IN THE 4TH ARTHA RIN ADALAT AT DHAKA
ARTHA RIN SUIT NO. OF 2004
Habib Bank Limited
Abide-I Hurriyet Cad.
Represented by its recognized agent in Bangladesh
Habib Bank Limited
53, Motijheel Commercial Area
Imamgonj Corporate Branch
SUIT FOR RECOVERY OF MONEY
SUIT VALUEDAT US$ 179,420.31 EQUIVALENT TK. _________________ (TAKA___________________________________) ONLY INCLUSIVE OF INTEREST AS ON 30.10.2004
The plaintiff above named states as
01. That the plaintiff is a banking company incorporated in Pakistan under the relevant Companies Act and carries on banking business through its various branches situated at different parts of the world. The plaintiff’s Turkey office is situated at the address mentioned in the cause title and is represented in this suit by its recognized agent in Bangladesh (hereinafter referred to as the “plaintiff bank”).
02. That the defendant is a banking company carrying on banking business in Bangladesh under the relevant laws (hereinafter referred to as the “defendant bank”).
03. That at the request of Karim Leathers Limited having its address at 180, Hazaribagh, Dhaka-1209 (the “Applicant”), the defendant bank opened an Irrevocable Documentary Credit being No. 009704020005 dated 06.07.2004 (the “L/C”) in favour of INSOPELLES Deri Mamulleri San. Ve TIC. Ltd. Sti of Telsiz Mah. 71, Sok. No. 32, Zeytinburnu, Istanbul, Turkey (the “Beneficiary”) for an amount of US$ 1,62,500.00 +/-10% (US Dollar one hundred sixty two thousand and five hundred plus or minus ten percent) only for import of dressed leather. The L/C clearly stipulated that drafts shall be drawn at 60 days after sight and that the defendant bank shall arrange remittance of the proceeds on due date as accepted by the Applicant on receipt of the documents. The L/C was subject to Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 (hereinafter referred to as “UCPDC”).
04. That the Beneficiary of the L/C shipped the goods and submitted shipping documents for US$ 1,77,937.50 (US Dollar one hundred seventy seven thousand nine hundred thirty seven and Cents fifty) only to the plaintiff bank for negotiation. The plaintiff bank upon receipt of the shipping documents negotiated the same on 20.07.2004 and forwarded the same to the defendant bank for acceptance and for advising the maturity date for payment. The defendant bank received the shipping documents on 24.07.2004.
05. That the defendant bank accepted the shipping documents along with the concerned Bill and by swift message dated 03.08.2004 informed the plaintiff bank that the concerned Bill under the L/C has been accepted to mature for payment on 01.10.2004 and to treat the concerned message as authenticated.
06. That since the shipping documents and the concerned Bill was accepted by the defendant bank and maturity date for payment has been communicated to the plaintiff bank and the original shipping documents have been released to the Applicant by the defendant bank ,the defendant bank is under legal obligation to settle the Bill amount on or before the maturity date i.e. 01.10.2004. But the defendant bank failed to make payment of the Bill amount on the maturity date.
07. That the plaintiff bank has repeatedly requested the defendant bank by swift message and through verbal communications to make payment of the accepted Bill under the L/C in question. But the defendant bank is refusing to make payment on the vague pretext that a suit has been filed by the Applicant for permanent injunction against the defendant bank from making payment under the L/C.
08. That the plaintiff bank has checked the records of the suit i.e. Title Suit No. 274 of 2004 filed in the 2nd Court of Assistant Judge, Dhaka by the Applicant against the Beneficiary and the defendant bank. In the said suit the plaintiff Habib Bank has not been made a party with malafide intention. Upon examination of the records, it has been revealed that despite the application of the Applicant, no injunction whatsoever has been granted in the said suit by the learned Court to restrain the defendant bank from making payment under the L/C. There is therefore no legal bar on the defendant bank to make payment under the LC in question. The defendant bank is withholding payment of the concerned Bill on untenable and lame excuse.
09. That as stated above, the L/C in question is subject to UCPDC. Article 9 of UCPDC provides as follows:
Liability of Issuing and Confirming Banks
a. An irrevocable Credit constitutes a definite undertaking of the Issuing Bank, provided that the stipulated documents are presented to the Nominated Bank or to the Issuing Bank and that the terms and conditions of the Credit are complied with;
i. if the Credit provides for sight payment – to pay at sight;
ii. if the Credit provides for deferred payment – to pay on maturity date(s) determinable in accordance with the stipulations of the Credit;
iii. if the Credit provides for acceptance:
a. by the Issuing Bank – to accept Draft(s) drawn by the Beneficiary on the Issuing Bank and pay them at maturity.”
Therefore, at all material times, the defendant bank being the Issuing Bank was under an absolute obligation to make payment of the Bill at maturity. But despite repeated requests and reminders by the plaintiff bank, the defendant bank did not take any step to make payment of the Bill amount to the plaintiff bank. The defendant bank is liable to make payment of the Bill amount along with accrued interest to the plaintiff bank.
10. That the plaintiff bank submits that since payment of the bill amount is a legal obligation and the defendant Bank has deliberately failed to pay within the stipulated date, the plaintiff is entitled to recover this amount as a legal debt.
11. That the plaintiff bank being a commercial bank cannot wait for an indefinite period to recover its legal dues. As such, the plaintiff bank has no alternative but to file this suit against the defendant bank for recovery of the outstanding dues.
12. That the legal debt of the defendant bank with the plaintiff bank is US$ 177,937.50 equivalent Tk. __________________ (Taka ___________________________) being the bill amount. The plaintiff is entitled to recover interest on the amount from the last date of maturity i.e. 01.10.2004 till filing of this suit @ 10% which comes to US$__1482.81_______ equivalent Tk.____________. The plaintiff bank is entitled to recover Tk.______________ with pendente lite interest.
13. That the cause of action of this suit arose on 03.08.2004 when the defendant bank accepted the Bill and confirmed that the Bill would be matured for payment on 01.10.2004 and also requested to treat the message as authenticated, on 01.10.2004 when the Bill matured for payment but the defendant bank did not make payment, and the said cause of action is continuing till date.
14. That the suit is for realization of Tk. __________________ (Taka ___________________________) only inclusive of interest as on 30.10.2004 of a commercial bank and the said suit is within the jurisdiction of this Court. For the purposes of court fees, the plaintiff bank values the suit at the said amount and has paid highest court fees on the said amount.
15. That the authorized representative of the plaintiff bank in the instant suit is Mr. Mohd. Jahangir Kabir, Manager-Treasury of the plaintiff bank, who is well conversant with the facts of the case.
The plaintiff, therefore, prays for:
(a) A decree for the sum of Tk. ________________ (Taka ____________________________) only inclusive of interest as on 30.10.2004 in favour of the plaintiff bank and against the defendant bank;
(b) A decree for pendente lite interest at the rate stipulated in the Artha Rin Adalat Ain, 2003 from the date of filing the suit till the date of decree and from the date of decree till realization of the decretal amount;
(c) Costs of the suit;
(d) Any other relief or relieves to which the plaintiff bank is entitled in law and equity.
And for this act of kindness, the plaintiff bank as in duty bound shall ever pray.
S C H E D U L E
[Under section 8(2)(ka) the Artha Rin Adalat Ain, 2003]
Description of Bill and Outstanding Amount
|Bill No. & Date||Bill amount in US$ and equivalent BDT||Interest(in Tk.)||Sub-total(Bill amount + Interest)(in Tk.)||Amount paid as on06.10.2004(in Tk.)||Outstanding amount as on06.10.2004(in Tk.)|
|US$ ________Equivalent BDT__________(US$1 = Tk. _____)||_________||__________||Nil||________|
A F F I D A V I T
I, __________________ son of ___________________ of Habib Bank Limited, 53 Motijheel Commercial Area, Dhaka-1000, aged about 41 years, by faith Musilim, nationality Bangladeshi by birth, profession service holder, do hereby solemnly affirm and declare as follows:
1. That I am Manager-Treasury of the plaintiff bank and well conversant with the facts of the case and competent to swear this affidavit.
2. That the statements of fact made in this plaint are true to the best of my knowledge and belief and rests are submissions before this Hon’ble Court in witness whereof I swear this affidavit and sign below on this the ______day of August, 2004 at ____ a.m. before the Commissioner of Affidavits.
The deponent is known to me and identified by me.