X versus Uttara Bank Limited

IN THE ARTHA RIN ADALAT 4th COURT, DHAKA

MISC. CASE NO. __________OF __________

(Arising out of Artha Jari Case No. ___________ of ___________)

X

Son of Late Y of House No. 18, Road no. 6, Sector,1 Uttara Model Town, Dhaka.

Petitioner

VERSUS

Uttara Bank Limited

Banijya Shakha,

42, Dilkusha Commercial Area,

P.S. Motijheel, Dhaka-1000

Opposite Party

WRITTEN OBJECTION ON BEHALF OF THE OPPOSITE PARTY NO. 1 AGAINST THE APPLICATION OF THE PETITIONER UNDER ORDER XXI RULE 58 OF THE CODE OF CIVIL PROCEDURE READ WITH SECTION 32 OF THE ARTHA RIN ADALAT AIN, 2003.

01. That the Misc. Case filed by the petitioner is not maintainable in its present form and manner.

02. That there is no cause of action to file any petition as filed by the petitioner in this case and as such the petition is liable to be rejected.

03. That the Misc. case filed by the petitioner is filed with malafide intention and as such the case is liable to be rejected.

04. That the statements made by the petitioner in his petition are false, fabricated, malafide, concocted and self contradictory for which the same is liable to be rejected.

05. That the petition of the petitioner is barred by law and as such the petition is liable to be rejected.

06. That the petitioner has no locus standi to file the petition under Order XX1 Rule 58 of the Code of Civil Procedure. It is submitted that pursuant to the provision of Order XXI, Rule 58 of the Code of Civil Procedure the precondition to maintain an application under the said provision is that the property in question must have been attached in execution. But in the instant case the property in question has not been attached in execution. As such the instant Miscellaneous Case is not maintainable and also liable to be rejected.

07. That the petition of the petitioner is filed with an ulterior motive of frustrating the decree of the Title Suit No. 49 of 2002 of the Joint District Judge, Artha Rin Adalat No. 4, Dhaka from which the Money Execution Case No.13 of 2005 has been arisen.

08. That the statements made in the petition which have not been specifically admitted hereinafter shall be deemed to have been denied by this opposite party for all means and purpose.

09. That the statement made in paragraph No.1 of the petition are admitted by the opposite party.

10. That the statement made in paragraph No.2 and 3 of the petition are false, fabricated

and concocted and as such denied by the opposite party.

It is also submitted that in order to frustrate the execution proceeding the petitioner made out a false story regarding acquiring the title of the property in question. As such the petition is liable to be rejected.

11. That the statements made in paragraph No.4-5 of the petition are false, fabricated, malafide, misconceived and misrepresentation of facts and as such denied by the opposite party. After acquiring the undisputed right, title and possession of the property in question Polymer Packaging Industries Limited mortgaged the same to the opposite party Bank as security against the loan sanctioned by the opposite party Bank to Polymer Packaging Limited. Consequent upon default in repayment of the loan liability the opposite party Bank filed the Title Suit No. 49 of 2002 against Polymer Packaging Limited and others (the judgement debtors). The suit was decreed on compromise on 02.11.02. When the judgement debtors did not comply the terms of the Compromised Decree the opposite party filed the Title Execution Case No. 71 of 2003 from which the instant Misc. Case has been arisen out./////////////////////// As such no question as to committing any forgery with regard to the registration of the Deed of Sale dated 27.08.1965 and obtaining fraudulent Compromised Decree on 22.01.1997 by the opposite party in collusion with the judgement debtors does not arise at all.

12. That the statements made in paragraph No.6 of the petition are false, fabricated and concocted and as such denied by the opposite party. With regard to the statement made in this paragraph it is submitted the petitioner acquired no title over the property in question. The judgement debtors acquired right title over the property in question and lawfully mortgaged the same to the opposite party Bank. As such the petition is liable to be rejected.

13. That the statements made in paragraph No.7 of the petition are false, fabricated, malafide, misconceived and misrepresentation of facts and as such denied by the opposite party.

14. That the statements made in paragraph No.8 of the petition are false, fabricated, malafide, misconceived and misrepresentation of facts and as such denied by the opposite party.

15. That the statements made in paragraph No.9 of the petition are misconceived and misrepresentation of facts and as such denied by the opposite party. With regard to the statement made in this paragraph it is submitted that the petitioner has no prima facie arguable case and the balance of convenience and non-convenience is in favour of the opposite party Bank. As such the Misc. Case is liable to be dismissed with compensatory cost.

16. That the facts of the case are as follows:.

(a) That said while Mashiur Rahman had been owning and possessing the scheduled property he kept it in the Bank as Mortgage. In that case, it is quite impossible to possess the property by others.

(b) That now there is no ‘Pucca Construction’ in that property. In this case, thestatements of Amirul Islam (Petitioner) is false, fabricated, and misrepresentation of facts.

(c) That Mashiur Rahman is the real owner of the scheduled property and he kept it as

Mortgage in the opposite Bank by registered deed. The Hon’ble Court has executed all

the proceedings in accordance of law.

(d) That whereas the petitioner is not the owner of the schedule property so there is no

reason behind his being astonished.

(e) That the original papers and documents of the property is kept in the custody of the aforesaid Bank.Mr. Mashiur Rahman takes the loan by submitting the original documents and papers in the Bank. Therefore it is impossible for the original papers/documents to go under the domain of others. The petitioner has interrupted the proceedings of the Court in the disguise of a buyer. He has caused the damage of the interest of the aforesaid Bank and has made a drama to save Mr. Mashiur Rahman.

(f) That consequent upon default in repayment of the loan liability the opposite party Bank filed the Title Suit No. 49/2002 against Polymer Packaging Industries Ltd. and others i.e. the judgement debtors. The suit was decreed on compromise on 02.11.02. When the judgement debtors did not comply the terms of the Compromised Decree the opposite party filed the Title Execution Case No. 71 of 2003.

(g) That the petitioner filed the instant Misc. Case in order to vitiate and frustrate the execution of the Decree that has already been obtained by the opposite party Bank. The petitioner never acquired any title and possession over the land in question and as such the question of releasing the same from the execution proceeding does not arise.

Wherefore, it is humbly prayed that your honour would graciously be pleased to reject the petition and thereby dismiss the Misc. Case with compensatory costs.

And for this act of your kindness the opposite party as in duty bound shall ever pray.

AFFIDAVIT

I, ______________________son of ______________________, ____________of Uttara Bank Limited, Banijya Shakha 42, Dilkusha Commercial Area, Dhaka-1000, aged about_____ years, by faith ____________, Nationality Bangladeshi by birth, profession ___________, do hereby solemnly affirm and declare as follows:

1. That I am the officer of the opposite party Bank of this case and well conversant with the facts of the case and competent to swear this Affidavit.

2. That the statements of facts made in this written objection are true to the best of my knowledge and belief and rests are submissions before this Hon’ble Court and in witness whereof I swear this affidavit and sign below on this the ______day of _____________ at _____a.m. before the Commissioner of affidavit.

DEPONENT

The deponent is known to me and he has signed in presence of me.

ADVOCATE

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