Calcutta High Court
Religare Finvest Limited vs Ospl Infradeal Private Limited & Ors on 21 January, 2019
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.158 of 2019
CS No.10 of 2019
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
RELIGARE FINVEST LIMITED
Versus
OSPL INFRADEAL PRIVATE LIMITED & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date: 21st January, 2019.
Appearance:
Mr. S.N. Mookerjee Sr. Adv.
Mr. Ratnanko Banerjee Sr. Adv.
Mr. Paritosh Sinha, Adv.
Ms. Urmila Chakraborty, Adv.
Mr. Saubhik Chowdhury, Adv.
Mr. Dripto Majumdar, Adv.
,
Mr. Pratap Chatterjee Sr. Adv.
Mr. Tilok Bose Sr. Adv.
Mr. Debnath Ghosh, Adv.
Mr. Suvam Sinha, Adv.
Mr. Soumabho Ghose, Adv.
Ms. Ankita Mukherjee, Adv.
Mr. Rishav Banerjee, Adv.
Mr. Aiswarya Awasthi, Adv.
The Court: The plaintiff pursuant to a Private Placement Offer Letter dated
12th December, 2016 issued by the respondent no.1 for raising a sum of
Rs.2,00,00,00,000/- by issuing 2000 Secured Unrated Unlisted Redeemable Non- Convertible Debentures the petitioner accepted the offer and deposit the said 2 amount. Pursuant thereto non-convertible debentures were allotted to the petitioner on 14th December, 2016 by the respondent no.1. Thereafter, a Debenture Trust Deed was entered into between the respondent no.1 and the respondent no.2 on 10th February, 2017 which interalia contains the following terms:
a) The NCDs issued to the petitioner against the sum of Rs.2,00,00,00,000/- were secured by charge over all movable assets of the respondent no.1 in favour of the petitioner.
b) The Maturity Date of NCDs was December 1, 2017.
c) The NCDs were to carry interest at the rate of 12.5% per annum on quarterly basis with a put-option right granted to the petitioner to be exercisable after 6 months.
d) There was a stipulated Default Interest Rate of an additional 2% per annum.
e) Default provisions were stipulated, whereby the monies due to the petitioner would become immediately payable and the securities constituted in favour of the petitioner would become enforceable on the occurrence of specified events including, inter alia, default by the respondent no.1 in payment of any interest under the terms of the Debenture Trust Deed or due to default in payment of the principal amount on the Maturity Date.
f) The respondent no.2 would act as Debenture Trustee appointed by the Board of Directors of respondent no.1 on December 3, 2016. 3
The charge was made on 10th Februry, 2017 by the respondent no.2 acting as Debenture Trustee. Though the respondent no.1 paid the stipulated interest amount on the NCDs for two quarters i.e. from December 14, 2016 to March 13, 2017 and from March 14, 2017 to June 13, 2017, the respondent no.1 however, failed and neglected to make payment of any amount on account of interest for the quarter from June 14, 2017 to September 14, 2017. In fact, no further payment was made by the respondent no.1.
By letters dated December 12, 2017 and December 13, 2017, the petitioner called upon the respondent no.1 to make payment of the entire outstanding dues of Rs.2,12,56,56,670.75 as on the maturity date i.e. December 14, 2017.
In the circumstances, the petitioner issued notices dated February 28, 2018 and September 20, 2018 to the respondent no.2 placing on record the defaults committed by the respondent no.1 in making payment of the amounts against the NCDs and calling upon the respondent no.2 to take steps under Clause 9 of the Debenture Trust Deed to proceed to realize the present and future movable assets and interest therein of the respondent no.1 by sale or otherwise.
The grievance of the petitioner is that the respondent no.2 is not discharging its function as Debenture Trustee. In respect of notice of default and demand for sale of the shares for realization of the sale value to satisfy the claim of the petitioner to the extent of the sale value the respondent no.2 has failed and neglected to take any steps in breach of the terms of the Debenture Trust Deed. The petitioner apprehends that the respondents would dealt with the said 4 95,20,000 equity shares of and the respondent no.3 so as to defeat the right of the petitioner. The petitioner seeks to preserve its security interest in respect of the said shares. This application is opposed by the respondent no.1.
Mr. Protap Chatterjee the learned Senior Counsel appearing on behalf of the petitioner has submitted that the term sheet for secure NCD dated 14th December, 2016 contains a jurisdiction clause and accordingly this Court has no jurisdiction to entertain try and determine the suit. None of the reduce claim in the suit can be allowed in this proceeding because of the Forum Selection Clause.
Mr. Soumabho Ghosh, the learned Counsel representing the respondent, submits that the questions whether the respondent no.2 has failed to act on the basis of the letter issued to the said debenture trustee. The matter may be adjourned to enable him to obtain necessary instruction in the matter.
Pima facie it appears that the respondent no.2 did not discharge its function under the debenture trust. The matter is adjourned till 30th January, 2019 in order to enable Mr. Ghosh to obtain instruction in the matter.
Mr. Chatterjee has submitted that the subject shares have already been pledged in favour of Srei Infrastructure Finance Ltd. on 23rd March, 2018.
The respondent no.3 shall not register the said shares in favour of any third party without express leave of this Court.
The matter stands adjourned till 30th January, 2019.
(SOUMEN SEN, J.) sp/