Mercantile Bank Limited -versus- The City Bank Limited

IN THE COURT OF DISTRICT JUDGE, DHAKA

Transfer Miscellaneous CASE NO. ______OF_______

IN THE MATTER:

An application under Section 114 read with section 151 of the Code of Civil Procedure, 1908 to review the Order/Judgement dated 16.07.2 passed rejecting the Transfer Miscellaneous Case No. 630 of 2007 filed to transfer of Artha Rin Appeal being No. 14 of 2006 now pending before the Court of 6th Additional District Judge, Dhaka to your Honourable Court or any other Court competent to hear the matter.

AND

IN THE MATTER OF:

Mercantile Bank Limited

Main Branch

61, Dilkusha Commercial Area

Dhaka-1000

Plaintiff/Respondent/Petitioner

-versus-

The City Bank Limited

Principal Office

10, Dilkusha Commercial Area

Dhaka-1000

Defendant/Appellant/Opposite Party

The Plaintiff/Respondent/Petitioner above named most respectfully states as

FOLLOWS:

01. That the Plaintiff/Respondent/Petitioner filed Artha Rin Suit No. 331/2004 against the Defendant/Respondent/Opposite Party as follows:

· At the request of Velvet Textile Mills Limited having its address at 36, Kemal Ataturk Avenue, Suit-2B, Delta Dahlia, Banani, Dhaka (the “L/C Applicant”), Defendant/Respondent/Opposite Party opened an Irrevocable Documentary Credit being No. 03010119-B(L) dated 19.04.2001 (the “L/C”) in favour of M/s. Square Yarn Company having its address at 455/56, “Dha” Block, Mirpur, Dhaka (the “Beneficiary”) for an amount of US$ 40,000.00 (US Dollar forty thousand) only for procurement of yarn for fabric manufacturing. The L/C clearly stipulated that payment under the L/C would be made by drafts drawn on the defendant bank at 120 days sight for the full invoice value. Defendant/Respondent/Opposite Party agreed with drawers, endorsers and bonafide holders of drafts drawn under and in compliance with the terms of the credit that the same shall be duly honoured on due presentation. The L/C further provided that on maturity, payment will be made in taka equivalent to US Dollar as per negotiating bank’s instruction. It was also stated in the L/C that the Defendant/Respondent/Opposite Party would make payment on maturity of accepted drafts. The L/C in question was subject to Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 (hereinafter referred to as “UCPDC”). The beneficiary of the aforesaid L/C shipped the goods and submitted the documentary bill to the Plaintiff/Respondent/Petitioner for negotiation who submitted the said document on 22.04.2001 to the defendant/appellate/opposite party bank for acceptance and for advising the maturity date for payment under Ref No. FDBP(L) 01-303/01 dated 22.04.2001. The defendant/appellant/opposite party bank vide letter No. CBL:PO:FE:2001/5982 dated 24.04.2001 informed the plaintiff bank that the Bill No. FDBP(L) 01-303/01 dated 22.04.2001 for US$ 40,000 (US Dollar forty thousand) only under the L/C has been accepted by the drawee i.e. the L/C Applicant and the remittance will be effected on maturity i.e. on 24.08.2001. Then the Beneficiary proposed to the Plaintiff/Respondent/Petitioner Bank for negotiation of the Bill and the Plaintiff/Respondent/Petitioner Bank negotiated the bill and made payment against the Bill to the Beneficiary on 24.04.2001.

· Since Bill No. FDBP(L) 01-303/01 dated 22.04.2001 was accepted by the defendant/appellant/opposite party bank and maturity date for payment was communicated to the Plaintiff/Respondent/Petitioner Bank, it was the legal obligation of the defendant/appellant/opposite party bank to make payment of the Bill amount on or before the maturity date i.e. 24.08.2001. But the defendant/appellant/opposite party bank failed to make payment of the Bill amount. Consequently the plaintiff/respondent/petitioner bank filed Artha Rin Suit No. 331 of 2004 in the learned 2nd Artha Rin Adalat, Dhaka which was decreed against the defendant/appellant/opposite party bank in favour of Plaintiff/Respondent/Petitioner Bank.

02. That the defendant/appellant/opposite party bank being aggrieved with decree passed by the 2nd Artha Rin Adalat, Dhaka filed the instant Artha Rin Appeal being No. 14 of 2006 challenging the said decree which was transferred to the learned 6th Additional District Court, Dhaka for hearing. Thereafter the suit was fixed on 03.07.2007 for hearing. Upon partly hearing of the defendant/appellant/opposite party bank, the 6th Additional District Court, Dhaka adjourned the suit and next date is fixed on 04.07.2007 and then on 09.07.2007 for further hearing. At the time of said appeal hearing, the presiding officer of learned 6th Additional District Judge Court, Dhaka made some undesirable comments and also expressed an opinion as to the merit of the case which had reasonably lead the plaintiff/respondent/opposite party Bank to believe that the presiding officer of the learned Court has been biased, and already pre-judged the case which may reflect in his Judgement and Decree. As such the Plaintiff/Respondent/Petitioner Bank fears that it may be prejudiced due to the biasness of the said learned Judge.

03. That from the above mentioned attitude and the open comments it appears that the said presiding officer of learned 6th Additional District Judge Court, Dhaka is either biased or otherwise managed by the defendant/appellant/opposite party bank. Under the circumstances the plaintiff/respondent/petitioner bank thinks that they will not get justice in that Court. Then the plaintiff/respondent/petitioner bank filed the instant Miscellaneous Case with the view to transfer the Appeal being No. 14 of 2006 to any other competent Court within the jurisdiction of Honourable District Judge, Dhaka. Upon hearing of the Petition of Miscellaneous Case No. 630 of 2007 to transfer the Miscellaneous Case has been rejected by the this honourable Court on 16.07.2007 on the basis of not being shown in the Petition the specific words, comments which were passed by the learned presiding Judge of 6th Additional of this Miscellaneous Case and aggrieved the plaintiff/respondent/petitioner to file the instant Transfer Miscellaneous Case. It is also mentioned in the rejecting order that the instant Transfer Miscellaneous Case cannot be allowed on the basis of fake terms of ‘undesirable comments’.

04. That it is true that though the plaintiff/respondent did not mention in the Petition of Transfer Miscellaneous Case what exact undesirable comments was passed by the 6th Additional Judge, Dhaka, the plaintiff/petitioner has expressed its no confidence on the presiding Judge of 6th Additional District Judge, Dhaka.

05. That in such situation if Appeal No. 16 of 2006 is disposed off by the presiding Judge of 6th Additional District Judge Court, Dhaka and against the plaintiff/respondent then the plaintiff/petitioner shall not be satisfied on the Judgement/Decree and further litigation will be encouraged.

06. That moreover the learned Judge of 6th Additional District Judge Court, Dhaka failed to uphold fairness and neutral attitude in the open Court regarding matter, which is very much natural to believe that the plaintiff/respondent the learned Judge of the 6th Additional District Judge, Dhaka is biased.

07. That for ends of justice the above mentioned Appeal is required to be transferred to your Honourable Court or any other Court competent for hearing the appeal, otherwise the plaintiff/respondent/petitioner bank will be highly prejudiced.

09. That this petition has been filed bonafide.

Wherefore it is humbly prayed that your Honour would graciously be pleased to:

a) Issue notice to the defendant/appellant/opposite party bank as to why the Order dated 16.07.2007 passed by this Court shall not be ‘reviewed and set aside’ and allowed Miscellaneous Case No. 630 of 2007 transferring the Artha Rin Appeal No.14 of 2006 now pending before the Court of 6TH Additional District Judge, Dhaka to any other Court competent for hearing the same.

b) Call for the record of Artha Rin Appeal No.14 of 2006 now pending before the Court of 6th Additional District Judge, Dhaka;

c) Stay all further proceeding of the Artha Rin Appeal No.14 of 2006 now pending before the Court of 6TH Additional District Judge, Dhaka till disposal of the present application;

d) Transfer the Artha Rin Appeal No.14 of 2006 now pending before the Court of 6TH Additional District Judge, Dhaka to any other Court competent for hearing the same

And for this act of kindness the petitioners as in duty bound shall ever pray.

A F F I D A V I T

I, ___________________ son of ______________________ of Mercantile Bank Limited, Main Branch, 61 Dilkusha Commercial Area, Dhaka-1000, aged about 41 years, by faith ______________, nationality Bangladeshi by birth, profession _____________-, do hereby solemnly affirm and declare as follows:

1. That I am Assistant Vice President 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 ________________ at ____ a.m. before the Commissioner of Affidavits.

DEPONENT

The deponent is known to me and identified by me.

ADVOCATE

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