X and others Versus Arab Bangladesh Bank Limited and others

IN THE COURT OF 2ND ASSISTANT DISTRICT JUDGE, DHAKA

TITLE SUIT NO. 401 OF 2005

X and others

Plaintiffs/ petitioners

Versus

Arab Bangladesh Bank Limited and others

Defendants/ opposite parties

WRITTEN OBJECTION ON BEHALF OF DEFENDANT/OPPOSITE PARTY NOS. 1-3 AGAINST THE APPLICATION FILED BY THE PLAINTIFFS/PETITIONERS UNDER ORDER 39 RULE 1&2 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE FOR TEMPORARY INJUNCTION.

1. That the application under Order 39 Rule 1 & 2 (hereinafter called “the application”) read with section 151 of the Code of Civil Procedure for temporary injunction filed by the plaintiffs/petitioners is not maintainable in its present forms and nature; hence the petition is liable to be rejected summarily.

2. That the application for injunction is liable to be rejected as there is no cause of action to file the suit against the defendant/opposite party Nos. 1-3, as such the application for temporary injunction is also liable to be rejected.

3. That no order of interlocutory injunction can be granted when the balance of convenience and inconvenience is not in favour of the plaintiffs/petitioners.

4. That the application has been filed with malafide and ulterior intention and motive to make illegal gains as such the application for temporary injunction is liable to be rejected.

5. That the plaintiffs-petitioners have filed this application seeking relief of temporary injunction restraining the defendant/opposite party Nos. 1-3 from evicting the tenants from the scheduled property which has been sold for realizing of its legitimate dues by completing auction sale under section 12 of the Artha Rin Adalat Ain, 2003.

6. That plaintiffs/petitioners has no reason to file this application as well as the plaintiffs/petitioners has no prima facie case, so the application is liable to be rejected.

7. That the statements made in paragraph Nos. 2-5 of the application are matters of record and hence defendant/opposite party Nos. 1-3 offers no comment. The plaintiffs are put to strict proof of the same. It is however submitted that the statements made in the said paragraphs are irrelevant in determining the liability of the defendant No. 5 since the defendant No. 5 mortgaged the scheduled property in favour of the Arab Bangladesh Bank Limited, Motijheel Branch, 8 RAJUK Avenue, BSB Building, Motijheel Commercial Area, Dhaka-1000 (the “Seller/Bank”) as security of loan availed by the Mr. Muhammad Towfiq proprietor of M/s. FMS CNG Filing Station having place of business at 33/1, Paribagh, Sonargaon Road, Dhaka (herein after referred to as the Borrower). As such, the application for temporary injunction is liable to be rejected.

8. That the statements made in paragraph Nos. 6-12 of the application filed by the plaintiffs are false, fabricated, concocted, misconceived and hence strongly denied by the defendant Nos. 1-3. Contrary to what has been alleged, the defendant/opposite party Nos. 1-3 submits that the defendant No. 5 i.e. Mr. Yhimself and for self and on behalf of the other mortgagors as their constituted Attorney, vide Power of Attorney No. 6474 dated 12.06.94, 16936 dated 21.12.96, 11267 dated 14.08.95 and 3525 dated 28.03.2000, mortgaged the scheduled land in favour of the Bank by executing a Deed of Mortgage No.13255 dated 14.10.2003 registered with the concerned Sub-Registrar Office, Gulshan, Dhaka as security for the loan of Tk. 1,25,00,000.00 (Taka one crore twenty five lac) only given by the Bank to the Borrower. The mortgagors have appointed the Bank empowering it, inter alia, to sell the scheduled land to the prospective buyers in case of default of the Borrower making payment of the loan along with interest and charges to the Bank vide Irrevocable General Power of Attorney No. 13256 dated 14.10.2003. Thereafter the Borrower defaulted to make the payment of the loan along with interest and charges to the Bank and the Mortgagors did not make payment of the loan along with interest and charges to the Bank despite repeated requests and reminders of the Bank. Then the Bank published auction notice under Section 12(3) of the Artha Rin Adalat Ain, 2003 inviting the interested bidder to participate in the auction on 18.09.2005 so that the Bank may sell the scheduled land to highest bidder for adjustment of its outstanding liability with the Borrower vide Auction Notice published in the daily Prothom Alo dated 29.08.2005. The Bank conducted the auction on 18.09.2005 and the highest bid was raised by Tk. 2,64,00,000.00 (Taka two crore sixty four lac) only by the Purchasers in respect of the scheduled land. The Bank accepted the highest bid of Tk. 2,64,00,000.00 (Taka two crore sixty four lac) only in respect of the scheduled land.

9. That it is further submitted that the Deed of Sale for the scheduled property has already been executed and registered in favour of the auction purchasers. Upon application of the Bank the Additional District Magistrate, Dhaka already appointed Mr. Md. Tahabul Alam, 1st Class Magistrate, Dhaka vide Memo dated 17.11.2005 to perform the magisterial duty in handing over the physical possession of the scheduled property in favour of the auction purchaser and advised the deputy Commissioner of Police (Dhaka North) to send Police Force of 60 members on 21.11.2005. However, the Deputy Commissioner of Police (Dhaka North) has informed the Bank that due to unavoidable circumstances it would not be possible to send Police Force on 21.11.2005 and requested to fix another date within 30.11.2005 for handing over possession of the property. The same has been informed by the Bank to the Additional District Magistrate vide letter dated 21.11.2005.

10. That since the law will take its own course in handing over the possession of the scheduled land to the auction purchaser by the magistrate under section 12 (5) of the Artha Rin Adalat Ain, 2003 the application for temporary injunction filed by the plaintiffs restraining the defendants from evicting tenants from the possession of the scheduled property is liable to be rejected in limine.

11. That for the reasons above, the plaintiffs/opposite party’s prayer/directions is not maintainable as against the defendants/ opposite parties and as such the application for temporary injunction is liable to be rejected..

Wherefore, it is most humbly prayed that the application filed by the plaintiffs/ petitioners against the defendant/ opposite party Nos. 1-3 should be rejected by this Hon’ble court with a compensatory costs.

And for this act of kindness the defendant/opposite party Nos. 1-3 as in duty bound shall ever pray.

A F F I D A V I T

I, son of of _________________________ 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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