IN THE COURT OF 1st ASSISTANT JUDGE, DHAKA
TITLE SUIT NO. ____ OF ____
The Trust Bank Limited and others
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NOs. 1-4:
01. That the above numbered suit filed by Mr. X (“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. 1-4 (“the defendant”) and as such the suit is liable to be dismissed with costs.
03. That the suit has been filed with mala fide intention and to make illegal gain from the defendants as such 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 and it is also barred by the law of limitation.
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 plaint which are not specifically admitted hereinafter shall be deemed to have been denied by the defendants and the plaintiff is strictly put to prove it.
09. That the statements made in paragraph No. 1 & 2 of the plaint are mostly matters of record. The burden of proving the statements lies strictly upon the plaintiff and therefore, the instant defendant refrain from making any comments thereon.
10. That the statements made in paragraph No. 3 of the plaint with regard to leaving the cheque No. 34002437 with the taxi cab by which on 27.03.2005 plaintiff was heading for office from Dhanmondi to Gulshan accompanied by the defendant No. 5 is false, fabricated, concocted, afterthought and has been made to file the instant suit hence strictly denied by the instant defendants. That the statement with regard to reason behind bearing blank cheque is also ridiculous, and fabricated therefore, denied by the defendants.
11. That the statements made in paragraph No. 4 of the plaint with regard to lodge of General Diary being No. 1705 dated 25.05.2005 with the Gulshan Police Station is matter of record, hence the instant defendant abstains from making any comment thereon. But the statement made with regard to cause shown for delay in lodging G.D is not tenable in the eye of law; as because G.D can be lodged at any time/date and Police Station is always open for registering complaint from the informant for taking necessary steps.
12. That the statement made in paragraph No. 5 of the plaint with regard to intimation about the lost of cheque No. 0340968 dated 24.03.2005 to the Trust Bank Limited, Dhanmondi Branch is true. But there was no specific instruction regarding stop payment, therefore, the defendant bank was bound to either return the cheque as there was not sufficient fund or keep the payment stopped.
13. That the statements made in paragraph no. 6 of the plaint with regard to General Banking Rules in case of lost of cheque and subsequent duty of the banker upon presentation of the lost cheque is not tenable in the eye of law, hence denied by the instant defendants. That the statement with regard to disbursement of money up to maximum volume of money from the savings account without prior written consent is not also tenable in the eye of law hence denied by the instant defendants.
14. That the statement made in paragraph No. 7 of the plaint with regard to knowledge of the so-called lost cheque is false, fabricated hence denied by the instant defendants. But the statement regarding lodge of G.D & filling of C.R Case by the defendant No. 5 are matters of record, therefore, the instant defendant refrain from doing any comment thereon.
15. That the statement made in paragraph No. 8 of the plaint is not tenable in the eye of law and being legal point does not call for any clarification thereon.
16. That the statement made in paragraph No. 9 of the plaint with regard to fraudulent presentation of the so-called lost cheque in collusion with the instant defendants, having undue opportunity from the defendant No. 5 by the instant defendants and dishonouring the cheque violating general instruction on the ground of insufficient fund are false, baseless, fabricated. Hence, denied by the instant defendant.
17. That the statement made in paragraph No. 10 of the plaint are mostly point of law and partly are suggestion of the plaintiff what could be by the instant defendant when the so-called cheque was presented for encashment. Regarding point of law the instant defendant abstain from making any comment but regarding suggestion about encashment of the said so-called cheque being not tenable in the eye of law is strictly denied by the instant defendant. That the allegation in respect of having undue benefit, causing damage to the plaintiff by returning the cheque due to insufficiency of fund is totally false, scandalous and baseless hence, stoutly denied by the instant defendant.
18. That the statement made in paragraph No. 11 & 12 of the plaint are mostly point of law hence, as such there requires no clarification from the end of the instant defendants.
19. That the statement made in paragraph No. 13 of the plaint with regard to impleading defendants and claiming relief against them is not tenable in the eye of law as such the statements are denied by the instant defendant.
20. That the origin of cause of action in any of the dates or any other dates mentioned in paragraph No. 14 of the plaint or reason shown behind filling the instant case are false, baseless and concocted as such strictly denied by the instant defendant.
21. That the plaint and plaintiff is not entitled to get any relief as prayed for in the prayer portion of the plaint as such denied by the defendants.
22. That the facts are as follows:
a) That the defendant No. 2 is the Manager of Dhanmondi Brach of The Trust Bank Limted, which is a Banking Company incorporated under relevant laws of Bangladesh and engaged in Banking business with reputation since its inception within the territory of Bangladesh; that the defendant no. 1 is the Head Office of the defendant No. 1 Bank; defendant No. 3 & 4 are the employes of the defendant No. 2 bank; defendant No. 5 is business partner of the plaintiff and was the beneficiary of several chque including the cheque in question issued by the plaintiff.
b) That at the request of the plaintiff vide application dated 22.01.2004, defendant Bank opened a Saving Deposit Account being No. 34002437 in his own name upon deposit of Tk. 30,000.00 (Tk. thirty thousand) only and since then the plaintiff deposited no amount in his account; that the plaintiff withdrew Tk. 25,000.00 (Tk. twenty five thousand) only after six days lateer of the account opening i.e on 28.01.2004.
c) That the plaintiff in course of business issued several cheques drawn on his savings account favouring the defendant No. 5 who was his business partner; that the plaintiff issued cheque No.0340965 dated 15.09.2004, Cheque No.0340967 dated 23.11.2004 & cheque No.0340962 favouring the defendant No. 5 for an amount of Tk. 2, 66,000.00 (two lac sixty six thousand), Tk. 2,50,000.00 (two lac fifty thousand) & Tk. 4,00,000.00 (four lac) respectively with full knowledge that he does not have sufficient fund to honour the said cheques. On due course all the three cheques were dishonoured on the ground of insufficiency of fund.
d) That no transaction has been taken place in the account of the plaintiff since 29.03.2004; that the plaintiff having full knowledge about the balance remaining in his savings account issued the cheque being No. 0340968 dated 24/03/2005 for an amount of Tk. 4,72,000.00 (Tk. four lac seventy two) only in favour of defendant No. 5 with a male intention to defraud him; that the said cheque was presented on 28.03.2005 through Arab Bangladesh Bank Limited, Gulshan Branch, Dhaka for encashment in favour of the account of the defendant No. 5 and the said cheque was dishonoured by the defendant bank by issuing memo dated 28.03.2005 remarking “Insufficient Fund”. That the plaintiff as usual with his designed male practice informed the defendant bank by a letter dated 27.03.2005 that the said cheque has been lost and take necessary steps to that effect. It is pertinent to mention here there was no specific instruction regarding stop payment and there was no cause to take necessary action as there was not sufficient fund to honour the said cheque.
e) That subsequently the said cheque was again presented on 16.08.2005 by Arab Bangladesh Bank Limited, Gulshan Branch, Dhaka for encashment in the account of the defendant No. 5 and the said cheque was dishonoured by the defendant bank by memo dated 16.08.2005 remarking “Insufficient Fund” since there was not sufficient fund actually.
f) That the defendant bank has no enmity with its honourable account-holder and bank has caused no harm by dishonouring the said cheque. That the plaintiff is trying to shift the liability for the offence committed by him with his business partner i.e defendant No. 5.
23. That it is submitted that stop payment is given effect if either there is sufficient fund remains in any account or the account holder passes away and if there is no sufficient fund then, any cheque drawn against that account can rightly be returned for insufficiency of fund if the otherwise the cheque is not defective.
24. That it is submitted that the instant plaintiff filed Petition case being No. 1208 of 2005 against the defendant No. 5 under section 420/467/468/471 of The Penal Code, 1860 before the C.M.M Court, Dhaka in respect of the so-called lost cheque, which was dismissed upon receiving investigation report to the effect that the plaintiff issued the said cheque in favour of the defendant No. 5 to discharge his liability with him i.e plaintiff’s business partner.
25. That it is humbly submitted that the instant suit is a counter suit to avoid any legal proceeding initiated by the defendant No. 5 for disnour of cheque under section 138 of the Negotiable Instrument Act, 1881. Therefore, there arose no cause of action to file this suit against defendants. The plaintiff filed this suit with mala fide 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 instant defendant.
And for this act of kindness the instant defendants are as in duty bound shall ever pray.
That the statements made above are true to my knowledge and are matters of record, whereof I put my signature on the _____________, 2008.