Allowed

Punjab National Bank v. M/S Essel Walajahpent Poonamallee Toll Roads Pvt. Ltd.

DRT17 Dec 2025TA/116/2022

Case brief

AI extract

What is this about?

This order disposes of an application filed by a bank for recovery of dues arising from an invoked performance guarantee. The Tribunal held that despite pending arbitration challenges by the borrower, the guarantee invocation was valid and ordered recovery against the borrower, allowing the bank to proceed against the joint guarantor later.

What did the court decide?

Recovery certificate issued for Rs. 1,72,44,91,915/- plus interest @17.50% p.a. and penal interest @2%; bank directed to sell hypothecated assets.

Punjab National Bank versus M/S Essel Walajahpent… — Contract and Commercial Disputes | DRT (2025)

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IN THE DEBTS RECOVERY TRIBUANL – I AT CHENNAI

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DATED THIS 17^TH DAY OF DECEMBER, 2025

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Present: Shri A. S. JAYACHANDRA

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Presiding Officer

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TA No. 116 /2022

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Between :

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Punjab National Bank Large Corporate Branch No. 28, Centenary Building M.G. Road Bengaluru – 560 001

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….. Applicant

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And

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M/s EsselWalajahpetPoonamallee

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Toll Roads Private Limited.

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(EWP for short) having it Registered Office at Essel House, B-10, Lawrence Road, Industrial Area New Delhi – 110 035.

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M/s. EsselInfraprojects Limited

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(EI for short) having its Registered Office at 513/A, 5^th Floor, Kohinoor City, Kirol Road, Kurla (West) Mumbai – 400 070 …. Defendants

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Final Order

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This final order disposes the OA partly filed initially before DRT-2, Bangalore transferred to this tribunal consequent to the notification of the Ministry of Finance bearing No. SO 4717 (E) dated 04.10.2022. The OA is filed for recovery of Rs. 1,72,44,91,915.00p.

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1.1. The applicant bank had filed the OA for recovery of Rs.1,72,44,91,915.00p( Rupees One Hundred and Seventy Two Crores Forty Four Lakhs Ninety One Thousand Nine Hundred and Fifteen only) against defendant No. 1 and 2 jointly and severally along with interest. It also prays for recovery through sale of hypothecated properties of Defendant No. 1 and sale of the shares pledged by Defendant No. 2.

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1.2. The brief facts of the case are that the defendant No. 1 was sanctioned with term loan facility of Rs. 1020 crores with sub-limits of CAPEX ILC Facility of Rs. 895 Crores, and Bank Guarantee (BG for short) facility of Rs. 155.80 Crores with the final hold position of the applicant bank being Rs. 355 crores and the balance for down selling to other lenders as per the sanctioned letter dated 09.11.2012. Both the defendants have executed common rupee loan agreement, deed of hypothecation of defendant No. 1, corporate guarantee deed of defendant no. 2, sponsor agreement, share pledged agreement by defendant no. 2 along with the power of attorney and non disposal agreement by defendant No. 2 along with the power of attorney all dated 28.11.2012. Further the defendant no. 1 and the bank entered into security Trustee Agreement, lenders agent agreement, escrow agreement all dated 28.11.2012 and counter indemnity dated 29.11.2012 executed by Defendant no.1 company.

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1.3. It is submitted that the parties to the loan and the National Highway Authority of India have entered into a escrow agreement dated 21.02.2013, whereby the revenue generated from the project of defendant no. 1 would be received. Defendant no. 1 and 2 have also agreed on 13.08.2013 that the credit facility extended by senior lenders would be secured by 51% of the share of defendant no. 1 company and defendant 2 agreed to the share pledge agreement dated 19.08.2013. Defendant no. 1 company had secured the commitment from other financial institutions to the extent of Rs. 665 crores. Certain documents have been executed by the other lenders. The amount lent by India Infrastructure Finance Company Ltd. is adjusted and the loans sanctioned by other institutions were never disbursed and eventually lapsed, which are confirmed from the other lenders.

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1.4. It is alleged that the applicant bank issued bank guarantee dated 29.11.2012 to the tune of Rs. 155.80 crores which was invoked by the beneficiary namely National Highway Authority of India which is dated 24.12.2019, the applicant bank made the payments to the NHAI on 12.03.2020.

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1.5. The applicant bank requested the defendants 1 and 2 by a letter dated 12.03.2020 to repay the sum / adjust consequent to the invocation of the Bank guarantee. Since the defendant 1 and 2 have not responded positively, the Bank guarantee account is classified as non-performing assets on 02.07.2020. The credit facilities of defendant No. 1 is recalled vide notice dated 21.08.2020 and the guarantee invocation notice to defendant no. 2.

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1.6. The applicant bank submits that the amount due to the tune of Rs..1,72,44,91,915.00 arising out of the bank guarantee loan agreement is liable to be paid by Defendant 1 and 2 and hence the present TA alleging the cause of action on the date of transaction and the agreement and the dates of invocation of bank guarantee and the date of recalling of the loan facility.

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2.1 After, the transfer of the case to this Tribunal, the applicant was directed to intimate the next date of hearing to the defendants for which the steps were taken and defendant 1 and 2 appeared through the counsel. It is seen from the record that defendant 1 filed the written statement.

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Contention of the Defendant no. 1

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2.2. The defendant no. 1 in its written statement had contended that the liabilities of the defendant to the NHAI is the subject matter pending before the Hon’ble Delhi High Court. In case this defendant succeeding the litigation, the defendant is not liable to pay any amount to the applicant bank since the invocation of the bank guarantee by the NHAI is the subject matter of the pending litigation before the Delhi High Court.

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2.3. This defendant agrees that as per the concession agreement dated 04.06.2012 , this defendant furnished the Bank guarantee to thetune of Rs. 155.80 crores through the applicant bank. There was a dispute between this defendant and NHAI and the agreement

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was terminated by this Defendant on 14.06.2016 and closed the operations from 20.06.2016.However, NHAI did not accept the notice of termination. Thereafter, arbitration proceedings initiated by this defendant concluded and the arbitral tribunal passed an award dated 09.04.2018 directing this defendant to pay a sum of Rs. 635,29,13,361/- only to NHAI within three months with interest. This award is challenged before the Hon'ble High Court of Delhi in OMP No. 265/2018 and by an order dated 05.07.2018 an interim order is passed by the Hon'ble Delhi High Court subject to keeping the Bank guarantee alive. The appeal is still pending before the Hon’ble Delhi High Court. Therefore, the defendant No. 1 prays for dismissal of the OA.

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Contention of the Defendant no. 2

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2.4. This defendant contends that it is neither a borrower nor a guarantor. It is admitted that it had pledged certain shares as security. The liability under the corporate guarantee came to an end on 21.08.2020 upon the applicant bank recalling the loan. It is submitted that the liability if any, is subject to the applicant succeeding the claim against thedefendant no. 1. The Defence of Defendant No. 1 is also urged and adopted by these defendants.

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Evidence on Record.

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3.1. Though the documents were marked by the Bank on 30.07.2021 before the predecessor Tribunal,one Shri. Pallab Das was not examined. It is noted in the order sheet that the originals were taken back by the Bank. Thereafter, the proper affidavit towards evidence was filed by the competent witness AW1 by Shri. Raghubansh Mani Verma only on 20.09.2023 and exhibit A1 to A 45 were marked, through him.

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3.2. The defendantsno.1 had filed the counter proof affidavit and no documents are marked. In the counter proof affidavit it is admitted by D1 that there was an agreement between NHAI and this defendant. It is also admitted that this defendant terminated the agreement and closed the operation with an effect from 20.06.2016 and the NHAI did not accept the termination. This defendant initiate arbitral proceedings against NHAI. The arbitral Tribunal by an award dated 09.04.2018 rejected the claim of this defendant which is now challenged in OMP 265/2018 before the Hon'ble Delhi High Court. On 05.07.2018 Delhi

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High court passed an order staying the enforcement of award subject to the bank guarantee being kept open and to deposit Rs.100 croreswith in the prescribed time.

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3.3 From the evidence it is not forthcoming whether the defendant deposited / complied the orders of the Hon'ble Delhi High court. Except stating the above, the counter proof affidavit speak of any facts.

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Evidence on behalf of D2

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4.0 The defendant no .2 company in its counter proof affidavit has not marked any documents. It is averred that 2^nd defendant is not a guarantor nor a borrower. It is also submitted that there are proceeding against D2 initiated by J & K bank before NCLT, Mumbai in RCPIB / 6(MB) / 2023 and this defendant contends that it is not liable to pay any sum to the applicant.

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Subsequent Developments

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4.1. During the pendency of this TA, the defendant No. 1 had sought for a stay by filing IA 2578/2021 which was disposed by an order dated 08.02.2023 as there was no order of stay of recovery proceedings by the Hon'ble Delhi High Court in the Appeal against the arbitral award filed by the defendant no. 1.

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4.2. On 17.04.2024, when the matter was fixed for hearing further arguments, the ld. counsel for the defendant no. 1 and 2 submitted that the defendant no. 2 is facing the NCLT proceedings before the Mumbai Bench. On 05.05.2025, the ld. counsel for the Bank submitted that a Resolution Professional appointed by the Hon'ble NCLT, took over the D2. Notices were ordered to the said Resolution Professional on 08.07.2025. It is noted that the Notices were served and none appeared for the Resolution Professional of defendant no. 2. The applicant bank was directed to take a call on the need of continuation of these proceedings.

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4.3. On 03.11.2025, this Tribunal noted as per the memo filed by the applicant bank, it intends to proceed against D1 only by keeping open the claim against D2.

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Arguments

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5.0 The Ld. Counsel for the applicant submits that the claim of the bank will succeed and the D1 is not facing any NCLT Proceedings the Ld. Counsel submits that the evidence adduced by the bank along with the documentary evidence establishes the case of the applicant.Written submissions is also filed by the applicant bank which is perused. In the written submissions it is emphasized that the bank had issued the bank guarantee for Rs.155.80 crores in favour of NHAI which was extended. It is also submitted in the written arguments that the Hon'ble Delhi High court order dated 09.12.2019 allowed the NHAI to invoke the performance guarantee if the D1 does not seek extension of the same with the stipulated time. It is also argued that D1 did not seek the extension of the bank guarantee as ordered by the High Court. Therefore, the NHAI invoked the bank guarantee vide their letter dated 24.12.2019 as per annexure A – 41 at pages 590 -591 of volume 3. Since, the same was invoked, the defendant no.1 did not repay the amount. The applicant had in the written arguments relied on the following rulings

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a) E. Prabakaran and OrsVs The Lakshmi Vilas Bank Limited (MANU/TN/0969/2011) - wherein it is held that the parties have agreed to the particular rate of interest and the same is to be allowed. The ruling further held that contractual rate of simple interest at the rate of 22.5% p.a. was allowed.

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b) Indian Bank Vs Blue Jaggers Estates Ltd and Ors (MANU/SC/0570/2010) – wherein the Hon'ble’ Supreme Court held that “ though who take loan and avail financial facilities from the bank or duty bound to repay the amount strictly in accordance with the terms of the contract”.

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c) Punjab Financial Corporation Vs Surya Auto Industries (MANU/SC/1984/2009) – holding that the contract entered into between the parties agreeing to particular rate of interest, the same is binding.

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d) Economic Transport OrganisationVsCharan Spinning Mills Pvt. Ltd 2010 (4) SCC 114]– to emphasize the legality of subrogation and that by paying the amounts to NHAI upon invocation of bank guarantee, the applicant bank is entitled to recover the above sum.

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5.1 It is further urged that the guarantors liability is co-existensive with that of the priniciple borrower for which the rulings in Ram Kishun and orsVs State of U. P.

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(MANU/SC/494/2012) and Bank of Bihar Ltd., Vs Damodar Prasad and Ors(MANU/SC/220/1968) is relied. In the written arguments that bank contends that though the principle borrower is discharged due to insolvency, the guarantee provided by a surety subsists and the bank can proceed. To urge this point the Ld. Counsel relied on the ruling of Punjab National Bank Vs State of U.P. and ors(MANU/SC/1133/2001).

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5.2 On the other hand, the Ld. Counsel for the D1 submits that the case is still pending before the Hon'ble Delhi High Court and the result thereof would have an impact on these proceedings,

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Points for Determination

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6.0 In the context of the pleadings, evidence adduced on record and the submissions of the Ld. Counsel and particularly the submissions made on 03.11.2025 by the bank that the applicant bank wants to proceed against D1 only by keeping open the claim against D2, the following point arises for determination in the present proceedings.

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Whether the applicant bank is entitled for recovery certificate against D1 as prayed for in the OA?

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Answer to the point for determination

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7.0 As noted above the applicant bank having pleaded that the bank guarantee having invoked and having paid the bank guarantee sum of Rs. 155.80 crores to the NHAI upon the promise of D1 which is not denied by the D1, it can be safely held that the D1 does not dispute the payment of the sums paid by the applicant bank based on the bank guarantee. In the deposition of the senior manager of the applicant bank, it is averred that the performance bank guarantee issued by the applicant bank to NHAI dated 29.11.2012 was renewed from time to time between the date of issue and latest by 18.12.2018. He relies on Exhibits A 28 to A 40. HE has also sworn on oath to the bank guarantee having been invoked by the beneficiary at Exhibit A 41 . the document at Exhibit A 42 establishes that the bank

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requested the defendants to repay the bank guarantee amount. Upon the failure of the defendants the applicant bank had recalled the bank guarantee vide notice dated 21.08.2020 at Exhibit A 43. The deponent further relied on the account statement at Exhibit A 45.

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7.1 The defendants have not produced any documents to establish that they have repaid the amount to the bank. The documentary evidence at Exhibit A 45 being the statement of accounts showing the amount payable by the defendants as on 22.09.2020 establishes that a sum of Rs.1,72,44,91,915/- is due from the defendants.

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7.2 The counter proof affidavit filed by the D1 does not dispute the dues payable. The applicant bank had confined its prayer against D1 only since the D2 is facing NCLT Proceedings. There is no material to disbelieve the contention of the applicant bank. On the otherhand, it is seen from the documents that the defendant no. 1 company having initiated arbitral proceedings against NHAI had suffered an award of rejection which subject matter is separately being dealt by Hon'ble Delhi High court. The contentionof the Ld. Counsel for the bank that there is no stay order against the recovery of the above sum is also not disputed by the defendants. In the result, the claim of the bank succeeds to the extend as prayed for in the proof affidavit. It is necessary to note that the applicant bank does not wish to proceed against D2 for the time being. Therefore, in the result, this Tribunal is of the considered opinion that the applicant bank is entitled to recover a sum of Rs. 1,72,44,91,915/- along with the interest @17.50% p.a. with monthly rests from the date of filing along with penal interest @2% simple interest till this date. The applicant bank is also entitled to the future interest @12% p.a. from the date of this order till the date of realization. Accordingly, the following:

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ORDER

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The D1 is hereby directed to pay a sum of Rs.1,72,44,91,915/- to the applicant bank along with the interest @17.50% p.a. from the date of filing along with penal interest @2% simple interest till this date. In case of default the D1 shall also pay the future interest @12% p.a. till the realization.

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The applicant bank is entitled to recover the above said amount by selling the hypothecated assets as mentioned in the annexure to the OA.

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There are no immovable property is describedshown in the schedule as belonging to the D1

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company.

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The claim against D2 is not pressed for the time being and the applicant bank may revive the proceedings against D2 if so advised as submitted by the bank.

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The applicant bank is also eligible for costs for which cost memo be filed within two weeks. Recovery certificate be issued accordingly. Any sums paid by defendants be adjusted in the recovery.

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Sd/(A.S.JAYACHANDRA) PRESIDING OFFICER DRT-I, CHENNAI

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(Dictated to steno who typed in the system, corrected, signed and pronounced in open court on this 17^th Day of December, 2025)

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List of Witness Examined:

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AW -1 - Shri. Raghubansh Mani Verma – Marked Exhibit A1 to A45.

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Though the CPA’s are filed by the defendants, no documents are marked.

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List of documents relied by the applicant bank.

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S.No.	DATE	DESCRIPTION	NATURE OF DOCUMENT	EXHIBIT NOS.	PAGE NOS.
		A. PROOF AFFIDAVIT
1.		Proof Affidavit filed by the Applicant Bank	Original	--	1 - 11
2.		Power of Attorney of the Authorised Signatory	Photocopy	--	12 - 16
		B. EXHIBITDOCUMENTS
3.	09.11.2012	Sanction letter from the Applicant bank herein to the Defendants	Photocopy	A1	1-22
4.	28.11.2012	Common Rupee Loan Agreement, executed by 1st Defendant Company in respect of credit facilities availed by it including bank guarantee facility limit of Rs.155.80 Crores.	Photocopy	A2	23-183
5.	28.11.2012	Deed of Hypothecation, executed by the 1st Defendant in favour of Applicant Bank	Photocopy	A3	184-211
6.	28.11.2012	Corporate Guarantee for Rs 1020 Crores executed by 2nd Defendant in favour of Applicant Bank	Photocopy	A4	212-228
7.	28.11.2012	Sponsor Support Agreement, executed by 2nd Defendant Company (Sponsor),1st Defendant Company(Borrower) in favour of Applicant Bank(Lender/Security Trustee)	Photocopy	A5	229-257
8.	28.11.2012	Share Pledge Agreement executed by 2nd Defendant (pledgor) and 1st Defendant as borrower in favour of Applicant Bank(Security Trustee).	Photocopy	A6	258-303

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9.	28.11.2012	Share Pledge Power of Attorney executed by 2nd Defendant company constituted the applicant bank as its Power of Attorney Holder.	Photocopy	A7	304-308
10.	18.11.2012	Non-disposal Agreement executed by 2nd Defendant company (sponsor and 1st defendant company borrower) in favour of Applicant bank	Photocopy	A8	309-336
11.	28.11.2012	Power of Attorney executed by 2nd Defendant company constituted the applicant bank with power to sell the shares which were subject matter of Non -disposal Agreement	Photocopy	A9	337-342
12.	28.11.2012	Security Trustee Agreement executed by 1st Defendant Company(Borrower) and Punjab National Bank (Lender's agent) appointed Punjab National Bank as Security Trustee, who is custodian of the Security Documents/Security Interest.	Photocopy	A10	343-379
13.	28.11.2012	Lenders Agent Agreement entered into between 1st Defendant company (Borrower) and applicant bank (Lenders' Agent)	Photocopy	A11	380-408
14.	28.11.2012	Supplementary Escrow Agreement entered among the 1st Defendant company (Borrower) and Applicant bank(Lenders' Agent) and as Security Trustee/as also Escrow Bank.	Photocopy	A12	409-450
15.	29.11.2012	Counter Indemnity executed by 1st Defendant company in favour of Applicant bank.	Photocopy	A13	451-453

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16.	21.02.2013	Escrow Agreement entered amongst 1st Defendant company, applicant bank (Lender's Representative/Escrow Bank) and National Highways Authority of India (NHAI for short).	Photocopy	A14	454-572
17.	19.08.2013	First amendment agreement to the Share Pledge Agreement entered amongst 2nd Defendant (Pledgor), Applicant Bank (Security Trustee) and 1st Defendant (Borrower)	Photocopy	A15	473-481
18.	03.07.2013	Certificate of Registration of Charge issued by registrar of Companies, New Delhi.	Photocopy	A16	482-487
19.	31.08.2020 to 10.09.2020	Confirmation E-mail Communications (Letter/s) dated 31.08.2020, 04.09.2020, 08.09.2020 and 10.09.2020 issued by Canara Bank, Union Bank of India, Bank of India, Central Bank of India and IIFCL to Applicant Bank regarding non- disbursement of credit facilities by them along with Certificate by way of Affidavit as per Section 65B of the Evidence Act. (Colly.)	Photocopy	A7 to A27 (Colly.)	488-500
20.	29.11.2012	Performance Bank Guarantee bearing No.0041ILG007412, for Rs.155.80 Crores favouring National Highways Authority of India (NHAI) along with Covering Letter dated 29.11.2013 (Validity up to 28.11.2013 with claim upto 28.05.2014)	Photocopy	A28 & A29	501-505
21.	19.11.2013	Extension of Performance Bank Guarantee bearing	Photocopy	A30 & A31	506-508

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		No.0041ILG007412 was renewed on 19.11.2013 with expiry date, i.e., 28.05.2014(claim date upto 28.05.2014) along with covering letter from Applicant Bank to NHAI.
22.	20.05.2014	Extension of Performance Bank Guarantee bearing No.0041ILG007412 was renewed on 20.05.2014 with expiry date, i.e., 28.05.2014(claim date upto 28.05.2015) issued by Applicant Bank to NHAI.	Photocopy	A32	509-510
23.	28.05.2014	Extension of Performance Bank Guarantee bearing No.0041ILG007412 was renewed on 28.05.2014 with expiry date, i.e., 28.05.2015(claim date upto 28.11.2015) issued by Applicant Bank to NHAI.	Photocopy	A33	511
24.	27.05.2015	Extension of Performance Bank Guarantee bearing No.0041ILG007412 was renewed on 27.05.2015 with expiry date, i.e., 28.05.2016(claim date upto 28.11.2016) issued by Applicant Bank to NHAI.	Photocopy	A34	512
25.	27.05.2016	Extension of Performance Bank Guarantee bearing No.0041ILG007412 was renewed on 27.05.2016 with expiry date, i.e., 28.05.2017(claim date upto 28.11.2017) issued by Applicant Bank to NHAI.	Photocopy	A35	513

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26.	30.06.2017	Extension of Performance Bank Guarantee bearing No.0041ILG007412 was renewed on 30.06.2017 with expiry date, i.e., 28.05.2018(claim date upto 28.11.2019) issued by Applicant Bank to NHAI.	Photocopy	A36	514
27.	28.05.2018	Extension of Performance Bank Guarantee bearing No.0041ILG007412 was renewed on 28.05.2018 with expiry date, i.e., 28.11.2018(claim date upto 28.05.2019) issued by Applicant Bank to NHAI.	Photocopy	A37	515-516
28.	22.05.2019	Extension of Performance Bank Guarantee bearing No.0041ILG007412 was renewed on 22.05.2019 with expiry date, i.e., 28.08.2019(claim date upto 28.08.2019) issued by Applicant Bank to NHAI.	Photocopy	A38	517-518
29.	27.08.2019	Extension of Performance Bank Guarantee bearing No.0041ILG007412 was renewed on 27.08.2019 with expiry date, i.e., 28.11.2019(claim date upto 28.11.2019) issued by Applicant Bank to NHAI.	Photocopy	A39	519-521
30.	27.11.2019	Extension of Performance Bank Guarantee bearing No.0041ILG007412 was renewed on 27.11.2019 with expiry date, i.e., 28.12.2019(claim date	Photocopy	A40	522-524

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		upto28.12.2019) issued by Applicant Bank to NHAI.
31.	24.12.2019	Letter from National Highways Authority of India (NHAI- Beneficiary) to the Applicant Bank invoking Bank Guarantee of Rs. 155.80 Crores.	Photocopy	A41	525-526
32.	12.03.2020	Letter from Applicant Bank to the defendants requesting them to repay/adjust the amount of due on account of invocation of the said Bank Guarantee.	Photocopy	A42	527-528
33.	21.08.2020	Recall Notice from Applicant Bank to the 1st Defendant Company).	Photocopy	A43	529
34.	21.08.2020	Recall Notice from Applicant Bank to the 2nd Defendant Company invoking corporate guarantee and demanding the repayment of the BG amount due	Photocopy	A44	530
35.		Certified Statement of Account relating to the Bank Guarantee Facility Account bearing No.0041002100084066 of the 1st Defendant Company along with Memoranda Dues.	Photocopy	A45	531-544

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Sd/(A.S.JAYACHANDRA)

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PRESIDING OFFICER DRT-I, CHENNAI

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SCHEDULE OF PROPERTY

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LIST OF SECURED ASSETS

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List of Properties Hypothecated by M/s ESSEL WALAJAHPET - POONAMALLEE TOLL ROAD PRIVATE LIMITED
1 All rights, title, interest and benefit in all and singular, the Borrower’s movable plant and machinery, whether affixed to the earth or not and in particular including, without limitation, asphalt drum mix plant, wet mix plant, bitumen sprayer, equipment for quarrying of materials, trucks, dumpers, cranes, trailers, equipments for pre-stressed concrete casting, removal and manoeuvring, crushers, batching plants, screening plants, hauling units, loaders, excavators, earth-moving equipment, electrical systems, hardware, computer software, wiring, electronics spares, machinery spares, tools, meters, motor vehicles, accessories or in cases or which are lying or are stored in or to be stored in or to be brought into or upon the Project Site or any of the premises, warehouses, stockyards and godowns of the Borrower or any of the Borrower's agents, affiliates, associates or representatives or at various work sites or at any place or places wherever else situated or wherever else the same may be, whether now belonging to or that may at any time during the continuance of this Deed belong to the Borrower and/or that may at present or hereafter be held by any party anywhere to the order and disposition of the Borrower or in the course of transit or delivery, and all replacements thereof and additions thereof whether by way of substitution, replacement, conversion, nationalization or otherwise howsoever together with all benefits, rights and incidentals attached thereto which are now or shall at anytime hereafter be owned by the Borrower AND ALL estate, right, title, interest, property, claims and demands whatsoever of the Borrower unto and upon the same which description shall include all properties of the above description whether presently in existence, or acquired hereafter (collectively, the “First Hypothecated Property”) TO HAVE AND HOLD THE SAME absolutely UPON TRUST subject to the powers and provisions contained in the Financing Documents;
2 All the intangible assets including but not limited to intellectual property rights,

List of Properties Hypothecated by M/s ESSEL
WALAJAHPET - POONAMALLEE TOLL ROAD PRIVATE
LIMITED

1
All rights, title, interest and benefit in all and singular, the Borrower’s movable
plant and machinery, whether affixed to the earth or not and in particular
including, without limitation, asphalt drum mix plant, wet mix plant, bitumen
sprayer, equipment for quarrying of materials, trucks, dumpers, cranes, trailers,
equipments for pre-stressed concrete casting, removal and manoeuvring,
crushers, batching plants, screening plants, hauling units, loaders, excavators,
earth-moving equipment, electrical systems, hardware, computer software,
wiring, electronics spares, machinery spares, tools, meters, motor vehicles,
accessories or in cases or which are lying or are stored in or to be stored in or to
be brought into or upon the Project Site or any of the premises, warehouses,
stockyards and godowns of the Borrower or any of the Borrower's agents,
affiliates, associates or representatives or at various work sites or at any place or
places wherever else situated or wherever else the same may be, whether now
belonging to or that may at any time during the continuance of this Deed belong
to the Borrower and/or that may at present or hereafter be held by any party
anywhere to the order and disposition of the Borrower or in the course of transit
or delivery, and all replacements thereof and additions thereof whether by way
of substitution, replacement, conversion, nationalization or otherwise howsoever
together with all benefits, rights and incidentals attached thereto which are now
or shall at anytime hereafter be owned by the Borrower AND ALL estate, right,
title, interest, property, claims and demands whatsoever of the Borrower unto
and upon the same which description shall include all properties of the above
description whether presently in existence, or acquired hereafter (collectively,
the “First Hypothecated Property”) TO HAVE AND HOLD THE SAME absolutely
UPON TRUST subject to the powers and provisions contained in the Financing
Documents;

2
All the intangible assets including but not limited to intellectual property rights,

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including all patents, patent applications, trademarks, permits, service marks, trade names, trade secrets, proprietary information and knowledge, technology, computer programs, databases, copyrights, licenses, franchises and formulas, or rights with respect thereto, all goodwill of the Borrower, undertakings and uncalled capital, both present and future, whether now belonging to or that may at any time during the continuance of this Deed belong to the Borrower and/or that may at present or hereafter be held by any party anywhere to the order and disposition of the Borrower or in the course of transit or delivery, and all replacements thereof and additions thereof whether by way of substitution, replacement, conversion, nationalization or otherwise howsoever together with all benefits, rights and incidentals attached thereto which are now or shall at anytime hereafter be owned by the Borrower AND ALL estate, right, title, interest, property, claims and demands whatsoever of the Borrower unto and upon the same which description shall include all properties of the above description whether presently in existence, or acquired hereafter (collectively, the “Second Hypothecated Property”) TO HAVE AND HOLD THE SAME absolutely UPON TRUST subject to the powers and provisions contained in the other Financing Documents, provided that any realization/proceeds/revenue from any of the above mentioned intangible assets (other than uncalled capital of the Borrower) shall be credited to the EWP Escrow Account and follow the water fall of priorities as per Clause 4 of the Escrow Agreement and Article 31 of the Concession Agreement;

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Provided further that, any charge on the uncalled capital i.e., the amount called for making the Shares fully paid up against the balance uncalled capital shall be subject to the provisions of Clause 5.3 and 7.1 (k) and Article 31 of the Concession Agreement; and the proceeds realized out of enforcement of charge on uncalled capital shall be credited to the EWP Escrow Account and follow the water fall of priorities as per Clause 4 of the Escrow Agreement;

¶100

3.^{All rights, title, interest, benefit, claims and demands whatsoever of the Borrower}

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in, to and under the Project Documents, limited to and arise to extent provided under the Substitution Agreement and to the extent assignable under Applicable Law, (the “Third Hypothecated Properties”) and the Third Hypothecated Properties shall also include, without limitation, (a) all rights, title, interest, benefit, claims and demandswhatsoever of the Borrower to commence and conduct in the name of the Borrower any proceedings in respect of or in relation to Third Hypothecated Properties and (b) rights and benefits to all amounts owing to, or received by, the Borrower and pertaining to Third Hypothecated Properties and all other claims of the Borrower under or in any proceedings against all or any such Persons and together with the right to further assignany of the Third Hypothecated Properties which description shall further include all properties of the above description whether presently in existence or acquired hereafter, and (c) all the rights, title, interest, benefits, claims and demands whatsoever of the Borrower in the Project Documents, the Clearances (to the extent the same are assignable and as permissible by the NHAI) pertaining to the Project, InsuranceContracts, Insurance Proceeds, Performance Security, letter of credit, guarantees, including contractor guarantees and Liquidated Damages (including any contractual damages), consent agreements, side letters and performance bond provided by any party in relation to the Third Hypothecated Properties TO HAVE AND TO HOLD all and singular the Third Hypothecated Properties unto and to the use of the SecurityTrustee for the benefit of the Senior Lenders absolutely UPON TRUST and subject to the powers and provisions contained in the Financing Documents; Further provided that, the Escrow Bank are to be appointed as the loss payee and all the Insurance Proceeds realized by the Security Trustee shall be deposited into the EWP Escrow Account designated for the Project and is required to be dealt with in accordance with the waterfall mechanism (i.e. priorities for the withdrawal of payments) as provided under the Concession Agreement and the Escrow Agreement within the timelines permitted under the Financing Documents and shall be held and retained by the Security Trustee and/or the Lenders’ Agent in its custody for the mutual benefit of the Secured Parties.

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¶104

4.^{All rights, title, interest, benefit, claims and demands whatsoever of the Borrower} in, to, under and in respect of the EWP Escrow Accounts, any Sub-Accounts thereof, including the EWP Debt Service Reserve Sub-Account, EWP Major Maintenance Reserve Sub-Account and/or any replacement of any of the EWP Escrow Accounts or any Sub-Accounts thereof, together with Permitted Investments (as defined in the Escrow Agreement and the Supplementary Escrow Agreement) including all operating cash flows in the EWP Escrow Accounts and all other assets and securities whichrepresent all amounts on such accounts and all the moneys, securities, instruments, investments, and other properties deposited in, credited to or required to be deposited in or credited to or lying to the credit of such accounts or liable to be credited to such accounts, (all these accounts are collectively referred to as the “Charged Accounts”) and all the moneys lying to the credit of such Charged Accounts or liable to be credited to such Charged Accounts, which description shall include all properties of the above description whether presently in existence or acquired hereafter (collectively, the “Fourth Hypothecated Property”) TO HAVE AND HOLD THE SAME absolutely UPON TRUST subject to the powers and provisions contained in the Financing Documents; provided that the charge on the EWP Escrow Accounts mentioned in this subclause (iv) and are to be credited to the Escrow Agreement and shall always be subject only to the extent permitted as per the waterfall of priorities and procedures prescribed under and pursuant to the Clause 4 of the Escrow Agreement and the Supplementary Escrow Agreement and Article 31 of the Concession Agreement;

¶105

5.^{All amounts owing to or received by or receivable by, in each case from time to} time, the Borrower, whether now, or at any time during the continuance of this Deed, whether in relation to the Project or otherwise, and all rights, title, interest, benefits, claims and demands whatsoever of the Borrower in, to or in respect of all amounts owing to the Borrower, and/or received by or receivable by, the Borrower, whether now, or at any time during the continuance of this Deed. Provided that the amounts and/or monies and/or other realizations as mentioned above shall first be deposited into the EWP Escrow Account and the

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charge on the same shall be only to the extent and in order of priorities as permitted under and pursuant to Clause 4 of the Escrow Agreement and Article 31 of the Concession Agreement (collectively, the “Fifth Hypothecated Property”) TO HAVE AND HOLD THE SAME absolutely UPON TRUST subject to the powers and provisions contained in the Financing Documents.

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Sd/(A.S.JAYACHANDRA) PRESIDING OFFICER DRT-I, CHENNAI

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Punjab National Bank v. M/S Essel Walajahpent Poonamallee Toll Roads Pvt. Ltd.

Case brief

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Punjab National Bank v. M/S Essel Walajahpent Poonamallee Toll Roads Pvt. Ltd.

Case brief

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What did the court decide?

What the court decided

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