Industrial Promotion and Development Company of Bangladesh Limited Plaintiff -Versus- QQ Foods (Pvt.) Ltd. and others Defendant

IN THE ARTHA RIN ADALAT 2nd COURT AT DHAKA

ARTHA RIN SUIT NO. ____OF _____

Industrial Promotion and Development Company of Bangladesh Limited

Plaintiff

-Versus-

QQ Foods (Pvt.) Ltd. and others

Defendant

WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 5

01. That the suit filed by the plaintiff is not maintainable in its present form and nature, hence the suit is liable to be dismissed with cost.

02. That the suit is liable to be dismissed as there is no cause of action as against this defendant.

03. That the suit is barred by the principles of waiver, acquiescence and estoppel.

04. That the suit has been filed with malafide and ulterior intention and motive to make illegal gain from the defendant No. 5 as such the suit is liable to be dismissed.

05. That the suit is framed on wrong conception of law and facts.

06. That the suit is bad for non-joinder and misjoinder of parties.

07. That the statements made in the plaint which have not been specifically admitted hereinafter shall be deemed to have been denied by this defendant.

08. That it is submitted that this defendant has been impleaded in the present suit as mortgagee of an immovable property in separate transaction, which the plaintiff allegedly have claim on it. This defendant is neither a borrower, nor a guarantor nor a mortgagor against the loan availed by the plaintiff. Pursuant to section 6(5) of the Artha Rin Adalat Ain 2003, borrower, guarantor and mortgagor can be impleaded as defendants in any Artha Rin Suit and as such the suit is liable to be dismissed.

09. That the statements made in paragraph Nos. 1-5 of the plaint are matters of record and the plaintiff is put to strict proof of the same and the defendant No. 5 is refrained from making any comments with regard to the same.

10. That the statements made in paragraph Nos. 6-26 of the plaint are irrelevant and does not concern with this defendant, as such are denied by this defendant.

11. That the statements made in paragraph Nos. 27 and 28 of the plaint is false, fabricated, concocted, misconceived and hence strongly denied by the defendant No. 5. Contrary to what has been alleged, this defendant submits that at the request of the defendant No. 1, the defendant No. 5 through its Gulshan Branch sanctioned a composite limit of Tk. 15.00 million in favour of the defendant No. 1 on 20.05.2001. It is also stated that while the defendant No. 1 approached the defendant No. 5 for credit facilities, the defendant No. 5 informed the same to the plaintiff and also requested the plaintiff to inform whether security interest over the defendant No. 1’s assets can be shared on pari passu basis. But the plaintiff never disclosed the security taken or to be taken against the credit facilities extended by the plaintiff. As a result the defendant No. 5 conducted due diligence on the records of the plaintiff maintained with the Register of Joint Stock Companies and Farms (RJSC). Moreover the defendant No. 5 filed Form XVIII for the hypothecation of plant and machinery and Form XIX for hypothecation of inventory with RJSC on 08.07.2003. The defendant No. 5 also filed Form XVIII with RJSC for the mortgage of the properties on 05.07.2003. This was done within 21 days of execution of documents and upon obtaining satisfactory report from RJSC, charge was created in favour of the this defendant.

12. That the statements made in paragraph No. 29 of the plaint is irrelevant and does not concern with this defendant, as such are denied by this defendant.

13. That the statements made in paragraph No. 30 of the plaint is false, fabricated, concocted, misconceived and hence strongly denied by the defendant No. 5. Contrary to what has been alleged, this defendant submits that the defendant No. 1 has created registered mortgage of 10 kathas of land with building/structure thereon and the defendant No. 1 has also hypothecated its machinery, equipments and inventory in favour of the defendant No. 5. Further it is submitted that the defendant No. 5 is not a party to the Loan Agreement between the defendant No. 1 and the plaintiff. As such legally the terms and conditions of the said Loan Agreement are not binding on the defendant No. 5 and hence the defendant No. 5 can not be liable for the consequences of any breach of terms and conditions of the said Agreement. It is further stated that before receipt of the letter dated 26.06.2003 of the plaintiff , mortgage has been created in favour of the defendant No. 5 by the defendant No. 1 vide Registered Deed of Mortgage No. 8036 dated 19.06.2003.

14. That the statements made in paragraph Nos. 31, 32 and 33 of the plaint are matters of record and hence defendant No. 5 offers no comment. The plaintiffs are put to strict proof of the same.

15. That the statements made in paragraph Nos. 34-46 of the plaint are irrelevant and does not concern with this defendant, as such are denied by this defendant.

16. That the statements made in paragraph Nos. 48, 49, 50 and 51 of the plaint are false, fabricated, concocted, misconceived and hence strongly denied by the defendant No. 5. Contrary to what has been alleged, this defendant submits that the defendant No. 5 had no clear knowledge about the security and the Loan Agreement against which the plaintiff extended the facility in favour of the defendant No. 1. Further it is submitted that the plaintiff furnished this defendant wrong information vide their letter dated 06.11.2003 about the security taken against the facility extended by the plaintiff. The plaintiff stated in the said letter that the plaintiff granted a term loan against security of first charge on project assets. Subsequently, the statement of the plaintiff furnished in the said letter was found false while the defendant No. 5 obtained Search Report from RJSC. This reflects that the plaintiff had simply been trying to mislead this defendant. The plaintiff never disclosed to the defendant No. 5 the security obtained or to be obtained against the term loan limit sanctioned by the plaintiff favouring the defendant No. 1. The defendant No. 5 searched with RJSC in order to ascertain whether there was any charge on the defendant No. 1’s present and future fixed and floating assets created by any bank/financial institution and upon obtaining satisfactory report from RJSC, mortgage and charge was created in favour of the this defendant. Further this defendant have no legal obligation which requires to get approval or even intimate to the plaintiff before any charge is created in its favour on account of loan given to the defendant No. 1. This defendant as banking institution is at liberty to grant credit facilities to its client and accept such securities as it deems fit without owing “any duty of care” to inform the security structure to the plaintiff.

17. That the case of this defendant is as follows:

i) That at the request of the defendant No. 1 the defendant No. 5 through its Gulshan Branch sanctioned a composite limit of Tk. 15.00 million in favour of the defendant No. 1 on 20.05.2001 with a validity up to 19.05.2002.

ii) That thereupon at further request of the defendant No. 1, the defendant No. 5 through its Gulshan Branch renewed and enhanced the facility from Tk.15.00 million to Tk.17.5 million on 12.01.2003. Subsequently the facility was renewed and enhanced to Tk. 40.00 million on 02.06.2003.

iii) That the said credit facilities were secured inter alia by:

a) Hypothecation of machinery, equipments of the defendant No. 1 by way of Hypothecation of Fixed Assets dated 06.07.2003 and Hypothecation of Goods and inventory of the defendant No. 1 by way of Letter of Hypothecation dated 06.07.2003 with subsequent modifications thereof duly filed with the Registrar of Joint Stock Companies & Firms (RJSC);

b) Registered mortgage of land measuring 10 katha or 16.50 decimals along with all structures constructed and/or any other structures to be constructed thereon situated within District Dhaka, P. S. Badda, Sub-Registry Office- Gulshan, under Mouza-Zoar Shahara, C.S. Khatian No. 350, S.A. Khatian No. 770, Mutation Khatian No. 770/2, C.S. and S.A. Dag No. 1186 and 1187 vide execution of a registered Deed of Mortgage being No. 8036 dated 19.06.2003 duly filed with RJSC. The property stands in the name of the defendant No. 1. The registered mortgage was supported by a registered Irrevocable General Power of Attorney being No. 8037 dated 19.06.2003 to sell the mortgaged property.

IV) That in the mean time the defendant No. 5 requested to the plaintiff vide letter dated 27.05.2003 to inform the defendant No. 5 whether security interest over the defendant No. 1’s assets can be shared on pari passu basis. But the plaintiff never disclosed the security taken or to be taken against the credit facilities extended by the plaintiff. As a result the defendant No. 5 conducted due diligence on the records of the plaintiff maintained with the Register of Joint Stock Companies and Farms (RJSC).

18. That the plaintiff furnished this defendant wrong information vide their letter dated 06.11.2003 about the security taken against the facility extended by the plaintiff. The plaintiff stated in the said letter that the plaintiff granted a term loan against security of first charge on project assets. Subsequently, the statement of the plaintiff furnished in the said letter was found false while the defendant No. 5 obtained Search Report from RJSC. This reflects that the plaintiff had simply been trying to mislead this defendant No.5. The plaintiff never disclosed to the defendant No. 5 the security obtained or to be obtained against the term loan limit sanctioned by the plaintiff favouring the defendant No. 1. The defendant No. 5 searched with RJSC in order to ascertain whether there was any charge on the defendant No. 1’s present and future fixed and floating assets created by any bank/financial institution and upon obtaining satisfactory report from RJSC, mortgage and charge was created in favour of the this defendant.

19. That this defendant have no legal obligation which requires to get approval or even intimate to the plaintiff before any charge is created in its favour on account of loan given to the defendant No. 1. This defendant as banking institution is at liberty to grant credit facilities to its client and accept such securities as it deems fit without owing “any duty of care” to inform the security structure to the plaintiff.

Wherefore, it is humbly prayed that your Honour would graciously be pleased to dismiss the suit filed by the plaintiffs with compensatory costs in favour of the defendant No. 1

AND for this act of kindness the defendant No. 5 as in duty bound shall ever pray.

AFFIDAVIT

I, _______________________ son of __________________________ of ­­­­­­­­­­­­­­­­­­_____________________________, aged about _______ years, by occupation service, by faith Muslim, nationality Bangladeshi by birth, do hereby solemnly affirm and say as follows:

01. That I am an _______ of the defendant No. 5 and fully acquainted with the facts and circumstances of the case and competent to swear this Affidavit.

02. That the statements made above are true to my knowledge and belief and the rests are submission before the Hon’ble Court.

DEPONENT

The deponent is known to me

and identified by me.

ADVOCATE

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