IN THE COURT OF JOINT DISTRICT JUDGE, 1ST COURT, DHAKA
MONRY SUIT NO. ____OF ______
X Accessories Ltd.
Z Fashions Ltd. and others
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 2:
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. 2 and as such the suit should be dismissed with costs.
03. That the suit has been filed in malafide intention to make illegal gain from the defendants. Since the suit has been filed with malafide 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. 2.
09. That the statements made in paragraphs 1 to 4 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the petitioner and therefore, this defendant No. 2 refrains from making any comments.
10. That the statements made in paragraph 5 of the plaint are matters related to delivery of goods. But the defendant No. 2 did not receive any shipping documents including Bill of Exchange, Packing List, Delivery Challan from the proforma defendant No. 3, the Negotiating Bank of the plaintiff within the validity of the Letter of Credit (the “BBLC”).
11. That the statements made in paragraph No. 6 of the plaint are matters of fact and not related to the defendant No. 2 which lies strictly on the plaintiff to prove and as such require no comments.
12. That the statements made in paragraph Nos. 7, 8 & 9 of the plaint filed by the plaintiff are false, fabricated, concocted, misconceived and hence strongly denied by the defendant No. 2. Contrary to what has been alleged, this defendant submits that as per request of the BBLC applicant i.e. the defendant No. 1 cancelled the BBLC vide its letter No. NCCB/MOGH/FEX-41/2002/148 dated 23.01.2002 and thereby informed the proforma defendant No. 3, the Negotiating Bank of the plaintiff as follows:
“Since the credit (the BBLC) has already been expired on 04.08.2001 you are requested to advise cancellation and arrange to call back the credit from beneficiary (the plaintiff) and send us the same to close our file”
Moreover The BBLC is subject to and governed by the Uniform Customs and Practice for Documentary Credits of 1993 revision, ICC Publication No. 500 (UCPDC). According to the provisions contained in UCPDC, the Letter of Credit transaction creates a contract between the Opening or Issuing Bank (in this instance the defendant No. 2) and the Advising or Negotiating Bank which is completely autonomous and separate from the underlying contract of supply of goods. The Issuing Bank of a Letter of Credit, whether back to back or otherwise, is completely unconcerned with the performance of the underlying contract. Article 3(a) of the UCPDC 500 reads as follows:
“Credits, by their nature, are separate transactions from the sales or other contract(s) on which they may be based and banks are in no way concerned with or bound by such contract(s), even if any reference whatsoever to such contract(s) is included in the credit”.
Article 4 of UCPDC 500 provides as follows:
“In Credit operations all parties concerned deal with documents, and not in goods, services and or other performances to which the documents may relate.”
Therefore, at all stages of the relevant transaction, this defendant was concerned only with documents and can in no way be held responsible for the goods for which the BBLC was opened. There was no contract between this defendant and the plaintiff stipulating that if goods delivered with discrepant documents or no documents, this defendant will make payment the L/C amount.As such since the documents under the BBLC was not presented/negotiated within the validity of the BBLC this defendant had no obligation to effect payment under the BBLC.
13. That the statements made in paragraph No. 10 are matters of record. The burden of proving the statements lies strictly upon the petitioner and therefore, this defendant No. 2 refrains from making any comments.
14. That the statements made in paragraph No. 11 of the plaint are matters of fact and not related to the defendant No. 2 which lies strictly on the plaintiff to prove and as such require no comments.
15. That the statements made in paragraph No. 12 of the plaint are incorrect, misleading and misconstrued. the plaintiff filed the said suit without any cause of action.
16. That it is submitted that Article 43(a) of the UCPDC reads as follows:
“In addition to stipulating an expiry date for presentation of documents, every Credit which calls for a transport document(s) should also stipulate a specified period of time after the date of shipment during which presentation must be made in compliance with the terms and conditions of the Credit. If no such period of time is stipulated, banks will not accept documents presented to them later than 21 days after the date of shipment. In any event, documents must be presented not latter than the expiry date of the Credit.”
17. That in view of the above provisions of UCPDC since there is no contractual obligation between the plaintiff and the defendant No. 2 who acted as Issuing Bank, this suit is liable to be dismissed. It is further submitted that in view of the provision of article 4 and 43(a) of the UCPDC the documents under the BBLC must be presented/negotiated before the expiry of the validity of the BBLC. In this instant case the proforma defendant No.3, the Negotiating Bank of the plaintiff did not present any such documents for negotiation of the bill within the validity of the BBLC. As such no payment obligation under the BBLC was arisen on the part of this defendant. Therefore, suit is liable to be dismissed.
18. That it is submitted that as the issuing bank of a letter of credit governed by the provisions of the Uniform Customs and Practice for Documentary Credit (UCPDC), this defendant is only concerned with documents and are not involved in any way with the underlying contract or L/C to supply the goods and its performance. So the suit filed by the plaintiffs is liable to be dismissed.
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. 2.
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 this the __________day of ____________.