IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(Civil Appellate Jurisdiction)

First Appeal No. 40 of 2011

In the matter of:

Trust Bank Limited

… Plaintiff-Appellant

-Versus-

Messrs Zardhi Steel and others

…Defendants-Respondents Mr. Faysal Hasan Arif, Advocate

…For the appellant

Mr. Md. Yamin Newaz Khan, Advocate ...For the respondent no. 2.

Heard on 14.12.2024, 28.12.2024, 05.12.2024 and Judgment on 08.12.2024

Present:

Mr. Justice Md. Mozibur Rahman Miah

And

Mr. Justice Md. Bashir Ullah

Md. Bashir Ullah, J.

At the instance of the plaintiff in Artha Rin (Mortgage) Suit No. 11 of 2009, this appeal is directed against the judgment and decree dated 28.11.2010 passed by the learned Joint District Judge and Artha Rin Adalat, Chattogram decreeing the suit in part on contest against defendant nos. 2-4 and ex parte against defendant no. 1.

The short facts leading to preferring this appeal are:

The present appellant as plaintiff filed the aforesaid Artha Rin Suit seeking the following reliefs:

1. a decree be passed against the defendants in preliminary form for payment of Taka 16,55,29,847.52 (Taka Sixteen Crore Fifty-Five lakh Twenty-Nine thousand Eight hundred Forty-Seven and Paisa Fifty Two only) to the plaintiff bank as per schedule of claim mentioned in schedule-1 with cost of the suit and pendente lite interest @12% per annum from the date of filing this suit till recovery.
   2. by the decree the defendants be ordered to pay the decretal amount within a period to be fixed by the Court.
   3. in case of default of payment as per direction of the Court a decree be passed for the sale of the mortgaged property described in the schedule for recovery of decretal dues with cost and interest.
   4. in case the sale proceeds of the mortgaged properties become insufficient to satisfy the decretal dues a decree be passed against the defendants for recovery of the balance dues by selling their other properties.

5. the plaintiff be allowed any other relief or relieves as may be found entitled according to law and equity.

The precise facts so described in the plaint are that, the plaintiff is a public limited banking company where defendant no. 1 is firm and defendant no. 2 is the proprietor of defendant no. 1. On the other hand, the defendant no. 3 is the mortgagor and guarantor and defendant no. 4 is the guarantor of defendant no. 1. The defendant no.1 opened current account no. 0012- 0210003651 with the plaintiff-bank on 04.04.2006 and on the prayer of the defendant no. 2, the head office of the plaintiff- bank sanctioned credit facilities in the form of Letter of Credit (L/C), Trust Receipt (TR) and time loan facility for the defendant no. 1 as per terms and conditions so embodied in the sanction advice dated 09.05.2006. Then the defendant no. 2 established an L/C no. 235506010052 dated 09.05.2006 for US$ 56,98,502.70 (US Dollar Fifty-Six lakh Ninety-Eight thousand Five hundred two and Paisa Seventy only) through the plaintiff bank favouring one, Messrs Yalumba Inc., Singapore to import Scrap Vessel named “MT ELPIS EX-AFRAGOLD, COLORADO, GLOBTIC LONDON” from Singapore in the name of defendant no. 1. As per terms and conditions of sanction advice defendant no. 2 was supposed to deposit 60% (sixty percent) cash margin against the said L/C but ul