The Oriental Bank Limited -Versus- Uttara Bank Limited and others

IN THE COURT OF 3rd JOINT DISTRICT JUDGE, DHAKA

TITLE SUIT NO. ___OF ______

The Oriental Bank Limited

PLAINTIFF

-Versus-

Uttara Bank Limited and others

DEFENDANTS

WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 1:

01. That the Suit filed by the Plaintiff is not maintainable in its present form and nature.

02. That there is no cause of action to file the Suit against the Defendant No. 1 and as such the Suit should be dismissed with costs.

03. That the Suit has been filed with mala fide intention to make illegal gain from the defendants. Since the Suit has been filed with mala fide motive, the Suit is liable to be dismissed.

04. That the Suit is barred by the principles of waiver, acquiescence and estoppel.

05. That the suit is framed on wrong conception of law and facts.

06. That the Suit is bad for non-joinder and mis-joinder of parties.

07. That the Suit is not maintainable as it did not comply with the legal formalities preceding the filing of a Suit. The Suit is liable to be dismissed summarily on the face of the plaint as the Plaintiff filed the said Suit without any cause of action.

08. That the statements made in the Suit which are not specifically admitted hereinafter shall be deemed to have been denied by the Defendant No. 1.

09. That the statements made in paragraph Nos. 1 and 2 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the Plaintiff and therefore, this Defendant No. 1 refrains from making any comments.

10. That the statement made in paragraph No. 3 is partly matters of record and partly denied. The burden of proving the statements lies strictly upon the Plaintiff. The Plaintiff and the Defendant Nos. 2-4 fraudulently executed the Mortgage Deed during the continuance of the mortgage of the schedule property with the Defendant No. 1.

11. That the statements made in paragraph No.4 are no way concerned with the Defendant No. 1 and therefore, the Defendant No. 1 neither admitted nor denied these statements.

12. That the statements made by the Plaintiff in paragraph No. 5 are denied. The Plaintiff and the Defendant Nos. 2-4 fraudulently executed the Deed of Mortgage, Power of Attorney, Memorandum of Deposit of Title Deeds in respect of the schedule property during the continuance of the mortgage of the said property with the Defendant No. 1 and therefore these documents do not have any legal enforceability.

13. The statements made in paragraph No. 6 are mostly admitted. The Defendant No. 1 gave back the Title Deed to the Defendant No. 3 in May, 1989 for mutation purpose which the Plaintiff states as baseless, false are denied. The fact is that after some days of the disbursement of the loan, the Defendant No. 3 requested the Defendant No. 1 to give him back for the completion of the mutation of the schedule property during the continuance of the mortgage with the Defendant No. 1. For this purpose, the Defendant No. 3 executed a Written Undertaking vide dated 25.05.1989 with the commitment that he would return the Title Deed vide No. 30246 dated 16.09.1979 to the Defendant No. 1 within 1 ½ months.

14. That the statements made in paragraph No. 7 are denied. The Defendant No. 1 lawfully obtained the Decree in the Title Suit No. 122/1994 and the possession under Section 33(5) of the Artha Rin Adalat Ain, 2003 in Execution Case No. 31/1998 and thereafter published the auction notice for sale of the schedule property in the newspaper lawfully.

15. That the statements made in paragraph No. 8 are admitted.

16. That the statements made in paragraph No. 9 are denied. The Defendant Nos. 2-4 executed the Deed of Mortgage with the Defendant No. 1 prior to the fraudulent Mortgage Deed with the Plaintiff and the Defendant No. 1 obtained the Mortgage Decree from the Learned Court lawfully and the Decree is legally enforceable.

17. That the real facts of the Suit are as follows:

(a) That at the request from the Defendant No. 3 vide letter dated 17.12.1986 for granting of Taka 90.00 lac (Taka ninety lac) only, the Defendant No. 1 through its head office vide Sanction Letter No. HO/ADV/CC/A/226/87/327 dated 10.02.1987 sanctioned in favour of the Defendant No. 3 a cash credit limit of taka 50.00 lac. The sanctioned amount was duly accepted by the Defendant No. 3.

(b) That for the security of the loan, the Defendant Nos. 3-4 executed Deed of Mortgage by way of depositing the Title Deed vide No. 30246 dated 16.09.1979 of the land mentioned in the schedule. The Defendant Nos. 3-4 executed the Deed of Mortgage and Irrevocable General Power of Attorney (“IGPA”) in favour of the Defendant No. 1 vide dated 15.02.1987. Upon execution the above mentioned Mortgage Deed, IGPA and other relevant documents, the Defendant Nos. 2-4 availed the sanctioned cash credit in full.

(c) That as per the term of the Sanction Letter, the cash credit limit was expired on 31.12.1987. On the expiry of the cash credit limit, the Defendant No. 1 requested the Defendant Nos. 2-4 to settle their financial liabilities. But the Defendant Nos. 2-4 did not pay heed to the Defendant No. 1.

(d) That the Defendant No. 3 approached the Defendant No. 1 in May, 1989 with a request to give him back the Title Deed which was deposited with the Defendant No. 1 for the completion of the mutation of the schedule property during the continuance of the mortgage with the Defendant No. 1. For this purpose, the Defendant No. 3 executed a Written Undertaking vide dated 25.05.1989 with the commitment that he would return the Title Deed vide No. 30246 dated 16.09.1979 to the Defendant No. 1 within 1 ½ months.

(e) That on getting back the Title Deed from the Defendant No.1 for the mutation purpose, the Defendant Nos. 2-4 mortgaged the said Title Deed with the Plaintiff and obtained the loan. Later on, the Defendant No. 1 informed the Plaintiff vide letter dated 11.07.1992 that the land had already been mortgaged since 15.02.1987 with the Defendant No. 1 and requested to give it back. The Plaintiff failed to follow the request of the Defendant No. 1.

(f) The Defendant Nos. 2-4 did neither comply with their Written Undertaking to return back the Title Deed nor pay back the outstanding dues. Later on, the Defendant No. 1 filed the Title Suit No. 122/1994 against the Defendant Nos. 2-4 in the 4th Artha Rin Adalat, Dhaka on 19.09.1994 and obtained the Preliminary Decree and Final Decree on 06.01.1997 and 07.07.1997 respectively. Later on the Defendant No. 1 filed Title Execution Suit No. 31/1998 in the 4th Artha Rin Adalat, Dhaka and obtained the Certificate under Section 33(5) of the Artha Rin Adalat Ain, 2003.

(g) That the Defendant No. 1 filed a C.R. Case No. 3076/94 against the Defendant No. 3 in the Chief Metropolitan Magistrate, Dhaka on 14.11.1994 for the offence of fraudulent execution of the Deed of Mortgage with the Plaintiff and cheating with the Defendant No. 1 under Sections 406 and 420 of the Penal Code and the Learned Magistrate duly convicted the Defendant No. 3 for 5 (five) years rigorous imprisonment and taka 5000.00 (taka five thousand) only fine in default to pay more 3 months simple imprisonment.

Wherefore, it is humbly prayed that your Honour would graciously be pleased to dismiss the Suit filed by the Plaintiff with compensatory costs in favour of the defendant No. 1.

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

VERIFICATION

That the statements made above are true to my knowledge and matters of records whereof I put my signature on the ______ day of April, 2008.

______________________

Signature

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