IN THE ARTHA RIN ADALAT 1ST COURT AT DHAKA
TITLE SUIT NO. 82 OF 2006
IN THE MATTER OF:
An application under Order XXXVIII, Rule 5 of the Code of Civil Procedure read with section 57 of the Artha Rin Adalat Ain, 2003 for attachment before judgement.
AND
IN THE MATTER OF:
Bank Asia Limited
PLAINTIFF
-Versus-
X Garments Industries Limited
and others
DEFENDANTS
AND
IN THE MATTER OF:
Bank Asia Limited
Principal Office
111-113, Motijheel C/A
Dhaka-1000
PLAINTIFF/PETITIONER
-Versus-
X Garments Industries Limited
and others
DEFENDANTS/OPPOSITE PARTIES
The humble petition on behalf of the above named Plaintiff/Petitioner most respectfully-
SHEWETH:
01. That the Plaintiff/Petitioner has filed the above suit against the Defendants/Opposite Parties for recovery of Tk. 3,78,41,025.75 (Taka three crore seventy eight lac forty one thousand twenty five and paisa seventy five) only inclusive of interest and charges as on 28.02.2005 by sale of the mortgaged properties which is pending in this Court.
02. That the case of the Plaintiff/Petitioner is as follows:
a) That the Plaintiff/Petitioner 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 Principal Office, Dhaka as stated in the cause title.
b) That the Defendant/Opposite Party No.1 is the borrower who availed following facilities from the Plaintiff/Petitioner as described hereunder and a limited company incorporated under the relevant Companies Act and carries on business of manufacturing of ready made garments and export the same. The Defendant/Opposite Party Nos. 2, 3 & 4 is the Chairman, Managing Director and Director of the defendant No.1 and stood as guarantors of the loan availed by the Defendant/Opposite Party No.1. Further, the Defendant/Opposite Party Nos. 2 and 3 mortgaged their property securing the repayment of the credit facilities availed by the Defendant/Opposite Party No.1 The defendant’s addresses in the cause title are correct to the best of the Plaintiff/Petitioner’s knowledge.
c) That in the course of business, the Defendant/Opposite Party No. 1 opened an account being No. 00333000659 on 21.05.2000 with the Plaintiff/Petitioner bank and availed various credit facilities from time to time, as stated hereunder.
d) That at the request of the Defendant/Opposite Party No.1, the Plaintiff/Petitioner bank time to time opened Back to Back Letters of Credit (Back to Back L/Cs) upon receipt of the different Export L/Cs for procurement of fabrics and accessories in order to complete the manufacturing of the readymade garments under Export L/Cs. Accordingly, the Plaintiff/Petitioner bank opened the following Back to Back L/Cs:
| Back to Back L/C No. and date | Related Export L/C No. | Amount in US$ | Beneficiaries |
| 208203040236 Dated: 10.06.2003 | SEBA30327CCF9335, Dated: 26.03.2003 | 8,982.40 | G.A. Trade International
Road#32, House # 482(2nd Floor) New DOHS, Mohakhali, Dhaka, Bangladesh |
| 208203040229,
Dated:08.06.2003 |
SEBA30327CCF9335, Dated: 26.03.2003 | 4,992.00 | W International, 960, Outer Circular Road, Rajarbag, Dhaka, Bangladesh |
| Back to Back L/C No. and date | Related Export L/C No. | Amount in US$ | Beneficiaries |
| 208203040230
Dated:08.06.2003 |
SEBA30327CCF9335, Dated: 26.03.2003 | 1,758.62 | Levis Zip, House # 128, Road # 01 (2nd Floor), Block # Ka, Pisciculture Housing Society, Shamoli, Dhaka |
| 208203040089
Dated: 22.03.2003 |
680LCX521236
Dated: 01.08.2002 |
3,500.00 | Q Printing
16/11/A, Primary School Road, Kallyanpur, Dhaka, Bangladesh |
| 208203040090
Dated: 22.03.2003 |
680LCX521236
202 |
2,088.30 | Q Wear Ltd. House # 23/3, Road # 2, Shamoli, Dhaka, Bangladesh |
| 208203040091
Dated: 22.03.2003 |
680LCX521236
Dated: 01.08.2002 |
8,717.50 | Tex Washing, Khawza Super market, Kallyanpur Bus-Stand, 7, Kallyanpur, Mirpur Road, Dhaka, Bangladesh |
| Back to Back L/C No. and date | Related Export L/C No. | Amount in US$ | Beneficiaries |
| 208202040474
Dated: 17.11.2002 |
766DOC163135
Dated: 18.09.2002 |
1,460.55 | Sanzi Textile Mills Limited, A-23, S-6 (Part) Bscic Industrial Estate, Kalurghat, Chittagong, Bangladesh |
| 208202040472
Dated: 17.11.2002 |
766DOC163135
Dated: 18.09.2002 |
2,159.58 | Shanai Plastic
352/2, Monipur, Mirpur-2, Dhaka, Bangladesh |
| 208202040491
Dated: 27.11.2002 |
HAAIA400896512
Dated: 17.10.2002 |
4,830.00 | Momin Textile
House # 405 (1st Floor), Road # 29, New D.O.H.S. Mohakahali, Dhaka, Bangladesh |
| 208202040460
Dated:09.11.2002 |
051-01-0038316-4
Dated: 04.02.2002 |
1,003.50 | Baly Plastic Industries Ltd. Raj-Fulbaria, Savar, Dhaka, Bangladesh |
| 208202040467
Dated: 16.11.2002 |
31CDI000062677
Dated: 02.10.2002 |
4,673.12 | Dekko Accessories Ltd. H.O. 30, Bijoynagar, Dhaka, Bangladesh |
| 208202040471
Dated: 17.11.2002 |
766DOC163135
Dated: 18.09.2002 |
929.06 | National Accessories Limited, NIB House (1st Floor)
32, Agrabad C/A, Chittagong, Bangladesh |
| 208202040449
Dated: 29.10.2002 |
31CDI000062677
Dated: 02.10.2002 |
33,312.00 | Shabajpur Textiles Ltd. 54, Dilkusha C/A (2nd Floor), Dhaka, Bangladesh |
| Back to Back L/C No. and date | Related Export L/C No. | Amount in US$ | Beneficiaries |
| 208202040473
Dated: 17.11.2002 |
766DOC163135
Dated: 18.09.2002 |
6,100.00 | Pride Packers (PTE) Ltd. 55, Inner Circular Road (3rd Floor), Dhaka, Bangladesh |
| 208203040130
Dated: 12.04.2003 |
SEBA30327CCF9335, Dated: 26.03.2003 | 4,092.00 | Step Three Apparels Limited, Lutfan Tower (6th Floor), E-13, Middle Badda, Dhaka, Bangladesh |
| 208202040361
Dated: 15.09.2002 |
680LCX521236
Dated: 01.08.2002 |
27,500.00 | T.S.Trade Promotores, 175, Rayer Bazar (East), Dhka, Bangladesh |
| 208202040475
Dated: 17.11.2002 |
766DOC163135
Dated: 18.09.2002 |
1,391.00 | Pearl Wear Washing Plant Ltd. 31/1, East Haji Para, Rampura, Dhaka, Bangladesh |
| 208202040442
Dated: 28.10.2002 |
051-01-0038316-4
Dated:04.02.2002 |
19,584.25 | Monno Fabrics Ltd. 9, Wyre Street, wari, Dhaka, Bangladesh |
| 208202040462
Dated:09.11.2002 |
31CDI000062677
Dated: 02.10.2002 |
4,493.89 | M. Ali Trade Promoters, 58-59, Malitola Road, Bangsal, Dhaka |
| 208202060057 Dated: 28.02.2002 | 680LCX521236
Dated: 01.08.2002 |
2,18,417.48 | Prominent Apparels Ltd. Hong Kong |
| 208203060011 Dated: 15.04.2003 | SEBA 30327CCF9335
Dated: 26.03.2003 |
31,023.25 | Jiangsu Guotai Int’l ap Hualian Imp. & Exp. China |
| Back to Back L/C No. and date | Related Export L/C No. | Amount in US$ | Beneficiaries |
| 208202060064 Dated: 30.11.2002 | DC MSE 106288
Dated: 18.10.2002 |
26,424.00 | Changsu Ninwell Imp. & Exp. Co. Ltd. China |
| 208202060065
Dated: 30.11.2002 |
DC MSE106288
Dated: 18.10.2002 |
10,500.00 | Rainbow Denim Ltd. Mumbai, India |
e. That the Back to Back L/Cs were subject to Uniform Customs and Practice for Documentary Credits (ICC Publication No. 500) [hereinafter referred to as UCPDC]. The beneficiaries of the aforesaid Back to Back L/Cs shipped/supplied the goods and submitted the shipping documents to their respective Bank who in turn sent the said shipping documents to the Plaintiff/Petitioner bank for acceptance and payment within due date.
f. That the Plaintiff/Petitioner bank received the shipping documents in terms of the Back to Back L/Cs and intimated the same to the Defendant/Opposite Party No.1. Thereafter notwithstanding the acceptance of the documents as aforesaid and taking delivery of the raw materials under the said Back to Back L/Cs, the Defendant/Opposite Party No.1 did not execute the export orders effectively. In some cases shipments were not made in time, some times there were short shipments. The Plaintiff/Petitioner bank submits that the liability of such non-execution of the Export Order is solely attributable to the deliberate/negligent failure of the Defendant/ No.1.
g. That as per norms and practice, it was the responsibility of the Defendant/Opposite Party No.1 to settle the Back to Back L/Cs payment on or before the due dates of the respective L/C from the export proceeds or from the Defendant/Opposite Party No.1’s own source. The beneficiary of an irrevocable documentary credit enjoys maximum protection against commercial risk since it is assured that the issuing bank will pay it even if the buyer defaults or is unable to meet its payment obligation. The Defendant/Opposite Party No.1 failed to act upon as per the said norms by failing to adjust the liabilities with the Plaintiff/Petitioner bank within the maturity date. In the circumstances, full payment under the above Back to Back L/Cs could not be made out. The Plaintiff/Petitioner bank on various occasions requested the Defendant/Opposite Party No.1 to arrange payment under all the Back to Back L/Cs but to no effect. Consequently, upon being found the documents in order, the Plaintiff/Petitioner bank under a compelling situation had to effect payment under the Back to Back L/Cs by creating demand loan. The details of the demand loan that the Plaintiff/Petitioner bank was compelled to create are as follows:
| No. | Demand
Loan No. |
Dated | Against Back to Back L/C No. | Amount |
| 01 | DL
000105 |
24.04.2003 | 208202040361 | Tk. 16,25,250.00 |
| No. | Demand
Loan No. |
Dated | Against Back to Back L/C No. | Amount |
| 02 | DL 000111 | 24.04.2003 | 208202040449 | Tk. 23,77,641.00 |
| 208202040460 | ||||
| 208202040462 | ||||
| 208202040467 | ||||
| 208202040471 | ||||
| 208202040472 | ||||
| 208202040474 | ||||
| 03 | DL 000116 | 30.04.2003 | 208202040473 | Tk. 28,24,420.16 |
| 208202040491 | ||||
| 208202060064 | ||||
| 208202060065 | ||||
| 04 | DL 000122 | 30.06.2003 | 208202040475 | Tk. 82,069.00 |
| 05 | DL 000124 | 06.08.2003 | 208202040442 | Tk. 17,23,785.00 |
| 208203040089 | ||||
| 208203040090 | ||||
| 208203040091 | ||||
| 06 | DL 000128 | 30.09.2003 | 208202060057 | Tk. 22,23,569.87 |
| No. | Demand
Loan No. |
Dated | Against Back to Back L/C No. | Amount |
| 07 | DL 000131 | 30.10.2003 | 208203040130 | Tk. 29,94,963.00 |
| 208203060011 | ||||
| 208203040229 | ||||
| 208203040230 | ||||
| 208203040236 | ||||
| Total | Tk. 1,38,51,698.03 | |||
h. That in addition to the aforesaid loan against the Back to Back L/Cs, the Defendant/Opposite Party No. 1 has also been extended Overdraft facility for Tk. 1,25,01,888.00 (Taka one crore twenty five lac one thousand eight hundred eighty eight) only and Packing Credit facility for Tk. 39,82,390.52 (Taka thirty nine lac eighty two thousand three hundred ninety and paisa fifty two) only in order to ensure timely execution of the related export orders. The Defendant/Opposite Party No.1 availed the aforesaid facilities in full and failed to adjust.
i. That whereupon at the request of the Defendant/Opposite Party No.1 vide letter dated 15.12.2003, the Plaintiff/Petitioner bank vide its Sanction Letter No. BA/PO/CR/2003/7971(A) dated 29.12.2003 converted the Defendant/Opposite Party No.1’s all the above funded loan liability of Tk. 2,98,85,383.75, into a ‘Term Loan’ facility on condition inter alia that the Defendant/Opposite Party No.1 shall repay the loan amount in full by 12(twelve) monthly installments of Tk. 31,78,122.00 each commencing from 1st February 2004. The terms of the aforesaid Sanction Advice was duly accepted by the Defendant/Opposite Party No. 1 under the signature of the defendant/Opposite Party No. 3.
j. That in addition to the above, vide the sanction letter dated 39.12.2003, Plaintiff/Petitioner Bank has also sanctioned fresh Back to Back L/C Limit for Tk. 60.00 million and fresh Packing Credit Limit (Revolving) of Tk. 4.50 Million.
k. That the non-funded loan liabilities of the Defendant/Opposite Party No. 1 of Tk. 31,38,007.70 (Taka thirty one lac thirty eight thousand seven and Paisa seventy) only against the following Back to Back Letters of Credit were adjusted by the Plaintiff/Petitioner by creation of demand loan, the details of which are as follows:
|
No. |
Demand
Loan No. |
Dated | Against Back to Back L/C No. | Amount |
| 01 | DL 000134 | 29.12.2003 | 208203040237 | Tk. 6,88,235.00 |
| 02 | DL 000143 | 10.02.2004 | 208203040238 | Tk. 7,07,517.00 |
| 208203040240 | ||||
| 208203040241 | ||||
| 03 | DL 000161 | 31.10.2004 | 208202040303 | Tk. 17,42,255.70 |
| Total | Tk. 31,38,007.70 | |||
l. That the said credit facilities were sanctioned against the following securities:
a) Execution of various charge documents (i.e. Demand Promissory Note, Letters of Authority, Letter of Continuity, Revival Letter etc.);
b) Personal guarantee of the Defendant/Opposite Part Nos. 2, 3 & 4;
c) Hypothecation of stocks Raw Materials & Finished Goods vide execution of a ‘Letter of Hypothecation’, supported by a List of Hypothecated Machineries stored at the defendant No.1’s business premises at 262/1, Ibrahuimpur, (3rd floor), Dhaka dated 13.12.2003;
d) Floating charge on all properties and immovable assets of the Defendant/Opposite Party No. 1 by way of executing ‘Deed of Floating Charge’, dated 13.12.2003.
e) Registered mortgage of land measuring 105 decimals situated at Sreepur, Gazipur vide execution of a Registered Deed of Mortgage being No. 3504 Dated 18.04.2004, supported by a registered ‘Irrevocable General Power of Attorney’, being No.3505 dated 18.04.2004 to sell the property. The property stands in the name of the Defendant/Opposite Party Nos. 2 and 3.
m. That the Defendant/Opposite Party No.1 thereafter failed to adjust the above Term Loan & demand loan liabilities with the Plaintiff/Petitioner bank. Despite repeated requests and reminders vide letters dated 19.02.2004, 29.04.2004, 07.06.2004, 20.06.2004 and 10.08.2004 by the Plaintiff/Petitioner bank, the Defendant/Opposite Party No.1 miserably failed to adjust the aforesaid liabilities with the Plaintiff/Petitioner bank.
n. That the defendant/opposite party No. 1 availed the credit facilities in full but even after the expiry of the facilities, the defendant/opposite party No. 1 did not bother to regularise the liabilities with the plaintiff/petitioner.
o. That in response to the reminders of the Plaintiff/Petitioner bank, the Defendant/Opposite Party No.1 from time to time by its letters dated 02.03.2004, 02.05.2004, & 06.07.2004 acknowledged the liability with the Plaintiff/Petitioner bank and also committed to adjust the outstanding liabilities within a short period, but to no effect.
p. That none of the Defendants/Opposite Parties are serious at all with regard to adjust their outstanding liabilities with the Plaintiff/Petitioner bank. It is evident from the conduct of the Defendants/Opposite Parties that they have no intention to make repayment of their entire outstanding liabilities lying with the Plaintiff/Petitioner bank.
q. That the outstanding liabilities of the Defendant/Opposite Party No.1 with the Plaintiff/Petitioner Bank, as on 28.02.2005, is as follows:
a) Term Loan liabilities Tk. 3,46,70,309.91
b) Demand Loan liabilities Tk. 31,70,715.84
Total Tk. 3,78,41,025.75
r. That the defendant/opposite party No. 1 as borrower and the other Defendants/Opposite Parties as guarantors/mortgagors are liable to repay with interest the amount availed by the Defendant/Opposite Party No. 1. Since there is no chance to recovering such huge overdue from the Defendant/Opposite party No. 1 and the guarantors/mortgagors, the Plaintiff/Petitioner has filed the above suit for recovery of its legitimate dues.
03. That the Plaintiff/petitioner has come to know from very reliable sources that the Defendant/Opposite-party No. 1 and the other Defendants/Opposite Parties being owners of the mortgaged property and other property which the Defendant/Opposite Parties declared in their Personal Net Worth Statement described in the schedule below are trying to dispose of in order to defeat the decree which may be passed by this Court upon hearing of the suit. However, the Defendant/Opposite Parties are also trying to sell the hypothecated machineries described in the schedule below in order to delay the execution of the decree that may be passed against the Defendant/Opposite Parties. In such situation it is necessary to attach the scheduled movable and immovable properties. If the Scheduled properties are sold, the Plaintiff/Petitioner bank will not be able to execute the decree which may be passed in favour of the Plaintiff/Petitioner. It may be mentioned here that the value of the mortgaged immovable properties do not cover the present liabilities for which the Plaintiff/Petitioner has filed the above suit and as such the scheduled properties are required to be attached for ends of justice.
04. That it is submitted that unless the scheduled properties are attached, the Defendants/Opposite Parties will dispose of the scheduled properties in order to frustrate the decree which may be passed in favour of the Plaintiff/Petitioner by this Court and thus the Plaintiff/Petitioner shall suffer irreparable loss and injury and also be deprived from recovery of public money.
05. That this application has been filed bonafide.
Wherefore, it is most humbly prayed that this Hon’ble Court may graciously be pleased to:
a) Issue notice upon the Defendants/Opposite Parties/opposite-parties to show cause as to why an order of attachment shall not be passed attaching the scheduled properties;
b) After hearing the parties, perusal of the records and cause shown, if any, pass an order of attachment to the above effect;
c) Pending hearing of the Rule pass an ad-interim order of attachment attaching the scheduled properties; and/or
d) Pass such other or further order or orders as may be deemed fit and proper.
And for this act of kindness the appellant/petitioner as in duty bound shall ever pray.
SCHEDULES OF IMMOVABLE PROPERTIES
Land belonging to the Defendant/Opposite Party Nos. 2 & 3
All that piece and parcel of land measuring 1 (one) acre 100 (hundred) decimals situated within district-Gazipur, Police Station & Sub-Register office-Sreepur, Mohal No. 9, Mouza-Satkhamair, S.A. Khatian No. 965, R.S. Khatian No. 654, S.A. Dag No. 87, 98, 103, 119, 136, 142, 144, 152, 155, 159, 162, 194, 195, 2760, 234, 240, 243, 131, 138, 139, 163, 185, 1183, 1184, 1185, 1188, R.S. Dag No. 417, 4203, 4270, 4212, 4242, 4252, 4255, 4243, 4309, 4327, 4424, 4423, 4422, 6031, 4406, 6029, 4425, 4317, 4250, 4246, 4416, 4251, 6031, 6034, 6022, 6012, along with all constructions and structures constructed or to be constructed thereon with all other rights, interests, title, easements etc. Attached or appertaining to the land.
Land belonging to the defendant/opposite party Nos. 2 & 4
All that piece and parcel of land measuring 05 Katha land situated at Holding No. 172 (old), 2 (new) or East Tejturi Bazar, Tejgaon, Dhaka.
SCHEDULE OF MOVABLE PROPERTIES
| SL | NAME OF THE MACHINERY | QUANTITY |
| 1. | SINGLE NEEDLE MACHINE | 55 NOS. |
| 2. | 5 THREAD OVER LOCK MACHINE | 8 NOS. |
| 3. | 3 THREAD OVER LOCK MACHINE | 8 NOS. |
| 4. | KANSI SPECIAL MACHINE | 3 NOS. |
| 5. | ELECTRICAL GENERATOR | 1NO. |
| 6. | P-E-I | 1 NO. |
| 7. | ISSUING SPARE PARTS | |
| 8. | TABLE, CHAIR, ELECTRICITY EQUIPMENTS |
[PLEASE DESCRIBE THE ASSETS TO BE ATTACHED]
AFFIDAVIT
I, ________________________, son of _______________________, ________________, Uttara Bank Limited, Local Office, Adamjee Court, 115-120, Motijheel Commercial Area, Dhaka-1000, aged about ____ years, occupation service, by faith _________, Nationality Bangladeshi, do hereby solemnly affirm and say as follows:
01. That I am _____________ and the Tadbirker of the Plaintiff/petitioner/petitioner in this case and as such fully acquainted with the facts and circumstances of the cases and competent and authorised to swear this affidavit.
02. That the statements of facts made above are true to my knowledge and belief and the rests are respectful submissions before this Hon’ble Court which I verily believe to be true. In witness whereof I swear this affidavit and sign below on this the ____ day of ______________, 2002 at ____ a.m., before the Affidavit Commissioner
| DEPONENT | |
| The deponent is known to me and identified by me. | |
| ADVOCATE |