X Network Limited -Versus- Mr. Z and others

IN THE COURT OF JOINT DISTRICT JUDGE, 3RD COURT, DHAKA

TITLE SUIT NO. _____OF __________

X Network Limited

PLAINTIFF

-Versus-

Mr. Z and others

DEFENDANTS

WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 3:

1. That the suit filed by the plaintiff is not maintainable in its present form and nature.

2. That there is no cause of action to file the suit and as such the suit should be dismissed with costs for want of cause of action.

3. That the suit has been filed in malafide intention to make illegal gain as such the suit is liable to be dismissed.

4. That the suit is barred by the principles of waiver, estoppel and acquiescence and as such the same is not sustainable in law.

5. That the plaintiff filed the instant suit by suppressing and misreading of facts and as such by considering the facts the suit is liable to be dismissed with cost.

6. That the plaintiff did not come before the learned Court with clean hand and as such the plaintiff is not entitled to get any relief from the learned Court hence this suit is liable to be dismissed.

7. That the statements made in the plaint which are not specifically admitted hereinafter shall be deemed to have been denied by the defendant No. 3.

8. That the statements made in paragraph 1 of the plaint are matters of record and assertion and the plaintiff is to put strict proof thereof. Therefore, this defendant No. 3 refrains from making any comments.

9. That the statements made in paragraph 2 of the plaint are partly correct, partly matter of record and partly false and fabricated. It is false and concocted that the defendant Nos. 1 & 2 were owner of the suit property at any time. Other statements made in the said paragraph are matters of record and as such no comment is warranted.

10. That the statements made in paragraph Nos. 3 and 4 of the plaint regarding the chain of ownership of the proforma defendant No. 8 are admitted by this defendant.

11. That the statements made in paragraph 5 of the plaint are partially true. It is admitted by this defendant that the proforma defendant No. 8 Q was in peaceful possession of the suit property. But it is false and motivated that Q made any gift of the suit property to the defendant No. 2 on 01.07.1985 or on any other date whatsoever or confirmed the said gift vide any affidavit or by any other means. Contrary to what have been alleged, this defendant submits that the plaintiff of the present suit come-up with a manufactured story with a view to frustrate the mortgage of Q made in favour of this defendant. Qas security of the loan, extended to the pro-forma defendant No. 7 by this defendant, created mortgage of the suit property. As such, all the instruments made in connection with the ownership of the defendant Nos. 1 & 2 are fabricated, false and made collusively.

12. That the statements made in paragraph No. 6 of the plaint are false and concocted; hence denied by this defendant.

13. That the statements made in paragraph No. 7 of the plaint as to obtaining necessary approval from the pro-forma defendant no. 5 for transfer of the suit property in favour of the defendant no. 1 are false, hence denied by this defendant. Contrary to what has been alleged this defendant submits that even if such approval was obtained that was obtained suppressing material facts.

14. That the statements made in paragraph No. 8 of the plaint to the effect that obtaining upon so called permission the defendant No. 2 through her constituted attorney transferred the suit property to the defendant no. 1 by way of gift or any other else or that confirmed the same by executing so called notarized affidavit No. 27 on 08.07.1993 before the Notary Public or that the defendant No. 2 through her constituted attorney handed over the possession of the suit property to the defendant No. 1 are false and highly motivated, hence denied by this defendant.

15. That the statements made in paragraph No. 9 are false and highly motivated, hence denied by this defendant.

16. That the statements made in paragraph No. 10 as to possessing the suit property by the defendant no. 1 or that the plaintiff’s finding of the suit property as unencumbered or that it was owned by the defendant no. 1 or thereafter the plaintiff offered to purchase the suit land foe a price of Tk. 95,00,000.00 or for any other price of that the defendant No. 1 accepted the offer or agreed to sell the suit land to the plaintiff or that the defendant No. 1 applied to the pro-forma defendant no. 5 for permission to transfer the suit land to the plaintiff or that the pro-forma defendant No. 6 gave permission to transfer the suit property in favour of the plaintiff are false, collusive and highly motivated.

17. That the statements made in paragraph No. 11 of the plaint to the effect that any permission of the Ministry of Works took place or after so called permission the plaintiff paid appropriate transfer fee or any fee with the Ministry of Works or thereafter deed of sale being No. 4196 dated 30.11.1998 in the office of Sub Registrar, Mohammadpur or any other deed or that the defendant No. 1 handed over the peaceful possession of the suit property to the plaintiff are motivated, as such are denied by this defendant.

18. That the statements made in paragraph No. 12 of the plaint to the effect that the pro-forma defendant No. 6 by latter No. 6/L-Dhan-82/99/63 dated 24.10.1999 or by any other letter recorded the name of the plaintiff against the suit property as the lessee or that the plaintiff is in peaceful possession of the suit property is completely false, collusive, fabricated, fraudulent and as such denied by this defendant.

19. That the statements made in paragraph No. 13 of the plaint are partly correct and partly false. The statements made in that paragraph as to filing of Title Suit No. 107 of 1995 in the 3rd Artha Rin Adalat, Dhaka by the defendant No. 3 for recovery of loan extended to the pro-forma defendant No. 7 by sale of the suit property and defendant No. 3 was/is claiming to have charge on the suit property created by Qas security of loan availed by the pro-forma defendant No. 7 and Qexecuted Memorandum of Deposit of Title Deed stating that he deposited the title deeds on 10.12.1986 in favour of the defendant No. 3 in respect of the said mortgage are admitted by this defendant. On the other hand whatsoever has been stated in that paragraph to the effect that the plaintiff recently came to know from reliable source as to filing of Title Suit No. 107 of 1995 in the 3rd Artha Rin Adalat, Dhaka or he had no knowledge as to execution of mortgage of the suit property by Q with the defendant no. 3 are false, as such are denied by this defendant. Rather it is submitted that the plaintiff had knowledge that Q creadted mortgage to the suit property in favour of this defendant. Further, statements made in the paragraph No. 13 to the effect that Q had no right, title and possession over the suit property when he mortgaged the suit property by creating equitable mortgage with the defendant No. as security of loan availed by the pro-forma defendant No. 7 or that in fact on 01.07.1985 Q gifted away the suit property to his wife are completely false, concocted, collusive and motivated and as such are denied by this defendant.

20. That the statements made in paragraph No. 14 of the plaint are matter of record, and the plaintiff is under strict obligation to proof it.

21. That the statements made in paragraph No. 15 of the plaint are matter of record, and the plaintiff is under strict obligation to proof it.

22. That the statements made in paragraph Nos. 16 & 17 of the plaint are completely misconceived, misleading and misinterpretation of facts hence denied by this defendant.

23. That the statements made in paragraph No. 18 of the plaint are misinterpretation of terms and condition of the Indenture of Lease and as such denied by this defendant.

24. That the statements made in paragraph No. 19 of the plaint to the effect that the lessor on three occasions gave necessary permission to change the leasehold interest of the suit land to so called successive owners/buyers or that had the mortgage been recorded with the Ministry of Works the plaintiff would not proceed to purchase the suit land or that the plaintiff had no notice of mortgage of the suit property or that the plaintiff is a bonafide purchaser or that he purchased the suit property for value without notice of mortgage is completely false, fabricated, collusive and highly motivated and as such those statements are completely denied by this defendant.

25. That the statements made in paragraph No. 20 of the plaint to the effect that the plaintiff purchased the suit property after due compliance with all the necessary formalities or that obtained the approval of the lessor or that the plaintiff’s name is recorded with the pro-forma defendant Nos. 5 and 6 or that the property was mutated accordingly or that the plaintiff is a bonafide or innocent purchaser of the suit property or that the plaintiff had no notice of mortgage because of the mortgage being not a registered one or that the defendant No. 3 had any fault in mortgage or that the mortgage is not binding upon the plaintiff is completely false, misconceived as such are vehemently denied by this defendant. Contrary to what has been alleged, this defendant submits that should the plaintiff exercised caveat, that is, inquiring with the concerned authority, he should have noticed the existence of the mortgage of the land in question with this defendant. Even if the purchase is made by the plaintiff, this defendant submits that the plaintiff with knowledge of the encumbrance purchased the property in question and intentionally has suppressed the matter in his plaint.

26. That the statements made in paragraph No. 21 are completely false, concocted, collusive and motivated and as such are denied by this defendant.

27. That the statements made in paragraph Nos. 22 and 23 are misinterpretation of terms and condition of the Indenture of Lease and as such denied by this defendant.

28. That the statements made in paragraph No. 24 are completely false, concocted, collusive and motivated and as such are denied by this defendant.

29. That the statements made in paragraph Nos. 25 & 26 are mostly matter of record and none is related with this defendant and as such this defendant refrains from making any comment.

29. That the statements made in paragraph No. 27 are totally false, fabricated and motivated, hence denied by this defendant. It is submitted by this defendant that the plaintiff deserves no right to get any declaration from the learned Court as to the plaintiff has any right, title or possession in the suit land.

30. That the statements made in paragraph no. 28 are totally baseless and false. No cause of action is/was arisen to file this instant suit on the dates mentioned in paragraph No. 28 or any other date.

31. That the facts are as follows:

a) That the plaintiff have sought decree inter alia for declaration to the effect that the plaintiff has lawful leasehold right, title, interest and ownership in the suit property; and the plaintiff is now the lawful lesee of the suit land under the pro-forma defendant no. 5. It is submitted that the pro-forma defendant No. 7, a private limited company, availed credit facilities from the defendant No. 3 against which the pro-forma defendant No. 8, Mr. Khaja Mohammad Zarar, on 10.12.86 mortgaged 1 (one) bigha land property (suit property) by deposit of title deed by executing Memorandum of Deposit of Title Deed and registered Irrevocable General Power of Attorney empowering the defendant No. 3 to sell the mortgaged property (suit property) as security of said credit facilities. Upon failure of pro-forma defendant no. 7 in adjusting the loan liabilities with the defendant no. 3 Bank, this defendant filed Title Suit No. 107 of 1995 in the 3rd Artha Rin Adalat, Dhaka for recovery of money by sale of mortgaged property which is pending before the learned Court.

b) That it is submitted that Q never made any gift of the suit property to the defendant No. 2 on 01.07.1985 or on any other date whatsoever or confirmed the said gift vide any affidavit or by any other means. Contrary to what have been alleged, this defendant submits that the plaintiff of the present suit come-up with a mind made story with a view to frustrate the mortgage of Q made in favour of this defendant. Q as security of the loan, extended to the por-forma defendant No. 7 by this defendant, created mortgage of the suit property. As such, all the instruments made in connection with the ownership of the defendant Nos. 1 & 2 and the plaintiff are fabricated, false and made collusively.

c) That even if any approval from the pro-forma defendant no. 5 for transfer of the suit property was obtained by the defendant Nos. 1 & 2 or the plaintiff at any time that was obtained suppressing material facts.

d) That the defendant Nos. 1 & 2 were never owner of the suit property at any time.

32. That the prayers made in the plaint are not tenable in law and hence the plaintiff company is not entitled to get any relief in the above mentioned suit and as such the suit is liable to be dismissed with cost.

33. That in the circumstances above the aforesaid suit is not sustainable in law and the plaintiff is not entitled to get any relief and as such the above mentioned suit is liable to be dismissed with cost for ends of justice, rather the defendant No. 1-3 will suffer irreparable loss and injury.

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. 3.

And for this act of kindness the defendant no. 3 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 ____________ day of __________________.

Signature