National Bank Limited -Versus- M/s. Y Enterprise

IN THE BANKRUPTCY COURT, DHAKA

BANKRUPTCY SUIT NO. OF 2006

National Bank Limited

Bangshal Road Branch

22, Bangshal Road

Dhaka-1000

PLAINTIFF/CREDITOR

-Versus-

1. Mr. X

Proprietor

M/s. Y Enterprise

342, West Rampura (Ground floor)

Dhaka

(Since Mr. X is dead the following heirs under 1(a) to 1(c) of Mr. X are made parties in this suit)

1. (a) Mrs. A

Wife of Late X

27, East Rampura

Dhaka

And

Vill. Mashaing

P.S. Uzirpur

Dist. Barishal

1. (b) Mr. B

Son of Late X

27, East Rampura

Dhaka

And

Vill. Mashaing

P.S. Uzirpur

Dist. Barishal

1. (c) Ms. C

Wife of Khondker Mofazzol Hossain

27, East Rampura

Dhaka

And

‘Surza Shiri’

Kawnia 1st Lane

Barishal

2. Mrs. K

Wife of Kazi Rebaul Alam

10, Shahid Minar Road

Kalyanpur Road

P.S. Mirpur

Dhaka

And

Badda

Savar

Dhaka

DEFENDANTS/DEBTORS

SUIT FOR ADJUDGING/DECLARING THE DEFENDANT/DEBTOR AS BANKRUPT UNDER BANKRUPTCY ACT, 1997

SUIT VALUED AT TK. 1,21,05,265.42 (TAKA ONE CRORE TWENTY ONE LAC FIVE THOUSAND TWO HUNDRED SIXTY FIVE AND PAISA FORTY TWO) ONLY AS ON_30.06.2006

The plaintiff/creditor above named states as

FOLLOWS:

1. That the plaintiff/creditor is a banking company incorporated under the Companies Act, 1913 having its Head Office at 18 Dilkusha Commercial Area, Dhaka-1000. It carries on banking business within the territory of Bangladesh through its various branches including the Bangshal Branch, Dhaka address of which is given in the cause title (hereinafter referred to as the plaintiff/creditor bank.

2. That the defendant/debtor No.1 was a businessman by his profession. He carried on various types of business in the name and style of his proprietorship concern M/s. Y Enterprise from the address given at the cause title. The defendant No.1 availed loan from the plaintiff/creditor. The defendant/debtor No.1 subsequently died and defendant No. 1(a)-(c) being the legal heirs of the defendant No.1 inherited the property/estate left by the defendant No.1 and are accordingly liable for the loan availed by defendant No.1 and are accordingly made parties in this suit. In this suit no decree has been sought against the defendant No.1 since he is dead. The defendant No.2 is the guarantor and mortgagor for the loan availed by defendant No.1.

3. That at the request of the defendant/debtor No.1, the plaintiff/creditor bank sanctioned a Cash Credit (Hypothecation) facility in favour of the defendant/debtor which had been lastly renewed and enhanced up to Tk. 7 lac vide Sanction Letter dated 31.08.1987 with validity up to 31.12.1987.

4. That as security for repayment of the said loan, the defendant/debtor No.1 mortgaged his land measuring 8.58 acre situated at Barishal, fully described at the schedule 2 (b), (c) below and defendant No. 2 (a) mortgaged her land measuring 05 decimals situated at Dhaka, fully described in the schedule 2 below in favour of the plaintiff/creditor for the loan availed by the defendant No.1 by deposition of original title deeds (Deed of Sale) being No. 4170 dated 09.04.1986, No. 15619 dated 16.07.85, No. 15620 dated 16.07.85 along with relevant title documents and vide execution of 02 Memorandum of Deposit of Title Deeds in favour of the plaintiff/creditor.

5. That the defendant/debtor No.1 availed the credit facility but did not repay the loan within the validity. As such the plaintiff/creditor vide its various letters requested the defendant/debtor No. 1 to adjust his overdue liability but in vein. Thereafter, the plaintiff/creditor of the instant suit filed Money Suit No. 83 of 1995 in the 3rd Artha Rin Court, Dhaka for recovery of Tk. 23,08,620.25. The Money Suit No. 83 of 1995 was subsequently transferred to the Additional Artha Rin Court, 2nd Court, Dhaka and renumbered as Money Suit No. 112 of 1999.

6. That Additional Artha Rin Court, 2nd Court, Dhaka in the Money Suit No. 112 of 1999 passed decree on 29.06.1999 for an amount of Tk. 23,08,620.25 only in favour of the plaintiff of the suit i.e. plaintiff/creditor of the instant suit against defendants No. 1, 2 and 3 of the suit i.e. the defendant No.1 and 2 of the instant suit. The said court also passed decree for interest on the decretal amount at the rate of Tk. 18% from the date of 29.12.1994 and Cost of suit amounting to Tk. 31,137.00 only in favour of the plaintiff of the suit i.e. plaintiff/creditor of the instant suit. In the said decree, the Court directed to the defendants No. (1), 2 and 3 of the suit i.e. the defendant No.1 and 2 of the instant suit to pay the decretal amount along with interest and cost to the plaintiff of the suit i.e. i.e. plaintiff/creditor of the instant suit.

7. That the defendant No. 1 and 2 did not pay the decreetal amount to the plaintiff/creditor within the said 45 days. Thereafter the defendant No.1 died.. At the death of the defendant No.1, the defendant No. 1(a)-(c) being the legal heirs have become owners of the estate/property including one mortgaged property measuring 8.58 acre. The defendant No. 1(a)-(c) or defendant No. 2 of the instant suit did not make payment the decretal amount or outstanding amount against the loan availed by the defendant No. 1 despite request of the plaintiff/creditor.

8. That the plaintiff/creditor served demand notice under section 9(1)(i) of the Bankruptcy Act, 1997 upon the defendant No. 1(a)–(c) and 2 on 06.07.2006 by registered post with A/D demanding Tk. 1,21,05,265.00 inclusive interest as on 30.06.2006 within 90(ninety) days of receipt of the notice.

9. That the defendant No.2 acknowledged receipt of the demand notice. The notice addressing the defendant No. 1(a) to the address Badda, Savar, Dhaka and the notice addressing the defendant No.1 (c) to the address Baunia 1st Lane, Barishal were returned unserved. The acknowledgement receipt of the other demand notices addressing to 1(a)-(c) are yet to be returned.

10. That the defendants/debtors failed to pay the money demanded from them. Since the defendants/debtors failed to comply with the requirements of the formal demand within the stipulated 90 days period, the defendants/debtors No. 1(a) to (c) and defendant No. 2 have committed an act of bankruptcy within Bangladesh and within the jurisdiction of this Court.

11. That from the statement made above it is clear that the defendants/debtors are unable to pay their debts. As such they are liable to be adjudged as bankrupt.

12. That the plaintiff/creditor Bank is an “eligible creditor” within the meaning of Bankruptcy Act, 1997. The act of bankruptcy has been committed within the period specified in Section 12(1)(c) of the Bankruptcy Act, 1997. As such, the defendants/debtors are subject to bankruptcy proceedings. Hence, being an “eligible creditor” the plaintiff/creditor bank is lawfully entitled to obtain an “order of adjudication” from this Court adjudging the defendants/debtors as bankrupt.

13. That the although the immovable properties described in the schedule-2 of the plaint mortgaged in favour the plaintiff/creditor Bank against the aforesaid credit facility granted to the defendant No.1 are not adequate to satisfy the liability of the defendants/debtors with the plaintiff/creditor. As such, the plaintiff/creditor Bank is “secured creditor” within the meaning of the Bankruptcy Act and has interest in the said properties. Since an act of bankruptcy has been committed, the debtors/defendants are liable to be adjudged as bankrupt by this Court and the scheduled properties are subject to be taken over by a Receiver/interim Receiver appointed by the Court for realisation of sale proceeds. This Court may allow the mortgaged properties described in the schedule-2 below to be sold for exclusive adjustment of this creditor’s claim and may allow the creditor to share rateably with other creditors the sale proceeds of other properties of the defendants/debtors which are supposed to be in the hands of Receiver/interim Receiver.

14. That the claim of the creditor Bank is Tk. 1,21,05,265.42 (Taka one crore twenty one lac five thousand two hundred sixty five and paisa forty two) only inclusive of interest and charges as on 30.06.2006 which the defendants/debtors are liable to pay to the plaintiff/creditor Bank. Hence the defendants/debtors is liable to be adjudged as bankrupt unless they liquidate the liability immediately.

15. That the cause of action under Bankruptcy Act has arisen on 06.07.2006 when the notice under section 9(1)(i) were served and on 04.10.2006 when the notice period was expired.

Wherefore the plaintiff/creditor Bank prays for:

(a) An order of adjudication of the defendants/debtors No. 1 (a) to 1(c) and 2 as bankrupt;

(b) A declaration that the defendants/debtors No. 1(a) to 1(c) and 2 are liable to pay Tk. 1,21,05,265.42 (Taka one crore twenty one lac five thousand two hundred sixty five and paisa forty two) only inclusive of interest and charges as on 30.06.2006 to the plaintiff/creditor Bank.

(b) Compensation @ _____% per annum from 01.07.2006 till realisation.

(c) Appointment of Receiver/interim Receiver to take custody of the properties of the debtors.

(d) Direction upon the receiver to allow the mortgaged properties to be sold in order to adjust the sale proceeds exclusively against the claim of the plaintiff/creditor Bank as soon as possible.

(e) Direction upon the receiver for the balance amount of the claim of this creditor, if any, to allow this creditor Bank to recover from the sale proceeds of the other properties of the debtors.

(f) Civil imprisonment of the debtors No. 1(a) to (c) and 2, if the sale proceeds are not sufficient to meet the liabilities.

(g) Cost of the proceedings.

(h) Any other relief or reliefs as your honour may deem fit and proper.

SCHEDULE-1

(Claim of the plaintiff/creditor)

As per the statements of account the amount payable by the defendants/debtors to the plaintiff/creditor Bank is Tk. 1,21,05,265.42 (Taka one crore twenty one lac five thousand two hundred sixty five and paisa forty two) only inclusive of interest and charges as on 30.06.2006.

Name of the creditor: National Bank Limited

Bangshal Road Branch

22, Bangshal Road

Dhaka-1000

SCHEDULE-2

a) All that piece and parcel of land measuring 5 decimal situated within District Dhaka, P.S. Savar, under Dhaka collectorate, J.L. No. Sabek 647 S.A. 162, Mouza Badda, Sabek Khatian No.5, S. A. Khatian No.7, Sabek Dag No. 222, along with all construction constructed thereon or to be constructed thereon, together with all rights, interests, easements, titles, benefits etc. attached or appertaining thereto.

b) All that piece and parcel of land measuring 3.28 acre out 28.50 acre situated within District Barishal, P.S. Ujirpur, J.L. No. 8, Mouza Kal Bila under the following khatians and dags:

Khatian Dags Land

(In acre)

254 2655 0.70
,, 2650 0.76
,, 2658 0.06
,, 2659 1.02
,, 2667 0.94
,, 2677 0.50
,, 2678 0.06
,, 2679 4.18
,, 2693 0.14
,, 2694 0.19
,, 2695 0.70
,, 2771 0.73
,, 2772 0.53
,, 2773 2.83
,, 2774 0.43
,, 2775 2.60
,, 2677/2820 0.16
,, 2659/2859 0.06
,, 2658/2830 0.26
,, 2657/2831 2.22
,, 2640/2641 2.62
,, 2642 1.96
,, 2643 2.10
,, 2644 0.12
,, 2645 0.08
,, 2646 0.35
,, 2609 0.68
,, 2608/2233 0.52

along with all construction constructed thereon with any structures constructed or to be constructed thereon, together with all rights, interests, easements, titles, benefits etc. attached or appertaining thereto.

c) All that piece and parcel of land measuring 5.3 acre situated within District Barishal, P.S. Ujirpur, J.L. No. 16, Mouza Kaua Rekha under the following khatians and dags:

Khatian Dags Land

(In acre)

17/18/35 278 0.23
10 110 0.64
9 108 0.14
12 4 0.15
,, 56 0.20
9 108 2.31

along with all construction constructed thereon with any structures constructed or to be constructed thereon, together with all rights, interests, easements, titles, benefits etc. attached or appertaining thereto.

The estimated value of the above properties is Tk. ________________________ (Taka __________________________) only approximately.

VERIFICATION

That the statement made herein above are true to our knowledge and belief and in witnesses whereof we sign this verification on this the ______th day of ___________, 2006.