IN THE COURT OF 1st JOINT DISTRICT, DHAKA
TITLE SUIT NO. 158 OF 2004
M/S. X Corporation and another
M/S Y Limited and Others
WRITTEN OBJECTION FILED BY THE DEFENDANT NO. 2 AGAINST THE APPLICATION FILED BY THE PLAINTIFFS UNDER ORDER XXXIX, RULE 1 & 2 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE.
The defendant No. 2 state as follows:
1. That neither the suit nor the application filed by the plaintiffs is maintainable in its present form and manner and as such both are liable to be rejected.
2. That the application filed by the plaintiffs is not maintainable in law and in facts and hence the application is liable to be rejected in limine.
3. That the plaintiffs has filed the suit along with an application under Order 39, Rule 1 & 2 with malafide intention and on vexatious plea only to harass the defendant/opposite party No. 2 which is a financial institution dealing with the money of public shareholders and general depositors and as such the suit as well as the application is liable to be rejected summarily.
4. That the statements made in the application, which have not been specifically admitted hereinafter, shall be deemed to have been denied by the defendant /opposite party No. 2.
5. That the statements made in paragraph Nos.1, 2(a), 2(b) of the application are matters of record and hence defendant/opposite party No. 2 makes no comment. The burden of proof lies with the plaintiffs.
6. That the statements made in paragraph No. 2(c), 2(d), 2(e), 2(f) and 2(g) of the application filed by the plaintiffs are irrelevant for the disposal of the present case and do not concern the defendant/opposite No.2. Thus the defendant/opposite party No. 2 refrain from making any comments. Further it is submitted that at the request of the defendant/opposite party No. 1, defendant/opposite party No.2 from time to time opened a series of Back to Back L/Cs in favour of the defendant/opposite No. 1 for procurement of raw materials. Defendant/opposite party 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 Amir Complex, 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 Seoul International Company Limited, Chungil Building 4 F # 262-1,4- Ga,Yangpyong- Dong Youngdeungpo – Gu ,Seoul 150-104,Korea.
f) Execution of personal guarantees by the directors of the defendant No. 1.
The defendant/opposite party No. 1 availed the credit facility in full but failed to adjust the same. Thereafter having no alternative the defendant/opposite party No.2 is compelled to file Artha Rin Suit No. 36 of 2004 against the defendant/opposite No. 1 and others on 08.03.2004 to realize its legitimate dues.
7. That the statements made in paragraph No. 2(h) of the application filed by the plaintiffs are false, fabricated, concocted, misconceived and hence strongly denied by the defendant No. 2. The defendant No. 2 did not put any lock on the rented floors. But the defendant No. 2 deployed Ansars for the safety of the hypothecated machineries and goods stored at the Amir Complex, Plot No. 43, sector No. 3, Uttara Model Town.
8. That the statements made in paragraph No. 2(i), 2(j) of the application filed by the plaintiffs are irrelevant for the disposal of the present case, as such are denied by the defendant/opposite party No.2.
9. That the statements made in paragraph No. 2(k) and 2(l) of the application filed by the plaintiffs are irrelevant for the disposal of the present case and do not concern the defendant No. 2. It is further submitted that the defendant No. 1 has no authority to hand over the possession of machines because the defendant No. 1 hypothecated the machineries and goods in favour of the defendant/opposite No.2.
11. That it is also submitted that the plaintiffs has miserably failed to establish any prima facie case and as such they are not legally entitled to any injunction whatsoever.
Wherefore, it is humbly prayed that this Hon’ble Court may be kind enough to reject the application filed by the plaintiff under Order XXXIX, Rule 1 & 2 of the Code of Civil Procedure 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.
I, ____________________________, son of _____________________________, having address at ______________________________________________aged about ___ years, by occupation service, by faith __________, Nationality Bangladeshi by birth, do hereby solemnly affirm and say as follows:
01. That I am an officer of the defendant Nos. 2 & 3 Bank and as such am 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 the best of my knowledge and belief and the rest are submission before the Hon’ble Court.
The deponent is known to me and identified by me.