government of Bangladesh.

4. That before expiry of the said validity, the defendant No.1 vide letter dated 28.11.2000 requested the plaintiff bank for conversion the Time Loan into Over Facility. As per request, the plaintiff bank vide Sanctioned Letter No. MJ/CR/SANC/SKS/2055/2000 dated 26.12.2000 converted the Time Loan in the following manner keeping the validity of the facilities under Sanction Letter No. MJ/CR/SANC/SKS/1375/2000 dated 11.10.2000 unchanged, i.e. 30.06.2001.

Nature of the facility

Amount

Purpose
Overdraft Tk. 10,00,000.00 To meet working capital.
Tk. 10,00,000.00 To issue Pay Order.

5. That subsequently the plaintiff bank on request of the defendant No.1 renewed the validities of the both Overdraft facilities up to 30.06.2002 and sanctioned Temporary Overdraft facility of Tk. 5,00,000.00 (Taka five lac) onlyvide Sanction Letter No. MJ/CR/SANC/SKS-2070/2001 dated 10.07.2001.

6. That the Overdraft facility (working capital) of Tk. 10,00,000.00 (Taka ten lac) only was enhanced up to Tk. 15,00,000.00 (Taka fifteen lac) only by the plaintiff bank vide Sanction Letter No. MJ/CR/SANC/M-107/2001 dated 19.11.2001 with validity up to 30.06.2002. as per requested of the defendant No.1.

7. That moreover, considering your urgency, our client sanctioned further Temporary Overdraft facility of Tk. 5,00,000.00 (Taka five lac) only vide Sanction Letter No. MJ/CR/SANC/PC-1/90/2002 dated 30.04.2002 with expiry up to 30.06.2002.

8. That thereafter, the plaintiff bank enhanced the Overdraft facility (working capital) of Tk. 15,00,000.00 (Taka fifteen lac) only to Tk. 20,00,000.00 (Taka twenty lac) only and renewed the Overdraft facility (Pay Order) of Tk. 10,00,000.00 (Taka ten lac) only up to 30.06.2003 vide Sanction Letter No. MJ/CR/SANC/PC-2/159/2002 dated 27.07.2002.

9. That being sympathetic on the request of the defendant No.1 made vide letter dated 11.11.2002, the plaintiff bank sanctioned Time Loan of Tk. 2,00,000.00 (Taka two lac) only vide Sanction Letter No. MJ/CR/SANC/PC-1/100/02 dated 01.12.2002 with validity up to 01 (one) month from date of disbursement to meet urgent capital requirement of the defendant No.1.

10. That lastly, on request of the defendant No.1, the plaintiff bank vide Sanction Letter No. MJ/CR/SANC/PC-2/020/2003 dated 01.10.2003 renewed/freshly sanctioned the following facilities in the following manner:

Name of the facility Purpose of the sanction

Amount

Validity
Overdraft (working capital) Renew Tk. 20,00,000.00 30.06.2004
Overdraft

(Pay Order)

Renew Tk. 10,00,000.00 30.06.2004
Time Loan Freshly sanction Tk. 6,00,000.00 30.06.2004

11. That the aforesaid facilities were secured inter alia as follows:

(a) Registered mortgaged of land measuring 43 decimal out of total 53 decimals fully described in the schedule below situated within District Dhaka, P.S. Savar, J.L. No. C.S. 654, S.A.169, R.S. 165, Mouza Mazidpur, C.S. Khatian No.24, S.A. Khatina No.15, R.S. Khatian No.7, Mutation Khatian No.15 (part), C.S. Dag No.50, S.A. Dag No.75, R.S. Dag No.75 (part) along with all rights, titles, benefits, easements, etc. attached to the land vide Deed of Mortgage No. 18124 dated 02.11.2000 supported by Irrevocable General Power of Attorney No. 18125 dated 02.11.2000 with the Sub-Registry Office, Sava. The property stands in the name of the defendant No.2.

(b) Notarised Irrevocable General Power of Attorney empowering Arab Bangladesh Bank Limited, Motijheel Branch Dhaka to receive/collect the bills on behalf of the defendant No.1 and 2;

(c) Assignment of bills receivables against work orders issued by different organizations from time to time in favour of M/s. Z Brothers.

(d) Personal Guarantee executed by Mr. K.

(e) Usual charge documents including but not limited to Promissory Note, Letter of Revival, Letter of Continuity, Letter of Hypothecation.

12. That the defendant No.1 availed the said credit facilities/loan in full but failed to the loan along with interest to the plaintiff bank within the said validity. Despite repeated requests and reminders of the plaintiff bank through various letters including dated 25.07.2005, 31.07.2005, 09.08.2005 and 11.09.2005, the defendant No.1 failed to adjust his loan liabilities with the plaintiff bank. The defendant No.1 neither bothered to adjust the outstanding amount nor took any step towards adjustment of the same.

13. That having no other alternative the plaintiff bank through its learned lawyer served legal notice dated 21.12.2005 upon the defendants requesting them to pay their loan liability amounting to Tk. 45,08,937.66 (Taka forty five lac eight thousand nine hundred thirty and paisa) only as on 30.09.2005 to the plaintiff bank within 15 (fifteen) days from the date of receipt failing which the defendant No.1 and 2 were warned that legal action would be initiated for recovery of the plaintiff bank’s dues. However, the defendant No.1 or 2 none come forward with any response in adjusting the huge outstanding liabilities with the plaintiff Bank.

14. That for compliance with the section-12(3) of the Artha Rin Adalat Ain, 2003 the plaintiff bank the plaintiff bank published Auction Notice in the daily “Prothom Alo” on 30.01.2006 to sell the mortgaged property. But the plaintiff bank failed to sell the mortgaged property since no bidder has participated in the auction. In such situation the plaintiff Bank has no other option but to file the instant suit for recovery of the plaintiff bank’s legitimate dues from the defendants. It is submitted that it is apparent from negative attitude of the defendants that they have been evading to make payment under their loan liability with the plaintiff Bank. The plaintiff bank made repeated reminders to the defendants to liquidate their liability with the plaintiff bank but the defendants continued to fail in repayment of the loan. It is evident from the conduct of the defendants that they have no intention to make repayment of their outstanding liability lying with the plaintiff Bank. The plaintiff Bank states that the defendants are severally and jointly liable to repay the outstanding dues of the defendant No.1 lying with the plaintiff Bank.

15. That outstanding liability of the defendants with the plaintiff bank is Tk. 49,84,397.66 (Taka Forty-nine lac eighty-four thousand three hundred ninety-seven and paisa sixty-six) only as on 30.06.2006, which the defendants are jointly and/or severally legally liable to pay.

16. That the cause of action of file this suit arose on 20.08.2000 when the defendant No.1 applied to the plaintiff bank, on 11.10.2000 when the plaintiff bank sanctioned Time Loan of Tk. 20,00,000.00 (Taka twenty lac) only in favour of the defendant No.1, on 28.11.2000 when the defendant No.1 requested the plaintiff bank for conversion the Time Loan into Overdraft facility, on 26.12.2000 when the plaintiff bank converted the Time Loan into Overdraft facility (work order) of Tk. 10,00,000.00 only and Overdraft facility (Pay Order) of Tk. 10,00,000.00 only, on 10.07.2001 when the plaintiff bank renewed the validities of the both Overdraft facilities and sanctioned Temporary Overdraft facility of Tk. 5,00,000.00 (Taka five lac) only, on 19.11.2001 when the plaintiff bank enhanced Overdraft facility (working capital) of Tk. 10,00,000.00 (Taka ten lac) only up to Tk. 15,00,000.00 (Taka fifteen lac) only, on 30.04.2002 when the plaintiff bank sanctioned Temporary Overdraft facility of Tk. 5,00,000.00 (Taka five lac) only in favour of the defendant No.1, on 27.07.2002 when the plaintiff bank enhanced the Overdraft facility (working capital) of Tk. 15,00,000.00 (Taka fifteen lac) only to Tk. 20,00,000.00 (Taka twenty lac) only and renewed the Overdraft facility (Pay Order) of Tk. 10,00,000.00 (Taka ten lac) only, on 11.11.2002 when defendant No.1 requested the plaintiff bank for credit facility, on 01.12.2002 when the plaintiff bank sanctioned Time Loan of Tk. 2,00,000.00 (Taka two lac) only in favour of the defendant No.1, on 01.10.2003 when the plaintiff bank renewed Overdraft facility (work order) of Tk. 20,00,000.00 only and Overdraft facility (Pay Order) of Tk. 10,00,000.00 only and sanctioned fresh Time Loan of Tk. 6,00,000.00 only, on 01.10.2003 when the defendant No.1 executed various charge documents, on various dates including letters dated 19.11.2000 and 01.10.2003 when the defendant No.1 acknowledge his liability, on various dates including 27.07.2004, 19.10.2004, 07.12.2004 and 31.07.2005 when the plaintiff Bank requested the defendant No.1 to adjust the liabilities, on 21.12.2005 when legal notice was served by the plaintiff Bank upon defendant No.1 and 2, on 30.01.2006 when the plaintiff bank published the Auction Notice under Section-12(3) of Artharin Adalat Ain-2003 for auction sale of the schedule property, on each and every date when the defendants continued to default in repaying their outstanding liabilities with the plaintiff bank and the said cause of action is continuing till date.

17. That the suit is for realisation of a decree for a sum of Tk. 51,03,974.63 (Taka fifty one lac three thousand nine hundred seventy four and paisa sixty three) only inclusive interest as on 30.09.2006, of a commercial Bank and the said Suit is within the jurisdiction of this Court. For the purpose of court fees, the plaintiff Bank values the suit at the said amount and pays the ad-valorem court fees on the said amount.

18. That the authorized representative of the plaintiff bank in the instant suit is Mr. ________________, Senior Principal Officer of the plaintiff bank who is well conversant with the facts of the case and shall be liable to testify on behalf of the plaintiff.

The plaintiff Bank, therefore, prays for:

(a) A decree for a sum of Tk. 51,03,974.63 (Taka fifty one lac three thousand nine hundred seventy four and paisa sixty three) only inclusive interest as on 30.09.2006, in favour of the plaintiff bank and against the defendants jointly and/or severally;

(b) A decree for the sale of the mortgaged properties;

(c) A decree for pendent elite interest at the rate stipulated in the Artha Rin Adalat Ain, 2003 from the date of filing the suit till the date of decree and from the date of decree till realization of the decreetal amount;

(d) A decree for the entire costs of suit;

(e) Any other relief(s) to which the plaintiff Bank is entitled in law and equity.

And for this act of kindness, the plaintiff bank as in duty bound shall ever pray.

SCHEDULE ‘A’

{Schedule under Section 8(2) Ka Artha Ain Adalat Ain 2003}

Description of loan & amount outstanding

Nature of Facility Limit

(in Tk.)

Loan amount disbursed

(in Tk.)

Interest (in Tk.) as on 30.09.2006 Amount repaid as on

30.09.2006

(in Tk.)

Outstanding amount as on

30.09.2006

(in Tk.)

Overdraft (to meet working capital) 20.00 lac 22,41,531.08 10,15,956.20 4,62,039.54 27,95,447.74
Overdraft (to issue pay order) 10.00 lac 11,87,788.85 4,80,954.09 2,72,000.00 13,96,742.94
Time Loan 6.00 lac 6,00,000.00 3,11,786.98 Nil 9,11,786.98
Total 51,03,977.66

SCHEDULE ‘B’

{Schedule under Section 8(2) Ka Artha Ain Adalat Ain 2003}

Description of the mortgaged properties which the plaintiff could not dispose off

All that piece and parcel of land measuring43 decimal out of total 53 decimals fully described in the schedule below situated within District Dhaka, P.S. Savar, J.L. No. C.S. 654, S.A.169, R.S. 165, Mouza Mazidpur, C.S. Khatian No.24, S.A. Khatina No.15, R.S. Khatian No.7, Mutation Khatian No.15 (part), C.S. Dag No.50, S.A. Dag No.75, R.S. Dag No.75 (part).

A F F I D A V I T

I, _____________, son of ____________________, aged about 36 years, by faith Muslim, nationality Bangladeshi by birth, profession service, do hereby solemnly affirm and declare as follows:

1. That I am Senior Principal Officer of the plaintiff bank and well conversant with the facts of the case and competent to swear this affidavit.

2. That the statements of facts made in this application are true to the best of my knowledge and belief and rests are submissions before this Hon’ble Court and in witness whereof I swear this affidavit and signed below on this the 18th day of October, 2006 at _____ a.m. before the Commissioner of Affidavit.

DEPONENT

The deponent is known to me and identified by me.

ADVOCATE