IN THE ARTHA RIN ADALAT, 3rd COURT AT DHAKA
ARTHA RIN SUIT NO. ___ OF 2004
Arab Bangladesh Bank Limited
Gulshan Branch
House No. CWN(A)-3
Road No. 49
Gulshan Model Town
Dhaka 1212
PLAINTIFF
-Versus-
Mr. X
Proprietor of
M/S. X Enterprise
37 Lalit Mohan Das Lane
Pilkhana
Dhaka
And
40, Mokim Katra
2nd (Floor)
Molvi Bazar
Dhaka
2. Mr. Y
Son of Late Z
Vill: Dakkhin Khan
P.S. Uttara,
Dhaka
DEFENDANTS
SUIT FOR RECOVERY OF MONEY BY SALE
OF THE MORTGAGED PROPERTY
SUIT VALUED AT TK. 14,19,361.33
ONLY AS ON_20.08.2004
The plaintiff above-named most respectfully states as
FOLLOWS:
01. 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 Gulshan Branch, Dhaka as stated in the cause title (hereinafter referred to as the “plaintiff bank”).
02. That the defendant No.1 is a businessman by his profession and carries on business under the name and style of his proprietorship concern M/S. XEnterprise and is the borrower. The defendant No. 2 stood as guarantor and also mortgaged his land securing against the loan availed by the defendant No.1.The defendant’s addresses in the cause title are correct to the best of the plaintiff bank’s knowledge.
03. That in the course of business, the defendant No. 1 opened an account being No. 33004562 on 30.04.2001 with the plaintiff bank under the name and style of his proprietorship concern M/S. X Enterprise. Thereupon at the request of the defendant No.1 vide letter dated 24.06.2001, the plaintiff Bank vide Sanction Letter No. AB/GUL/CR/SAN/138/2001, dated 10.07.2001, sanctioned Over Draft facility of Tk. 8.00 Lac to the defendant No. 1 with a validity up to 05.07.2002, which has been duly accepted by the defendant No.1.
04. That consequent upon another request made by the defendant No.1 vide letter dated 04.08.2001, the plaintiff bank enhanced the Overdraft facility from Tk.8.00 lac to Tk.15.00 lac vide its Sanction Letter, being No. AB/GUL/CR/SAN/189/2001 dated 30.10.2001. However the validity of the aforesaid facility remained unchanged.
05. That the defendant No. 1 availed the credit facility in full, but the defendant No.1 failed to adjust the liability within the validity period. Thereupon in response to the plaintiff’s letter dated 02.07.2002, the defendant No. 1 vide letter dated 17.08.2002 acknowledged his liability and at the same time requested the plaintiff to allow him further one year time for adjustment of the entire liability.
06. That whereupon at the request of the defendant No.1, the plaintiff bank vide its Sanction Letter No. AB/GUL/CR-A/059/2003 dated 15.02.2003 converted the defendant No.1’s liability of Tk.14.64 lac, into a ‘Time Loan’ facility with a fresh validity up to 31.01.2004 on condition inter alia that the defendant No.1 shall repay the loan amount in full by 12(twelve) monthly installments of Tk. 1.35 lac each within the aforesaid validity.
07. That the aforesaid all facilities were secured as follow:
a) Registered mortgage of land measuring 21(twenty one) decimals situated at Uttara vide execution of a registered ‘Deed of Mortgage’, being No.9941 dated 23.07.2001, supported by a registered ‘Irrevocable General Power of Attorney’, being No.9942 dated 23.07.2001 to sell the property. The property stands in the name of the defendant No.2. The defendant No. 2 also executed a ‘Deed of Agreement for Further Charge’ dated 13.04.2003 covering the enhanced facility of Tk. 14.64 lac;
b) Hypothecation of stocks of Baby Food, Impress Instant Drink & Diabetic Sweeter and all other goods stored in the business premises of the defendant No. 1 at 40, Mokim Katra (2nd Floor), Moulvi Bazar, Dhaka vide execution of a General Letter of Hypothecation , along with a Supplementary Agreement both dated 13.04.2003. The defendant No. 1 also executed a Notarised Irrevocable General Power of Attorney dated 13.04.2003 to sell the Hypothecated Stocks;
c) Execution of personal guarantees by the defendant Nos. 1 and 2;
d) Execution of usual charge documents, including but not limited to Demand Promissory Note, Letter of Agreement, Letter of Continuity, Letter of Revival etc;
08. That the defendant No. 1 from the very beginning purposely defaulted in making payment under the terms of the sanction letter dated 15.02.2003 and continued defaulting. The validity of the aforesaid facility was expired leaving almost the entire amount unadjusted by the defendant No.1. The plaintiff thereupon from time to time sent series of reminders to the defendant No.1, including the letters dated 23.08.2003 and 01.11.2003, requesting the defendant No.1 to adjust the liabilities, but the defendant No. 1 neither bothered to adjust the outstanding amount nor took any step towards adjustment of the same.
09. That having no other alternative the plaintiff bank served Final Notice dated 28.03.2004 upon the defendant No.1 requesting thereby to adjust its liabilities with the plaintiff bank within 15.04.2004 failing which the defendant No. 1 was warned that legal action would be initiated for recovery of the plaintiff bank’s dues.
10. That it is apparent from negative attitude of the defendant 1 along with other defendants that they have been evading liquidating the long outstanding dues of the defendant No.1 with the plaintiff bank. The plaintiff bank made repeated reminders to the defendant No. 1 to liquidate its liabilities with the plaintiff bank but the defendant No.1 continued to fail paying any attention to the plaintiff bank in this regard.
11. That the plaintiff thereafter in compliance with section 12(3) of the Artha Rin Adalat Ain 2003 and with a view to dispose off the mortgaged property published Auction Notice in ‘The Daily Prothom Alo’, on 01.06.2004 requesting the interested bidder to participate observing the time limit set forth in the said notice but no bidder has participated in the auction.
12. That thereafter the plaintiff Bank cause served Legal Notice through its lawyer dated 01.07.2004 upon the defendants requesting them to adjust their liabilities with the plaintiff bank within 15(fifteen) days of the receipt of the said notice failing which the defendants was warned that legal action would be initiated for recovery of the plaintiff bank’s dues. However, the defendants did not come forward with any further response in adjusting the huge outstanding liabilities with the plaintiff bank.
13. That none of the defendants are serious at all with regard to adjust their outstanding liabilities with the plaintiff bank. It is evident from the conduct of the defendants that they have no intention to make repayment of their entire outstanding liabilities lying with the plaintiff bank.
14. That the plaintiff bank gave the defendants ample time and opportunity to clear the outstanding liabilities of the defendant No. 1 but the defendants are reluctant in this regard. It is abundantly clear that the defendants would not adjust the plaintiff bank’s dues unless compelled by law. The plaintiff bank cannot wait for an indefinite period for the defendants to adjust the outstanding liabilities of the defendant No. 1 lying with the plaintiff bank. The defendants are wilfully resorting to delaying tactics to avoid repayment of the long outstanding dues. Having no alternative the plaintiff bank is compelled to file this suit against the defendants to realize its legitimate dues. 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 the outstanding liability of the defendants is of Tk. 14,19,361.33 (Taka fourteen lac nineteen thousand three hundred sixty one and Paisa thirty three) only as on 20.08.2004, which the defendants are jointly and/or severally legally liable to pay:
16. That the cause of action to file this suit arose on 30.04.2001 when the defendant No. 1 opened account with the plaintiff bank, on 10.07.2001 when the plaintiff bank sanctioned over draft facility to the defendant No. 1, on 23.07.2001 when the defendant No. 2 mortgaged his properties in favour of the plaintiff bank, on 13.04.2003 when the defendant No. 1 hypothecated its stocks of Baby Food, Impress Instant Drink & Diabetic Sweeter with the plaintiff bank, on the various dates when the defendant Nos. 1 & 2 executed personal guarantees, on the various dates when the defendant No. 1 executed various charge documents, on 30.10.2001 when the plaintiff bank enhanced the over draft facility, on 15.02.2003 when the plaintiff approved conversion of the over draft liability into time loan facility on the various dates including 23.08.2003 and 01.11.2003 when the plaintiff bank requested the defendant No. 1 to adjust the liability, on various dates including letter dated 17.08.2002 when the defendant No. 1 acknowledged his liability, on 28.03.2004 when final notice was served by the plaintiff, on 01.06.2004 when the plaintiff published the ‘Auction Notice’, on 01.07.2004 when the legal notice was served by the plaintiff, on each and every date when the defendants continued to default in repaying their outstanding liabilities with the plaintiff and the said cause of action is continuing till date.
17. Thatthe suit is for realisation of a decree for a sum of Tk. 14,19,361.33 (Taka fourteen lac nineteen thousand three hundred sixty one and Paisa thirty three) only as on 20.08.2004, 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 A, 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. 14,19,361.33 (Taka fourteen lac nineteen thousand three hundred sixty one and Paisa thirty three) only as on 20.08.2004 in favour of the plaintiff bank and against the defendants jointly and/or severally;
(b) A decree for the sale of the mortgaged and hypothecated properties;
(c) A decree for interest from 21.08.2004 till the date of filing the instant suit @ 15% per annum and pendente lite 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 decretal amount;
(d) A personal decree against all the defendants;
(e) A decree for the entire costs of the Suit;
(f) 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 Rin Adalat Ain 2003}
Description of Loan & amount outstanding
| Nature of Facility | Limit
(in Tk.) |
Loan amount availed (in Tk.) | Interest
(in Tk.) |
Others/Excise Duty | Sub-total
(Principal + Interest + Others (in Tk.) |
Amount repaid as on
20.08.2004 (in Tk.) |
Outstanding amount as on
20.08.2004 (in Tk.) |
| Time Loan | 14,64000.00 | 14,64,000.00 | 2,73,811.33 | 550.00 | 17,38,361.33 | 3,19,000.00 | 14,19,361.33 |
| Total | 14,19,361.33 | ||||||
SCHEDULE ‘B’
{Schedule under section 8(2) Kha Artha Rin Adalat Ain 2003}
Description of the mortgaged properties which the plaintiff could not dispose off
a) All that piece and parcel of land measuring 21 decimals situated within District: Dhaka, P.S. Uttara, Sub-Registry office Gulshan , under Dhaka collectorate, Touzi No. 1235, Mouza:Dakkhin Khan, J.L. No. C.S-193,R.S-17, S.A-34, C.S. Khatian No-431, S.A. Khatian No-720,R.S.Khatian No-1318,Mutation Khatian No. 720/1,C.S & S.A. Dag No-2273, R.S. Dag No-4418 butted and bounded by:
On the North-Azimuddin
On the East-Romizuddin Fakir
On the South & West-Jote of Mr. Y
along with all structure(s) and building constructed and/or to be constructed thereon together with all rights, easements, interests etc., attached to the said property.
b) Hypothecation of stocks of Baby Food, Impress Instant Drink & Diabetic Sweeter and all other goods stored in the business premises at 40, Mokim Katra (2nd Floor), Moulvi Bazar, Dhaka.
A F F I D A V I T
I, A, son of Late B of Arab Bangladesh Bank Limited, Gulshan Branch having address at House No. CWN(A)-3, Road No. 49, Gulshan Model Town, Dhaka 1212, aged about 30 years, by faith Muslim, Nationality Bangladeshi by birth, profession service, do hereby solemnly affirm and declare as follows:
1. That I am the officer of the plaintiff bank of this plaint 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 ______day of___________, 2004 at _________ a.m. before the Commissioner of affidavit.
| DEPONENT | |
| The deponent is known to me and
identified by me. |
|
| ADVOCATE |