X Bank Limited -Versus- Mr. Y

IN THE BANKRUPTCY COURT, DHAKA

BANKRUPTCY CASE NO OF 1999

X Bank Limited

Dilkusha Branch

48 Dilkusha Commercial Area

P.S. Motijheel

Dhaka-1000

PLAINTIFF/CREDITOR

-Versus-

Mr. Y

Son of ____________________

Proprietor of:

M/S. Z

65 Dilkusha Commercial Area (4th floor)

P. S. Motijheel

Dhaka-1000

DEFENDANT/DEBTOR

SUIT FOR ADJUDGING/DECLARING THE DEFENDANT/DEBTOR AS BANKRUPT UNDER BANKRUPTCY ACT, 1997

SUIT VALUED AT TK. AS ON 31.05.99.

The plaintiff/creditor above named states as

FOLLOWS:

1. That the plaintiff/creditor is a banking company incorporated under the Companies Act, 1913 having its Head Office at 18 Dilkusha Commercial Area, Dhaka-1000. It carries on banking business within the territory of Bangladesh through its various branches including the Dilkusha Branch, Dhaka, address of which is given in the cause title (hereinafter referred to as the plaintiff/creditor Bank.

2. That the defendant/debtor is a businessman in his profession. He carries on various types of business in the name and style of M/S Z from the address given at the cause title.

3. That the defendant/debtor in course of his business opened Current Account No. 3700-2776 on ____________ in the name of his business concern M/S Z with the plaintiff/creditor Bank. Thereafter at the request of the defendant/debtor vide his letter dated __________ the plaintiff/creditor Bank sanctioned Cash Credit facility of Tk. ____________________ in favour of the defendant/debtor vide Sanction Advice No. _____________ dated 28.12.89 with validity up to 31.12.90.

4. That as security for repayment of the said loan the defendant/debtor mortgaged his land measuring 5 kathas with building at Gulshan, Dhaka, fully described in the schedule-2 below in favour of the plaintiff/creditor and executed Memorandum of Deposit of Title Deeds in favour of the plaintiff/creditor on _________. The defendant/debtor also hypothecated all his machinery and stocks stored at _______________ and executed letter of hypothecation on ________ along with power of attorney dated __________ in favour of the plaintiff/creditor giving power to sell the hypothecated machinery and stocks. He also executed various charge documents.

5. That the defendant/debtor availed the credit facility in full but did not repay the loan within the validity, i.e. 31.12.90, as per the sanction letter. As such the plaintiff/creditor vide its various letters requested the defendant/debtor to adjust his overdue liability.

6. That considering the predicament of business of the defendant/debtor the plaintiff/creditor Bank vide its letter No. SUC/WING-19(96) dated 11.01.96 communicated to the defendant/debtor an arrangement of consolidation. Under the said arrangement the liability of the defendant/debtor was supposed to be consolidated with his 3 other business concerns namely (1) Wahid’s Enterprise Limited, (2) M/S Islam Salt Industries and (3) Feather Touch Foam Leather Limited. And after waiver of interest of Tk. 4,35,00,000.00 only the total amount repayable by the defendant/debtor and his 3 other business concerns were set at Tk. 5,13,78,000.00 only. The waiver of interest was conditional upon acceptance and compliance of the arrangement by the defendant/debtor.

7. That the defendant/debtor accepted the arrangement, but despite repeated request and reminders of the plaintiff/creditor Bank did not come forward to repay the loan pursuant to the said arrangement. At last the defendant/debtor vide his letter dated 28.07.98 acknowledged the liability and undertook to settle all liabilities by 31.12.98, but the defendant/debtor failed to fulfil his undertaking. Accordingly, on failure of the defendant/debtor to adjust his liabilities under the consolidation arrangement, the indulgence given to the defendant/debtor by the plaintiff/creditor Bank by way of waiver of interest stood withdrawn.

8. That despite repeated reminders and requests of the plaintiff/creditor the defendant/debtor failed to repay the dues of the plaintiff/creditor Bank. It is quite apparent from the conduct of defendant/debtor that he is unable to repay his outstanding dues.

9. That the defendant/debtor has no bona-fide intention to adjust his huge outstanding dues. The plaintiff/creditor Bank, in the mean time, exhausted all its possible means and efforts to settle the matter amicably, but of no avail. As a result the outstanding liability of the defendant/debtor stands at Tk. 2,58,80,645.00 (Taka two crore fifty eight lac eighty thousand six hundred forty five) only inclusive of interest and charges as on 30.09.97.

10. That in view of the failure of the defendant/debtor in liquidating the total outstanding liability the plaintiff/creditor Bank was constrained to issued notice under section 9(1)(i) of the Bankruptcy Act, 1997 on 16.02.99 under registered post upon all the defendant/debtor giving 90 days time from the date of service of the formal demand to adjust his debt amounting to Tk. 2,58,80,645.00 (Taka two crore fifty eight lac eighty thousand six hundred forty five) only inclusive of interest and charges as on 30.09.97. The notice was duly served on 01.03.99. But even after receiving the notices the defendant/debtor failed to pay the money demanded from them. Since the defendant/debtor failed to comply with the requirements of the formal demand within the stipulated 90 days period, the defendant/debtor has committed an act of bankruptcy within Bangladesh and within the jurisdiction of this Court.

11. That from the statement made above it is clear that the defendant/debtor is unable to pay his debts. As such he is liable to be adjudged as bankrupt.

12. That the plaintiff/creditor Bank is an “eligible creditor” within the meaning of Bankruptcy Act, 1997. The registered office or the place of business of the defendant/debtor is situated at Dilkusha, Dhaka (detailed address of which is given at the cause title) and the act of bankruptcy has been committed within the period specified in Section 12(1)(c) of the Bankruptcy Act, 1997. As such, the defendant/debtor is subject to bankruptcy proceedings. Hence, being an “eligible creditor” the plaintiff/creditor Bank is lawfully entitled to obtain an “order of adjudication” from this Court adjudging the defendant/debtor as bankrupt.

13. That the defendant/debtor has mortgaged his property described in the schedule-2 of the plaint in favour the plaintiff/creditor Bank against the aforesaid credit facility granted to the defendant/debtor, although the said property is not adequate to satisfy the liability of the defendant/debtor with the plaintiff/creditor. As such, the plaintiff/creditor Bank is “secured creditor” within the meaning of the Bankruptcy Act and has interest in the said property. Since an act of bankruptcy has been committed, the debtor is liable to be adjudged as bankrupt by this Court and the scheduled property is subject to be taken over by a Receiver/interim Receiver appointed by the Court for realisation of sale proceeds. This Court may allow the mortgaged property described in the schedule-2 below to be sold for exclusive adjustment of this creditor’s claim and may allow the creditor to share rateably with other creditors the sale proceeds of other properties of the debtor which are supposed to be in the hands of Receiver/interim Receiver.

14. That the claim of the creditor Bank inclusive of interest and charges as on 31.05.99 is as follows:

Cash Credit facility – Tk. _______________

So, the claim of the plaintiff/creditor Bank stands at Tk. _____________ (Taka ____________________________________________________) only inclusive of interest and charges as on 31.05.99 as per schedule of claim (i.e. schedule No. 1) which the defendant/debtor is liable to pay to the plaintiff/creditor Bank. Hence the defendant/debtor is liable to be adjudged as bankrupt unless he liquidates the liability immediately.

15. That the cause of action under Bankruptcy Act has arisen on 01.03.99 when the notice under section 9(1)(i) was duly served and on 30.05.99 when the notice period was expired.

Wherefore the plaintiff/creditor Bank prays for:

(a) An order of adjudication of the defendant/debtor as bankrupt;

(b) A declaration that the defendant/debtor is liable to pay Tk. _____________ (Taka _______________________________) only inclusive of interest and charges as on 31.05.99 with interest and other charges to the plaintiff/creditor Bank.

(b) Compensation @ ___% per annum from 01.06.99 till realisation.

(c) Appointment of Receiver/interim Receiver to take custody of the properties of the debtors.

(d) Direction upon the receiver to allow the mortgaged property to be sold in order to adjust the sale proceeds exclusively against the claim of the plaintiff/creditor Bank as soon as possible.

(e) Direction upon the receiver for the balance amount of the claim of this creditor, if any, to allow this creditor Bank to recover from the sale proceeds of the other properties of the debtors.

(f) Civil imprisonment of the debtor if the sale proceeds are not sufficient to meet the liabilities.

(g) Cost of the proceedings.

(h) Any other relief or reliefs as your honour may deem fit and proper.

SCHEDULE-1

(Claim of the plaintiff/creditor)

As per the statements of account the amount payable by the defendants/debtors to the plaintiff/creditor Bank is Tk. _____________ (Taka ____________________________________________) only inclusive of interest and charges as on 31.05.99.

Name of the creditor: X Bank Limited

Dilkusha Branch

48 Dilkusha Commercial Area

Dhaka-1000

SCHEDULE-2

All that piece and parcel of land measuring 5 Kathas situated within District Dhaka, P. S. Gulshan, Mouza _________, C. S. Khatian No. ____, C. S. Dag No. ______, S. A. Khatian No. ______, S. A. Dag No. _____, R. S. Khatian No. ______, R. S. Dag No. _____, along with _____ storied building constructed thereon with any other structure or structures constructed or to be constructed thereon, together with all rights, interests, easements, titles, benefits etc. attached or appertaining thereto.

The estimated value of the property is Tk. 5,00,000.00 (Taka five lac) approximately.

VERIFICATION

That the statement made herein above are true to our knowledge and belief and in witnesses whereof we sign this verification on this the ______th day of June, 1999.

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