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2016 Supreme(Del) 1249
IN THE HIGH COURT OF DELHI AT NEW DELHI
MANMOHAN SINGH, J.
GE CAPITAL SERVICES INDIA – Petitioner
Versus
VASAN HEALTH CARE PRIVATE LIMITED – Respondent
O.M.P. (I) (COMM) Nos. 1, 2, 3, 4, 5, 6, 7, 8 of 2015 & I.A. Nos. 2811, 2812, 2813, 2814, 2815, 2816, 2817, 2818 of 2016
Decided On : 08-03-2016
For the Petitioner:Ms. Deepika V. Marwaha, Ms. Worthing Kasar and Mr. Gaurav Tyagi, Advocates.
For the Respondent:Mr. Rahul Srivastava and Mr. Manu Dev Sharma, Advocate.
Headnote:
Arbitration and Conciliation Act, 1996 - Section 9, 21 - Interim relief - Appointment of Receiver - Attachment - Collateral security - Agreement between the parties - Intention of the document was to create a cross default and cross security between and among all - Master Loan Agreement - As per the agreement the secured party has the right to make a written request to the borrower - Borrower had failed to regularize its accounts - As per Acceleration and Cancellation Clauses, the secured party can declare the total outstanding amount and inform the borrower - A written notice was issued - As per general terms and conditions no waiver of any written covenant can happen till any such waiver is made in writing duly signed by both parties - Arbitration clause under these circumstances cannot be waived off with the issuance of demand or Termination Notice - Held, petitioner is entitled to recover the admitted amount as per agreement from the respondent who has no defence at all - Appointment of Receiver is liable to be allowed - Financial irregularities of the respondent - Receiver is appointed to take possession of all the machineries and medical equipments financed by petitioner to respondent.
MANMOHAN SINGH, J.
1. The abovementioned petitions have been filed before this Court under Section 9 of the Arbitration and Conciliation Act, 1996, for an interim relief of appointment of a Receiver for attachment and taking into possession/custody the collateral security, i.e. medical equipments which were got financed by Vasan Health Care Pvt. Ltd. for Vasan Eye Care Centres.
2. The details of the machinery have been filed along with each of the petitions as annexure.
3. The petitions are pertaining to eleven loan agreements, out of which tenure of 9 loan agreements has already ended.
4. The list of loan agreement numbers along with the OMP numbers, their details and loan terms are given as under:-
S. No.
Case Nos.
Loan Agreement No.
Loan Term
1.
OMP (I) (Comm.) 1 of 2015
HSHFSRCEZ00366444
17.09.2012 to 17.08.2015
HSHFSRCEZ00366445
26.03.2013 to 26.02.2015
HSHFSRCEZ00366446
26.03.2013 to 26.02.2015
2.
OMP (I) (Comm.) 2 of 2015
HSHFSRCEZ00370294
27.12.2013 to 27.11.2015
3.
OMP (I) (Comm.) 3 of 2015
HSHFSRCEZ00369610
28.07.2013 to 28.06.2016
4.
OMP (I) (Comm.) 4 of 2015
HSHFSRCEZ00366564
27.09.2012 to 27.08.2015
5.
OMP (I) (Comm.) 5 of 2015
HSHFSRCEZ00366364
03.09.2012 to 03.08.2015
6.
OMP (I) (Comm.) 6 of 2015
HSHFSRCEZ00366485
21.09.2012 to 21.08.2015
7.
OMP (I) (Comm.) 7 of 2015
HSHFSRCEZ00366366
06.09.2012 to 06.08.2015
8.
OMP (I) (Comm.) 8 of 2015
HSHFSRCEZ00371887
HSHFSRCEZ00371927
27.09.2014 to 27.08.2016
30.09.2014 to 30.08.2016
5. It is submitted there was a cross default agreement between the parties with respect to all the agreements. The intention of the document was to create a cross default and cross security between and among all. The agreements, with respect to the accounts opened at that point of time or thereinafter acquired. It was stipulated that the default under any account or agreement shall be deemed to be a default under all other accounts and agreements. A similar kind of cross collateral and cross default agreement was executed with respect to all the loan agreements that are part of OMP (I) (Comm) Nos. 1 to 7.
6. Pertaining to Loan Legacy I.D. HSHFSRCEZ00371887 and HSHFSRCEZ00371927 which are subject matter of OMP (I) (Comm) No. 8, the said covenant was made part of Master Loan Agreement itself, as the said loan Account was for Rs. 25 Crore, wherein money was released in 2 tranches, have 2 different Legacy ID.
7. It was stipulated in Annexure 1 to the agreement under the heading of Security and Nature of Security that:-
"3. Hypothecation over all assets given by the Borrower under all existing facilities provided by the Lender or its affiliates to the Borrower, including charge over the assets hypothecated pursuant to the Deed of Hypothecation dated November 23, 2013."
8. Therefore, it is apparent on the face of all agreements and documents executed and filed that all the medical equipment got financed by Vasan Health Care Pvt. Ltd. from the petitioner will be considered as collateral with respect to all the other loan agreements, so even if a loan account is clear, however if there is outstanding in other account, the said machinery will still be considered hypothecated with the petitioner.
9. It is submitted by the learned counsel for the petitioner that on 15th December, 2015 the earlier Bench recorded on behalf of the respondent to the affect that:
"The Petitioner advanced a loan of Rs. 100 crores to the Respondent, which was repayable alongwith interest at Rs. 1,11,44,36,166/- against which the Respondent had paid Rs. 71,77,44,906/- leaving the balance outstanding amount of Rs. 39,66,91,2
