Dhaka Bank Limited -Versus- Mr. X

IN THE 3RD ARTHA RIN ADALAT, DHAKA

ARTHA RIN SUIT NO. OF 2004

Dhaka Bank Limited

Islampur Branch

6-7, Islampur Road

Islampur

Dhaka

Plaintiff

-Versus-

1. Mr. X

Son of Y

Proprietor of M/s. Q Trading

8, Islampur Road

Dhaka

Present Address:

138, Bangshal

Dhaka

Permanent Address:

Village: Mashurgaon

P.O. Sreenagar

P.S. Sreenagar

District – Munshiganj

2. Mr. Z

Son of Y

Village: Mashurgaon

P.O. Sreenagar

P.S. Sreenagar

District – Munshiganj

Defendants

SUIT FOR RECOVERY OF MONEY

SUIT VALUED AT TK. 10,38,714.24 (TAKA TEN LAC THIRTY EIGHT THOUSAND SEVEN HUNDRED FOURTEEN AND PAISA TWENTY FOUR) ONLY AS ON 31.03.2004

The plaintiff above named most respectfully states

AS FOLLOWS:

01. That the plaintiff is a banking company incorporated under the relevant Companies Act of Bangladesh having its Head Office at 100, Motijheel Commercial Area, Biman Bhaban, Dhaka-1000. The plaintiff carries on banking business in Bangladesh through its various branches including its Islampur Branch situated at the address given in the cause title (hereinafter referred to as the “plaintiff bank”).

02. That the defendant No. 1 is proprietor of M/s. Q Trading and availed credit facilities from the plaintiff bank. The defendant No. 2 is guarantor of the credit facilities availed by the defendant No. 1 from the plaintiff bank.

03. That on the application of the defendant No. 1 to the plaintiff bank, the Bangshal Branch of the plaintiff bank opened a Letter of Credit (“L/C”) being No. 102120065/ISL dated 07.03.2000 for US$ 15,750.00 equivalent to Tk. 8,07,503.00 in favour of M/s. Sagar Enterprise, Village and Post Office North Mahadipur, District – Malada, W.B. PIN – 732101, IEC No. 0299012425, India. The L/C was opened against 20% cash margin to import Non-Basmati Indian boiled rice of 75 Metric Tons from India through Sonamasjid land port by truck.

04. That the credit facilities extended by plaintiff bank was secured, inter alia, by the following:

(i) Demand Promissory Note executed by the defendant No. 1.

(ii) Letter of Undertaking executed by the defendant No. 1.

(iii) Letter of Guarantee executed by the defendant No. 1.

(iv) Usual charge documents.

05. That subsequently the plaintiff bank received the original shipping documents under the L/C in question on 20.04.2000 and immediately intimated the defendant No. 1 with request to make payment and retire the said shipping documents to release the goods under the L/C. However, the defendant No. 1 did not come forward to make payment to release the goods under the L/C in question. Consequently, as per the plaintiff bank’s obligations under the L/C, the plaintiff bank had to make payment of the L/C amount by creating a PAD account being No. 72501217 in the name of the defendant No. 1 on 22.04.2000.

06. That since the defendant No. 1 did not come forward to adjust his PAD liabilities with the plaintiff bank, the plaintiff bank was compelled to depute an officer to go to Sonamasjid land port on 17.07.2000 to know the position of the consignments under the L/C in question. To their utter shock and bewilderment, the plaintiff bank came to know from the Collector of Customs that on arrival of the goods at the port from India, the Customs Authority handed over the same to the defendant No. 1 through his clearing agent, M/s. P Enterprise. M/s. P Enterprise also verbally confirmed the plaintiff bank that he had delivered the goods to the defendant No. 1 in March 2000 and April 2000 respectively. Releasing the goods from the port without the endorsement of the plaintiff bank and without making payment for the same is a breach of the defendant No. 1’s contractual obligations to the plaintiff bank.

07. That thereafter the plaintiff bank issued several reminders, in particular by letter dated 19.09.2000, to the defendant No. 1 to make payment and adjust his PAD liabilities with the plaintiff bank. In reply by letter dated 05.10.2000, the defendant No. 1 committed that he would adjust the outstanding liabilities within 20.10.2000. But the defendant No. 1 failed to keep his commitment.

08. That subsequently the defendant No. 1 called upon the plaintiff bank on 18.12.2000 and promised to adjust his liabilities on 26.12.2000 positively. But again he miserably failed to keep his commitment. By letter dated 30.12.2000, the plaintiff bank once again requested the defendants to adjust the PAD liabilities within 3 days and to release the documents, failing which it was warned that the plaintiff bank would take appropriate legal action against them to recover the plaintiff bank’s dues.

09. That by letter dated 31.01.2001, the defendant No. 1 again made commitment to the plaintiff bank that to adjust his outstanding liabilities, he would make payment of Tk. 50,000.00 within 15.02.2001 and Tk. 3,00,000.00 by 28.02.2001. But the defendant No. 1 failed to keep his commitment.

10. That despite repeated requests and reminders, since the defendants failed to adjust their liabilities with the plaintiff bank, the plaintiff bank through their lawyer served legal notice on 03.03.2001 upon the defendants to adjust their outstanding liabilities within 15(fifteen) days of receipt of the notice. In his reply dated 15.04.2001 addressed to the lawyer of the plaintiff bank, the defendant No. 1 committed to adjust his entire outstanding liabilities within 30.08.2001. Again, the defendant No. 1 failed to keep his commitment.

11. That the defendant No. 1 miserably failed to keep his commitment to liquidate the liabilities within 30.08.2001. Thereafter, the defendant No. 1 along with his brother the defendant No. 2, came to the plaintiff bank on 05.09.2001 and earnestly requested the plaintiff bank not to take any legal steps against him. He informed that he was in severe financial crisis and needed some time to adjust the outstanding liabilities. On the said date, the defendant No. 2 gave assurance that the liabilities would soon be adjusted and executed personal guarantee in favour of the plaintiff bank to secure the outstanding liabilities.

12. That thereafter by letters dated 01.01.2003, 30.02.2003, 30.04.2003, 31.05.2003, 30.06.2003 and 04.08.2003, the plaintiff bank repeatedly requested the defendant No. 1 to adjust his outstanding liabilities, but to no avail. By letter dated 06.08.2003, the defendant No. 1 promised to adjust his outstanding liabilities, but he did not take any steps with regard to the same.

13. That in the background of such circumstances, the plaintiff bank served final notice on 06.04.2004 upon the defendants requesting to adjust the entire outstanding liabilities of Tk. 10,39,000.00 approx. within 7(seven) days of receipt of the letter. There was no reply from the defendants.

14. That the plaintiff bank has given the defendants ample time and opportunity to clear the outstanding liabilities, but the defendants have not taken any steps to adjust their liabilities. It is abundantly clear that the defendants will not adjust the plaintiff bank’s dues unless compelled by law. Having no alternative, the plaintiff bank has been compelled to file this suit against the defendants to realize its legal dues. It is submitted that the defendants are severally and jointly liable to repay the outstanding dues of the defendant No. 1 with the plaintiff bank.

15. That the outstanding liabilities of the defendants with the plaintiff bank stands at Tk. 10,38,714.24 (Taka ten lac thirty eight thousand seven hundred fourteen and paisa twenty four) only as on 31.03.2004. The plaintiff bank is entitled to interest on the said amount from 01.04.2004 till the date of realization.

16. That the cause of action of the suit arose when the defendant No. 1 applied to the plaintiff bank for opening the L/C, on 07.03.2000 when the L/C was opened by the plaintiff bank, on 20.04.2000 when the plaintiff bank received the shipping documents under the L/C in question, on 22.04.2000 when the plaintiff bank after making payment of the L/C amount created the PAD account in the name of the defendant No. 1, on the dates when the defendant No. 1 took delivery of the goods from the port without making payment to the plaintiff bank and without the plaintiff bank’s endorsement, on 19.09.2000, 30.12.2000, 01.01.2003, 30.02.2003, 30.04.2003, 31.05.2003, 30.06.2003 and 04.08.2003 when the plaintiff bank requested the defendants to adjust their liabilities with the plaintiff bank, on 03.03.2001 when legal notice was served upon the defendants, on 05.10.2000, 18.12.2000, 31.01.2001, 15.04.2001 and 06.08.2003 when the defendant No. 1 promised to adjust his outstanding liabilities but failed to adjust the same, on 05.09.2001 when the defendant No. 2 executed personal guarantee in favour of the plaintiff bank, on 06.04.2004 when the plaintiff bank served final notice upon the defendants requesting to adjust the entire outstanding liabilities and the said cause of action is continuing till date.

17. Thatthis suit is for realization of Tk. 10,38,714.24 (Taka ten lac thirty eight thousand seven hundred fourteen and paisa twenty four) only as on 31.03.2004 and the 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 has paid ad valorem court fees on the said amount.

18. That the authorized representative of the plaintiff bank in the instant suit is K, officer of the plaintiff bank, who is well conversant with the facts of the case.

The plaintiff bank, therefore, prays for:

(a) A decree for a sum of Tk. 10,38,714.24 (Taka ten lac thirty eight thousand seven hundred fourteen and paisa twenty four) only as on 31.03.2004 in favour of the plaintiff bank and against the defendants jointly and/or severally;

(b) A decree for interest from 01.04.2004 till the date of filing the instant suit @ 16%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;

(c) A personal decree against the defendant Nos. 1 and 2;

(d) A decree for the entire costs of the suit;

(e) 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

(Schedule under section 8(2)(ka) of the Artha Rin Adalat Ain, 2003)

Description of Loan & Amount Outstanding

Nature of Facilities Limit

(in Tk.)

Loan amount disbursed (in Tk.) Interest charged up to 31.12.2001

(in Tk.)

Interest from 01.01.2002 up to 31.03.2004 Sub-total

(Principal + Interest)

(in Tk.)

Amount repaid as on 31.03.2004

(in Tk.)

Outstanding amount as on 31.03.2004

(in Tk.)

LC/PAD 807503 663503 PAD 198509.24 284152 860512.24 107450 1038714.24
A F F I D A V I T

I, K, son of _________________, of Dhaka Bank Limited, Islampur Branch, 6-7, Islampur Road, Islampur, Dhaka, aged about 27 years, by faith Muslim, nationality Bangladeshi by birth, profession service, do hereby solemnly affirm and declare as follows:

1. That I am officer of the plaintiff bank 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 28th day of April, 2004 at ____ a.m. before the Commissioner of Affidavit.

DEPONENT

The deponent is known to me and identified by me.

ADVOCATE