Arab Bangladesh Bank Limited -Versus- X Vegetable Oil Limited & Others

In the 2ND ARTHA RIN ADALAT AT DHAKA

ARTHA RIN SUIT NO. 279 OF 2003

IN THE MATTER OF:

Arab Bangladesh Bank Limited

Plaintiff

-Versus-

X Vegetable Oil Limited & Others

Defendants

WRITTEN OBJECTION ON BEHALF OF THE PLAINTIFF AGAINST THE APPLICATION FILED BY THE DEFENDANTS NO. 4 TO 7 UNDER ORDER VII, RULE 11 OF THE CODE OF CIVIL PROCEDURE FOR REJECTION OF THE PLAINT

01. That the application under Order VII, Rule 11 of the Code of Civil Procedure for rejection of plaint filed by the defendants No. 4 to 7 is not maintainable in its present form and manner. Hence, the application is liable to be rejected summarily.

02. That the application has been filed with malafide and ulterior motive to delay the disposal of the suit and as such the application for rejection of plaint is liable to be rejected.

03. That the application has been filed with malafide intention only to avoid payment of the legal dues of the plaintiff bank and as such the application is in no way maintainable.

04. That the defendants No. 4 to 7 have no reason to file this application, so the application is liable to be rejected.

05. That the statements made in the application which have not been specifically admitted hereinafter shall be deemed to have been denied by the plaintiff bank.

06. That the statements made in paragraphs No. 1 and 2 of the application are matters of record and as such no comments are offered.

07. That the statements made in paragraph No. 3 of the application relate to matters which are denied by the plaintiff bank and the burden of proving which strictly lies upon the defendants No. 4 to 7. It is however submitted that the statements made in the said paragraph are irrelevant in determining the liability of the defendants No. 4 to 7 since they have never been released from their obligation under the personal guarantees which they have executed in favour of the plaintiff bank as security of loan availed by the defendant No. 1. As such, the application for rejection of plaint is liable to be rejected.

08. That with regard to the statements made in paragraph No. 4 of the application, it is categorically denied that the defendants No. 4 to 7 are not at all involved with the defendant No. 1 and that they are not guarantors of the loan sanctioned to the defendant No. 1 by the plaintiff bank. It is also denied that the defendants No. 4 to 7 are not liable to be brought under the proceeding of Artha Rin Adalat or that the plaint is barred by the provisions of any law. It is pertinent to mention here that at the time of sanctioning loan to the defendant No. 1 by the plaintiff bank on 04.08.1994, the defendants No. 4 to 7 were directors of the defendant No. 1 and executed personal guarantees in favour of the plaintiff bank against the loan availed by the defendant No. 1. It is submitted that one Mr. A. B. Siddiqui approached the plaintiff bank to take over the classified liabilities of the defendant No. 1 under a compromised agreement, but the deal could not be materialised due to failure of interested party to comply with certain bank conditions. Since their obligation to repay the loan liability under the personal guarantees have not been released, the defendants No. 4 to 7 are jointly and severally liable to pay the outstanding dues of the defendant No. 1. As such, the instant application for rejection of plaint is liable to be rejected summarily.

09. That the statements made in paragraph No. 5 of the application are false, fabricated, misleading, misconstrued and as such denied by the plaintiff. It is denied that the Hon’ble High Court Division was pleased to direct the learned Court vide Judgement and Order dated 24.11.2004 to decide the issue whether the guarantee has been discharged after rescheduling of the loan and after retirement of the defendants Nos. 4 to 7 after transfer of their shares in view of the provision of section 13 of the Artha Rin Adalat Ain, 2003 and Rule 2 of Order 14 of the Code of Civil Procedure. It is also denied that the trial Court has failed to perform any mandatory direction given by the Hon’ble High Court Division. In fact, upon hearing, the Hon’ble High Court Division by Judgement dated 24.11.2004 was pleased to discharge the Rule issued earlier in Writ Petition No. 5546 of 2003 which was filed by the defendants No. 4 and 5 in the Hon’ble High Court Division challenging the Order dated 11.08.2003 passed by this learned Court.

10. That with regard to the statements made in paragraph No. 6 of the application, it is denied that the suit is barred by limitation or that the plaint is submitted beyond the statutory period. It is further submitted that the personal guarantees executed by the defendants No. 4 to 7 in favour of the plaintiff bank are continuing guarantees and have never been discharged by the plaintiff bank.

11. That the statements made in paragraph No. 7 of the application are based on misunderstanding and misconception of law and as such denied by the plaintiff bank. It is further denied that the plaint does not disclose any cause of action or that the plaint is barred by law or is liable to be rejected.

12. That the statements made in paragraph No. 8 of the application are false, fabricated, misleading and therefore denied by the plaintiff. It is categorically denied that the suit is barred by the Contract Act, 1872 or the Artha Rin Adalat Ain. It is submitted that since the rescheduling arrangement was not approved, the question of escaping from the liability by the defendants No. 4 to 7 showing rescheduling arrangement does not arise. It is further submitted that the approval or rejection of any rescheduling arrangement does not in any way justify the arguments of the defendants No. 4 to 7 that they are released from their obligation under the personal guarantees securing the loan availed by the defendant No. 1, since the defendants No. 4 to 7 have not been released from their obligation to repay the loan under the personal guarantees executed in favour of the plaintiff.

13. That the statements made in paragraph No. 9 of the application are based on misunderstanding and misconception of law and as such denied by this respondent. It is submitted that section 133 of the Contract Act does have any manner of application in the instant suit since there was no variance in the terms of the contract. As such, the application for rejection of plaint is liable to be rejected.

14. That the statements made in paragraph No. 10 of the application are misleading, false, fabricated and as such denied by the plaintiff. It is submitted that the letter dated August 27, 2002 issued by the plaintiff was a credit report on the defaulting borrower. With regard to the claim regarding no objection certificate, it is submitted that the letter dated August 27, 2002 clearly stated that it can only be issued should the terms and conditions of the rescheduling arrangement is fulfilled. It is submitted that since the rescheduling arrangement was turned down by Bangladesh Bank, discharging liabilities of the defendants No. 4 to 7 on the ground of rescheduling of the loan does not arise at all. It is further submitted that since the proposal of rescheduling the loan was declined by Bangladesh Bank, the alleged NOC in question has never been issued by plaintiff and as such the application for rejection of plaint is liable to be rejected.

15. That the statements made in paragraph No. 11 of the application are misleading, incorrect and as such denied by the plaintiff. It is submitted that the CIB report does not in any way prove that the defendants No. 4 to 7 are released from their obligation to repay the loan liability under the personal guarantees executed in favour of plaintiff securing the loan availed by the defendant No. 1.

16. That the statements made in paragraph 12 of the application are misleading, incorrect and as such denied by the plaintiff. It is categorically denied that no cause of action has been disclosed in the plaint.

17. That from the facts and circumstances stated above, it is clear that various disputed questions are involved in the instant case, which can only be decided at the trial of the suit by taking evidence. As such, the application for rejection of plaint is liable to be rejected.

18. That the plaintiff submits that the application for rejection of plaint has been filed with ulterior motive to delay the realisation of the plaintiff bank’s dues.

Wherefore, it is humbly prayed that the learned Court may graciously be pleased to reject the application filed by the defendant Nos. 4 to 7 for rejection of the plaint and/or pass such other or further order(s) as may be deemed fit and proper.

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

A F F I D A V I T

I, son of of Arab Bangladesh Bank Limited, Principal Branch, BCIC Bhaban, 30-31, Dilkusha Commercial Area, Dhaka-1000, aged about years, by faith , nationality Bangladeshi by birth, occupation service-holder, do hereby solemnly affirm and declare as follows:

1. That I am an officer of the plaintiff bank and fully acquainted with the facts and circumstances of the suit and competent to swear this affidavit.

2. That the statement 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 have signed below on this the 11th day of June, 2005 at __________ a.m. before the Commissioner of Affidavits.

DEPONENT
The deponent is known to

me and identified by me.
ADVOCATE

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