ABUL HOSSAIN AND BROTHERS Vs. RUPALI BANK LIMITED

JUDGEMENT

(1.) Defendant is seeking leave against the judgment and order dated 13th April, 2005 passed by a Division Bench of the High Court Division in First Appeal No. 552 of 2000 allowing the same in part which arose out of judgment and decree dated 17-08-2000 passed by the learned Subordinate Judge (now Joint District Judge), Artha Rin Adalat No. 3, Dhaka in Title Suit No. 120 of 1997 dismissing the suit.

(2.) The principal-respondent No.1 Pubali Bank Ltd. as plaintiff instituted the above Title Suit No. 120 of 1997 in the Court of Subordinate Judge, Artha Rin Adatal No.3, Dhaka for realization of Tk. 9,30,826/- together with 20% interest, stating inter alia, that the defendant-petitioner-firm, M/s. Abul Hossain and Brothers approached the plaintiff-Bank on 09-06-1993 for financial assistance and accordingly the said Bank sanctioned Tk. 15,00,000/- on 22-09-1993.The period of payment(sanction period) was up to 31-08-1994; and for which the petitioner executed necessary charge documents in favour of the plaintiff-Bank and the defendant-respondent Nos. 3-5 stood as guarantors of the said loan and they also mortgaged the schedule property to the plaintiff- Bank. The defendant-respondents by their negligence failed to repay the loan money to the plaintiff-Bank with agreed interest for the period of 22-09-1993 to 31-08-1994.The plaintiff-Bank made several requests for the payment of loan but the petitioner and other defendants failed to repay the loan with interest. The plaintiff-Bank exhausted all processes for realization of Bank dues from the defendants. At last on 06-04-1996 the plaintiff-Bank issued a final demand notice to the defendants for repayment of the Bank loan; that on receipt of the said notice of demand the defendants filed an application on 24-03-1997 praying for amicable settlement and by which the defendants deposited Tk.15,00,000/-to the plaintiff-Bank and thereafter defendants also gave an undertaking to pay the balance amount of Tk.9,30,826/-to get release of the suit property. The plaintiff-Bank further alleged that for the default of the defendants, the plaintiff-Bank served legal notice to the defendants for repayment of the aforesaid balance amount. But for the default of the defendants the plaintiff brought aforesaid Title Suit for recovery of money together with 20% interest.

(3.) The defendant-respondent Nos. 3-5 contested the suit by filing written statement and having denied all the material allegations made in the plaint, they contended, inter alia, that the suit is not maintainable and the same is barred by limitation. They further contended that the defendants by amicable settlement with the plaintiff-Bank agreed to pay Tk.15,00,000/- against the dues of the plaintiff-Bank at Tk. 18,25,000/- and the defendants with full understanding with the Bank authority paid Tk. 15,00,000/-and Tk. 3,25,000/-to the plaintiff-Bank and thereafter got the release of the part of mortgage property of 32/A/2, Free School Street, Panthapath, free from the mortgage and free from all encumbrances. In view of the amicable settlement the defendants also filed an application before the plaintiff- Bank for consideration of rest dues arising out of interest. But the plaintiff-Bank without considering the application of the defendants instituted the said Title Suit No. 120 of 1997 by suppressing the actual fact.