RE: LEGAL OPINION REGARDING MORTGAGED PROPERTIES, A/C. M/S Company 1.
Please refer to your letter dated 17.05.2007 (received on 22.05.2007) on the above subject.
We understand that Bank 1 (the “BANK 1”) came to know from the reliable sources that the mortgaged property mentioned in serial no. (ii) of the Schedule “B” of the Artha Rin Suit No. 02 of 2007 (“the Property”) is also mortgaged with The Bank 2 (the “Bank 2”) against credit facilities availed by the captioned borrower. Upon perusal of your letter it is apparent that the Property was first mortgaged in favour of BANK 1 and the same Property was mortgaged with the Bank 2 for the second time.
In such situation, the matter has been referred to us to provide an opinion as to protect the interest of BANK 1. We have perused the query referred to us.
Our opinion is as follows:
BANK 1 has already filed Artha Rin Suit No. 2 of 2007 in the Artha Rin Adalat, 4th Court, Dhaka against the borrower and mortgagor/guarantor(s) for recovery of its outstanding dues by way of selling the mortgaged properties. Since BANK 1 is the prior mortgagee and the Bank 2 is the subsequent mortgagee therefore BANK 1 has a 1st charge over the Property and as such BANK 1 is legally entitled to recover the outstanding loan amount from the sale proceeds of the Property. Any remaining surplus amount after settlement of BANK 1’s dues can be used to settle any outstanding liabilities with the Bank 2. In such situation the best possible course of action would be for BANK 1 to proceed with the Artha Rin Suit as usual.
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