X -Versus- Arab Bangladesh Bank Limited and others

IN THE COURT OF 2ND JOINT DISTRICT JUDGE, NARAYANGONJ

TITLE SUIT NO. ________OF __________

X

PLAINTIFF

-Versus-

Arab Bangladesh Bank Limited and others

DEFENDANTS

WRITTEN STATEMENT ON BEHALF OF DEFENDANT NOS. 1-2:

1. That the Suit filed by X (“the plaintiff”) is not maintainable in its present form and nature.

2. That there is no cause of action to file the Suit against the defendant Nos.1-2 (hereinafter referred to as “the defendant”) and as such the Suit should be dismissed with costs.

3. That the Suit has been filed in mala fide intention to make illegal gain from the defendant. Since the Suit has been filed with mala fide motive, the Suit is liable to be dismissed.

4. That the Suit is barred by the principles of waiver, acquiescence and estoppel.

5. That the Suit is framed on wrong conception of law and facts.

6. That the Suit is bad for non-joinder and mis-joinder of parties.

7. 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.

8. That the statements made in the Suit which are not specifically admitted hereinafter shall be deemed to have been denied by the defendant.

9. That the statements made in paragraph nos. 1, 2 and 3 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the defendant refrains from making any comments.

10. That the statements made in paragraph No. 4 of the plaint are partly matter of record for which the plaintiff is under obligation to prove the same and partly admitted. The plaintiff opened an account being No. 33000911 on 09.09.1999 with the defendant under the name and style of his proprietorship concern M/s. Sadarpur Steel House. Thereafter at the request of the plaintiff, the defendant initially sanctioned an overdraft limit of 30.00 lac (taka thirty lac) only in favour of the plaintiff vide sanction letter ABBL/PAG/CR-141/2000 dated 29.02.2000.

11. That the statements made in paragraph No. 5 of the plaint are partly matter of record for which the plaintiff is under obligation to prove the same and partly admitted. The said overdraft facility mentioned in paragraph 10 was renewed and enhanced on the following mode:

Facility Sanction letter Re-fixation of amount

From To

Sanction Amount Validity
Overdraft ABBL/PAG/CR/254/

2001

Dated 25.03.2001

Taka

30.00 lac

Taka 50.00 lac Taka 50.00 lac 22.02.2002
Overdraft ABBL/PAG/712/

2002

Dated 11.06.2002

Taka 50.00 lac Taka 110.00 lac Taka 110.00 lac 30.04.2003
Overdraft ABBL/PAG/CR/451/

2003

Dated 30.03.2003

Taka 110.00 lac Taka 110.00 lac Taka 110.00 lac 30.04.2004
Overdraft ABBL/PAG/CR/1547/

2004

Dated 23.11.2004

Taka 110.00 lac Taka 110.00 lac Taka 110.00 lac 30.04.2005

12. That the statements made in paragraph no. 6 is matter of facts. At the request of the plaintiff, the defendant sanctioned a Time Loan facility of taka 50.00 lac in favour of the plaintiff vide sanction letter no. ABBL/ PAG/ CR/ TIMELOAN/ 1521/ 2003 dated 24.11.2003 with a validity up to 06.04.2004. The plaintiff availed the said facility in full but failed to adjust the liabilities within the validity period. Thereafter, at the request of the plaintiff, the defendant extended the validity of the said facility vide sanction letter No. ABBL/ PAG/ CR/ 1547/ 2004 dated 23.11.2004 until 30.04.2005. The said renewed period was also expired and the plaintiff failed to adjust the outstanding amount within the said renewed period.

13. That the statements made in paragraph no. 7 is matter of facts. The plaintiff took supply of Cement from Q Cement Bangladesh Limited, Heidelberg Cement Bangladesh Limited and P Cement Bangladesh Limited (“beneficiaries”) on credit basis from time to time. However, at the request of the plaintiff, the defendant issued four Bank Guarantees for an amount of taka 1.25 crore in favour of the beneficiaries for securing the payment of outstanding dues against the supply of Cement.

14. The statements made in paragraph no. 8 is partly admitted and partly denied. The allegation of the oral agreement with the plaintiff that the defendant will not release the Bank Guarantee in favour of the beneficiaries is false, fabricated and concocted.

15. That the statements made in paragraph No. 9 is denied. The allegation of conspiracy regarding the release of the Bank Guarantees by the defendant with the beneficiaries is false, frivolous, fabricated and concocted. Since the beneficiaries invoked the Bank Guarantees, the defendant was obliged to honour the same as per the terms and conditions of the Bank Guarantees and the defendant did so.

16. That the statements made in paragraph no. 10 is denied. The loss of business of the plaintiff was due to their own fault. Nothing of this related with the defendant.

17. That the statements made in paragraph nos. 11-14 are denied.

18. That the real fact is as follows:

(a) That the plaintiff the plaintiff opened an account being No. 33000911 on 09.09.1999 with the defendant under the name and style of his proprietorship concern M/s. Sadarpur Steel House. Thereafter at the request of the plaintiff, the defendant initially sanctioned an overdraft limit of 30.00 lac (taka thirty lac) only in favour of the plaintiff vide sanction letter ABBL/PAG/CR-141/2000 dated 29.02.2000. The said overdraft facility was renewed and enhanced.

(b) At the request of the plaintiff, the defendant sanctioned a Time Loan facility of taka 50.00 lac in favour of the plaintiff vide sanction letter no. ABBL/PAG/CR/TIMELOAN/1521/2003 dated 24.11.2003 with a validity up to 06.04.2004. The plaintiff availed the said facility in full but failed to adjust the liabilities within the validity period. Thereafter, at the request of the plaintiff, the defendant extended the validity of the said facility vide sanction letter No. ABBL/PAG/CR/1547/2004 dated 23.11.2004 until 30.04.2005. The said renewed period was also expired and the plaintiff failed to adjust the outstanding amount within the said renewed period.

(c) The plaintiff took supply of Cement from Q Cement Bangladesh Limited, Heidelberg Cement Bangladesh Limited and P Cement Bangladesh Limited (“beneficiaries”) on credit basis from time to time. However, at the request of the plaintiff, the defendant issued four Bank Guarantees for an amount of taka 1.25 crore in favour of the beneficiaries for securing the payment of outstanding dues against the supply of Cement.

(d) Since the beneficiaries invoked the Bank Guarantees, the defendant was obliged to honour the same as per the terms and conditions of the Bank Guarantees and the defendant did so. The defendant made payment to the beneficiaries by debiting the overdraft amount on 25.05.2004, 08.07.2004 and 11.08.2004. After adjusting the margin amount which was kept in the form of Cash/FDR, remaining outstanding liabilities under the Bank guarantees facilities of taka 92.90 lac converted into Term Loan facility vide Sanction Letter being No. ABBL/PAG/CR/1547/2007 dated 23.11.2004 on condition that the plaintiff would repay the loan in full by 24 (twenty four) monthly installment of taka 4.50 lac each month commencing from November 2004. Accordingly the defendant created a Tern Loan amount taka 92.90 lac on 30.11.2004 and adjusted the said amount from the overdraft account.

(e) The plaintiff availed the credit facilities in full but purposely defaulted in making the payment under the terms of the Sanction Letters. The validity of the facilities made to the plaintiff was expired leaving almost the entire amount unadjusted by the plaintiff. The plaintiff thereupon sent series of reminders to the plaintiff from time to time, including letters dated 23.03.2005, 21.04.2005 and 28.08.2005 requesting the plaintiff to adjust the outstanding dues, but the plaintiff neither bothered to adjust the dues nor took any positive steps towards the adjustment of the same.

(f) The defendant issued legal notice upon the plaintiff on 20.3.2006 to adjust the then outstanding dues within 15 days. The plaintiff had the ample time and opportunities to adjust the outstanding dues. The defendant published the “Auction Notice” in the “Daily Prothom Alo” on 09.07.2006 in order to sell the mortgaged properties in accordance with the Section 12 of the Artha Rin Adalat Ain, 2003. But the defendant could not sell it because of the Writ Petition filed by the plaintiff challenging the legality of the said Auction.

(g) Finding no other alternative the defendant filed an Artha Rin Suit No. 21/2006 for realisation of taka 3,22,26,497.00 (taka three crore twenty two lac twenty six thousand four hundred ninety seven) only as on 31.08.2006 in the learned Artha Rin Adalat, Narayangonj, which is now pending before the Artha Rin Court.

19. That 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’s name 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 your Honour 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.

VERIFICATION

That the statements made above are true to my knowledge and matter of records whereof I put my signature on the____ day of ___________, _______.

___________________________

Signature