IN THE COURT OF 5TH JOINT DISTRICT JUDGE, DHAKA
MONEY SUIT NO. ______OF ____________
X Apparels (Pvt.) Limited
PLAINTIFF
-Versus-
National Bank Limited and other
DEFENDANTS
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NOS. 1 & 2:
01. That the suit filed by X Apparels (Pvt.) Ltd. (“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 nos. 1 and 2 (“the defendants”) 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 defendants.
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, the defendants refrain from making any comments.
10. That the allegations made in paragraph no. 3 of the plaint are denied. The plaintiff availed credit facilities from the defendants. They have not yet reimbursed the said credit facilities. The present position of their outstanding liabilities is as follows:
| Nature of the Loan
BTB Loan (G) Total |
Outstanding liabilities
Taka 3,32,96,260.16 Taka 30,24,023.97 Taka 3,63,20,284.13 |
The defendants never wasted plaintiff’s time in considering their proposals rather every proposal was considered with utmost diligence and sincerity. The plaintiff failed to provide the defendants relevant documents and additional collateral security. As such, their credit proposal was denied which leads to delay. Any loss of business suffered by buyers of the plaintiff and the plaintiff itself is caused by their own fault. The defendants are not liable in this regard at all.
11. Except that the plaintiff applied to the defendants for credit facilities for an amount of taka 10,00,000.00 (taka ten lac only), the allegations made in paragraph 4 are denied. Mr. Taher Arif Billah Khan, Managing Director of the plaintiff, could not provide additional collateral security as required by the defendants. Therefore, their loan proposal was rejected. The financial loss of the plaintiff, if any, caused by their own faults.
12. Except that the defendants returned three L/C being no. FOBELVM 512779 dated 14.03.2006, FOBELVM 509140 dated 27.01.2006 and ICC 70165005 dated 01.02.2006, the allegations made in paragraph 5 are denied. The defendants had strong reasons for returning the said L/C that were communicated to Mr. Taher Arif Billah Khan, vide our Letter No. MK/FEX/BR/105/2006 dated 04.03.2003. However, the reasons for retuning the L/C are as follows:
(A) The Plaintiff had previously failed to execute full export against many past exports L/C repeatedly. There had been short shipment of US $ 4,11,747.44 against 15 L/C during the period of 2004 to 1st quarter of 2006.
(B) Some export documents have been returned unpaid by the issuer of some previous L/C and these are still lying outstanding. The plaintiff was informed about the matter of return of the export documents in time. Non-realization of export proceeds within 120 days of shipment is a violation of the Foreign Exchange Regulation Act, 1947. But the length of outstanding of export documents has already exceeded the limitation of 120 days. The details of the said export documents are as follows:
| Sl. No. | Export L/C No., date and amount | FDBC No. date and amount | Exp No. | Length of O/S as on 30.06.07 | Status of Garments |
| 1 | 0107/0800873200
Date 21.01.05 US $ 3,39,880.00 |
21-5416-05
Date 29.08.05 US $ 56,447.60 |
2013-05 | 670 days | Lying at foreign port as informed by the exporter and the shipping company. |
| 2 | GER/HDI/X/01/005
Date 25.05.05 US $15,100.00 |
21-5018-05
Date 22.06.05 US $14, 988.00 |
1463-05 | 739 days | -do- |
| 3 | XT 04103597
Date 08.11.04 US $ 18,632.00 |
21-4989-05
Date 1.06.05 US $ 14,009.69 |
456-05 | 743 days | -do- |
| 4 | TEP/MCK 551235
Date 16.11.05 US $ 55339.90 |
21-4282-06
Date 26.02.06 US $ 19,543.68 |
168-06 | 490 days | -do- |
| Total | US $1,04,979.97 |
(C) Due to non-realization of export proceeds and non-execution of export of full value of the L/C, the defendants had to make payment of the accepted bills against back-to-back L/C by creating forced loan (SOD-Exp). The present outstanding of the plaintiff to be paid to the defendants in respect of the forced loan is BDT 3,32,96,260.16 as on 12.05.07. This is absolutely negative sign for an export oriented garments industry.
(D) Because of the non-realization of the previous export proceeds and failure to execute shipment against previous export L/C and continuous increase of SOD (exp.) liabilities of the plaintiff against which sufficient stock lot was not found available in the plaintiff factory, when the officials of the defendants visited the said warehouse. The defendants were unable to sanction further credit to the plaintiff without realization of the proceeds of the overdue export bills and adjustment of overdue liabilities.
(E) Naas Apparels Ltd. was informed that L/C would be returned vide the defendants letter no. MK/FEX/BR/105/2006 dated 04.03.2006.
13. The statements made in paragraph 6 are denied. The plaintiff never repaid the outstanding loan from the export proceeds. The total liability of the plaintiff stands with the defendant Bank is taka 363.20 lac as detailed in the paragraph 10 of this reply.
14. That the allegations made in paragraph no. 7 are denied. The plaintiff has caused damaged to their own goodwill and as such the defendants have no liability for the damage, if any, caused to the plaintiff.
15. The statements made in paragraph no.8 are matters of law. Articles 14(d) (i) (ii) of the UCPDC does not entertain plaintiff’s claim. As such the statement made in paragraph no. 8 is denied.
16. That the allegation made in paragraph no. 9 is denied due to reason explained in the paragraph 15. The plaintiff deposited L/C on 02.03.2006 and the defendants returned the same to the plaintiff on 04.03.2006 without wasting time which was duly acknowledged by Mr. Taher Arif Billah Khan on 09.03.2006.
17. That the statements made in paragraph 10 are matter of facts and the plaintiff is required to prove the same.
18. That the statements made in paragraph No. 11,12,13,14 are denied.
19. That the only intention of the plaintiff is to harass and illegal gain from the defendants. Therefore, there is no cause of action arose to file this suit against defendants. The plaintiff filed this suit with melafide intention to harass the defendants. This suit is not maintainable against the defendants. Therefore, the suit filed by the plaintiff 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 defendants.
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 are matters of record, whereof I put my signature on the _____________, ______________.