SHAHIDULLAH (MD) Vs. EASTERN BANK LTD.

JUDGEMENT

(1.) This Rule is directed against the Judgment and Order dated 19-10-99 passed by the Subordinate Judge and Artha Rin Adalat No. 1 Dhaka allowing the Miscellaneous Case No. 40 of 1999 filed by the plaintiff-opposite party No. 1 under section 151 of the Code of Civil Procedure restoring the Title Suit No. 139 of 1999 arising out of Title Suit No. 32 of 1995) to its original file and number.

(2.) The short facts for the purpose of disposal of this Rule are that the opposite party No. 1 as plaintiff instituted Title Suit No. 32 of 1995 in the Court of Subordinate Judge, 3rd Court & Artha Rin Adalat, Dhaka against the opposite party Nos. 2 and 3 and the present petitioner. The plaintiff is the bank. The opposite party No. 2 was the importer/exporter in ready-made garments. The plaintiff found that the opposite party No. 2 was credit worthy and granted him back to back credit and CC limit facilities. The opposite party No. 2 on behalf of International Corporations of Saudi Arabia opened a LC for an amount of US $ 32,000 and requested the plaintiff bank for an advance of 60% of the LC amount which was allowed by the plaintiff. On 1-11-88 the opposite party No. 2 opened another LC with the plaintiff bank and commitment was made to make equitable mortgage of immovable property located at plot No. 46, Road 9D, Sector No. 5 of the Uttara Model Town as collateral security an amount of US $ 11,899,12 worth of back to back LC but the opposite party No. 2 did not comply with the formalities of equitable mortgage. The opposite party No. 2, in fact, failed to carry out the contract with the said International Corporations of Saudi Arabia and the LC was cancelled. Consequently, a liability of Taka 6,28,950 was credited with the bank as on 28-5-89. The plaintiff bank repeatedly requested the defendant No. 2 for repayment of the said amount but the opposite party No. 2 did not take any steps either to pay or to make arrangement for liquidating the said amount. There was another similar liability of Taka 21,93,701,95 as on 31-12-94. Be that as it may, the plaintiff bank filed the aforesaid suit in the Subordinate Judge and Artha Rin Adalat No. 3 for recovery of Taka 21,93,701,95 with 20% interest.

(3.) The opposite party Nos. 2 and 3 did not contest the suit though the opposite party No. 3 filed written statement and denied that he was a borrower of the loan as alleged by the plaintiff bank. Ultimately, when the suit came up for hearing it was transferred to the Court of Subordinate Judge and Artha Rin Adalat No. 1 and was re-numbered as Title Suit No. 139 of 1999. It appears that the Title Suit No. 139 of 1999 was dismissed for default by order dated 26-4-99. The plaintiff (opposite party No. 1 herein) filed miscellaneous case being Miscellaneous Case No. 40 of 1999 in the said court under Order 9, rule 9 of the Code of Civil Procedure.