IN THE COURT OF 5TH JOINT DISTRICT JUDGE, DHAKA
TITLE SUIT NO. ___________ OF_____________
X Garments Limited represented by its
42, Sabera Market
Gulshan South C/A, Gulshan, Dhaka-1212
Bangladesh Bank, Main office, Motijheel, Dhaka represented by its Governor and others
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 3:
- That the Suit filed by the M/s. X Garments Ltd. (“the plaintiff”) is not maintainable in its present form and nature.
- That there is no cause of action to file the Suit against the defendant No. 3 (hereinafter referred to as “the defendant”) and as such the Suit should be dismissed with costs.
- That the Suit has been filed with malafide intention to make illegal gain from the defendant. Since the Suit has been filed with malafide motive, the Suit is liable to be dismissed.
- That the Suit is barred by the principles of waiver, acquiescence and estoppel.
- That the Suit is framed on wrong conception of law and facts.
- That the Suit is bad for non-joinder and mis-joinder of parties.
- That the Suit is not maintainable as it did not comply with the legal formalities preceding the filing of a Suit. The Suit is liable to be dismissed summarily on the face of the plaint as the plaintiff filed the said Suit without any cause of action.
- That the statements made in the Suit which are not specifically admitted hereinafter shall be deemed to have been denied by the defendant.
- That the statements made in paragraph nos. 1 to 2 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.
- That the statements made in paragraph No. 3-5 of the plaint are matters of record and the plaintiff is under obligation to prove the same. It is submitted that as per terms and conditions of the L/C, the defendant is bound to make payment of the L/C amount upon receipt of the documents.
- That the real fact is that the plaintiff opened a Letter of Credit in the Local office of the defendant for an amount of US$ 27,490.62 on 18.05.2000. The Premier Bank Limited (“the advising Bank”), Dilkusha C/A Branch, Dhaka sent partial document for an amount of US$ 4685.31 on 05.06.2000 which was duly accepted and paid for that. The rest of the documents for an amount of 22,805.31 US$ was received by the Local office of the defendant on 30.07.2000. The said Local office found the discrepancy in those documents and informed the advising Bank. The advising Bank did not give any disposal instruction. The discrepancies were as follows: Late shipment; Late presentation; L/C expired; Description of goods mentioned in Commercial invoice and Delivery Challan is not as per L/C; Delivery Challan is not signed by our Bank’s representative. In these circumstances, the defendant No. 4 requested the plaintiff to give US$ 8,000 instead of US$ 22,805.31. At the request of the beneficiary, the plaintiff asked the defendant to return those documents. At the request of the plaintiff and in absence of any disposal instruction, the defendant sent back those documents on 17.09.2000. The beneficiary or the advising bank did not communicate nor claim last five years. After five years the said Bank raised question as to those documents on 27.08.2005 and the defendant sent back on 29.07.2005 on the ground of discrepancies.
- That the Bangladesh Bank sent a letter to the defendant asking the defendant to pay US$ 22,805.31 to the defendant No. 4 for the unpaid delivery of the accessories on 04.10.2005.
- That since the defendant is the duty bound to the instructions of the Bangladesh Bank and the defendant has nothing to do but to pay to the beneficiary.
- That the disputed matter is the matter between the beneficiary and the plaintiff and they are obliged to settle themselves without involving the defendant.
- That it is submitted that the Letter of Credit incorporated the terms and conditions of the Uniform Customs and Practice for Documentary Credits (1993 Revision, ICC Publication No. 500) (hereafter “UCPDC”). According to the provisions contained in UCPDC, the Letter of Credit transaction creates a contract between the Opening or Issuing Bank (in this instance case the defendant No. 3) and the Advising or Negotiating Bank which (in this instant case defendant no. 5) is completely autonomous and separate from the underlying contract of supply of goods and also from the terms and conditions of the Master Letter of Credit under which the Letter of Credit is opened. The Issuing Bank of a Letter of Credit, whether back to back or otherwise, is completely unconcerned with the performance of the underlying contract. As soon as the documents tendered by the Beneficiary of the Letter of Credit are in conformity with the mandate of the Letter of Credit, the Issuing Bank is under an absolute obligation to reimburse the Bank that has negotiated and/or made payment against such documents. There is no law which states that because of less quantity of the goods, payment under Letter of Credit can be cancelled. As such, the plaint of the plaintiff is not maintainable in law.
- That Article 3(a) of the UCPDC 500 reads as follows:
“Credits, by their nature, are separate transactions from the sales or other contract(s) on which they may be based and banks are in no way concerned with or bound by such contract(s), even if any reference whatsoever to such contract(s) is included in the credit”.
Article 4 of UCPDC 500 provides as follows:
“In Credit operations all parties concerned deal with documents, and not in goods, services and or other performances to which the documents may relate.”
Therefore, at all stages of the relevant transaction, the defendant was concerned only with documents and can in no way be held responsible for the goods for which the back to back L/C was opened. There was no contract between the defendant and the plaintiff stipulating that if goods delivered under L/C would appears to less quantity, the defendant would not make payment of the L/C amount. Therefore, the defendant is under the obligation to reimburse the defendant No.4 for the L/C amount. Instead of paying the L/C amount, the plaintiff has filed this suit to harass the defendant and to make illegal gain from it.
- That it is submitted that as the issuing bank of a letter of credit governed by the provisions of the Uniform Customs and Practice for Documentary Credit (UCPDC), the defendant is only concerned with documents and is not involved in any way with the underlying contract or L/C to supply the goods and its performance. Therefore the plaintiff is under the obligation to reimburse the defendant.
- That the statements made in paragraph 6-7 are denied.
- That the only intention of the plaintiff is to harass and illegal gain from the defendant. Therefore, there is no cause of action arose to file this Suit against the defendant. The plaintiff added the defendant’s name in this suit with melafide intention to harass the defendant. This Suit is not maintainable against the defendant. Therefore, the Suit filed by the plaintiff is liable to be dismissed.
Wherefore, it is humbly prayed that your Honour would graciously be pleased to dismiss the Suit filed by the plaintiff with compensatory costs in favour of the defendant.
And for this act of kindness the defendant as in duty bound shall ever pray.
That the statements made above are true to our knowledge and matters of records whereof we put our signature on this the____ day of ___________, ___________.