IN THE ARTHA RIN ADALAT,3RD COURT AT DHAKA
ARTHA RIN SUIT NO. ___ OF 2005
Arab Bangladesh Bank Limited
Imamganj Branch
40, Imamganj
Dhaka 1211
PLAINTIFF
-Versus-
1.
2.
3.
4.
5.
6.
7.
8.
9.
10. Mr. X
Proprietor of
M/S. X & others
6/A, Champatali Lane,
Swarighat
P.S. Lalbag
Dhaka
11. Mr. Z
S/O. Y
6/A, Champatali Lane
Swarighat
P.S. Lalbag, Dhaka
252/4(previous Holding No. 252/2)
Monipur Para
P.S. Mirpur, Dhaka
12. P
W/O. Late Alhaz Q
House No. 27/A/1, Dhakeswari Road
P.S. Lalbag
Dhaka
13. A
W/O. X
6/A, Champatali Lane
Swarighat
P.S. Lalbag
Dhaka
14. Mr. B
S/O. Late Alhaz Q
House No. 27/A/1, Dhakeswari Road
P.S. Lalbag
Dhaka
15. C
D/O.Late Alhaz Q
House No. 27/A/1, Dhakeswari Road
P.S. Lalbag
Dhaka
16. D
D/O.Late Alhaz Q
House No. 27/A/1, Dhakeswari Road
P.S. Lalbag
Dhaka
DEFENDANTS
SUIT FOR RECOVERY OF MONEY BY SALE OF THE MORTGAGED PROPERTIES SUIT VALUED AT TK. 2,56,74,454.23 (TAKA TWO CRORE FIFTY SIX LAC SEVENTY FOUR THOUSAND FOUR HUNDRED FIFTY FOUR AND PAISA TWENTY THREE) ONLY AS ON 31.12.2004.
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 Imamganj Branch, Dhaka as stated in the cause title.
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. X & Brothers and is the borrower. The defendant No.1 has mortgaged his land against the loan. The defendant Nos.2-4 and one late Mr. Q are the mortgagors who mortgaged their land securing the loan availed by the defendant No.1 and at the same time stood as guarantors. Further the defendant Nos. 5,6 & 7 are the legal heirs of deceased Mr. Q, who being the owner of the legal estate of Q are liable for the outstanding loan of the defendant No.1 and has been impleaded in the present suit as defendants. The defendants’ addresses in the cause title are correct to the best of the plaintiff’s knowledge. 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. CA 4003- 154040-000 on 08.04.1986 with the plaintiff bank under the name and style of his proprietorship concern M/S. X & Brothers. Thereupon at the request of the defendant No.1, the plaintiff bank initially sanctioned an Overdraft Facility of Tk. 30,00,000.00 (Taka thirty lac) only vide Sanction Letter No. IMG/M/2947/94 dated 24.12.94 as per terms and conditions stipulated therein. The terms and conditions of the above sanction letter is duly accepted by the defendant No.1.
That thereupon at the request of the defendant No.1, the plaintiff renewed and enhanced the Overdraft Facility from time to time as follows:
| Limit | Sanction Letter and dated | Validity |
| Enhanced upto Tk. 75.00 lac | IMG/LOAN/2604/95, dated 05.12.95 | 21.11.96 |
| Enhanced up to Tk. 90.00 lac | IMG/LOAN/3105/96, dated 18.12.96 | 21.11.97 |
| Limit | Sanction Letter and dated | Validity |
| Enhanced upto Tk. 95.00 lac | IMG/LOAN/2894/97, dated 13.11.1997 | 21.11.1998 |
The terms and conditions of the aforesaid Sanction Letters were duly accepted by the defendant No.1.
05. That the Overdraft Facility and time to time enhancement was secured inter alia as follows:
a) Mortgage of land measuring .0100 ojutangsha within District Dhaka, P.S. Lalbagh, J.L. No. C.S. 4, Mouza C.S. & Petty -Sadar Dhaka S.A. Lalbag, C.S. & S.A. Sheet No. 16, Pety Sheet No. 16/Ka, Pety Khatian No. 1277, S.A. Khatian No. 3957, Pety Dag No. 1, S.A. Dag No. 9208 and 9210 vide Memorandum of Deposit of Title Deed, dated 25.04.1998, supported by a registered Irrevocable General Power of Attorney to sell the property in question. The property stands in the defendant No.1;
b) Mortgage of land measuring 3.30 decimal or 02 Katha along with semi pucca residential building within District Dhaka, P.S. Mirpur, under C.S. Khatian No. 388/4, S.A. Khatian No. 422, C.S. & S.A. Dag No. 868/1620 being Municipal Holding No. 252/2, vide Registered Mortgage Deed No. 2969, dated 13.05.1996, supported by a registered Irrevocable General Power of Attorney to sell the property in question. The property stands in the name of the defendant No.2;
c) Mortgage of land measuring .0420 Ajutangsha or 2.5 katha along with 04 (four) storied commercial cum-residential building situated within Dhaka, P.S. Lalbagh, Touzi No. 2602B(1), J.L. No. 4, Mouza Shahar Dhaka, C.S. Khatian No. 9273, Hal Khatian No. 3331, C.S. Dag No. 168, Hal Dag No. 8171, being Municipal Holding No. 11, Champatali Lane, Swarighat, Dhaka, vide Memorandum of Deposit of Title Deed, dated 18.12.1996, supported by a registered Irrevocable General Power of Attorney to sell the property in question. The property stands in the name of the defendant Nos. 3 & deceased Mr. Q;
d) Mortgage of land measuring 1.75 Katha along with 05 (five) storied building situated at house 24, Block – B, Avenue- 3, Section – 1, Mirpur Housing Estate, Mirpur, Dhaka, vide Memorandum of Deposit of Title Deed, dated 12.01.1995, supported by a registered Irrevocable General Power of Attorney to sell the property in question. The property stands in the name of the defendant No.4;
e) Hypothecation of stocks of edible oil, coconut oil and other allied products stored at 6/A Champatali lane, Swarighat, Lalbag, Dhaka, vide execution of a general Letter of Hypothecation dated 13.11.97, supported by a Supplementary Agreement of the same date;
f) Execution of personal guarantees by the defendant Nos. 1-4 and Late Mr. Q, all dated 13.11.1997;
g) Execution of usual charge documents, namely. Promissory note, letter of continuity, letter of revival etc., all dated 13.11.1997.
That the defendant No.1 availed the above enhanced Overdraft facility in full. But the validities of the aforesaid enhanced facility expired leaving the entire amount unadjusted by the defendant No.1. Thereafter at the request of the defendant No.1, the plaintiff bank rescheduled the loan account of the defendant No.1 vide Sanction Letter No. IMG/LOAN/1229/2000 dated 02.08.2000 at Tk. 128.60 lac for full and final settlement against the then outstanding amount on condition inter alia that the defendant No.1 would adjust the settled amount by two phases, i.e. Tk. 60 lac within 30.09.2000 and the remaining amount of Tk. 68.60 lac within 31.03.2001. But, as the defendant No.1 failed to adjust the re-scheduled amount as promised, the re-scheduled arrangement stood cancelled.
That the defendant No. 1 availed the credit facility in full but failed to adjust its liabilities with the plaintiff bank within the validity. Despite repeated requests and reminders by the plaintiff bank through several letters including letters dated 07.10.2001, 29.12.2001, 06.01.2002, 20.04.2002, 26.07.2002, 19.04.2003, 10.11.2003, 28.03.2004, 19.04.2004, 21.04.2004, 20.10.2004, 04.12.2004, 11.12.2004 and 02.01.2005, the defendant No. 1 did not come forward to adjust its liabilities with the plaintiff bank.
That thereupon being completely displeased with the defendant No.1, the plaintiff bank on 25.01.2000, 17.05.2001, 05.03.2003 and 18.11.2004 cause served legal notice upon all the defendants requesting them to adjust the loan liability of the defendant No.1 immediate after the receipt of the notice. The defendant No.1 in all occasion ignoring the legal notices purposely failed to liquidate the liabilities with the plaintiff bank.
That in response to the aforesaid reminders and legal notices, the defendant No.1 however vide their letters dated 24.06.2001, 31.10.2001, 29.11.2001, 29.12.2001, 14.02.2000, 06.08.2002, 29.09.2002, 02.04.2003, 04.05.2003 and 30.11.2004, acknowledged his liability with the plaintiff bank and also expressed his willingness to adjust the entire liability within a short period but of no avail.
That before filing of this suit the mortgaged and hypothecated properties could not be sold by the plaintiff Bank due to issuance of Rule by write Bench of the Honourable High Court Division of the Supreme Court in similar matters, wherein the provision of the section 12(3) of the Artha Rin Adalat Ain, has been challenged.
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.
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.
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 the outstanding liability of the defendants is of Tk. 2,56,74,454.23 (Taka two crore fifty six lac seventy four thousand four hundred fifty four and Paisa twenty three) only as on 31.12.2004 as follows, which the defendants are jointly and/or severally legally liable to pay:
That the cause of action to file this suit arose on 08.04.86, when the plaintiff bank the defendant No. 1 opened account with the plaintiff Bank, on 24.12.94, when the Plaintiff Bank sanctioned various credit facilities, on 05.12.95, 18.12.96, 13.11.1997 and 02.08.2000 when the credit facility was renewed and enhanced, on 12.01.1995, 13.05.1996, 18.12.1996, and 21.04.1998 when the defendant Nos. 1, 2, 3, 4 and Late Mr. Q s mortgaged their property on 1311.1997 when the defendant No. 1 hypothecated his assets with the plaintiff bank, on 13.11.1997 when the defendant Nos. 1, 2, 3, 4 and Late Mr. Q executed personal guarantees, on 13.11.1997 when the defendant No. 1 executed various charge documents, on various dates including 07.10.2001, 29.12.2001, 06.01.2002, 20.04.2002, 26.07.2002, 19.04.2003, 10.11.2003, 28.03.2004, 19.04.2004, 21.04.2004, 20.10.2004, 04.12.2004, 11.12.2004 and 02.01.2005, when the plaintiff Bank requested the defendant No. 1 to adjust the liabilities, on 25.01.2000, 17.05.2001, 05.03.2003 and 18.11.2004 when the legal notices were served by the plaintiff, on 24.06.2001, 31.10.2001, 29.11.2001, 29.12.2001, 14.02.2000, 06.08.2002, 29.09.2002, 02.04.2003, 04.05.2003 and 30.11.2004, when the defendant No. 1 acknowledged his liability with the plaintiff bank and the said cause of action is continuing till date.
Thatthe suit is for realisation of a decree for a sum of 2,56,74,454.23 (Taka two crore fifty six lac seventy four thousand four hundred fifty four and Paisa twenty three) only as on 31.12.2004of 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 Authorised Representative of the plaintiff bank in the instant suit is Mr. K, Senior 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 2,56,74,454.23 (Taka two crore fifty six lac seventy four thousand four hundred fifty four and Paisa twenty three) 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 disbursed (in Tk.) | Interest
(in Tk.) |
Sub-total
(Principal + Interest) (in Tk.) |
Amount repaid as on 31.12.2004
(in Tk.) |
Outstanding amount as on 31.12.2004
(in Tk.) |
| Over Draft | 1,28,59,079.40 | 1,28,59,079.40 | 1,44,01,374.83 | 2,72,60,454.23 | 15,86,000.00 | 2,56,74,454.23 |
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 .0100 ojutangsha within District Dhaka, P.S. Lalbagh, J.L. No. C.S. 4, Mouza C.S. & Petty -Sadar Dhaka S.A. Lalbag, C.S. & S.A. Sheet No. 16, Pety Sheet No. 16/Ka, Pety Khatian No. 1277, S.A. Khatian No. 3957, Pety Dag No. 1, S.A. Dag No. 9208 and 9210 along with all facilities attached with the land;
b) All that piece and parcel of land measuring 3.30 decimal or 02 Katha along with semi pucca residential building within District Dhaka, P.S. Mirpur, under C.S. Khatian No. 338/4, S.A. Khatian No. 422, C.S. & S.A. Dag No. 868/1620 being Municipal Holding No. 252/2 (old) present holding No. 252/4 along with all facilities attached with the land;
c) All that piece and parcel of land measuring .0420 Ajutangsha or 2.55 khata along with 04 (four) storied commercial cum-residential building situated within Dhaka, P.S. Lalbagh, Touzi No. 2602B(1), J.L. No. 4, Mouza Shahar Dhaka, C.S. Khatian No. 9273, Hal Khatian No. 3331, C.S. Dag No. 168, Hal Dag No. 8171, being Municipal Holding No. 11, Champatali Lane, Swarighat, Dhaka along with all facilities attached with the land;
d) All that piece and parcel of land measuring 1.75 Katha along with 05 (five) storied building situated at house 24, Block – E, Avenue- 3, Section – 1, Mirpur Housing Estate, Mirpur, Dhaka along with all facilities attached with the land;
e) Hypothecation of stocks of edible oil, coconut oil and other allied products stored at 6/A, Champatali Lane, Swarighat, Lalbag, Dhaka.
AFFIDAVIT
I, K, son of _____________________ of Arab Bangladesh Bank Limited, Imamganj Branch having address at 40, Imamgonj, Dhaka, aged about 39 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 March, 2005 at _________ a.m. before the Commissioner of affidavit.
| DEPONENT | |
| The deponent is known to me and
identified by me. |
|
| ADVOCATE |