KHALED JAMEL AHMED ADEL Vs. ARTHA RIN ADALAT

JUDGEMENT

(1.) This Rule Nisi obtained under Article 102 of the Constitution of the People's Republic of Bangladesh calls upon the respondents to show cause as to why the impugned order dated 16.02.2010 passed by the respondent No. l, in Artha Rin Suit No. 89 of 2009), allowing the application for attachment before the judgment, filed (writ petition) should not be declared to have been passed without lawful authority and is of no legal effect.

(2.) The short facts relevant for disposal of this Rule are as under: The Respondent No. 2, Dutch Bangla Bank Limited (shortly, the Bank), as plaintiff, filed a Artha Rin Suit being No.89 of 2009 stating, inter alia, that during the course of business on 06.10.1997 the defendant No. l, Company opened an account being Current Account No. 10123004826 with the plaintiff Bank in the name of defendant No.l, Company "K & K Tops Textile Mills Ltd." for its business purposes. Subsequently, the said account number has been renumbered as 0101110000004092; that thereafter, at the request of the defendant No. 1, Company Bank sanctioned a letter of Credit Limit of Tk.90.00 million for opening irrevocable letters of Credit for import of Raw Materials and loan against Trust Receipt for retiring documents under the Letters of Credit vide its Sanction Letter No. DBBL/ LO/CO/3.03.01/97 dated 21.08.1997 in favour of the defendant No.l Company; that the Bank renewed and enhanced the facilities from time to time; that thereafter, the Bank re-arranged the aforesaid facilities in the manner such as reduction of regular Letter of Credit limit from Tk.300.00 million to Tk.270.00 million and allowing free option for opening sight and nuance letter of credit, LTR sub limit, Encash-ment of FC FUND / Term Deposit that has been built up over the period for adjustment of LTR outstanding and conversion of remaining liabilities into a term loan amount of Tk. 108.77 for adjustment purpose within a period of 5 years on 31.03.2004 which was duly accepted by the defendant. The said credit facilities sanctioned in favour of the Company were secured by the securities/charge documents executed by the defendant Company. In addition to the charge documents the Company mortgaged its landed property by mortgaged deed No. 8385 dated 15.10.1997 along with a registered power of attorney being No. 8386 dated 15.10.1997 empowering the plaintiff to sell the mortgaged property. The defendant Nos. 2 and 3 created equitable mortgaged on their landed property as collateral security against the aforesaid credit facilities by way of depositing title deeds dated 02.02.2000 and 17.02.2004.

(3.) Thereafter, on 19.10.2009 the Bank filed an application under Order XXXVIII, Rule 5 read with Section 151 of the Code of Civil Procedure for attachment of the schedule property before judgment stating, inter alia, that the plaintiff Bank filed the Artha Rin Suit for recovery of an amount of Tk.42,64,85,629.13. At the time of creating equitable mortgage of the schedule properties the defendants on several occasions promised to execute registered mortgage deed. The plaintiff for the assistance of the business of the Company disbursed the Credit facilities relying on the promise of the defendants but they failed to fulfill their commitment. The plaintiff has reliably learnt that having knowledge of the filing of the suit, defendants are trying to transfer the property.