O Development Leasing Company Of Bangladesh Limited -versus- X Computers Limited

IN THE COURT OF ADDITIONAL DISTRICT JUDGE AND BANKRUPTCY COURT, DHAKA

BANKRUPTCY CASE NO. OF 2004

O Development Leasing Company Of Bangladesh Limited

Head Office

Hadi Mansion(6th and 7th Floor)

2, Dilkhusa C/A

P.S.

Dhaka

Plaintiff/Creditor

-versus-

1. X Computers Limited

Anchor Tower 1/1- B

Sonargaon Road

P.S. _____________

Dhaka

Other Address:

24-27, BCS Computer City

IDB Bhaban

Sher-E-Bangla Nagar

P.S.__________

Dhaka1207

2. Mr. Z

S/O__________

Managing Director

X Computers Limited

Anchor Tower 1/1- B

Sonargaon Road

P.S.__________

Dhaka

Other Address:

24-27, BCS Computer City

IDB Bhaban

Sher-E-Bangla Nagar

P.S.________

Dhaka1207

3. Mr. A

S/O___________

Director

X Computers Limited

Anchor Tower 1/1- B

Sonargaon Road

P.S. _______________

Dhaka

Other Address:

24-27, BCS Computer City

IDB Bhaban

Sher-E-Bangla Nagar

P.S.__________

Dhaka1207

4. Mr. B

Son of _____________

Director

X Computers Limited

Anchor Tower 1/1- B

Sonargaon Road

P.S. ______________

Dhaka

Other Address:

24-27, BCS Computer City

IDB Bhaban

Sher-E-Bangla Nagar

P.S.__________

Dhaka1207

5. Mr. C

Son of_____________

Director

X Computers Limited

Anchor Tower 1/1- B

Sonargaon Road

P.S. ______________

Dhaka

Other Address:

24-27, BCS Computer City

IDB Bhaban

Sher-E-Bangla Nagar

P.S._________

Dhaka1207

6. Bengal Shipping Line Limited

100, Agrabad C/A

P.S.___________

Chittagong

Defendants/Debtors

SUIT FOR ADJUDGING/DECLARING THE DEFENDANTS/DEBTORS AS BANKRUPT UNDER THE BANKRUPTCY ACT, 1997

SUIT VALUED AT TK. _____________ONLY AS ON __________

The plaintiff/creditor above-named most respectfully states

AS FOLLOWS:

1. That the plaintiff/creditor is a leasing company incorporated under the relevant Companies Act of Bangladesh. The plaintiff/creditor carries on business of inter alia, lease financing having its registered office at Hadi Mansion (6th Floor), 2, Dilkhusa C/A, Dhaka (hereinafter called the “plaintiff/creditor”).

2. That the defendant/debtor No. 1 is private limited company incorporated under the relevant companies Act of Bangladesh and carries on business of the sales and repair of the computers. It carries on its business from the address given in the cause title. The defendant Nos. 2 to 5 are the directors of the defendant No.1 who stood guarantors against the facility availed by the defendant No.1. Further the defendant No. 6 is a company incorporated under relevant companies Act in Bangladesh and which executed a Corporate Guarantee against the loan availed by the defendant No.1. The defendants’ addresses in the cause title are correct to the best of the Plaintiff’s knowledge.

3. That consequent upon an approach by the judgement debtor No.1 on 24.08.1998, the plaintiff/creditor approved a lease finance facility of Tk. 20,56,200.00(taka twenty lac fifty six thousand two hundred) only for procuring various computer accessories for the period of 36 months. Subsequently a Lease Agreement being No. D980881 was entered into by and between the plaintiff/creditor and the defendant/debtor No.1 on 25.10.1998.

4. That under the terms of the Lease Agreement the ownership of the leased machinery shall remain with the plaintiff bank and the defendant No. 1 shall repay the loan amount in monthly instalments.

5. That in another deal, at the request of the defendant/debtor No.1, the plaintiff/creditor also approved another lease finance facility of Tk. 52,75,000.00(taka fifty two lac seventy five thousand) only for the period of 36 month and subsequently a Lease Agreement, being No. D000301 was entered into on 06.04.2000 by and between the plaintiff/creditor and the defendant/debtor No.1

6. That further against repayment of the aforesaid Lease facilities the defendant Nos. 2-5 executed personal guarantees and the defendant No.6 executed a corporate guarantee, and they have been made party in the present suit as the guarantors.

7. That consequent upon consistent default by the defendant/debtor No.1 in payment of their lease rentals, the plaintiff/creditor whereupon on 15.02.2003 vide their letter Ref No. 607.2432/852-853 was compelled to terminate one of the aforesaid Lease Agreement, being No.D000301 in compliance of the terms of the Lease Agreement and thereby recalled the Lease Amount under that Lease Agreement and requested the defendant/debtor No.1 to repay the Lease Amount under the above Lease Agreement, but to no effect.

8. That the defendant/debtor No.1 also purposefully defaulted in making repayment from the very inception under the Lease Agreement, being No.D980881. The lease term of the Lease Agreement No. D980881 thereupon expired leaving almost the entire amount unadjusted by the defendant/debtor No.1.

9. That the defendant/debtor No.1 availed the above Lease Facilities in full. But despite repeated requests and reminders vide letters dated24.01.2001,30.01.2002,03.02.2002,10.02.2002,30.09.2002,15.02.2003 and 29.05.2003 the defendant/debtor No.1 miserably failed to adjust their huge outstanding dues with the plaintiff/creditor.

10. That thereupon being displeased with the reluctance of the defendant/debtor No.1, the plaintiff/creditor issued upon the defendants/debtors notice under section 9(1)(i) of the Bankruptcy Act, 1997 on 13.01.2004 under registered post with acknowledgement due allowing 90(ninety) days time from the date of service of the formal demand to adjust their debt amounting to Tk.85,26,566.00 (Taka eighty five lac twenty six thousand five hundred sixty six) only as on _________. But the defendants/debtors failed to comply with the requirements of the formal demand within the stipulated 90(ninety) days period and have thus committed act of bankruptcy within Bangladesh and within the jurisdiction of this Court.

11. That the plaintiff/creditor is an eligible creditor within the meaning of the Bankruptcy Act, 1997. As an eligible creditor, the plaintiff/creditor has raised a claim of Tk. ______________________ (Taka _______________________________________________) only as on upon the defendants/debtors by sending a formal demand on ___________ in accordance with the provisions of Clause 9(1)(i) of the Bankruptcy Act, 1997. The place of business of the defendant/debtor No. 1 is situated under P.S. _________, Dhaka (detailed address of which is given in the cause title) and the act of bankruptcy has been committed within the period specified in Section 12(1)(c) of the Bankruptcy Act, 1997. As such, the defendant/debtor No. 1 vis-à-vis defendant/debtors Nos.2-6 are subject to bankruptcy proceedings. Hence, being an eligible creditor the plaintiff/creditor is lawfully entitled to obtain an order of adjudication from this Court adjudging the defendants/debtors as bankrupts.

12. That the defendant/debtors liability position to the plaintiff/creditor as on _______ with interest up to _______ stands as follows

Particulars D980881 D000301 Total
Rental Overdue
Add: SLV
Late Payment Interest
Transfer Price
Total Receivable
Adjusted Amount
Less: Suspense Balance
Less: Lease Deposit
Net Receivable

13. That the defendant/debtors liability with the plaintiff/creditor being an amount of Tk._____________ (_______________________________) only as on _________ as per schedule of claim to which the defendant/debtor No. 1 is liable to pay to the plaintiff/creditor. The defendant/debtor Nos. 2, 3, 4 and 5 has provided personal guarantee and the defendant/creditor No.6 provided corporate guarantee in favour the plaintiff/creditor against the credit facilities granted to the defendant/debtor No. 1. As such, the plaintiff/creditor is a secured creditor within the meaning of the Bankruptcy Act. Hence the defendant/debtor No. 1 as principal borrower and the defendant debtors Nos. 2-6 as guarantors are liable to be adjudged as bankrupts unless they liquidate the liabilities immediately and an act of bankruptcy has been committed, the defendants/debtors are liable to be adjudged as bankrupts by this Court.

14. That the claim of the plaintiff/creditor inclusive of interest and charges stands at Tk. ________________ (Taka __________________________) only as on ___________.

15. That the cause of action under the Bankruptcy Act, 1997 has arisen on 13.01.2004 when the notice under section 9(1)(i) was duly served and upon expiry of 90 days after service of the demand.

Wherefore the plaintiff/creditor prays for:

(a) An order of adjudication adjudging the defendants/debtors as bankrupts;

(b) A declaration that the defendants/debtors are jointly and/or severally liable to pay Tk.______________ (Taka __________________________) only as on ___________ with interest and other charges to the plaintiff/creditor;

(c) Interest @ 16.5% per annum from 30.09.2001 ­­­till realisation;

(d) Appointment of Receiver/Interim Receiver to take custody of the properties of the defendants/debtors;

(e) Direction upon the Receiver to allow the properties of the debtors to be sold in order to adjust the sale proceeds against the claim of the plaintiff/creditor as soon as possible;

(f) Cost of the proceedings;

(g) Any other relief or relief as your Honour may deem fit and proper.

SCHEDULE OF CLAIM

(Claim of the plaintiff/creditor)

As per the statements of account, the amount payable by the defendants/debtors to the plaintiff/creditor is Tk. ____________ (Taka _________________________) only as on _________________.

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

VERIFICATION

That the statements made hereinabove are true to the best of our knowledge and matters of record whereof we sign this verification on this the ____ day of­­­­­­­­­­­­­ ___________, 2004.

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