IN THE ARTHA RIN ADAL AT NARAYANGONJ
ARTHA RIN SUIT NO. ___ OF 2006
Arab Bangladesh Bank Limited
Pagla Branch
Alhaz Afsar Karim Bhaban
(1st Floor), D.N. Road Pagla
Fatullah
Narayangonj
PLAINTIFF
-Versus-
1. Mr. X
Proprietor of
M/S. Sadarpur Steel House
Zaman & Brothers Market
D.N. Road Pagla
Fatullah, Narayangonj
And
Mr. X
S/O. Late A
119/5-A, Distillary Road
Gandaria, Sutrapur
Dhaka
2. Mrs. Y
W/O. Late A
119/5-A, Distillary Road
Gandaria, Sutrapur
Dhaka
3. Ms. Z
D/O. Late A
119/5-A, Distillary Road
Gandaria, Sutrapur
Dhaka
4. Ms. K
D/O. Late A
119/5-A, Distillary Road
Gandaria, Sutrapur
Dhaka
5. Ms. Q
D/O. Late A
119/5-A, Distillary Road
Gandaria, Sutrapur
Dhaka
6. Ms. M
D/O. Late A
119/5-A, Distillary Road
Gandaria, Sutrapur
Dhaka
7. Md. N
S/O. Late A
119/5-A, Distillary Road
Gandaria, Sutrapur
Dhaka
8. Md. O
S/O. Late A
119/5-A, Distillary Road
Gandaria, Sutrapur
Dhaka
9. Md. P
S/O. Late A
119/5-A, Distillary Road
Gandaria, Sutrapur
Dhaka
DEFENDANTS
SUIT FOR RECOVERY OF MONEY BY SALE OF THE MORTGAGED PROPERTIES SUIT VALUED AT TK. ___________________ (TAKA ___________________________________) ONLY AS ON___________
The plaintiff above-named most respectfully states as
FOLLOWS:
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 Pagla Branch, Narayangonj as stated in the cause title (hereinafter referred to as the “plaintiff bank”).
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. Sadarpur Steel House and is the borrower. It carries on _______________________________________________________________ business and availed the credit facilities as described hereinafter from the plaintiff bank and executed various charge documents securing the repayment of the credit facilities. The defendant Nos. 1-9 furnished personal guarantees and mortgaged their properties mentioned in the schedule below in favour of the plaintiff bank against the loan availed by the defendant No.1. The defendants’ addresses in the cause title are correct to the best of the plaintiff bank’s knowledge.
That in the course of business, the defendant No. 1 opened an account being No. 33000911 on 09.09.1999 with the plaintiff bank under the name and style of his proprietorship concern M/S. Sadarpur Steel House. Thereafter at the request of the defendant No. 1 made through various letters from time to time the plaintiff bank sanctioned various credit facilities i.e. Overdraft facility, Time Loan facility Bank Guarantee facility by different sanction letters to the defendant No. 1. A brief account of the credit facilities allowed to the defendant No. 1 is as follows:
| Date of Application/Request letter | Date of Sanction | Type of facilities | Sanction Limit | Date of Expiry |
| ABBL/PAG/CR-141/2000 dated 29.02.2000. | Overdraft | 30.00 lac | 22.02.2001 | |
| ABBL/PAG/CR/TIME LOAN/1521/2003 dated 24.11.2003 | Time Loan | 50.00 lac | 06.04.2004. | |
| Bank Guarantee favouring Cemex Cement Bangladesh Limited | _______ lac | |||
| Bank Guarantee favouring Cemex Cement Bangladesh Limited | _______lac |
| Date of Application/Request letter | Date of Sanction | Type of facilities | Sanction Limit | Date of Expiry |
| Bank Guarantee favouring Heidelberg Cement Bangladesh Limited | _______ lac | |||
| Bank Guarantee favouring Holcim Bangladesh Limited | ________ lac |
Thereafter at the request of the defendant No. 1 the plaintiff bank initially sanctioned an overdraft limit of Tk. 30.00 lac (Taka thirty lac) only in favour of the defendant No. 1 vide sanction letter No. ABBL/PAG/CR-141/2000 dated 29.02.2000. The said overdraft facility was renewed and enhanced on the following mode:
| Facility | Sanction letter | Re-fixation of Amount | Sanction Amount | Validity | |
| From | To | ||||
| Overdraft | ABBL/PAG/CR/254/2001
Dated: 25.03.2001 |
Tk. 30.00 Lac | Tk. 50.00 Lac | Tk.
50.00 Lac |
22.02.2002 |
| Overdraft | ABBL/PAG/712/2002
Dated: 11.06.2002 |
Tk.
50.00 Lac |
Tk.
110.00 Lac |
Tk.
110.00 Lac |
30.04.2003 |
| Overdraft | ABBL/PAG/CR/451/2003Dated: 30.03.2003 | Tk.
110.00 Lac |
Tk.
110.00 Lac |
Tk.
110.00 Lac |
30.04.2004 |
| Overdraft | ABBL/PAG/CR/1547/2004
Dated: 23.11.2004 |
Tk.
110.00 Lac |
Tk.
110.00 Lac |
Tk.
110.00 Lac |
30.04.2005 |
That on other hand at the request of the defendant No. 1 the plaintiff bank sanctioned a Time Loan facility of Tk. 50.00 lac in favour of the defendant No. 1 vide sanction letter No. ABBL/PAG/CR/TIME LOAN/1521/2003 dated 24.11.2003 with a validity up to 06.04.2004. The defendant No. 1 availed the said facility in full but failed to adjust the liabilities within the validity period. Thereupon, at the request of the defendant No. 1 the plaintiff bank on 23.11.2004 vide its sanction letter No. ABBL/PAG/CR/TIME LOAN/1547/2004 extended the validity of the said facility up to 30.04.2005. Under the terms and conditions of the sanction letter dated 23.11.2004, the defendant No. 1 was under an obligation to repay the Time Loan amount in full within the validity. However, the said renewed period was also expired and the defendant No. 1 miserably failed to adjust the outstanding amount within the said renewed period.
That it is submitted that the defendant No. 1 time to time took supply of cement from the ‘Cemex Cement Bangladesh Limited, Heidelberg Cement Bangladesh Limited and Holcim Cement Bangladesh Limited’ [hereinafter referred to as ‘the beneficiaries’] on the credit basis. As security of payment of outstanding dues against the supply of cement, the plaintiff bank at the request of the defendant No. 1 issued following ________ ‘Bank Guarantees’ in favour of the Beneficiaries.
· Bank Guarantee No. _____________ dated __________ for Tk. _________________ (Taka ___________________) only in favour of the ________________________________;
· Bank Guarantee No. _____________ dated __________ for Tk. _________________ (Taka ___________________) only in favour of the ________________________________;
· Bank Guarantee No. _____________ dated __________ for Tk. _________________ (Taka ___________________) only in favour of the ________________________________;
· Bank Guarantee No. _____________ dated __________ for Tk. _________________ (Taka ___________________) only in favour of the ________________________________;
07. That in another deal at the request of the defendant No. 1, the plaintiff bank ioned an made through various letters from time to time the plaintiff Bank sanctioned various credit facilities by different sanction letters to the defendant No. 1. At the request of the defendant No. 1 the said credit facilities were renewed and enhanced from time to time. Thereupon at the request of the defendant No.1 plaintiff bank sanctioned Overdraft facility of Tk. 2.22 lac (Taka two lac twenty two thousand) only in favour of the defendant No. 1 to meet working capital requirements of the defendant No. 1. Subsequently the Overdraft facility was enhanced up to Tk. 11,00,000.00 (Taka eleven lac) only vide Sanction Letter No. KB/S-LTR1/PC1-1658/98 dated 17.09.1998 with a validity up to 03.03.1999, which has been duly accepted by the defendant No.1.
That consequent upon another request made by the defendant No.1 vide letter dated 09.05.1999, the plaintiff bank further enhanced the Overdraft facility from Tk. 11.00 lac to Tk. 15.00 lac with a validity up to 30.03.2000.
That thereafter at further requests from time to time made by the defendant No. 1, the plaintiff bank sanctioned, renewed, enhanced/re-fixed the following Overdraft facilities as follows:
| Facilities | Sanction letter | Re-fixation of Amount | Sanction Amount | Validity | |
| From | To | ||||
| Overdraft | KB/S-ADVICE/PC3-2524/99
Dated: 27.12.1999 |
Tk. 15.00 Lac | Tk. 20.00 Lac | Tk.
20.00 Lac |
30.03.2000 |
| Overdraft | KB/S-ADV/PC4-052/2000
Dated: 06.01.2000 |
Tk.
20.00 Lac |
Tk.
20.00 Lac |
Tk.
20.00 Lac |
30.03.2001 |
| Overdraft | KB/S-ADV/PC4-1158/2000
Dated: 19.06.2000 |
Tk.
20.00 Lac |
Tk.
12.00 Lac |
Tk.
12.00 Lac |
30.03.2001 |
| Overdraft | KB/S-ADV/PC4-2100/2000
Dated: 19.10.2000 |
Tk.
12.00 Lac |
Tk.
22.00 Lac |
Tk.
22.00 Lac |
30.03.2001 |
| Overdraft | KB/S-ADV/PC3-659/01
Dated: 17.02.2001 |
Tk.
22.00 Lac |
Tk.
50.00 Lac |
Tk
50.00 Lac |
10.02.2002 |
| Overdraft | KB/S-LTRI/T-2223/2002
Dated: 09.09.2002 |
Tk.
50.00 Lac |
Tk.
90.00 Lac |
Tk.
90.00 Lac |
31.08.2003 |
That the aforesaid all facilities were secured as follow:
a) Registered mortgage of land measuring 2.5 (two point five) kathas situated within District-Dhaka, P.S. Pallabi, Mouza:Senpara Parbata, J.L. No. 220 under Khatian No. 288 (Sabek), 321 (Hal), R.S. Khatian No. 3921, Plot No. 19 vide execution of a registered ‘Deed of Mortgage’, being No.5923 dated 11.10.1999. The property stands in the name of the defendant No.1;
b) Registered mortgage of land measuring 300 (three hundred) square yards situated within District-Dhaka, P.S. Previously Tejgaon, now Mohammadpur, Sub-Registry Office-Mohammadpur, Mouza-Previously Barabo, now Mohammadpur Residential Housing Area, Plot No. 11/1, Block-C, along with a four storied modern building vide execution of a registered ‘Deed of Mortgage’, being No. 935 dated 12.03.2001;
c) Hypothecation of different garments items stored in the godown at 27/2, Pallobi, Mirpur, Dhaka vide execution of a General Letter of Hypothecation, along with a Supplementary Agreement both dated 14.03.2001;
d) Execution of personal guarantees by the defendant Nos. 1 and 2;
e) Execution of usual charge documents, including but not limited to Demand Promissory Note, Letter of Agreement, Letter of Continuity, Letter of Revival etc.
That the defendant No. 1 purposely defaulted in making payment under the terms of the aforesaid sanction letters 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 08.06.2004, 27.06.2004, 05.12.2004 and 20.12.2004, requesting the defendants to adjust the liabilities, but the defendants neither bothered to adjust the outstanding amount nor took any step towards adjustment of the same.
That meanwhile being displeased with the reluctance of the defendant No.1 in liquidating the over dues, the plaintiff bank through their lawyer has cause served legal notice dated 30.03.2004 upon the defendants requesting to adjust their liabilities with the plaintiff bank within 15 (fifteen) days of the receipt of the said notice, with a note that failing which legal action would be initiated for recovery of the plaintiff bank’s dues.
That the defendant Nos. 1 & 2 instead of adjusting their liabilities with the plaintiff bank vide their letters dated 13.04.2004 committed to adjust the outstanding liabilities within a short period, but of no avail.
That it is apparent from negative attitude of the defendants that they have been evading liquidating the long outstanding dues of the defendant No.1 with the plaintiff bank in breach of his obligation under the terms and conditions of the Sanction Letter. 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.
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.
That so far the sale of the mortgaged properties is concerned, no power of attorney was executed in favour of the plaintiff and as such the registered property could not be disposed off before filing of the instant suit.
That the outstanding liability of the defendants is of Tk. 1,29,95,945.00 (Taka one crore twenty nine thousand ninety five thousand nine hundred forty five) only as on 31.12.2004, which the defendants are jointly and/or severally legally liable to pay:
That the cause of action to file this suit arose on 28.07.1998 when the defendant No. 1 opened account with the plaintiff bank, on 17.09.1998, 11.07.1999, 27.12.1999, 06.01.2000, 19.06.2000, 19.10.2000, 17.02.2001 and 09.09.2002 when the plaintiff bank sanctioned and enhanced over draft facility to the defendant No. 1, on 11.01.1999 and 12.03.2001 when the defendant Nos. 1 & 2 mortgaged their properties in favour of the plaintiff bank, on 14.03.2001 when the defendant No. 1 hypothecated its stocks of different garments items 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 the various dates including letters dated 08.06.2004, 27.06.2004, 05.12.2004 and 20.12.2004, when the plaintiff bank requested the defendant No. 1 to adjust the liability, on various dates including letter dated 13.04.2004, when the defendant No. 1 acknowledged his liability, on 30.03.2004 when 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.
Thatthe suit is for realisation of a decree for a sum of Tk. 1,29,95,945.00 (Taka one crore twenty nine thousand ninety five thousand nine hundred forty five) only as on 31.12.2004, 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.
That the authorized representative of the plaintiff bank in the instant suit is Mr. S.M. Musa Karim, Senior Officer of the plaintiff bank who is well conversant with the facts of the case.
The plaintiff bank, therefore, prays for:
(a) A decree for a sum of Tk. 1,29,95,945.00 (Taka one crore twenty nine thousand ninety five thousand nine hundred forty five) only as on 31.12.2004, 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 01.01.2005 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/others
(in Tk.) |
Sub-total
(Principal + Interest + Others (in Tk.) |
Amount repaid as on
25.11.2004 (in Tk.) |
Outstanding amount as on
31.12.2004 (in Tk.) |
|
| Overdraft | 90.00 lac | 90.00 lac | 46,04,945.11 | 1,36,04,945.11 | 6,09,000 | 1,29,95,945.11 | |
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 2.5 (two point five) kathas situated within District: Dhaka, P.S. Pallabi, Mouza:Senpara Parbata, J.L. No. 220 under Khatian No. 288 (Sabek), 321 (Hal), R.S. Khatian No. 3921, Plot No. 19 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) All that piece and parcel of land measuring 300 (three hundred) square yards situated within District-Dhaka, P.S. Previously Tejgaon, now Mohammadpur, Sub-Registry Office-Mohammadpur, Mouza-Previously Barabo, now Mohammadpur Residential Housing Area, Plot No. 11/1, Block-C, along with a four storied modern building.
c) Hypothecation of different garments items stored in the godown at 27/2, Pallabi, Mirpur, Dhaka.
A F F I D A V I T
I, __________________, son of __________________ of Arab Bangladesh Bank Limited, kawran Bazar Branch, BSEC Bhaban (Ground Floor), 102, Kazi Nazrul Islam Avenue, Dhaka-1215, aged about 40 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___________, 2005 at _________ a.m. before the Commissioner of affidavit.
| DEPONENT | |
| The deponent is known to me and
identified by me. |
|
| ADVOCATE |