Arisen out of Title Execution Case No. 2 of 2002

IN THE COURT OF 2nd ARTHA RIN ADALAT, DHAKA

MISC. CASE NO. 16 OF 2004

(Arisen out of Title Execution Case No. 2 of 2002)

(Artha Jari Case No. 324 of 2004)

X

S/O. Late Y

Vill: Nandalalpur

P.S. Fatullah

Dist: Narayangonj

Petitioner

-Versus-

1. Arab Bangladesh Bank Limited.

Motijheel Corporate Branch

BSB Bhaban

8, Rajuk Avenue

P.S. Motijheel

Dhaka

2. Mr. A

Proprietor M/S. A Enterprise

Pagla Bazar

Fatullah

Narayangonj

3. B

S/O Late D

Vill: Pagla Bazar

P.O. Pagla Bazar

P.S. Fatullah

Dist: Narayangonj

Opposite Party

WRITTEN OBJECTION ON BEHALF OF THE OPPOSITE PARTY BANK AGAINST THE APPLICATION OF THE PETITIONER UNDER ORDER XXI RULE 58 OF THE CODE OF CIVIL PROCEDURE.

01. That the Misc. Case filed by the petitioner is not maintainable in its present form and manner.

02. That there is no cause of action to file any petition as filed by the petitioner in this case and as such the petition is liable to be rejected.

03. That the Misc. case filed by the petitioner is filed with malafide intention and as such the case is liable to be rejected.

04. That the statements made by the petitioner in his petition are false, fabricated, malafide, concocted and self-contradictory for which the same is liable to be rejected.

05. That the petition of the petitioner is barred by law and as such the petition is liable to be rejected.

06. That the petitioner has no locus standi to file the petition under Order XX1 Rule 58 of the Code of Civil Procedure. As such the instant Miscellaneous Case is not maintainable and also liable to be rejected.

07. That the petition of the petitioner is filed with an ulterior motive of frustrating the decree of the Title Suit No. 54 of 1998 of the then Sub-Judge, Artha Rin Adalat No. 1, Dhaka from which the Title Execution Case No.2 of 2002 has been arisen.

08. That the statements made in the petition which have not been specifically admitted hereinafter shall be deemed to have been denied by this opposite party for all means and purpose.

09. That the statements made in paragraph No.1, 2, 3, and 4 of the petition are matter of fact.

10. That the statements made in paragraph No. 5 of the petition are false, fabricated and concocted and as such denied by the opposite party. It is also submitted that in order to frustrate the execution proceeding the petitioner made out a false story. As such the petition is liable to be rejected.

11. That the statements made in paragraph No. 6 of the petition are false, fabricated, malafide, misconceived and misrepresentation of facts and as such denied by the opposite party. The undisputed right, title and possession of the property in question Mr. X mortgaged the same to the opposite party Bank as security against the loan sanctioned by the opposite party Bank to Mr. A, Proprietor of M/S. A Enterprise, Pagla Bazar, Fatullah, Narayangonj. Consequent upon default in repayment of the loan liability the opposite party Bank filed the Title Suit No. 54/1998 against Mr. A, Proprietor of M/S. A Enterprise, Mr. X, S/O Late Y and Mr. B (the judgement debtors). The suit was decreed on compromise on 21.10.1999. When the judgement debtors did not comply the terms of the Compromised Decree the opposite party filed the Title Execution Case No. 2/2002 from which the instant Misc. Case has been arisen out. As such no question as to committing any forgery with regard to the execution of “Memorandum of Deposit of Title Deeds” dated 13.10.86 and “Irrevocable Power of Attorney” dated 09.10.86 to sale the scheduled mortgaged property and obtaining fraudulent Compromised Decree on 21.10.99 by the opposite party in collusion with the judgement debtors does not arise at all.

12. That the statements made in paragraph No. 7 of the petition are false, fabricated and concocted and as such denied by the opposite party. Mr. X, the petitioner and judgement debtor had the right title over the property in question and lawfully mortgaged the same to the opposite party Bank. As such the petition is liable to be rejected.

13. That the statements made in paragraph No. 8 of the petition are false, fabricated, malafide, misconceived and misrepresentation of facts and as such denied by the opposite party. As such no question as to committing any forgery with regard to the signature of the petitioner, execution of “Memorandum of Deposit of Title Deeds” committing mispersonation by any third party and execution of “Irrevocable Power of Attorney” to sale the scheduled mortgaged property by the opposite party in collusion with the judgement debtors does not arise at all.

14. That the statements made in paragraph No. 9 of the petition are false, fabricated, malafide, misconceived and misrepresentation of facts and as such denied by the opposite party. Contrary to what has been stated it is submitted that Mr. X, S/O Late Y mortgaged the scheduled property to the opposite party Bank as security against the loan sanctioned by the opposite party Bank to Mr. A, proprietor of M/S. A Enterprise, Pagla Bazar, Fatullah, Narayangonj. The Bank filed the Title Suit No. 54/1998 against the judgement debtors. The suit was decreed on compromise on 21.10.99. When the judgement debtors did not comply the terms of the Compromised Decree the opposite party filed the Title Execution Case No. 2/2002 from which the instant Misc. Case has been arisen out. As such the petition is liable to be rejected.

15. That the statements made in paragraph No. 10-11 of the petition are false, fabricated, misconceived and misrepresentation of facts and as such denied by the opposite party. With regard to the statement made in this paragraph it is submitted that the petitioner has no prima facie arguable case and the balance of convenience and non-convenience is in favour of the opposite party Bank. As such the Misc. Case is liable to be dismissed with compensatory cost.

16. That the facts of the case are as follows:

(a) That as a guarantor of Mr. A, proprietor M/S. AEnterprise Mr. X, the petitioner and the owner of the scheduled property mortgaged the same to the opposite party Bank as security against the loan sanctioned by the opposite party Bank to Mr. A, proprietor of M/S. A Enterprise.

(b) That in order to mortgage the scheduled property against the loan liability to the opposite party Bank, Mr. X the petitioner of the instant Misc. Case has duly signed in the original “Memorandum of Deposit of Title Deeds”, “Irrevocable Power of Attorney” and other documents which are preserved by the opposite party Bank.

(c) Consequent upon default in repayment of the loan liability the opposite party Bank filed the Title Suit No. 54/1998 against Mr. A, Mr. X, and Mr. B i.e. the judgement debtors. The suit was decreed on compromise on 21.10.1999. When the judgement debtors did not comply the terms of the Compromised Decree the opposite party filed the Title Execution Case No. 2/2002.

(d) That it is a continuous suit for realisation of Tk. 99,68,807.14 by sale of the scheduled mortgaged property. The Hon’ble Court has already been passed a decree on behalf of the opposite party Bank for the realisation of the aforesaid sum of money by selling the mortgaged property. In this present stage of the suit, the petitioner filed the plaint of the instant Misc. Case with unreasonable, false, fabulous, fabricated, and misrepresented statements.

(e) That the petitioner filed the instant Misc. Case in order to vitiate and frustrate the execution of the Decree that has already been obtained by the opposite party Bank.

Wherefore, it is humbly prayed that your honour would graciously be pleased to reject the petition and thereby dismiss the Misc. Case with compensatory costs.

And for this act of your kindness the opposite party as in duty bound shall ever pray.

AFFIDAVIT

I, ______________________son of ______________________, ____________of Arab Bangladesh Bank Limited, Motijheel Corporate Branch, BSB Bhaban, 8, Rajuk Avenue, Dhaka-1000, aged about_____ 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 opposite party Bank of this case and well conversant with the facts of the case and competent to swear this Affidavit.

2. That the statements of facts made in this written objection 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 sign below on this the ______day of July, 2005 at _____a.m. before the Commissioner of affidavit.

DEPONENT

The deponent is known to me and he has signed in presence of me

ADVOCATE

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