X International Ltd. & others -Versus- Arab Bangladesh Bank Limited and another

IN THE COURT OF 5th JOINT DISTRICT JUDGE, DHAKA

TITLE SUIT NO.___ OF_____

X International Ltd. & others

PLAINTIFFS

/PETITIONERS

-Versus-

Arab Bangladesh Bank Limited and another

DEFENDANTS

/OPPOSITE-PARTIES

WRITTEN OBJECTION ON BEHALF OF THE DEFENDANTS/OPPOSITE-PARTIES NO. 1-4 AGAINST THE APPLICATION FILED BY THE PLAINTIFFS/APPLICATIONERS UNDER ORDER XXXIX, RULE 1 AND 2 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE.

The defendants/opposite-parties most respectfully

SHEWETH:

01. That the application under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure is not maintainable in its present form and manner as filed by the plaintiffs/petitioners, hence it is liable to be rejected in limine.

02. That the application is filed with malafide intention to harass these defendants/opposite-party Nos.1-4 and with an intention to deprive these defendants/opposite parties in recovering its legitimate dues, hence it is liable to be rejected.

03. That the application is filed with a view to misguide the Court by suppressing material facts, hence it is liable to be rejected.

04. That there is no cause of action to file the suit, hence the application is liable to be rejected in limine.

05. That the statements made in the application, which are not specifically denied by these defendants/opposite-party Nos.1-4, shall be deemed to have been denied for all purpose and intent.

06. That the statements made in paragraphs 1, 1(a)-1(b) of the application are matters of record, as such these defendants/opposite-parties does not offer any comments.

07. That the statements made in paragraph 1(c) of the application are partially matters of record and partially false, fabricated and highly motivated. In particular, the statements to the effect that due to various valid reasons like political unrest in the last part of 1990 there was business loss and the borrowers (the plaintiffs) failed to repay the outstanding dues within time are false, fabricated and malafide and as such denied by these defendants/opposite-parties.

08. That the statements made in paragraph 1(d) and 1(e) of the application are not relevant now as far as this application is concerned, as such these defendants/opposite-parties does not offer any comments. However, the allegation of non-co-operation by these defendants/opposite-parties is baseless and false.

09. That the statements made in paragraph 1(f)-1(l) of the application are matters of record and as such these defendants/opposite parties offers no comments on the same.

10. That the statements made in paragraph 1(m) of the application are baseless and motivated. Contrary to what have been alleged, it is submitted that these defendants/opposite parties was not under any obligation to extend any time for adjustment after the expiry of the validity. However, the best these defendants/opposite parties could was only 7(seven) days. It is rather the responsibility of the plaintiffs to adjust the loan within the validities, which they have failed.

11. That the statements made in paragraph 1(n) of the application are partially matters of record and partially false, fabricated and concocted. That the statements made in this paragraph to the effect that on the other hand the defendants instead of helping in materializing the said profitable deal behaved with step motherly attitude are false, fabricated and concocted and as such denied by these defendants/opposite parties.

12. That the statements made in paragraph 1(o) and 1(p) of the application are partially matters of record and partially false. Contrary to what has been stated in these paragraph it is submitted that after expiry of the term of payment under the agreement in question the Bank cancelled the same vide letter dated 14.12.2002 and as such after cancellation of the agreement in question there was no scope to permit the plaintiff to permit to sell the land in question or registrar the sale deeds. It is also submitted that the Bank acted in accordance with the terms and conditions of the agreement in question and as such the Bank committed no willful negligence, non-co-operation and there was no ill motive of the officials of the bank.

13. That the statements made in paragraph 1(q) and 1(r) of the application are false, fabricated, concocted and misconceived and as such denied by these defendants/opposite parties.

14. That the statements made in paragraph 1(s) of the application are partially matters of record and partially false, fabricated and baseless. That the statements made in this paragraph to the effect that due to silence of the defendant Bank the plaintiffs failed for no fault of their own are false, fabricated and baseless and as such denied by these defendants/opposite parties.

15. That the statements made in paragraph 1(t) of the application are misconceived and misinterpretation of the terms of the agreement in question and as such denied by these defendants/opposite parties. Contrary to what has been stated in this paragraph it is submitted that as per clause 1, 3 and 4 the sale proceeds of the land in question must be paid towards adjustment of the balance compromised amount of Tk.6,30,00,000.00 within 31.12.2001. Since the plaintiffs deed not come forward to fulfil their contractual obligation within the validity of the agreement in question the clause 4 of the agreement in question became ineffective and as per clause 8 of the agreement in question these defendants reserves the right to initiate any civil or criminal action against the plaintiffs to recover its outstanding dues from any source of the plaintiffs.

16. That the statements made in paragraph 1(u) of the application are baseless, malafide, highly motivated and made with a view to illegal gain from the defendants and as such denied by these defendants/opposite parties. In this regard it is submitted that these defendants published the auction notice as per provision of the Artha Rin Adalat Ain, 2003 and acted within terms of agreement in question.

17. That save the statements that by the said letter dated 14.10.2004 plaintiff No. 3 also claimed that the acts and actions of the defendant bank are violative to the clauses of the said deed of compromise and the plaintiffs are entitled to take legal actions against the defendant bank, the rest of the statements made in paragraph 1(v) of the application are not concerned with these defendants and as such offers no comments. In this connection it is submitted that the defendant bank always acted in accordance with the terms of the agreement in question and as such the plaintiffs have no locus standi to take legal action against these defendants.

18. That the statements made in paragraph 1(w) of the application are malafide and highly motivated and as such denied by these defendants/opposite parties.

19. That save the statements that the defendant bank after expiry of the agreed period mentioned in the deed of compromise kept on extending time and therefore the said deed of compromise does stand until and unless the mortgaged land free from all encumbrances are sold and the bank has been stopped in auctioning the mortgaged properties through the said Artha Jari Mokoddama, the rest of the statements made in paragraph 1(x) of the application are not concerned with these defendants and as such offers no comments. In this connection it is submitted that as per clause 1 and 3 of the agreement in question the plaintiff failed to adjust its liabilities with these defendants within 31.12.2001 and as such after expiry of the validity of the agreement in question, the same stand cancelled automatically.

20. That the statements made in paragraph 1(y) of the application are malafide, misconceived, highly motivated and made with a view to ill legal gain from these defendants/opposite parties and as such denied by these defendants/opposite parties. That contrary to what has been stated in this paragraph it is submitted that these defendants/opposite parties have started the Title Execution Case No. 89/2000 (which subsequently renumbered as Artha Jari No. 64/2004) when the plaintiffs/applicationers failed to perform the terms of the agreement in question. It is also submitted that in view of section 20 of the Artha Rin Adalat Ain, 2003 there is no chance to entertain the instant suit and application.

21. That the statements made in paragraph No.1(z) of the application regarding the cause of action of the suit filed by the plaintiffs are baseless. Since these defendants/opposite parties did not acted beyond the terms of the agreement in question no cause of action arouse at all and that is why the plaintiff has no locus standi to file the suit and as such the suit is liable to be dismissed.

22. That the statements made in paragraph 2 and 3 of the application are false, fabricated, baseless, malafide and highly motivated as such denied by these defendants/opposite parties.

23. That the statements made in paragraph 4 and 5 of the application are false, fabricated, baseless, malafide and highly motivated as such denied by these defendants/opposite parties. In this regard it is submitted that the balance of convenience and inconvenience is favour of these defendants/opposite parties and the plaintiffs/applicationers has no prima-facie arguable case as from the forgoing it is apparent that these defendants/opposite parties acted in accordance with the agreement in question. Further, if any loss at all suffered by the plaintiffs/applicationers, the loss undoubtedly shall be compensated in terms of money and as such the plaintiffs/applicationers are not entitled to get the order of temporary injunction. There are many reported decisions of Appellate Division of the Supreme Court of Bangladesh which supports the same.

Wherefore, it is most humbly prayed that your honour would graciously be pleased to reject the application under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure filed by the plaintiffs/applicationers with costs; and/or pass such other or further order or orders as your honour deems fit and proper.

And for this act of kindness this defendants/opposite-parties, as in duty bound shall ever pray.

AFFIDAVIT

I, ___________________, son of ________________, aged about ___ years, Arab Bangladesh Bank Limited, ______ Branch, _________________________, Bangladesh, by faith _________, by nationality Bangladeshi, by profession Service-holder, do hereby solemnly affirm and declare as follows:

1. That I am the tadbirkar of this case and acquainted with the facts and circumstances and competent and authorised to swear this Affidavit.

2. That the statements of facts made in this application are true to the best of my knowledge and belief which I verily believe to be true and rests are submissions before this Hon’ble Court and in witness whereof I swear this Affidavit and signed below before the Affidavit Commissioner on this the ______th day of ___________, at ______ a.m.

DEPONENT
The deponent is known to me and identified by me.
ADVOCATE

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