IN THE ARTHA RIN ADALAT, 2nd COURT, DHAKA
ARTHA RIN SUIT NO. ____ OF 2004
National Housing Finance And
Corporate Head Office
National Plaza (7th Floor)
1/G, Free School Street
1. Mrs. X
Wife of Mr. Y
42/B-1, Indira Road
(4th Floor, South Side)
2/2-B Purana Paltan (2nd Floor)
2. Mr. Y
42/B-1, Indira Road
(4th Floor, South Side)
Son of Z
SUIT FOR RECOVERY OF MONEY BY SALE OF THE MORTGAGE PROPERTIES
SUIT VALUED AT TK. 9,59,167.00 (TAKANINE LAC FIFTY NINE THOUSAND ONE HUNDRED SIXTY SEVEN) ONLY INCLUSIVE INTEREST AND CHARGES AS ON 10.12.2004
The plaintiff above named most respectfully states: –
1) That the plaintiff is a reputed non-banking financial institution duly incorporated under the relevant Companies Act of Bangladesh and carries on business as a non-banking financial institution having license from Bangladesh Bank under the Financial Institution Act, 1993. The plaintiff’s corporate Head Office is situated at the address given in the cause title. The plaintiff’s business includes, inter alia, providing financial assistance to prospective borrowers to enable them to purchase, develop or construct residential and/or commercial apartments, buildings, etc.
2) That the defendant No.1 is a teacher by her profession and lives in the address given in the cause title. The defendant No. 2 is the co-applicant of the loan, and husband of the defendant No.1 and also lives in the address given in the cause title. Further the defendant Nos. 1 and 2 mortgaged the scheduled properties in favour of the plaintiff against the loan availed by them.
3) That pursuant to a joint request made by both the defendants vide application dated 24.03.2001, the plaintiff vide Offer Letter No. 6040401 dated 28.08.2001 sanctioned Home Mortgage Loan of an amount of Tk. 8,00,000.00 (Taka eight lac) only, [hereinafter referred to as ‘the Loan’] in favour of the defendants. The Loan was sanctioned for the purpose of develop and construct housing accommodation on 5.5 katha land situated at Uttara, Dhaka. The terms of the Offer Letter was duly accepted by the defendants. Thereafter a Loan Agreement was entered into between the plaintiff and the defendants on 08.10.2001 (herein after referred to as the ‘Loan Agreement’) detailing the terms and conditions of the loan granted to the defendants.
4) That the said credit facility was secured inter alia as follows:
i. Registered mortgage of land measuring 9 (nine) decimal or 5.45 (five point four five) katha situated at district Dhaka, sub-Registry Office-Gulshan, P.S. former Gulshan now Uttara, Dhaka Collectorate Touzi No. 9, Mouza UttarKhan, Khatian No. former 66ka, SA 122, RS 1672, Khajira 122/kat; Dag No. former and SA 1176, RS 3664, 3667, Kharija 1176, fully described in the schedule below vide execution of a registered ‘Deed of mortgage’ being No. 14414 dated 30.10.2001, supported by a registered ‘Irrevocable General Power of Attorney’, being No. 14415 dated 30.10.2001 to sell the property;
ii. Equitable mortgage of land measuring 12 (twelve) decimal situated at District Gazipur, P.S. & Sub-Registry Office-Gazipur Sadar, Gazipur Collectorate Touji, Mouza Mahana Bhabanipur No. 3, Khatian No. former 270 now 446, RS 25, Mutation 270/25 kat; Dag No. SA 682, RS 1254, 1256, Mutation 682/1254 fully described in the schedule below vide execution of a Memorandum of Deposit of Title Deeds, dated 09.10.2001.
iii. Execution of usual charge documents, including but not limited to Promissory Note, Letter of Continuity, Letter of Undertaking etc.
5) That the entire loan amount was disbursed by the plaintiff to the defendants on _________. Under the terms and conditions of the Loan Agreement, the defendants undertook and agreed to make repayment of the entire loan amount by 180 (one hundred eighty)Equated Monthly Instalments (hereinafter referred to as ‘EMI’), each of Tk. 11,817.00 (Taka eleven thousand eight hundred seventeen) only.
6) That pursuant to the terms and conditions of the Offer Letter being No. 6040401 dated 28.08.2001, the defendants initially deposited 12 (twelve) post dated cheques of Tk. 11,817.00 each representing the value of EMI to the plaintiff as advance towards adjustment of the partial loan amount.
7) That although the defendants availed the Loan in full, within a short period of time, the defendants intentionally started defaulting by non-regularising the account of the drawee bank of the said post dated cheques and thereby caused dishonouring of the cheques representing the value of EMI for insufficient funds.
8) That thereafter the plaintiff from time to time intimated both the defendants regarding dishonouring of the cheques submitted by them vide letters dated 27.08.2002, 14.09.2002, 07.05.2003, 25.05.2003, 29.05.2003, and 25.06.2003. In all those letters the plaintiff requested both the defendants to adjust the arrear instalments. The plaintiff also reminded the defendants to regularise the account so that the remaining cheques can be encashed on due dates in future, which the defendants purposely failed.
9) That thereafter being displeased with the reluctance of the defendants towards adjustment of their loan, the plaintiff through their lawyer served legal notice, dated 26.07.2003 upon the defendants requesting them to make payment of Tk. 9,21,947.00 (Taka nine lac twenty one thousand nine hundred forty seven) only being the outstanding liabilities as on 09.07.2003 including interest and other charges to the plaintiff within 15(fifteen) days of receipt of the notice.
10) That the plaintiff thereafter in compliance with section 12(3) of the Artha Rin Adalat Ain 2003 and with a view to sell the mortgaged property published Auction Notice in ‘The Daily Jugantor’, on 13.09.2003 requesting the interested bidder to participate observing the time limit set forth in the said notice but no bidder has participated in the auction as a result the mortgaged property could not be sold before filing of the instant suit.
11) That thereafter at the request of the defendants vide letters dated 30.07.2003 and 14.09.2003, the plaintiff rescheduled the loan account on ________ and the defendants have submitted the required cheques as per the proposed reschedulement. But very soon the loan account of the defendants became irregular and since _________, 2004 the defendants have failed miserably to make payment any of the EMI which is wilful violation of the Loan Agreement.
12) That the plaintiff on numerous occasions vide letters dated 29.12.2003, 13.03.2004, 12.05.2004, 06.05.2004, 13.06.2004 and 18.07.2004 reminded the defendants of the default in payment and has requested to regularize its remaining loan liabilities. But instead of making repayment of the loan, the defendants on various occasions including by letters dated 19.01.2004, 24.03.2004, 15.05.2004, 20.06.2004, and 09.08.2004 acknowledged their liabilities and requested the plaintiff to allow time to repay the same. But no repayment was made.
13) That as a result of defendants non-compliance in repayment of the loan, on 01.11.20014, the plaintiff sent a legal notice through their lawyer upon the defendants requesting thereby to adjust their liabilities with the plaintiff within 15 (fifteen) days of the receipt of the said notice failing which the defendants were warned that legal action would be initiated for recovery of the plaintiff bank’s dues. But both the defendants ignoring the said notice did not come forward to adjust their long outstanding dues with the plaintiff.
14) That since the defendants failed to repay the loan as per the repayment schedule, the plaintiff vide letter dated 02.12.2004 terminated the Loan Agreement with immediate effect and all the outstanding sums payable under the Loan Agreement became immediately payable.
15) That it is apparent from the acts of the defendants that they have been evading their long outstanding liabilities with the plaintiff in breach of their obligations under the terms and conditions of the Loan Agreement. The plaintiff made repeated reminders and gave opportunities to the defendant to liquidate his liabilities with the plaintiff but the defendants continued to default in adjusting his liabilities. The defendants are not serious at all with regard to adjusting their outstanding liabilities with the plaintiff. Both the defendants have not taken any measure towards settlement of the same. It is evident from the conduct of the defendants that they have no intention to make repayment of their outstanding liabilities with the plaintiff.
16) That it becomes clear that the defendants will not adjust the plaintiff’s dues unless compelled by the Court of law. The plaintiff cannot wait for an indefinite period for the defendants to adjust their long outstanding liabilities. Having found no alternative, the plaintiff has been compelled to file this suit against the defendants to realize its legitimate dues.
17) That the outstanding liabilities of the defendants with the plaintiff amounts to Tk. 9,59,167.00 (Taka nine lac fifty nine thousand one hundred sixty seven) only inclusive interest and charges as on 10.12.2004, which the defendants are liable to pay the plaintiff.
18) That the cause of action of the suit arose on 24.03.2001 when both the defendants applied to the plaintiff for Loan, on 28.08.2001 when the Offer Letter has been issued by the plaintiff and on _________ when the said Offer Letter was accepted by the defendant, on 08.10.2001 when the Loan Agreement was executed between the defendants and the plaintiff and also the defendants executed Promissory Note. Letter of Continuity and Letter of Undertaking, on _________ when the disbursement of the loan amount was made by the plaintiff, on 27.08.2002, 14.09.2002, 07.05.2003, 25.05.2003, 29.05.2003, 25.06.2003, 29.12.2003, 13.03.2004, 12.05.2004, 06.05.2004, 13.06.2004 and 18.07.2004 when the plaintiff repeatedly requested the defendants to make payment of the EMI as per the Loan Agreement, on 30.07.2003, 14.09.2003, 19.01.2004, 24.03.2004, 15.05.2004, 20.06.2004, and 09.08.2004 when the defendants acknowledged their liabilities and requested the plaintiff to allow time to repay the loan, on 26.07.2003 and 01.11.2004 when the plaintiff through their lawyer served Legal Notice on the defendants requesting to make payment of the outstanding liabilities, on 13.09.2003 when the plaintiff published the ‘Auction Notice’, on each and every date when the defendants continued to default in repaying their outstanding liabilities with the plaintiff and the said cause of action is continuing till date.
19) Thatthe suit is for realization of 9,59,167.00 (Taka nine lac fifty nine thousand one hundred sixty seven) only inclusive interest and charges as on 10.12.2004 and the said suit is within the jurisdiction of this Court. For the purpose of court fees, the plaintiff has paid ad-valorem court fees on the suit value.
20) That the Authorised Representative of the plaintiff financial institution in the instant suit is Mr. A, legal counsel of the plaintiff, who is well conversant with the facts of the case.
The plaintiff, therefore, prays for:
a) A decree for the sum of Tk. 9,59,167.00 (Taka nine lac fifty nine thousand one hundred sixty seven) only inclusive interest and charges as on 10.12.2004 in favour of the plaintiff and against both the defendants jointly and severally;
b) A decree for interest @ ____% per annum from 11.12.2004 till the date of filing of the instant suit and pendente-lite interest at the rate stipulated in the Artha Rin Adalat Ain, 2003 from the date of filing the suit till the date of decree and from the date of decree till realization of the decretal amount;
c) A decree for the sale of the mortgaged property mentioned in the ‘Schedule B’ hereunder;
d) A decree for entire costs of the suit; and
e) Any other relief(s) to which the plaintiff is entitled in law and equity.
And for this act of kindness, the plaintiff as in duty bound shall ever pray.
[Schedule under section 8(2) Ka Artha Rin Adalat Ain 2003]
Description of Loan & amount outstanding
|Nature of Facilities||Limit
|Loan amount disbursed (in Tk.)||Amount repaid as on
Amount as on 10.12.2004
|Home Mortgage Loan||[Principal ________
[Schedule under section 8(2) Kha Artha Rin Adalat Ain 2003]
Description of Securities which the plaintiff bank could not sell
I. All that piece and parcel of land measuring 9 (nine) decimal or 5.45 (five point four five) katha situated at district Dhaka, sub-Registry Office-Gulshan, P.S. former Gulshan now Uttara, Dhaka Collectorate Touzi No. 9, Mouza Uttar Khan, Khatian No. former 66ka, SA 122, RS 1672, Khajira 122/kat; Dag No. former and SA 1176, RS 3664, 3667, Kharija 1176, together with existing and future building and other structures thereon butted and bounded by:
North: Safur Uddin Member
South: Abdur Rouf and others
East: Anisur Rahman and others
West: Abdur Rouf and others
II. All that piece and parcel of land measuring 12 (twelve) decimal situated at District Gazipur, P.S. & Sub-Registry Office-Gazipur Sadar, Gazipur Collectorate Touji, Mouza Mahana Bhabanipur No. 3, Khatian No. former 270 now 446, RS 25, Mutation 270/25 kat; Dag No. SA 682, RS 1254, 1256, Mutation 682/1254; together with existing and future building and other structures thereon butted and bounded by:
South: Tosaddeque Hossain
West: Saju Miah
I, Mr. A, son of ________________, Legal Counsel of National Housing Finance And Investments Limited, Corporate Head Office, National Plaza (7th Floor), 1/G, Free School Street , Sonargaon Road, P.S. Dhanmondi, Dhaka, aged about _____ years, by faith Muslim, Nationality Bangladeshi by birth, by profession ______, do hereby solemnly affirm and declare as follows:
1. That I am the tadbirker of the Plaintiff of this plaint and well conversant with the facts of the case and competent to swear this Affidavit.
2. That the statements of facts made in this plaint are true to the best of my knowledge and belief and rests are submissions before this Hon’ble Court and in witness whereof I swear this affidavit and signed below on this the ____ day of ____________, 2005 at _________ a.m. before the Commissioner of affidavit.
|The deponent is known to me and identified by me.|