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Calcutta High Court · body

2015 DIGILAW 775 (CAL)

Visa Energy Ventures Ltd. v. IL & FS Financial Services Ltd.

2015-09-16

SOUMEN SEN

body2015
Order The plaintiff No.1 was enjoying credit facilities under the loan agreement dated 4th April, 2015 from the respondent no.1. In consideration of availing a short term loan agreement of Rs. 25 crore, the plaintiffs have created security by pledge of 2,50,00,000 equity shares of Rs. 10/- each held by the petitioner No.1 in its subsidiary company Visa Power Limited and a further 2,61,00,000 equity shares of Rs. 10/- each held by the petitioner no.2 in Visa Steels Limited which had earlier been pledged by the petitioner No.2 in favour of the respondent No.1 in relation to an earlier loan which, according to the plaintiffs, stood repaid. The petitioners admit that there is a delay in repaying the loan. The loan should have been repaid with interest by 18th August 2015. The petitioners have relied upon communications that would show that the petitioners were requesting the respondent No.1 for re-schedulement of the loan and repayment of the loan by suitable instalments. The respondent No.1 did not agree to such request. However, in the meantime, the respondent No.1 appears to have a discussion with the State Bank of India being the lead banker in a consortium agreement existing between the State Bank of India and Visa Steels Limited by which the respondent No.1 expressed its desire to assign the debt in favour of the State Bank of India in respect of the four companies belonging to Visa group. It is not in dispute that for the purpose of availing such loan facility, four separate agreements were entered into between each of the Visa group companies with the respondent No.1. Mr. S.N. Mookherjee, learned senior counsel appearing on behalf of the petitioners submits that without the knowledge of the petitioners, the respondent No.1 appears to have entered into an assignment agreement by which the right of the petitioners to redeem the pledge has been taken away and if the said agreement is given effect to, it would be detrimental to the interest of the petitioners. Mr. Mookherjee has questioned the legality and validity of the assignment agreement which, according to him, has not been served upon the petitioners. It is submitted that the petitioners are willing to deposit a sum of Rs. 25 crore and may be permitted to have the pledged shares released and returned to the petitioners. Mr. Mr. Mookherjee has questioned the legality and validity of the assignment agreement which, according to him, has not been served upon the petitioners. It is submitted that the petitioners are willing to deposit a sum of Rs. 25 crore and may be permitted to have the pledged shares released and returned to the petitioners. Mr. S.K. Kapur, learned senior counsel appearing on behalf of the respondent No.1 submits that the petitioners have deliberately suppressed the knowledge of the assignment agreement. Mr. Kapur has referred to the SMSs and emails exchanged by and between the parties to show that the principal person of the Visa group was constantly in touch with its counterpart in the respondent No.1 and the petitioners were fully aware that a deed of assignment is going to be executed between the respondent No.1 and the respondent No.2 by which all the debts of Visa Group would be assigned in favour of the respondent No.2 for a consideration. Mr. Kapoor submits that the total exposure of the respondent No.1 was Rs. 62 crore and the deal was struck at Rs. 62 crore and the respondent No.2 has paid the entire amount. By reason thereof the debt has been assigned to the respondent No.2. Mr. Kapur submits that the petitioners being aware of the deed of assignment at this stage cannot come and question the wisdom of the said agreement and the terms and conditions on which such deed of assignment was entered into. Mr. Kapoor during the course of submission has handed over to this Court copies of deeds of assignment as also the email dated 8th September, 2015 and letter dated 9th September, 2015. In spite of notice, the State Bank of India is not represented. However, an official of the State Bank of India is present in Court. On consideration of the agreements forming part of the record, it appears that before the sale of the pledged securities, the pledgee namely, the respondent no.1 would be required to give a notice in writing of not less than seven days to the pledgor which clearly shows that the intention was to give an opportunity to the borrower to redeem the pledge within the aforesaid time. This is in conformity with sections 176 and 177 of the Indian Contract Act. Mr. This is in conformity with sections 176 and 177 of the Indian Contract Act. Mr. Kapoor would have been correct in his contention to have an unrestricted and undoubted power to deal with the said securities had there been no existence of clause (b) under Article 6 of the pledge agreement. Similarly, the State Bank of India cannot take away any right to which the borrower was otherwise entitled to under the parent agreement and to take any step which would be in derogation of the right of the petitioners to redeem the pledge and pay the amount. There is also no dispute that there are four distinct loan agreements. Each of the loan agreement constitutes a separate contract and is required to be discharged separately unless the contract provides otherwise. The plaintiffs want to discharge their obligation under the loan agreement entered into between the petitioner no.1 and respondent no.1. It appears that on 10th September, 2015 an attempt was made to make an RTGS transfer to the account of the respondent no.1. The petitioners were delaying the matter and gave an impression that the petitioners would not be in a position to pay the entire amount at one go. However, having regard to the impending danger and Damocle’s Sword hanging on the head of the petitioners in view of its failure to repay the loan the petitioners now want to redeem the pledge by depositing a sum of Rs. 25 crore. In my view, the petitioner No.1 is entitled to claim discharge from its obligation once the debt is repaid and exercises its right to redeem the pledge before the said shares are dealt with and/or put to sale. In the event the petitioners deposit with the State Bank of India a sum of Rs. 25 crore within a week from date, the pledged shares should not be sold for the time being till the matter is being finally heard and disposed of. The status of the security should not be altered and no steps shall be taken for sale of the securities. Affidavit in opposition shall be filed by the respondents on or before 15th October 2015; reply thereto, if any, by 23rd November 2015. Matter shall appear under heading “Motion Adjourned” on 30th November 2015.