X-Versus- Prime Bank Limited and others

IN THE COURT OF 1ST JOINT DISTRICT JUDGE, DHAKA

TITLE SUIT NO._______ OF_________

X

PLAINTIFF

/PETITIONER

-Versus-

Prime Bank Limited and others

DEFENDANTS

/OPPOSITE- PARTIES

WRITTEN OBJECTION ON BEHALF OF THE DEFENDANTS/OPPOSITE-PARTIES NO. 1 & 2 AGAINST THE APPLICATION FILED BY THE PLAINTIFF /PETITIONER UNDER ORDER XXXIX, RULE 1 AND 2 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE.

The defendants/opposite-parties most respectfully

SHEWETH:

01. That the petition under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure is not maintainable in its present form and manner as filed by the plaintiff/petitioner, hence it is liable to be rejected in limine.

02. That the petition is filed with malafide intention to harass these defendants/opposite-parties No. 1 & 2 and with an intention to deprive these defendants/opposite parties in recovering its legitimate dues, hence it is liable to be rejected.

03. That the petition is filed with a view to misguide the Court by suppressing the facts, hence it is liable to be rejected.

04. That there is no cause of action to file the suit, hence the petition is liable to be rejected in limine.

05. That the statements made in the petition, which are not specifically denied by these defendants/opposite-parties Nos. 1 & 2, shall be deemed to have been denied for all purpose and intent.

06. That the statements made in paragraphs 1(a)-1(d) of the petition are matters of record, as such these defendants/opposite-parties does not offer any comments.

07. That the statements made in paragraphs 2(a) and 2(b) of the petition are matters of record, as such no comment is made.

08. That the statements made in paragraph 2(c) of the petition are partially matters of record and partially false, fabricated and highly motivated. That the statements made in this paragraph to the effect that as security for the above facilities, the plaintiff/petitioner executed various blank charge documents including Deed of Mortgage and Special Power of Attorney in favour of the Bank and the plaintiff petitioner and his spouse was bound to sign those blank documents at the request of the defendant/opposite party No. 2 are false, fabricated and malafide and as such denied by these defendants/opposite-parties. Contrary to what has been alleged, it is submitted that the plaintiff/petitioner without any compulsion has duly accepted the Sanction Letter being No.Prime/GL/CR/HBL/99 dated 16.02.99 and as per terms of the said Sanction Letter the plaintiff/petitioner and his spouse voluntarily and without any undue pressure executed all the charge documents including the Deed of Mortgage and Special Power of Attorney. The plaintiff/petitioner’s such plea of undue pressure or coercion is not practicable at all in the presence of his own assertion in the plaint as to his availing loan from these defendants/opposite-parties.

09. That the statements made in paragraph 2(d) & 2(e) of the petition to the effect that the these defendants/opposite-parties in violation of the terms and conditions of the sanction letter made a payment of Tk1,19,42,804.00 to RAJUK from the loan amount without prior consent of the plaintiff/petitioner are concocted, manufactured and made for illegal gain, as such, denied by these defendants/opposite parties. Contrary to what has been alleged, it is submitted that at the request of the plaintiff/petitioner vide his letter dated 21.03.2001 these defendants/opposite parties made payment in favour of RAJUK. Further, the plaintiff/petitioner also has issued a cheque No. 5571322 dated 22.03.2001 for Tk.1,19,42,804.00 in his said current account in order to issue Pay Order in favour of the Chairman, RAJUK.

10. That the statements made in paragraph 2(f) of the petition are false and fabricated and as such denied by the defendant/opposite party Nos. 1 & 2. In this regard it is submitted that these defendants/opposite party Nos. 1 & 2 acted upon the written instructions of the plaintiff/petitioner, which have been stated in the preceding paragraph. It is further submitted that plaintiff/petitioner voluntarily, wilfully and without undue pressure and economic duress and having understood the consequence signed all the papers and documents.

11. That the statements made in paragraph 2(g) & 2 (h) of the petition are irrelevant as far these defendants/opposite party Nos. 1 & 2 are concerned. However, these defendants/opposite party Nos. 1 & 2 feels pertinent to submit as to the statement of non-co-operation of these defendants in leting out the building, in as much as, the Special Power of Attorney dated 13.05.2002 has not entrusted any power to these defendants in letting out the building. As such, the question of co-operation does not arise at all.

12. That the statements made in paragraph 2(i) & 2(j) of the petition are misconceived, baseless and highly motivated and as such denied by the defendant/opposite parties No. 1 & 2. In this regard it is submitted that the plaintiff/petitioner executed Special Power of Attorney on 13.05.2002 empowering the defendant No. 2 only to collect any or all rent, advance/salami against lease/rent out shops/floor space as security against the loan availed by the plaintiff/petitioner. However, no power was given by the plaintiff to the defendant/opposite party No. 2 to let out the constructed building in the said Power of Attorney. As such, it is crystal clear that defendants/opposite party Nos. 1 & 2 was/is not under any obligation to rent our the building in question. It is further submitted that pursuant to necessary provisions of Artha Rin Adalat Ain 2003, in the event of default these defendants/opposite party is legally entitled to dispose off the mortgaged property in question. It is further submitted that the aforesaid Ain is a special law and under section 20 of the above Ain, any proceedings or order cannot be challenged in any other Court of Law.

13. That the statements made in paragraph 2(k) of the petition are misconceived and not maintainable as such denied by these defendants/opposite party Nos. 1 & 2. In particular, that the statement as to the value of the property is misconceived, in that, pursuant to necessary provision of the aforesaid Ain, after the sale, any excess amount shall be re-imbursed to the plaintiff. Further, the statement relating to the sale of the property in question to the choice of defendants/opposite party Nos. 1 & 2 is concocted. For the sake of argument, this defendants/opposite party Nos. 1 & 2 submits that, the above Ain does not forbid the sale of mortgaged property to the person nominated by the Bank.

14. That the statements made in paragraph 2(l) & 2(m) of the petition are misconceived and baseless, in that, in the present transaction, the provision of Bank Companies Act 1991 is not applicable. Contrary to what has been alleged, it is submitted that the term “Loan” has been defined in the Artha Rin Adalat Ain 2003 and any action under it shall be brought following the time frame provided in that Ain. In this regard it is submitted that the defendant/opposite party No. 2 has already filed an Artha Rin Suit No.366 of 2004 in the 2nd Artha Rin Adalat, Dhaka against the plaintiff/petitioner following the provisions of above Ain.

15. That the statements made in paragraph 2(n) of the petition are false, fabricated, baseless, malafide and highly motivated as such denied by the defendant/opposite parties No. 1 & 2. In this regard it is submitted that the defendant/opposite party No. 2 never violated any terms of the loan agreement. Rather, the plaintiff/petitioner is in violation of the Loan Agreement by not adjusting his loan liability in time.

16. That the statements made in paragraph 2(o) of the petition is baseless, in that, no illegality so far has been committed by the defendant/opposite parties No. 1 & 2.

17. That the statements made in paragraph 3 of the petition are misconceived as such denied by the defendant/opposite parties Nos. 1 & 2. In this regard it is submitted that the demand was made legally by the defendant/opposite party No.2 vide Memo No. Prime/GL/2004/1008 dated 23.02.2004 and was in accordance with the provision of Artha Rin Adalat Ain, 2003 and as such no question of illegality arise at all. It is also submitted that since there in no illegality the learned court can not interfere to stop the demand and to stop make payment against the demand made under the Memo in question. It is also submitted that the defendant/opposite party No. 2 acted fairly and no illegal pressure was created upon the plaintiff/petitioner so the plaintiff/petitioner will not suffer huge business loss or irreparable loss and as such the court can not interfere to restrain this defendant/opposite parties by a temporary order of injunction from making so called illegal demand.

18. That the statements made in paragraph 4 of the petition are false, fabricated, baseless, malafide and highly motivated as such denied by the defendant/opposite parties No. 1 & 2. In this regard it is submitted that the plaintiff/petitioner has no prima-facie case as from the forgoing it is apparent that these defendants/opposite party acted in furtherance of Artha Rin Adalat Ain. Further, if any loss at all suffered by the plaintiff/petitioner, the loss undoubtedly shall be compensated in terms of money. There are many reported decisions of Appellate Division of the Supreme Court of Bangladesh which supports the same. Moreover, the balance of convenience tend in all respect to favour these defendant/opposite parties.

Wherefore, it is most humbly prayed that your honour would graciously be pleased to reject the petition under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure filed by the plaintiff/petitioner with costs; and/or pass such other or further order or orders as your honour deems fit and proper.

And for this act of kindness this defendant/opposite-party Nos.1 and 2, as in duty bound shall ever pray.

AFFIDAVIT

I, ___________________, son of ________________, aged about ___ years, Prime Bank Limited, Gulshan Branch, Plot No. 01, Block-CEN(H), Road No. 109, Gulshan Avenue, Dhaka-1212, Bangladesh, by faith _________, by nationality Bangladeshi, by profession Service-holder, do hereby solemnly affirm and declare as follows:

1. That I am the tadbirkar of this case and acquainted with the facts and circumstances and competent and authorised to swear this Affidavit.

2. That the statements of facts made in this application are true to the best of my knowledge and belief which I verily believe to be true and rests are submissions before this Hon’ble Court and in witness whereof I swear this Affidavit and signed below before the Affidavit Commissioner on this the ______th day of ___________, ____________ at ______ a.m.

DEPONENT
The deponent is known to me and identified by me.
ADVOCATE

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