IN THE COURT OF JOINT DISTRICT JUDGE, 1ST COURT, DHAKA
TITLE SUIT NO. _________OF ___________
The X Trust
Arab Bangladesh Bank Limited and another
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 (the “defendant”) 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.
09. That the statements made in paragraphs 1 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, this defendant refrains from making any comments. The statement that the defendant suppressed the summons and misled the court is false, concocted and incorrect, hence, the statement is denied. It is stated that the plaintiff filed an application under Order XXI Rule 29 read with Section 151 of the Code of Civil Procedure, 1908 and Section 57 of the Artha Rin Adalat Ain 2003 in the Artha Rin Adalat No. 3, Dhaka, for stay of all further proceedings of the Artha Jari Case no. 89/2003 till the disposal of this instant Suit and the application is declined/rejected by the learned Court. It is denied that the land is unencumbered.
10. That the statements made in paragraph nos. 2-4 are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, this defendant refrains from making any comments.
11. That the allegations made in paragraph No. 5 of the plaint are mostly matters of record and burden of proving the statements lies strictly upon the plaintiff. It is denied that the plaintiff purchased the land measuring 17 decimals against which the decree has been passed.
12. That the statements made in the paragraph No. 6 of the plaint are mostly matters of record and the burden of proving the statements strictly lies on the plaintiff.
13. That the statements made in the paragraph No. 7 of the plaint are mostly matters of record and the burden of proving the statements strictly lies on the plaintiff. The statement regarding the non-service of the summons of the Artha Rin Suit is incorrect, false, fabricated and hence the statement is denied by the defendant.
14. That the statements made in paragraph no. 8 of the plaint are mostly matters of record and the burden of proving the statements strictly lies on the plaintiff. It is denied that the plaintiff had no other alternative but to file the instant Suit.
15. That the real facts of the suit are as follows:
(a) That the defendant filed the Title Suit No. 116 of 1998 in the 3rd Artha Rin Adadat, Dhaka against Bangladesh Business & Industrial Corporation (Private) Limited (“BBIC”) (def. 1) and against its Managing Director, Mr. Tariq M. Mazumder (“Mr. Tariq”) who mortgaged his land in order to secure the loan availed by BBIC and The Acme Laboratories Ltd. (def. 3), The XTrust (def. 4), Mrs. Sultana Chowdhury (def. 5) for recovery of money taka 60,56,875.00 (taka sixty lac fifty six thousand eight hundred seventy five) as on 30.09.98 by sale of mortgaged property. After hearing both the contesting parties the learned Court passed the judgment and decree on 12.07.2001 and final decree on 09.04.2003 and released 33 decimal of land from the schedule land from the scheduled 50 decimal of land and foreclosed the remaining 17 decimal of land in question.
(b) That the schedule 50 decimal of land was mortgaged to the defendant by the Mr. Tariq on 13.08.1992 and meanwhile he sold out 33 decimal of land on 29.04.1978 to defendant no. 5 of the Title Suit 116/1998. Thereafter, Mrs. Sultana Chowdhury sold out 17 decimal of land from her total purchased 33 decimal of land to the plaintiff of the instant Suit in 1996.
(c) That the title of the remaining 17 decimal of land was originally belonged to the Mr. Tariq, mortgagor at the time of execution of the said mortgage deed.
(d) That the plaintiff could able to contest the Suit which was decreed exparte against the plaintiff, even after the judgment and decree, complying the provision stipulated in section 32 of the Artha Rin Adalat Ain 2003 and Order IX, Rule 13 of the Code of Civil Procedure, 1908. But the plaintiff did not do so. Rather he initiated some unnecessary proceedings which delayed the Title Execution Case No. 89/2003.
(e) The defendant filed the execution suit vide Title Execution Suit No. 89/2003 and published the auction notice in the national dailies on 13.03.2004 and fixed the date of auction on 30.03.2004. Thereafter, the plaintiff filed an application under Order XXI Rule 29 read with Section 151 of the Code of Civil Procedure, 1908 and Section 57 of the Artha Rin Adalat Ain 2003 in the Artha Rin Adalat No. 3, Dhaka, for stay of all further proceedings of the Artha Jari Case no. 89/2003 till the disposal of this instant Suit. But the application filed by the plaintiff was declined/rejected by the Learned Court.
(f) That the plaintiff later on filed a revisional application on 10.04.2004 vide Civil Revision No. 980/2004 in the Honorable High Court Division and obtained a Rule. But upon hearing of both parties, the Honorable Justices were pleased to discharge the Rule and vacate the stay of all proceedings of the said Artha Jari Suit. The Honorable Court had the findings that if the plaintiff’s allegation of non-service of summons of the suit is correct, his remedy of separate suit is not barred provided his remedies under the Artha Rin Adalat stood barred at the time of the filing of the Suit for no fault of his own. In fact, the plaintiff willfully did not contest the Suit. He had sufficient relief under Section 32 of the Artha Rin Adalat Ain 2003. The proper forum for the plaintiff was to file a Miscellaneous Case under the Order IX, Rule 13 of the Code of Civil Procedure, 1908 read with Section 32 and 57 of the Artha Rin Adalat Ain 2003, if he can prove that he was unaware of the judgment and order of the Artha Rin adalat no. 3.
16. That the defendant obtained the decree of the Title Suit No. 116/1998 from 3rd Artha Rin Adalat, Dhaka and the defendant is entitled to sell the mortgage land through the auction which is free from all encumbrances, in order to realize the outstanding dues of Mr. Tariq, Managing Director of BBIC. The only intention of the plaintiff is to harass and illegal gain from the defendant. Therefore, there is no cause of action arose to file this suit against the defendant. The plaintiff added the defendant in this suit with mala fide intention to harass the defendant. This suit is not maintainable against the defendant. Therefore, the suit filed by the plaintiff is liable to be dismissed.
Wherefore, it is humbly prayed that the Learned Court would graciously be pleased to dismiss the suit filed by the plaintiff with compensatory costs in favour of the defendant.
And for this act of kindness the defendant as in duty bound shall ever pray.
That the statements made above are true to my knowledge and matters of records whereof I put my signature on the _____ day of _______________.