Calcutta High Court
Srei Infrastructure Finance Ltd vs Essar Bulk Terminal Paradip Limited & ... on 17 December, 2019
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
ODC-2
ORDER SHEET
TA 28 OF 2019
CS 278 OF 2019
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SREI INFRASTRUCTURE FINANCE LTD.
Versus
ESSAR BULK TERMINAL PARADIP LIMITED & ORS.
..................
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY Date : 17th December, 2019.
Mr. S. N. Mitra, Sr. Adv., Mr. Anuj Singh, Mr. S. Ghosh, Mr. Saunak Mitra, Mr. Rishav Dutt, Ms. Rusha Saha, advs...for petitioner. The Court : The petitioner, being the plaintiff in a money suit has filed this application seeking various interim relief against the defendants, the respondents herein.
It is the case of the petitioner that in terms of an agreement dated March 19, 2014, the respondent no.1 obtained a financial accommodation of Rs.70 crore for the purpose of developing projects namely, Dry Bulk Terminal at Paradip, Odisha. On March 19, 2014, the petitioner and the respondent no.1 also entered into a supplemental agreement recording the renegotiated terms and conditions of grant of the aforesaid financial accommodation by the petitioner. The respondent 2 no.2 company as a corporate guarantor is a party to the said agreements dated March 19, 2014. The financial accommodation granted by the petitioner to the respondent no.1 was secured by first pari passu charge on the security package including charge on all fixed assets both present and future. The petitioner also has the charge on all book debts, operating cash flows, receivables of the respondent no.1 both present and in future. At the relevant point of time the respondent nos. 1, 2 and 3 companies were under the same management.
In the year 2016, the respondent no.1 committed defaults under the said loan agreement. By a letter dated February 21, 2017 addressed to the petitioner the respondent no.1 unequivocally admitted and acknowledged their dues to the tune of Rs.4830 crore as on February 21, 2017 and requested the petitioner for resettlement of the terms of loan, which was not accepted by the petitioner. In June, 2007 the respondent no.1 made a part payment of the outstanding dues to the petitioner. However, in spite of repeated assurances and representations held out to the petitioner, the respondent no.1 failed to pay its outstanding dues under the said agreements dated March 29, 2014. According to the petitioner Rs.24,09,78,854/- still remains outstanding from the respondent no.1.
The respondent no.1 had entered into a cargo handling agreement dated August 26, 2011 with the respondent no.3 for providing various services at the Dry Bulk Terminal at Paradip, Odisha and the petitioner was entitled to receive the consideration from the respondent no.3 for running such services. The respondent no.1 is an operational creditor of the respondent no.3. In a proceeding initiated against the respondent 3 no.3 company under the Insolvency and Bankruptcy Code, 2016, the Supreme Court has confirmed the corporate resolution plan of Arcelor Mittal India Pvt. Ltd. The Supreme Court has also approved a list of operational creditors of the respondent no.3 and, as such, the respondent no.3 is entitled to receive Rs.68,65,23,829/- from the said Arcelor Mittal India Pvt. Ltd. In view of the acknowledgement made by the respondent no.1 to pay its outstanding dues under the said loan agreement, by a letter dated December 14, 2019 the petitioner called upon the respondent no.3 not to disburse any sum to the respondent no.1 without setting apart Rs.24,09,78,854/- along with interest. The respondent no.3 has, however, refused to comply with the demand made by the petitioner.
In the above factual matrix, the petitioner has filed the suit against the respondents. In the plaint filed in the suit the petitioner has not only claimed a money decree against the respondent nos.1 and 2 but they have also claimed certain relief against the respondent no.3 as well. In this application, the petitioner has prayed for an ad interim order of injunction restraining the respondent no.3 to make any payment to the respondent no.1 without setting apart a sum of Rs.24,09,78,854/-. It is, however, submitted by learned senior counsel appearing for the petitioner that although the said loan agreement dated March 19, 2014 contained an arbitration clause contemplating all disputes arising between the parties thereto be referred to arbitration but in the present case in view of the refusal of the respondent no. 3 to pay Rs.24,09,78,854/- as demanded by the petitioner, the present suit claiming relief against respondent no. 3 is maintainable. 4
Considering the facts of the case, I find that the respondent no.1 has already acknowledged their liability to pay their outstanding dues of Rs.24,09,78,854/- to the petitioner. It is also not in dispute that the respondent no.1 as one of the operational creditors of the respondent no.3 is entitled to received Rs.68,65,23,829/- from the respondent no.3. Therefore, I find that the petitioner has made out a prima facie case and the balance of conveyance will also lines in favour of the petitioner for obtaining ex-parte ad interim order of protection. Accordingly, there shall be an order of injunction in terms of prayer
(e) of the Notice of Motion dated December 16, 2019 till December 24, 2019 or until further order, whichever is earlier.
The petitioner shall forthwith serve copies of the plaint and the petition, as well as a copy of this order upon the respondents.
The application will appear, under the same heading, on December 23, 2019.
The respondent no. 1 will be at liberty for vacating the interim order upon notice to the petitioner.
(ASHIS KUMAR CHAKRABORTY, J.) pkd.