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2014 (7) TMI 1255 - HC - Indian LawsLenders exclusive charge on a specific asset - lenders assets of the project kept outside the ambit of the proposed CDR package - proof of Curtailment of contractual rights of the plaintiff - modifications in the proposed CDR Package seeked - Held that:- It is rightly argued by Mr.Sethi and it appears to the Court that the defendant No.3 (ICICI Bank) has given consent to the CDR Package because they are a part of the CDR Mechanism in question and as the defendant No.3 has a higher exposure in the working capital facility as opposed to the term loan facility. Therefore, the defendant No.3 has joined the CDR scheme even if ICICI Bank has consented and other banks who are not a party to the Rupees Term Loan agreement dated 17th May, 2011, there is no obligation on the plaintiff to consent as well. From the entire gamut of the case, this Court is of the view that the lenders having exclusive charge on a specific asset cannot be forced to share their charge on the security. The said assets are to keep outside the ambit of the proposed CDR package. The said assets of the project shall continue to be charged exclusively to the term lenders of the said project and security on the said assets of the project shall not be shared with other lenders of the defendant No.1. The defendants No.1 & 2 in the present case want to proceed with a CDR package by violating the contractual rights of the plaintiff. The plaintiff in the present case admittedly sought modifications in the proposed CDR Package as the plaintiff and the defendant No.3/pro-forma defendant had extended financial assistance for purposes of funding the said project and that as a security, a first charge was created in favour of the Security Trustee exclusively for the benefit of inter alia the plaintiff and the defendant No.3/pro-forma defendant herein qua the said assets of the said project. Therefore, the prayer made in the application under Section 151 CPC for modification and under Order XXXIX Rule 4 CPC for vacation of ex- parte order, cannot be allowed as there is no merit in the said applications. The same are dismissed. However, it is clarified that if defendants No. 1 and 2 shall keep the said assets of the project outside the ambit of the proposed CDR package, they may continue with the said scheme but they cannot force the plaintiff to share their charge on the security. In view of the aforesaid reason, similar is the position filed by defendant No.3. The prayer made in the applications cannot be granted. The said application filed by defendant No.3 is accordingly dismissed. Another application filed by State Bank of Patiala under Order 1 Rule 10 CPC is also infructuous and the same is dismissed.
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