IN THE HIGH COURT AT CALCUTTA

ORIGINAL CIVIL JURISDICTION

ORIGINAL SIDE

COMMERCIAL DIVISION

BEFORE :-

THE HON’BLE JUSTICE SHAMPA SARKAR

AP- COM 193 OF 2025

SREI EQUIPMENT FINANCE LIMITED

vs.

BENGAL SHRISTI INFRASTRUCTURE DEVELOPMENT LTD.

For the Petitioner : Mr. Swatarup Banerjee, Adv.

Mr. Sariful Haque, Adv.

Mr. Shaunak Ghosh, Adv.

Mr. Rajib Mullick, Adv.

Mr. Biswaroop Ghosh, Adv.

For the Respondent : Mr. Samrat Sen, Sr. Adv.

Mr. Jishnu Chowdhury, Sr. Adv.

Mr. Rishav Banerjee, Adv.

Mr. Soumalya Ganguli, Adv.

Mr. Nathaneal Buam, Adv.

Judgment Reserved on : 24.02.2026

Judgment Delivered on : 19.03.2026

Judgment Uploaded on : 19.03.2026

Shampa Sarkar, J.

1. This is an application for interim relief under section 9 of the

Arbitration and Conciliation Act, 1996, (hereinafter referred to as the

said Act). Mr. Swatarup Banerjee, learned advocate for the petitioner,

submitted that the petitioner had entered into a Rupee Term Loan

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agreement dated April 2, 2019 with the respondent. The petitioner

financed a sum of Rs. 273.48 crores to the respondent. Thereafter,

various other agreements were also entered into between the parties,

namely the Amendatory and Supplementary rupee loan agreement

dated May 6, 2020, Arbitration Agreement dated April 2, 2019, Deed

of Hypothecation dated May 16, 2019 , the Amended and Restated

Deed of Hypothecation dated May 6, 2020, and Declaration cum

Undertaking dated May 6, 2020. All these agreements were

interconnected and interlinked. Clause 2.1 of the Arbitration

Agreement dated April 2, 2019, specifically provided that any dispute,

difference or claim arising out of or in connection with the loan facility

or any financing documents including, but not limited to the

existence, validity, performance, interpretation, or termination or

breach of any financing document, would be referred to arbitration, by

the disputing parties in accordance with the terms of the financing

document.

2. The arbitration agreement further stated that the arbitration shall be

conducted by a sole arbitrator and the seat and venue of arbitration

shall be Kolkata. According to Mr. Banerjee, the Rupee Term Loan

Agreement, Amendatory and Supplementary Rupee Loan Agreement,

the Deed of Hypothecation, Amended and Restated Deed of

Hypothecation have specific covenants to the effect that, disputes and

differences in respect of such agreements would be referred to

arbitration, in accordance with the Arbitration Agreement dated April

2, 2019.

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3. According to Mr. Banerjee, all the agreements were intrinsically

connected with each other and the performance of the agreements

were co-dependent. The respondent was liable to pay back the

disbursed sum by six equal half yearly instalments, commencing at

the end of the 10th year from the initial disbursement date as per

clause 2.10.1 (a). The respondent was also liable to pay interest as

agreed between the parties under clause 2.6.1 of the Schedule 1 of the

Rupee Loan Agreement, till the time the petitioner would be entitled to

receive the principal amount. The interest part was subsequently

revised by way of an amendment to the Rupee Loan Agreement . It was

further agreed between the parties that the property described in

Schedule 1B of the Amended Rupee Loan Agreement dated May 6,

2020, would be mortgaged in favour of the petitioner upon taking a No

Objection Certificate (NOC) from Asansol, Durgapur Development

Authority, within a period of 60 days from grant of such No Objection

Certificate.

4. Under the Amended Rupee Loan Agreement and the Declaration-cum-

Undertakings, the respondent was also required to take consent from

the petitioner before creating any third-party rights in respect of the

mortgaged properties which were described in the Amended Rupee

Loan Agreement under Schedule 1B thereof. The respondent was a

Special Purpose Vehicle, which was constituted by way of a joint

venture agreement dated December 11, 2000 between Shristi

Infrastructure Development Corporation Limited and Asansol

Durgapur Development Authority (ADDA) . The respondent entered

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into a Development Agreement on July 5, 2005 to develop a housing

project over a piece of land measuring 74.97 acres at Kanyapur,

Asansol. Mr. Banerjee submitted that, although the NOC from ADDA

was required to be taken soon after the execution of the agreements

and the mortgage of the units under the said project was to be created

in favour of the petitioner within 60 days from receipt of the NOC, the

same was not done. Apart from writing a letter on July 11, 2019,

requesting ADDA to issue the NOC, no further steps were taken by the

respondent to obtain the same. This lapse was a breach of the terms

of the Rupee Term Loan Agreement. Mr. Banerjee submitted that, this

was also an incident of default under the agreement.

5. Reference was made to the admission made by the respondent with

regard to the fact that, it had sold and or leased out most of the flats

constructed by under the project, in respect of which the petitioner

had a security interest. The constitution of the company/respondent,

was also diluted by including one Adhishakti Commercial Private

Limited into the joint venture company. This fact was evident from the

balance sheet filed on May 24, 2024, before the statutory authority.

Such action of the respondent was also violative of the agreement

executed between the petitioner and the respondent. The respondent

could not have changed the constitution of the joint venture company

without taking permission from the petitioner. The actions taken by

the respondent were in derogation to the covenants of the Rupee Term

Loan Agreement and the Amended Rupee Loan Agreement. The

consequences of default which had been specifically provided for in

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the Rupee Loan Agreement had been triggered on account of a breach

of various terms and conditions of the agreement. Reference was made

to the accounts of the respondent, especially for the financial years

2022-2023 and 2023-2024, to demonstrate that the respondent was

running at a loss. Relying heavily on such aspects, Mr. Banerjee

submitted that a, prima facie, case had been made out for interim

protection, at least to the extent that a direction for creation of an

Escrow Account should be passed by this court, in which the money

received hence forth from sale or lease or rental of the properties/

flats/ units within the project., should be deposited and the advocates

on record of the respective parties should be appointed as special

officers to operate the said Escrow Account. In this way, the interest of

the lender would be protected and the income and expenditure would

be transparent. The petitioner would also be in a position to

understand the financial health of the respondent.

6. Mr. Banerjee highlighted certain events which would indicate that the

respondent, in connivance with ADDA had either sold out or leased

out the flat, but avoided creating mortgage thereof, by causing

postponement of issuance of the NOC by ADDA.

7. The consent of the petitioner was mandatory, in the event the

constitution or management of the respondent was to be either altered

or changed. The respondent had also written letters to the petitioner,

requesting the petitioner to settle the entire dues for a paltry sum of

Rs. 85 crores. The petitioner had reason to apprehended that the

respondent would be admitted to CIRP at any stage, and the petitioner

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would not be able to recover the entire claim. The claim would be then

reduced to a meagre amount, as per the waterfall mechanism. This

would cause great prejudice to the rights of the petitioner. At present

the dues were more than Rs. 461.11 crores.

8. The fact that the respondent had been making payment of the interest

in terms of the agreement, would not amount to compliance of the

other terms. The obligations under the agreements could not be

breached and consequently, the incidents and events of default

should not be ignored by the Court. Under such circumstances, by a

letter dated December 11 2024 , the petitioner terminated the

agreement entered into between the parties. The petitioner had also

written several letters on and from June 11, 2021 till November 15,

2024, asking the respondents to comply with its obligations under the

agreement, but the respondent failed to take notice of those letters.

Apart from writing only one letter to ADDA, for a NOC, no other step

had been taken by the respondent.

9. Reliance was placed on the decision of ESSAR House Private

Limited Vs. Arcellor Mittal Nippon Steel India Limited reported in

(2022) 20 SCC 178, in support of the contention that, as the petitioner

was able to demonstrate before the Court that protection should be given

as the action of the respondents amounted to incidents of default, the

petitioner was entitled to the interim relief as prayed for. Therefore, in

the facts of the case, Mr. Banerjee urged that the same interim relief in

terms of orders passed by this court in AP COM 110 of 2025 and AP

COM 163 of 2025, should be granted. Such order would balance the

7

equities between the parties and the convenience and inconvenience of

the parties would be evenly poised. Mr. Banerjee submitted that the

money received from sale/lease/rent of the units were all Receivables of

the petitioner, as described in the said agreement.

10. Mr. Samrat Sen, learned Senior Advocate appearing for the

respondent submitted that the interim measures which the petitioner

had prayed for in this application were in the nature of attachment.

Such orders could not be passed in an interlocutory proceeding. The

pleadings were insufficient and inadequate. They did not support the

prayer for interim protection. Reference was made to the decision of

Sanghi Industrial Limited vs Ravin Cables Ltd. and Anr. reported in

2022 SCC Online SC 1329 , in which the Hon’ble Apex Court elucidated

the nature of the pleadings required to obtain a prayer for attachment.

Distinguishing the decision cited by Mr. Banerjee in ESSAR House

Private Limited (supra), Mr Sen contended that the Apex Court had

held that while deciding a petition under Section 9 of the said Act, the

court could not ignore the basic principles of the Code of Civil Procedure,

i.e., prima facie case, balance of convenience and inconvenience and

irreparable loss and injury. The petitioner was required to establish the

existence of certain specific circumstances which would justify issuance

of orders as prayed for. Reference was also made to the decision of

Brand Value Communications Limited Vs. ESKAY Video Pvt. Ltd.

reported in AIR 2010 Cal 166 . Learned Advocate submitted that,

although the petitioner was seeking an equitable relief, delay defeated

such equity. The agreement was entered into in 2019 and amended in

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2020. Thereafter, the petitioner accepted the interest on the principal

sum, without raising any objection or protest. The fact that the NOC had

not been received from ADDA, was well known to the petitioner. As late

as on December 11, 2024, a loan recall notice was issued. The parties

had several meetings prior to issuance of the loan recall notice. The

respondent accepted the payment of interest as per the repayment

schedule. Reliance was placed on the decision of Future Corporate

Resources Private Limited vs Edeweiss special opportunities Fund

reported in (2022) SCC Online BOM 3744 . The attention of this court

was drawn to a tabulation sheet attached to the affidavit-in-opposition,

showing regular payment of instalments under the loan agreement.

11. Mr. Sen submitted that, from the tabulation sheet it would

appear that even after the purported loan recall notice dated December

11, 2024 had been issued, the petitioner had accepted further payments

towards the instalments which fell due on December 31, 2024, March

29, 2025, and June 30, 2025. Tho se payments were received as

instalments, as per the repayment schedule and not on account of

termination of the agreement, upon recall of the loan. Thus, the

petitioner had waived the effect of termination of the agreement and was

estopped from treating the agreement as terminated , on account of

alleged events of default. Reference was made to the decision of B.L.

Sreedhar Vs K.M. Munnireddy reported in (2003) SCC 355.

12. Mr. Sen submitted that, there was no breach on the part of the

respondent with regard to non-creation of the mortgage. The obligation

of the respondent to create the mortgage in favour of the petitioner was

9

conditional i.e. upon obtaining NOC from ADDA. Reference was made to

Clauses 3.1 and Clause 5.3.3 of the loan agreement. The condition could

not be fulfilled, because ADDA had not issued the NOC and there was an

arbitral proceeding between ADDA and the respondent. The petitioner

was aware of the position and therefore entered into an Amended Loan

Agreement on May 6, 2020, wherein the conditional mortgage clause was

reiterated in clauses 4.1.6 and 4.1.7 of the Amended Loan Agreement.

Further, under Clause 4.2.1, thereof, additional security had been given

by the respondent in favour of the petitioner, in the form of a negative

lien since the mortgage had not been possible. The performance of the

agreement was not made conditional upon the respondent creating the

mortgage. The agreement continued to be performed from April 2019 for

a period of six years without any default and without any objections. The

petitioner could not allege that there had been breach and even if there

was a breach, the breach had been affirmed.

13. Reference was made to the decision of a STOCZNIA GDANSKA

SA Vs. Latvian Shipping Company and Ors. reported in (2002) EWCA

CIV 889 and Ganga Retreat and Towers Ltd. and Anr. vs State of

Rajasthan reported in (2003) 12 SCC 91.

14. Mr. Sen submitted that, a ny interim order restricting the

operation of the respondent's bank account or restricting the use of the

sale proceeds or rentals, would affect the business. As long as the

instalments were being paid as per the schedule of repayment, the

petitioner did not have any cause of action to approach the High Court

for any interim relief. The respondent had been duly complying with the

10

obligations under the loan agreement and any interference with the

usual course of business would adversely affect the respondents.

Learned Advocate submitted that, change in the shareholding of the

respondent would not in any way affect the agreement between the

parties. The change in the shareholding was available on the portal of

the Ministry of Corporate Affairs as also from the annual reports of the

respondent. Those were public documents. There was no reason to allege

suppression. The OTS proposal was issued without any prejudice, and

only to prepay the dues at one go. In any event, the proposal failed

sometime in November 2024, but the respondent continu ed to make

payment of the instalments as per the loan agreement, without any

default at any stage and the petitioner accepted the money. Thus, Mr.

Sen prayed for dismissal of the application.

15. Considered the submissions of the respective parties. Some

relevant facts are narrated in a nutshell for proper appreciation.

16. The respondent is a joint venture. ADDA as the landowner had

executed a development agreement dated July 5, 2004, with the

respondent, for development of an integrated township within the limits

of Asansol Municipal Corporation. Under the development agreement,

the respondent was entitled to raise finance for developing the project.

The agreement also provided that the land of ADDA could be mortgaged

with the consent of ADDA for the purpose of securing loan facility. The

petitioner and the respondent entered into the Rupee Term L oan

Agreement, whereby, a loan facility of 273.48 crores was disbursed. The

repayment of the principal amount was to commence from April 2029,

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that is, at the end of the 10

th

year from the initial disbursement date.

Interest was required to be paid on the principal from 2019. A schedule

of payment in a tabular form has been annexed by the respondent in the

affidavit-in-opposition, to demonstrate that the interest was being paid

regularly from April 2019 and the payment continued. There was no

default.

17. The loan was also to be secured by the respondent, inter alia, by

an exclusive charge and or mortgage over ADDA’s land, to be created

within a period of 60 days from receipt of a NOC from ADDA. The

respondent made a request to ADDA for grant of the said NOC, but the

same was not given to the respondent. In view of the delay in issuance of

the NOC, the respondent and the petitioner entered into a Amendatory

and Supplementary Loan Agreement on May 6, 2020 in order to modify

the security which had been provided under the loan agreement.

Additional security was given by the respondent. The respondent

admitted of not being able to create the mortgage in respect of the

property. On August 28, 2023, the petitioner raised an objection with

regard to the non-issuance of the no objection certificate by ADDA, for

the purpose of creation of the mortgage. After two years therefrom, the

petitioner approached this court, by filing an application under Section 9

of the said Act and has run a case of default, thereby pleading urgency

for interim reliefs and protections.

18. Even after the loan recall notice was issued, the petitioner

continued to accept payment in terms of the schedule of repayment. The

bank records annexed by the respondent to the affidavit-in-opposition,

12

stand testimony to such fact. On account of several defaults committed

by ADDA, including non-issuance of the NOC, the respondent was

constrained to initiate an arbitration proceeding against ADDA. An

arbitral award was also passed by the Arbitrator, a retired judge of this

court.

19. The relevant portion of the said award are quoted below:-

“The respondent is also directed to issue

NOC’s/permissions/approvals within a period of 4 weeks

from the date of receipt of request for the same”

20. It appears that ADDA filed an application under Section 34 of

the said Act, which is pending before the learned Commercial

Court at Asansol. Thus, the default which the petitioner alleges to have

been committed by the respondent, was unintentional and not

deliberate. The respondent had already taken steps against ADDA, for

the non-compliance of the clause in the development agreement which

provided that, in the event the respondent availed of loan facilities from

financial institutions, the land of ADDA could be mortgaged upo n

obtaining permission from ADDA. Thus, non-furnishing of the NOC by

the respondent was not wilful default under the Rupee Loan Agreement

and the Amendatory and S upplementary Rupee Loan A greement.

Moreover, even after the loan recall notice was issued by the petitioner,

the respondent continued to service the loan by paying the interest in

terms of the repayment schedule. The petitioner accepted the interest

component in terms of the repayment schedule itself, without pointing

out that the agreement had be en terminated. This arrangement

continued from 2019 to 2025, without any protest.

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21. In STOCZNIA GDANSKA SA (supra), it was held that:-

“87. In my judgment, there is of course a middle ground

between acceptance of repudiation and affirmation of the

contract, and that is the period when the innocent party is

making up his mind what to do. If he does nothing for too long,

there may come a time when the law will treat him as having

affirmed. If he maintains the contract in being for the moment,

while reserving his right to treat it as repudiated if his contract

partner persists in his repudiation, then he has not yet elected.

As long as the contract remains alive, the innocent party runs

the risk that a merely anticipatory repudiatory breach, a thing

"writ in water" until acceptance, can be overtaken by another

event which prejudices the innocent party's rights under the

contract - such as frustration or even his own breach. He also

runs the risk, if that is the right word, that the party in

repudiation will resume performance of the contract and thus

end any continuing right in the innocent party to elect to accept

the former repudiation as terminating the contract.”

22. In the matter of Ganga Retreat and Towers Ltd (supra), the

Hon’ble Apex Court held as follows:-

“45. In the present case, we have found as a fact that the

appellants even after acquiring the knowledge of fact regarding

reduction of FAR from 2.00 to 1.75 and that the land was not

ceiling-free elected to affirm the contract by getting their plans

approved with FAR 1.75 and started putting up construction.

They started digging the foundations and continued to build

even after knowing that the land was not ceiling-free. Thus, the

reliance placed on the ratio of law laid down in Motilal

Padampat Sugar Mills Co. Ltd. case [(1979) 2 SCC 409 : 1979

SCC (Tax) 144] is of no avail to the appellants.

46. Relying upon a decision of this Court

in Ningawwa v. Byrappa Shiddappa Hireknrabar [AIR 1968 SC

956 : (1968) 2 SCR 797] it was contended by Shri Shanti

Bhushan, learned Senior Counsel that a contract or other

transaction induced or tainted by fraud is not void, but only

voidable at the option of the parties defrauded, unless it is

avoided, the transaction is valid. Further, drawing a distinction

between fraudulent misrepresentation as to the character of the

document and fraudulent misrepresentation as to the contents

thereof, it was argued that in the case of the former the

transaction is void while in the case of the latter it is merely

voidable. It was also urged that the appellants could avoid the

transaction at any time. In our view, this judgment is of no

assistance to the appellants as on facts we have found that the

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default committed by the respondent State, if any, stood

condoned by the appellants.

47. In either case, we find that the appellants are not entitled to

any relief in the realm of the law of contracts. In spite of having

acquired knowledge of the true facts assuming that there was

any mistake or misrepresentation to begin with and having

learnt that the title which was sought to be conferred on them

by the respondents was not such full title as they had

contemplated it to be, they proceeded to have the sale deed

executed and registered in their favour, seeking extensions of

time and paying interest for the period of delay in payment. The

contract stood accomplished into a demise and the transaction

ended. It is writ large that the appellants had elected to stand by

the contract by digging the land, sinking the basement and

raising about 9 floors above, investing crores of rupees. They

have by their own conduct rendered the position irreversible and

restitution impractical. We have not been shown any law or

authority based whereon the appellants may annul and avoid a

concluded contract and fix liability on the respondents for the

cost of their construction which they have voluntarily chosen to

raise in spite of being aware of all the relevant facts and

circumstances.”

23. Apart from the financial assistance obtained from the petitioner,

the respondent has relied on documents to show that funds had been

obtained from various home buyers and allottees in order to complete

the development project. Any interim order restricting the use of the

money collected from outsiders, upon sale/lease of the units or flats, will

hinder the ongoing project. The business and goodwill will suffer. There

is not cogent evidence on the face of the record which leads this court to

assume that if an award is passed in favour of the petitioner, the same

cannot be executed against the respondents and the award will be

frustrated and/or defeated.

24. In the matter of Sanghi Industries (supra), the Hon’ble Apex

Court held as follows:-

15

“4. Having heard learned counsel appearing on behalf of the

respective parties and in the facts and circumstances of the

case, more particularly, when the bank guarantees were already

invoked and the amounts under the respective bank guarantees

were already paid by the bank much prior to the Commercial

Court passed the order under Section 9 of the Arbitration Act,

1996 and looking to the tenor of the order passed by the

Commercial Court, it appears that the Commercial Court had

passed the order under Section 9(ii)(e) of the Arbitration Act,

1996 to secure the amount in dispute, we are of the opinion that

unless and until the pre-conditions under Order XXXVIII Rule 5

of the CPC are satisfied and unless there are specific allegations

with cogent material and unless prima -facie the Court is

satisfied that the appellant is likely to defeat the decree/award

that may be passed by the arbitrator by disposing of the

properties and/or in any other manner, the Commercial Court

could not have passed such an order in exercise of powers

under Section 9 of the Arbitration Act, 1996. At this stage, it is

required to be noted that even otherwise there are very serious

disputes on the amount claimed by the rival parties, which are

to be adjudicated upon in the proceedings before the arbitral

tribunal.

5. The order(s) which may be passed by the Commercial Court

in an application under Section 9 of the Arbitration Act, 1996 is

basically and mainly by way of interim measure. It may be true

that in a given case if all the conditions of Order XXXVIII Rule 5

of the CPC are satisfied and the Commercial Court is satisfied

on the conduct of opposite/opponent party that the opponent

party is trying to sell its properties to defeat the award that may

be passed and/or any other conduct on the part of the

opposite/opponent party which may tantamount to any attempt

on the part of the opponent/opposite party to defeat the award

that may be passed in the arbitral proceedings, the Commercial

Court may pass an appropriate order including the restrain

order and/or any other appropriate order to secure the interest

of the parties. However, unless and until the conditions

mentioned in Order XXXVIII Rule 5 of the CPC are satisfied such

an order could not have been passed by the Commercial Court

which has been passed by the Commercial Court in the present

case, which has been affirmed by the High Court.”

25. The request for moratorium was made by the respondent

pursuant to the RBI circular dated May 23, 2020. The fact that the

respondent requested a moratorium , does not indicate that the

respondent will not be in a position to repay the loan. The respondent

16

has regularly serviced the interest payment as per the terms of the

agreement. The respondent has consistently demonstrated its

willingness to comply with its obligations. The requirement to create a

debt service reserve or Escrow Account, in my prima facie view, is a

penal action which should not be invoked without any default in the

repayment schedule. The prayer of Mr. Banerjee for creation of an extra

mechanism or a separate account to be operated solely by the special

officers (learned advocates on record for the parties), in my, prima facie

view, will amount to interference with the terms and conditions of the

Rupee Loan Agreement as also Amendatory and Supplementary loan

Agreement. The repayment schedule is still being hono ured by the

respondent and the repayment of the principal amount does not start

before 2029. Moreover, delay defeats equity. The petitioner accepted the

interest from 2019 to 2026 and approached this court after two years

from raising an objection to the delay in obtaining a NOC from ADDA.

26. In the matter of Future Corporate Resources (supra), the

Hon’ble Apex Court held as follows:-

53. This takes us to very old principle well known to common

law jurisdiction : delay defeats equity. There may be a class of

cases where delay may be excused or overlooked or even treated

as acquiescence, and, in a given case, mere delay will not

prevent a court from passing an order if the circumstances are

sufficiently strong to so demand. But in a case such as this, we

see no explanation at all anywhere in the Plaint for the delay

between September 2020 until June 20 22. That is a period of

nearly two years. We are only told that in this time, the Plaintiffs

were securing ever increasing guarantees (although there is no

claim on guarantees) and that they had also obtained thereafter

a mortgage of the Acropolis Mall. But that is surely a factor that

must taken into account against the Plaintiffs. As we noted, if,

after the sale, there is security then the claim presented to a

Court for an injunction must be restricted to that portion that is

17

left unsecured or is beyond the provided security. Nobody today

knows what that amount is. It is surely for the Plaintiffs to tell

us what amount is left unsecured, and which is likely

threatened by some form of dissipation or loss. Of this, we have

nothing.

* * *

* * *

57. To put it differently, we intervene, and we believe justifiably,

because in our view, the operative portion of the impugned order

is disproportionate to the cause made out. It was much wider

than could reasonably have been granted on the facts and

circumstances of the case. As we noted earlier, had Edelweiss,

Ecap and IDBI been stymied from making any realisations at all,

then a full spectrum order may certainly have been called for.

That not being the case, there being this unsatisfactorily

explained or even unexplained delay on the part of the Plaintiffs,

and there being too a crucial discord and imprecision in

quantifying the debt left unsecured, we believe that the interim

order ought to have been more narrowly tailored than it was.

The differential between the mortgage security cover and the

claimed debt is both crucial and determinative at this ad-interim

stage.

27. Relevant clauses of the agreement are quoted below to

appreciate the issues:-

2.6 Interest

2.6.1 The Borrower shall pay to Lender Interest at the rate and

in the manner and on the date(s) as mentioned in Schedule I,

plus the Spread (if any), on the Loans outstanding from time to

time on the Interest Payment Date. The payment of interest

shall commence on the first Interest Payment Date falling

immediately after the Disbursement Date.

The general conditions applicable to determination and payment

of Interest are set out in Schedule I hereto.

2.6.2 The Borrower shall also pay default interest on all other

monies paid/sums expended by the Lender under this

Agreement and the other Financing Documents in accordance

with Article 2.7.1 below, calculated from the date of payment of

such amounts by Lender till such ti me the Borrower

repays/reimburses the lender in respect thereof.

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* * *

* * *

2.10 Repayment of the Loans

2.10.1 (a) The Loan Facility shall be repaid in 6 (six equal half

yearly installments commencing at the end of 10th (tenth) year

from the Initial Disbursement Date

(b) Amounts repaid by the Borrower shall not be re-borrowed.

(c) If, for any reason, the Loans after the final Disbursement is

less than the amount of the Loan Facility, the amounts of

Repayment Installments of the Loans shall stand reduced

proportionately but shall be payable on the dates as specified in

the Repayment Schedule.

(d) In respect of the Loans, no intimation shall be given to the

Borrower regarding its obligation to pay the Interest and

Repayment Installments regularly on their respective Due

Dates. The Borrower agrees it shall be entirely its responsibility

to ensure prompt and regular payment of the Loans and the

Interest and all other amounts payable by the Borrower to the

Lender in respect of the Loans, on the respective Dues Dates

and in the manner provided in this Agreement and the other

Financing Documents.

* * *

* * *

3.1 The Obligation of the Borrower shall be secured by way of :-

3.1.1. An exclusive first charge on the Mortgaged Property

under the Mortgage Documents;

3.1.2. Charge by way of Hypothecation on Receivable under the

Deed of Hypothecation;

3.1.3. Exclusive charge over the Debt Service Reserve created

and maintained by the Borrower with the Lender or in such

other manner as may be advised by the Lender.

(The security specified in this Article 3.1 is referred to as the

"Security" which shall include any further or additional Security

Interest created in terms of Article 3.4 hereof)

* * *

* * *

3.3 Each of the Security Providers shall have obtained written

clearances, consent of the relevant parties/ authorities for

creation, perfection and maintenance of the Security mentioned

in Article 3.1 hereinbefore.

* * *

* * *

4.1 Representation of the Borrower:

The Borrower hereby represents that:-

(iii) As on the Agreement Date, the Borrower has [no subsidiary

(direct or indirect).

19

(IV) All authorizations as are necessary for the execution of the

Financing Documents s are in full force and effect.

(V) The Borrower have obtained all applicable Clearances prior

to or on the Agreement Date in connection with:

(a) The execution, delivery and performance of the Financing

Documents;

and

(b) The legality, validity, binding effect or enforceability thereof.

No further compliances and Clearances are required in

connection with:

(a) The execution and delivery of any Financing Documents,

(b) The legality, validity, binding effect or enforceability thereof.

(VI) The Borrower does not have any outstanding Security

Interest or obligation to create any Security Interest on or with

respect to any of its properties, revenues or assets other than

Permitted Security Interest.

4.2 Reliance

The Borrower represents and warrants that each of the

representations in Article 4.1 above is true and correct in all

material respects as of the Agreement Date and that none of

them omits to state any matter, which makes any of s uch

representations misleading in any material respect.

4.5 Good Title

The Borrower and the Security Providers possess valid right,

title and interest over the property, assets and revenues on

which they grant or purport to grant Security Interests)

pursuant to the Security Documents which have been executed

as of the date this representation is made or deemed to have

been made or repeated, in each case free and clear of any

encumbrance/ Security Interest (other than Permitted Security

Interest) and the Borrower further confirms that the Security

Interests) created or expressed to be created under or pursuant

to the Security Documents is legal, valid, binding and

enforceable.

* * *

* * *

5.3.3 Creation/ Perfection of Security

The Borrower shall no later than 60 (sixty) days from the date of

receipt of No Objection Certificate from the Asansol Durgapur

Development Authority (“ADDA”) have created and perfected the

Security including mentioned in Article 3.Ll.

The Borrower shall no later than 30 (thirty) days from the Initial

Disbursement Date have created the Security mentioned in

Article 3.1.2 and Article 3.1.3.

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28. The correspondence annexed to the application also indicate

that the issue of one time proposal was being considered by the

petitioner. Only because the one time settlement, upon payment of Rs.

85 crores was made by the respondent at some stage, the Court cannot

presume that there is a chance that the respondent will fail to pay the

principal amount due or not adhere to the repayment schedule. Such

assumption of the court would be futuristic and speculative.

29. The decision of this Court in AP COM 110 of 2025 was rendered

under different circumstances. There was a default in payment of

interest for four years. Paragraphs 6 and 14 of the said order are quoted

below:-

“6. The existence of an Arbitration clause is not in dispute. The

non-payment of interest component after November 2021 is also

not in dispute. Consequence of non-payment are provided in the

agreement. The fact that the petitioner issued a loan recall

notice is also not in dispute. Upon enforcing the Acceleration

clause, all monies under the loan agreement became due and

payable. Prima facie, the petitioner has made out an arguable

claim.

* * *

* * *

14. Having heard learned counsel for the respective parties, this

Court is satisfied that the interest component payable as per the

loan recall notice has been secured. The petitioner has already

taken possession of the mortgaged property at New Town and

has proceeded for sale. The reserve price kept by the petitioner,

as per its own valuation, is above Rs.97 crores. With regard to

the other outstanding, the calculation is subject to the final

decision of the learned Arbitrator, on evidence. However, the

petitioner has made out an arguable case with regard to the

effect of Acceleration under the relevant clause of the agreement

and the principal becoming payable upon termination of the

agreement. Thus, protection of amounts payable under the

agreement, is necessary Accordingly, this Court directs that if

any flat under Receivables III is sold or any other money is

received in respect of those flats, the sale proceeds or money

21

received shall be deposited in a designated account. For such

purpose, the learned Advocates-on-record of each of the parties

shall act as Joint Receivers. They will open a savings account in

any Nationalized Bank, which will be the designated account.

This arrangement will continue for a period of three months.

Within such time, the peti tioner shall take steps for

appointment of an Arbitrator and pray for interim orders before

the learned Arbitrator. With regard to the sale of the flats under

Receivables II, over which the petitioner has a second charge, it

is directed that, in case the respondents sell any of those 57

flats, henceforth, the details of the sale and details of the

proceeds received therefrom, and the account in which those

were being deposited, shall be informed to the learned Joint

Receivers. This arrangement will also continue for a period of

three months as well and the petitioner shall be at liberty to

approach the learned Arbitrator for further interim orders. If the

Tribunal is not constituted within the period of three months,

the petitioner may seek interim reliefs before this court, if the

situation so demands, strictly in accordance with law.”

30. In AP COM 163 of 2025 also default in payment of interest had

occurred. The relevant paragraph are quoted below:-

“6. The existence of an Arbitration clause is not in dispute. The

non-payment of interest component after November 2021 is also

not in dispute. Consequence of nonpayment are provided in the

agreement. The fact that the petitioner issued a loan recall

notice is also not in dispute. Upon enforcing the Acceleration

clause, all monies under the loan agreement became due and

payable. Prima facie, the petitioner has made out an arguable

claim.

* * *

* * *

13. Having heard learned counsel for the respective parties, this

Court is satisfied that the interest component payable as per the

loan recall notice has been secured. The petitioner has already

taken possession of the mortgaged property at New Town and

has proceeded for sale. The reserve price kept by the petitioner,

as per its own valuation, is above Rs.97 crores. With regard to

the other outstanding, the calculation is subject to the final

decision of the learned Arbitrator, on evidence. However, the

petitioner has made out an arguable case with regard to the

effect of Acceleration under the relevant clause of the agreement

and the principal becoming payable upon termination of the

agreement. Thus, protection of amounts payable under the

agreement, is necessary. Accordingly, this Court directs that if

any flat under Receivables III is sold or any other money is

received in respect of those flats, the sale proceeds or money

22

received shall be deposited in a designated account. For such

purpose, the learned Advocates-on-record of each of the parties

shall act as Joint Receivers. They will open a current account in

any Scheduled Bank, which will be the designated account. The

same account as will be opened in compliance of the order

passed in AP COM 110 of 2025 will be the designated account.

This arrangement will continue for a period of three months.

Within such time, the petitioner shall take steps for

appointment of an Arbitrator and pray for interim orders before

the learned Arbitrator. With regard to the sale of the flats under

Receivables II, over which the petitioner has a second charge, it

is directed that in case the respondents sell any of those 57

flats, henceforth, the details of the sale and details of the

proceeds received therefrom, and the account in which those

were being deposited, shall be informed to the learned Joint

Receivers. This arrangement will also continue for a period of

three months as well and the petitioner shall be at liberty to

approach the learned Arbitrator for further interim orders. If the

Tribunal is not constituted within the period of three months,

the petitioner may seek interim reliefs before this court, if the

situation so demands, strictly in accordance with law.”

31. Taking note of the defaults committed, this Court directed that

if flats/units under the Receivables were sold or money was received in

respect of such flats, the sale proceeds received shall be deposited in a

designated account. The learned Advocate on record for each of the

parties would act as joint receivers. They would open a current account

with any scheduled bank, which would be the designated account and

the arrangement would continue for a period of three months, and the

petitioner would be at liberty to take steps for appointment of an

arbitrator.

32. The facts of the cases referred to by Mr. Banerjee, to support his

prayer for similar orders are distinguishable. Considering the balance of

convenience and inconvenience and the irreparable loss and injury, this

court is of the view that an order requiring the respondent to deposit all

sale proceeds and rentals in a separate Escrow Account, to be operated

23

by special officers to be appointed by the Court, would amount to

interfering with the regular course of business of the respondent. This

court has come to a, prima facie, finding that there is no incident of

default at this stage, which would necessitate urgent interim reliefs. The

petitioner is at liberty to take steps for appointment of an arbitral

tribunal and pray for interim orders. The factum of sale or lease of flats/

units henceforth, and all bookings of flats or units henceforth under the

project shall be informed to the petitioner by the respondent. The

quantum of money received from such sale/lease shall also be disclosed

to the petitioner by the respondent.

33. AP-COM 193 of 2025 is accordingly disposed of.

34. Urgent Photostat certified copies of this judgment, if applied for,

be supplied to the parties upon fulfilment of requisite formalities.

(Shampa Sarkar, J.)