X Petitioner -Versus- Uttara Bank Limited. Opposite Party

BEFORE 4TH ARTHA RIN ADALAT, DHAKA

MISC. CASE NO. __ OF_____

(Arising out of Title Execution Case No. ______ of ______)

X

Petitioner

-Versus-

Uttara Bank Limited.

Opposite Party

WRITTEN OBJECTION ON BEHALF OF THE OPPOSITE PARTY BANK AGAINST THE APPLICATION OF THE PETITIONER FILED UNDER ORDER XXI RULE 58 OF THE CODE OF CIVIL PROCEDURE.

01. That the Misc. Case filed by the petitioner is not maintainable in its present form and manner.

02. That there is no cause of action to file any petition as filed by the petitioner in this case and as such the petition is liable to be rejected.

03. That the Misc. case filed by the petitioner is filed with malafide intention and as such the case is liable to be rejected.

04. That the statements made by the petitioner in his petition are false, fabricated, malafide, concocted and self contradictory for which the same is liable to be rejected.

05. That the petition of the petitioner is barred by law and as such the petition is liable to be rejected.

07. That the petition of the petitioner is filed with an ulterior motive of frustrating the decree of the Title Suit No. 94 of 1994 of the then Sub-Judge, Artha Rin Adalat No. 4, Dhaka from which the Title Execution Case No.37 of 1997 has been arisen.

08. That the statements made in the petition which have not been specifically admitted hereinafter shall be deemed to have been denied by this opposite party for all means and purpose.

09. That the statement made in paragraph No.1 of the petition are admitted by the opposite party.

10. That the statement made in paragraph No.2 and 3 of the petition are false, fabricated and concocted and as such denied by the opposite party. Contrary to what has been stated it is submitted that F Khanam never orally gifted the land in question to the petitioner or never transferred the possession of the land in question to the petitioner or never sweared any affidavit before any first class magistrate, Dhaka acknowledging the alleged oral gift. It is also submitted that in order to frustrate the execution proceeding the petitioner made out a false story regarding acquiring the title of the property in question. As such the petition is liable to be rejected.

11. That the statements made in paragraph No.4-5 of the petition are false, fabricated, malafide, misconceived and misrepresentation of facts and as such denied by the opposite party. Contrary to what has been stated it is submitted that Sunrise Corporation Limited purchased the land in question by way of registered Deed of Sale dated 27.08.1965 from F Khanam and thereafter it exclusively seized and possessed of the same. After acquiring the undisputed right, title and possession of the property in question, Sunrise Corporation Limited mortgaged the same to the opposite party Bank as security against the loan sanctioned by the opposite party Bank to Sunrise Corporation Limited. Consequent upon persistent default in repayment of the loan liability, the opposite party Bank was constrained to file the Title Suit No. 94/1994 against Sunrise Corporation Limited and its 5 other director (the judgement debtors). The suit was decreed on compromise on 22.01.1997, the compromise being part of the decree. When the judgement debtors did not comply the terms of the Compromised Decree this opposite party Bank filed the Title Execution Case No. 37/1997 from which the instant Misc. Case has been arisen out. As such no question as to committing any forgery with regard to the registration of the Deed of Sale dated 27.08.1965 and obtaining fraudulent Compromised Decree on 22.01.1997 by the opposite party in collusion with the judgement debtors does not arise at all.

12. That the statements made in paragraph No.6 of the petition are false, fabricated and concocted and as such denied by the opposite party. With regard to the statement made in this paragraph it is submitted the petitioner acquired no title over the property in question. The judgement debtors acquired right title over the property in question and lawfully mortgaged the same to the opposite party Bank. As such the petition is liable to be rejected.

13. That the statements made in paragraph No.7 of the petition are matters of record and as such the opposite part does not offer any comments.

14. That the statements made in paragraph No.8-9 of the petition are false, fabricated, malafide, misconceived and misrepresentation of facts and as such denied by the opposite party. Contrary to what has been stated it is submitted that Sunrise Corporation Limited purchased the land in question by way of duly registered Deed of Sale dated 27.08.1965 from F Khanam and acquired undisputed right, title and possession of the property in question and thereafter mortgaged the same to the opposite party Bank as security against the loan sanctioned by the opposite party Bank to Sunrise Corporation Limited. The Bank filed the Title Suit No. 94/1994 against the judgement debtors. The suit was decreed on compromise on 22.01.1997. When the judgement debtors did not comply the terms of the Compromised Decree the opposite party filed the Title Execution Case No. 37/1997 and the mortgaged property was duly fixed for auction on 25.01.2000 by the learned Court and accordingly the Auction Notice was published in The Daily Ittefaq on 04.01.2000 in compliance with the prevailing provisions of law. Thus the petitioner’s claim as to alleged illegality in publication of auction notice may not sustain. As such the petition is liable to be rejected.

15. That the statements made in paragraph No.10 of the petition are misconceived and misrepresentation of facts and as such denied by the opposite party. With regard to the statement made in this paragraph it is submitted that the petitioner has no prima facie arguable case and the balance of convenience and non-convenience is in favour of the opposite party Bank. As such the Misc. Case is liable to be dismissed with compensatory cost.

16. That the facts of the case are as follows:

(a) That Sunrise Corporation Limited purchased the land in question by way of registered Deed of Sale dated 27.08.1965 from F Khanam and thereafter it seized and possessed of the same. After acquiring the undisputed right, title and possession of the property in question Sunrise Corporation Limited mortgaged the same to the opposite party Bank as security against the loan sanctioned by the opposite party Bank to Sunrise Corporation Limited.

(b) That consequent upon default in repayment of the loan liability the opposite party Bank filed the Title Suit No. 94/1994 against Sunrise Corporation Limited and its 5 other director i.e. the judgement debtors. The suit was decreed on compromise on 22.01.1997. When the judgement debtors did not comply the terms of the Compromised Decree the opposite party filed the Title Execution Case No. 37/1997.

(c) That the petitioner filed the instant Misc. Case in order to vitiate and frustrate the execution of the Decree that has already been obtained by the opposite party Bank. The petitioner never acquired any title and possession over the land in question and as such the question of releasing the same from the execution proceeding does not arise. The petitioner by making out a false story has lodged this petition and is thereby relying on manufactured instrument of gift, which is not even registered. This opposite party bank submits that if the petitioner would have right title and interest in the property in question, he should have been objected long back. Now while the matter has come to the auction stage, such filing of petition is nothing but a ploy to drag this opposite party bank indefinitely in recovering its legitimate dues under the decree.

(d) That the petitioner in collusion with the other judgement debtors with a view to frustrate the execution process under Title Execution Case No. 37 of 1997 has lodged the present Misc. Case, as such, such petition should not be entertained by any Court of Law

Wherefore, it is humbly prayed that your honour would graciously be pleased to reject the petition and thereby dismiss the Misc. Case with compensatory costs.

And for this act of your kindness the opposite party bank as in duty bound shall ever pray.

AFFIDAVIT

I, ______________________son of ______________________, ____________of Uttara Bank Limited, Dilkusha Branch, 54, Dilkusha Commercial Area, Dhaka-1000, aged about_____ years, by faith Muslim, Nationality Bangladeshi by birth, profession service, do hereby solemnly affirm and declare as follows:

1. That I am the officer of the opposite party Bank of this case and well conversant with the facts of the case and competent to swear this Affidavit.

2. That the statements of facts made in this written objection 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 sign below on this the ______day of _____________ at _____a.m. before the Commissioner of affidavit.

DEPONENT

The deponent is known to me and he has signed in presence of me

ADVOCATE

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