National Credit and Commerce Limited -Versus- Z Printing and Packaging Limited

IN THE COURT OF SUB –JUDGE AND 3rd ARTHA RIN ADALAT, DHAKA

MONEY SUIT NO.____ OF __________.

National Credit and Commerce Limited.

Dilkusha Branch

43, Dilkusha Commercial Area.

Dhaka- 1000

PLAINTIFF.

-Versus-

1. Mr. X.

Proprietor

Z Printing and Packaging Limited.

62/1, Purana paltan (3rd floor)

Dhaka.

Other address:

Z Printing and Packaging limited.

162, Central Bashaboo

Dhaka.

2. Mr. Y

S/o late C

Chairman,

Bangladesh Mudran Shipa Samity.

City Heart(4th floor),

Naya Paltan

Dhaka.

Other address:

38/1, North brook Hall Road,

Dhaka.

DEFENDANTS

3. A

Chairman

K Pathaya

Pustak Mudrak & Biponan Samity

55, Inner Circular Road

Shantinagar

Dhaka.

PRO-FORMA DEFENDANT

SUIT FOR RECOVERY OF MONEY.

SUIT VALUED AT TK——————ONLY

AS ON .

The plaintiff above named states as:

FOLLOWS:-

1. That the plaintiff is a banking company incorporated in Bangladesh under the relevant companies Act. The plaintiff carries on banking business through its varies branch in Bangladesh. In this particular instance the transaction took place from the plaintiffs office as stated in the cause title (hereinafter called the plaintiff bank).

2. That the defendant No. 1 is the proprietor of Z Printing and Packaging limited and he carries on related printing and publication business from the address given in the cause title. In this particular instance the defendant No.1 as member of K Pathya Pustak Mudrak and Bipanan Samity printed and marketed text Books of Secondary Education for the year, 1998.

3. That the defendant No.2 executed personal guarantee in favour of the plaintiff bank in respect of repayment of the loan facilities availed by the defendant No.1. The defendant No.3 as chairman of K Pathya Pustak Mudrak and Bipanan Samity requested the plaintiff bank to issue bank guarantee facilities in favour of general members of his Samity. As such the plaintiff made the defendant No. 3 as pro forma defendant.

4. That the defendant No.3 as Chairman K Pathya Pustak Mudrak and Bipanan Samity vide its letter dated 5.11.97 and 9.11.97 requested the plaintiff bank to issue bank guarantee facilities for different members of his Samity. Upon subsequent request of the defendant No.3, the plaintiff bank’s Head Office vide its letter No. NCCB/HO/CR/DIL-04/2773/97 sanctioned bank guarantee facilities in favour of National Curriculum & Text Book Board on account of different members of K Pathya Pustak Mudrak and Bipanan Samity.

5. That the Defendant No.1 in due course of his business as members of K Pathya Pustak Mudrak and Bipanan Samity applied to the plaintiff bank for a performance bank guarantee of Tk. 2,75,300.00 vide letter dated 11.1.98. The plaintiff bank in response to the application of the defendant No.1 issued a bank guarantee No. NCCBL/PG/BG/6/98 in favour of Chairman National Curriculum and Text Book Board Dhaka on account of the defendant No.1 under the terms and condition of the sanction letter No. NCCB/ HO/CR/DIL-04/2773/97.The validity of the said bank guarantee was expired on 15.2.98.

  1. That the defendant No.1 as per sanction letter No.NCCB/HO/CR/DIL-04/2773/97 executed various charge documents such as D.P Note, counter guarantee and the defendant No.2 executed letter of guarantee(third party guarantee ) in favour of the plaintiff bank for repayment of the loan facilities availed by the defendant No.1

7. That the plaintiff bank under compelling situation of bank guarantee No.NCCBL/PG/BG/6/98 unconditionally encash the said bank guarantee upon claimed by the Chairman of National Curriculum and Text Book Board. As per terms of the bank guarantee the plaintiff bank must meet its obligation when beneficiary claimed it. Although it was the responsibility of the defendant No.1 to adjust required royalty to National Curriculum and Text Book Board.

8. That the plaintiff bank after encashment of the said bank guarantee, informed the defendant No.1 vide series of letters and requested him to deposit the remaining margin for adjustment of his outstanding bank guarantee. However the defendant No.1 ignored all the request of the plaintiff bank. The plaintiff bank sent letters to the defendant No.1 on 03.8.2000, 24.10.2000, 22.11.2000, 3.12.2000 and 3.01.2001.

1. That the plaintiff bank on 6.8.2000 and 21.8.2000 informed the chairman of K Pathya Pustak Mudrak and Biponan Samity that the bank guarantee No. NCCBL/ PG /BG/6/98 which was issued infavour of chairman of National Curriculum and Text Book Board Dhaka was encashed upon claimed from the chairman of NCTB. The plaintiff bank as well as requested the chairman of K Pathya Pustak Mudrak and Biponan Samity to take necessary step for adjustment of the said bank guarantee.

2. That in spite of frequent requests and reminders the defendant No.1 has been avoiding all sorts of communication with the plaintiff bank although the defendant availed the facility in full. It was the responsibility of the defendant No.1 to adjust the liability with the plaintiff bank. It may be mentioned here that the bank on good faith allowed the facility to the defendant No.1 but with an ulterior motive did not adjust the liability. Even though the defendant No.1 on several occasion verbally agreed to adjust the liability but reason best known to him, refrained from taking necessary steps to adjust the liability with the plaintiff bank.

3. That since the defendant hopelessly failed to adjust their outstanding liability, the plaintiff bank through its learned Advocate sent legal notice dated 6.2.2001 and 23.5.2001 to the defendants, requesting them to pay the outstanding dues with the plaintiff bank within fifteen (15) days from the receipt of the said notice. The defendants were warned in the legal notice that the legal action would be taken against them on their failure to comply with the said notice. After receiving of the said notice the defendants unfortunately did not even bother to express intention to adjust the outstanding liabilities with the plaintiff bank.

11. That from the above circumstance, it clearly transpires that the defendant No.1 have done all this activities wilfully, intentionally and deliberately with malafide intention to evade the liability of the bank guarantee facilities availed by the defendant No.1.

12. That in spite of series of requests and reminders made by the plaintiff bank the defendant No.1 did not adjust his outstanding liabilities as yet. The defendant No.1 was given ample time and opportunity to adjust his long outstanding dues. But the defendant No.1 failed to avail the opportunity by adjusting his outstanding liabilities. The plaintiff bank apprehends from the negative attitude of the defendant No.1 that the defendant No.1 will not pay or adjust his outstanding liabilities with the plaintiff bank unless he is compelled by the Court of Law. Being commercial bank, the plaintiff bank can not wait for indefinite period for recovery of its legitimate dues from the defendant No.1. So having no alternative the plaintiff bank has been compelled to file this suit against the defendant No.1 for realisation of its legitimate dues.

13. That the defendant No.2 executed personal guarantee guaranteeing the repayment of liabilities in favour of the plaintiff bank, against the credit facility availed by the defendant No.1 is also liable to plaintiff bank for the outstanding amount of the facility availed by the defendant No.1.

14. That the cause of action to file this suit arose on 11.1.98 when the defendant No.1 applied for said bank guarantee facility. When at the request of the defendant No.1 the plaintiff bank opened the bank guarantee on 11.1.98. On 11.2.98 when the plaintiff bank encashed the bank guarantee No.06/98 upon claimed from the Chairman of National Curriculum and Text Book Board Dhaka. On every occasion when the plaintiff bank requested the defendant No.1 to adjust his outstanding liabilities and on 23.5.2001 and 6.2.2001 when the plaintiff bank served legal notice to the defendant No.1 and the said cause of action is still continuing.

15. That the suit is recovery of dues of a commercial bank and as such within the jurisdictionof this honourable court. The suit is for realisation of Tk. __________ as on including interest and other charges thereon and the plaintiff bank for the purpose of court fees and jurisdiction values the suit at the said amount and pays the highest court fees on the plaintiff.

The plaintiff bank prays for:

a) A decree for the sum of Tk.2,75,300

(Taka two lac seventy five thousand three hundred) only in favour of the plaintiff bank and against the defendant jointly/severaly.

b) A decree for compensation at the rate of per anum on the claimed amount of Tk. 2,75,300.00 from the date of filing the suit till the date of decree and from the date of decree till realisation of the decretal amount;

b) A decree for the entire costs of the suit;

c) Any other relief or relief to which the plaintiff bank is entitled in law and equity.

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

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