IN THE COURT OF 1st JOINT DISTRICT JUDGE , DHAKA
TITLE SUIT NO. _________OF _________
M/S. X Trading Corporation and another
M/S Y International (Dhaka) Limited and Others
WRITTEN STATEMENT ON BEHALF OF THE DEFENDANT NO. 2
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 to file the suit against the defendant No. 2.
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. 2 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 suit is liable to be dismissed for misjoinder of the plaintiffs. The plaintiff No.1’s claim is for rent of the demised premises, whereas the plaintiff No.2’s claim is for the rental of the leased machinery. Thus separate cause of actions have been brought under the present suit where no common question of fact or law will arise. At the same time the transactions are different and made with 2(two) separate entities and both the plaintiffs have not common interest, as such the plaint is liable to be dismissed.
08. That further in the suit separate relieves founded on distinct causes of action have been sought by the plaintiffs, as such, the suit is liable to be dismissed for want of adequate Court Fees. The claim by both the plaintiffs are relate to distinct subject and as such separate suits should have been instituted.
09. That the suit is filed by the plaintiffs in connivance with the defendant No.1 with a view to make illegal gain, as such, the suit is liable to be rejected.
10. That the statements made in the plaint, which have not been specifically admitted hereinafter, shall be deemed to have been denied by the defendant No. 2.
11. That the statements made in paragraph Nos.1, and 2 of the plaint are matters of record and hence defendant No. 2 offers no comment. The plaintiffs are put to strict proof of the same.
12. That the statements made in paragraph Nos. 3, 4, 5, 6 and 7 of the plaint are irrelevant, as such are denied by this defendant. The plaintiffs in collusion with each other have brought out a false plea against the defendants with a view to make illegal gain. Contrary to what have been alleged, this defendant submits that at the request of the defendant No. 1, defendant No.2 from time to time opened series of Back to Back L/Cs in favour of the defendant No. 1 for procurement of raw materials. Defendant No. 2 also opened 2(two) L/Cs, being Nos. 046502020001 for US$ 1,49,305.77 and 046502020002 jpy 2,43,63,600.00 on 180 days deferred payment basis for import of capital machinery from Japan. The said Back to Back L/Cs facility and other L/C facility were secured as follows:
a) Equitable mortgage of land measuring 83.75 decimals situated under mouza Purba Narshinghapar, P.S. Savar, Dhaka vide execution of ‘Deed of Equitable Mortgage’ and ‘Memorandum of Deposit of Title Deed’.
b) Hypothecation of machinery and other equipments fixed and stored at the XComplex, Plot No. 43, sector No. 3, Uttara Model Town vide execution of ‘ Deed of Agreement for Hypothecation’ dated 07.04.2002.
c) 1st charge on defendant No.1’s assets and book-debts, duly filed with Registrar of Joint Stocks and Firms.
d) Execution of charge documents, namely Demand Promissory Note, Letters of Authority, Letter of Continuity, Revival Letter etc by the defendant No.1.
e) Execution of a corporate guarantee by the YInternational Company Limited, Chungil Building 4 F # 262-1,4- Ga,Yangpyong- Dong Youngdeungpo – Gu ,Y150-104,Korea.
f) Execution of personal guarantees by the directors of the defendant No. 1.
The defendant No. 1 availed the credit facility in full but failed to adjust the same. Thereafter having found no alternative the defendant No.2 was compelled to file Artha Rin Suit No. 36 of 2004 against the defendant No. 1 and others on 08.03.2004 to realize its legitimate dues.
Thereupon, the learned Court vide its order dated 18.04.2004 gave direction to this defendant to sell the mortgaged and hypothecated properties and adjust the loan from the proceeds thereof. The sale of the above mortgaged properties is still under process.
13. That the statements made in paragraph No. 8 of the plaint filed by the plaintiffs are false, fabricated, concocted, misconceived and hence strongly denied by the defendant No. 2. Contrary to what has been alleged, this defendant submits that the defendant No. 2 did not put any lock on the rented floors. After fleeing away of the Directors of the defendant No.1, the defendant No. 2 deployed Ansars for the protection of the hypothecated machineries and goods stored at the XComplex, Plot No. 43, sector No. 3, Uttara Model Town.
14. That the statements made in paragraph No. 9 & 10 of the application filed by the plaintiffs are irrelevant and does not concern with this defendant, as such are denied by this defendant.
15. That the statements made in paragraph No. 11 of the plaint filed by the plaintiffs are irrelevant, untenable and does not concern with this defendant, as such are denied by this defendant. Rather, it is submitted that the defendant No. 1 has created charge over the embroidery machines in favour of this defendant and as such the defendant No.1 is not legally entitled to hand over the possession of machinery.
16. That the statement made in paragraph 12 of the plaint are baseless, untenable, as such are denied by this defendant. This defendants submits that the plaintiffs made out a false plea under the present suit and application and which can be easily determinable from the self-contradictory statement in the application. It is stated in paragraph 12 of the plaint, that the plaintiffs kept all those 4(four) embroidery machines under their possession and control as a lien of the arrears rents, while in paragraph 6 of the plaint it has been stated that the plaintiff No.2 has purchased 4(four) embroidery machines and started business with them, and who subsequently leased out those machines to this defendant. It is thereby evident that the plaintiffs with a view to illegal gain and out of spite, collusively out of a false plea filed the present case.
17. That the statement made in paragraph No. 13 & 14 of the plaint are irrelevant and as such are denied by this defendant.
18. That the statement made in paragraph 15 & 16 of the plaint are irrelevant and as such are denied by this defendant.
19. That the statement made in paragraph Nos. 17, & 18 of the plaint are baseless, untenable and as such are denied by this defendant. All the machines being hypothecated with this defendant, this defendant is legally entitled to take over the possession of the machines and other stocks and may even dispose –off the same in the process of the recovering of its legitimate dues under Artha Rin Adalat Ain 2003.
20. That no cause of action as stated in paragraph 19 of the plaint arose at all against this defendant.
21. That the statement in paragraph 20 relating to Court Fees are misleading and misconceived. That separate relieves have been sought founded on distinct causes of action by the plaintiffs, as such, the plaint is liable to be rejected for want of adequate Court Fees. The claim by both the plaintiffs are relate to distinct subject and as such separate suits should have been instituted.
Wherefore, it is humbly prayed that this Hon’ble Court may be kind enough to dismiss the suit filed by the plaintiffs with compensatory costs and/or pass any other order or orders as the Court may deem fit and proper.
AND for this act of kindness the defendant No. 2 as in duty bound shall ever pray.
That the statements made above are true to our knowledge and matters of records whereof we put our signature on this the ____ day of __________.