Pari Passu Charge Agreement
Tripartite Agreement
This tripartite agreement is
made this 5th day of June 1999
between
Castings Ltd., a company registered under the Companies Act 1956 having
its Registered Office at 1 Netaji Subhash Road, Calcutta 700 001
(hereinafter referred to as the
mortgagor,
which term shall unless
repugnant to the context or meaning include its successors and assigns) of
the first part, X Bank Ltd., a Banking Company within the meaning of the
Companies Act 1956, having its Head Office and carrying on business at
14 Netaji Subhash Road, Calcutta 700 001 (hereinafter called the
bank
which expression shall unless repugnant to the subject or context include
its successors and assigns) of the second part and ELH Financial
Corporation Ltd. a Company within the meaning of the Companies Act
1956 and having its Head Office and carrying on business at 9 Netaji
Subhash Road, Calcutta 700 001 (hereinafter referred to as the
corporation,
which term shall unless repugnant to the subject or context
shall include its successors and assigns) of the third part.
Whereas
the
mortgagor
is seized and possessed of land measuring
about 10 acres, situated at 1 Netaji Subhash Road, Calcutta 700 001 with
structures, factory sheds, plant, machinery, furniture and fixtures and
carrying on business as manufacturer of and dealer in all kinds of castings
of machine parts.
And whereas
by a Deed of Mortgage dated 5th January 1998 made
between
the
mortgagor
and the
bank,
the
mortgagor
borrowed Rs. 10 lacs
from the
bank
and the
mortgagor
in consideration thereof conveyed
assigned, granted and assured unto the
bank
all those pieces and parcels of land, being the Premises No. 1 Netaji Subhash Road, Calcutta 700 001 and
described in the First Schedule hereunder with all buildings, structures
and sheds created or constructed or to be created or constructed on the said
land and all and singular plant, machinery, motors, electric and other
installations, implements, equipments, spares, accessories, stores and other
block assets but excluding raw materials, semifinished and finished products
of the
mortgagor
then being or which shall at any time hereafter during
the continuance of the said security be brought in or affixed, installed or
erected upon the said lands and buildings or kept anywhere else by the
mortgagor
or which may belong to the
mortgagor
or are capable of being
transferred by the
mortgagor
(all of which assets are collectively referred
to as the
plants and machinery.
To
have and to hold
the said land,
plants and machinery
unto the
bank
absolutely but subject to the proviso for redemption of securities therein
contained.
And whereas
the
mortgagor
being in further need of money has requested
the Corporation to lend and advance to the
mortgagor
a sum of Rs. 10 lakhs which the
corporation
has agreed to do on certain terms and conditions and
on the
mortgagor
creating,
inter alia,
a mortgage by deposit of the Title Deeds
of all lands, buildings and fixed machinery and on executing an Agreement of
Hypothecation in respect of the
plant and machinery
of the
mortgagor
in
favour of the
corporation
to secure such advance.
And whereas
one of the terms and conditions of the said agreement with the Corporation is that the
mortgagor
shall create a mortgage by
deposit of Title Deeds and execute an Agreement of Hypothecation in favour
of the
corporation
and shall cause the
bank
to enter into a Tripartite
Agreement whereby the
bank
mortgage shall be modified so that the
mortgage by deposit of Title Deeds and Agreement of Hypothecation of the
plant and machinery
in favour of the
corporation
shall rank
paripassu
in
point of security and in all other respects with the Bank's mortgage and
Hypothecation.
And whereas
the
bank
has agreed to the modification of its mortgage
and Hypothecation so as to concede
paripassu,
charge on the
bank
mortgage
in favour of
corporation.
And whereas
it is now necessary to record such an arrangement among
the parties in a Tripartite Agreement.
Now
this agreement witnesseth
and it is hereby agreed and declared
by and among the parties hereto as follows:
The
bank
shall whenever required by the
corporation
make the Title
Deeds available to the
mortgagor
for the express purpose of being deposited
with the
corporation
with the intent to create in favour of the
corporation
a Mortgage by deposit of the Title Deeds within the meaning of section 58(/)
of Transfer of Property Act as security for payment of all moneys to be
advanced by
corporation
to the
mortgagor.
Notwithstanding anything to the contrary contained in the
bank
Mortgage and the Corporation Mortgage, the rights of the
bank
and
corporation
in respect of the securities to be created by the Corporation
Mortgage shall rank
part passu
for all purposes and to all intents without
preference and priority of one over the other.
During the subsistence of the securities mentioned in the immediately
preceding paragraph all insurance policies in respect of the mortgaged
premises shall be taken by the mortgagor in the name of the
mortgagor
as
Mortgagor and the
bank
and the
corporation
as mortgagees and shall be
held by the
corporation
and in case of moneys becoming due under such
insurance the amount realised from the insurance company or companies
shall be received in the first instance by the
corporation
and shall subject
to the mutual consent of the
bank
and the
corporation
be applied to the
repairs and reinstatement of the mortgaged premises so damaged or
destroyed and towards the payment of the dues of the Bank and the
Corporation on
pro rata
basis.
The
bank
or the
corporation
or any of them shall be entitiled to
bring suits or proceedings for enforcement of the securities created in their
respective favour or otherwise for realisation of the respective dues from
the
mortgagor
and in the event of the suit or proceeding by any of the
parties it shall join the other as party to such suit or proceeding.
Notwithstanding anything contained in the Bank Mortgage or the
Corporation mortgage the following provisions shall apply as between the
BANK and the CORPORATION in relation to the mortgaged premises:
If the
bank,
the
corporation
or any of them shall enforce
their respective securities created by the Bank mortgage or
the Corporation mortgage all monies realised from the
enforcement of such securities or the amount realised from the insurance company or companies as mentioned in paragraph 3
above or any compensation money for acquisition or requisi
tion of the mortgaged premises or any of them or any part
thereof or any other realisation from the securities by
enforcement or otherwise shall be applied in the manner
hereinafter appearing:
Firstly there shall be paid out of the said moneys all costs,
charges and expenses incurred by the Bank or the Corporation
or by both of them of and incidental to the enforcement of the
securities or realisation or receipt of such moneys.
In the event of the moneys available for distribution to the
bank
and the
corporation
being sufficient to pay to them
the full amount of the moneys due under the Bank mortgage
and the Corporation mortgage the same shall be applied
simultaneously in payment of the
bank
and the
corporation
of the full amount respectively due under the said securities and the surplus, if any, out of the said moneys shall be paid
to the person or persons entitled thereto.
In the event of the moneys available for distribution to
the
bank
and the
corporation
not being sufficient to pay to
them the full amount of the moneys due under the Bank
mortgage and the Corporation mortgage the same shall be
applied
paripassu
as nearly as practicable towards payment
to the
bank
and the
corporation
in proportion to the
amounts due to them under the said Bank mortgage and
the Corporation mortgage without any preference or priority
whatsoever and shall be applied towards repayment of the
dues of the
bank
and the
corporation
in proportion ratio
with the total amount then due (including interest, costs,
charges and expenses) by the
mortgagor
to the
bank
and
the Corporation respectively bears to the amount available for distribution.
All the title deeds in respect of the mortgaged premises shall remain
in the custody of the
corporation
and the
corporation
shall make the same
available to the
bank
as and when required by the
bank
at the cost of the
mortgagor.
Without the consent of the
bank
the
corporation
shall not part
with the title deeds in favour of any one including the
mortgagor
and after
all dues of the
corporation
under the Corporation Mortgage are fully
satisfied the
corporation
will make over the title deeds to the
bank
instead
of to the
mortgagor
against proper receipt provided the Bank mortgage be
then subsisting.
Prior to taking any action for the enforcement of the aforesaid securities
the
bank
and the
corporation
shall duly inform the other of the same and
each of them shall consult the other in respect of all matters pertaining to
the securities aforesaid so far as the same is practicable without affecting
its own right and each of them at all times keep the other informed of all
serious and important matters coming to its knowledge relating to the
mortgaged premises or any part or portion thereof or otherwise relating to
the MORTGAGOR.
The First Schedule above referred to
All those pieces and parcels of land,
containing an area of 10 acres,
in Mouza
, Parganas
, Thana
, sub-Registrar's
office
, J.L. No
Plot and Khatian Nos
are as given
below:
Particulars of Building existing or proposed
The Second Schedule above referred to
(Details of plant and machinery existing or proposed to be acquired)
In witness whereof
the parties have executed these presents on the
day, month and year first above-written.
Signed, sealed and delivered by
Mr.
pursuant to the Board Resolution
dated
of Castings Ltd.
in the presence of:
Executed for and on behalf of X
Bank Ltd. by its Constituted
Attorney Mr.
, at
Calcutta in the presence of:
Signed, sealed and delivered by
Mr.
pursuant to a
Board Resolution dated
of
ELH Financial Corporation Ltd.
in the presence of:
Stamp Paper No
sold to
Advocate of the
Mortgagor of 1 Old Post Office
Street, Calcutta
at the Court Building at
Calcutta.
Presented for Registration at
11.00 A.M. on
day of
1999 at his residence by Mr.
one of the executants.
Signature of Registrar of Assur
ances, Calcutta, dated
Execution is admitted by
Mr.
Managing
Director of ELH Financial Corpora
tion Ltd. of 3 Garia Road, Calcutta
Execution is admitted by
Mr
Managing Director of Castings
Ltd., Calcutta
For Castings Ltd.
Sd/-
Managing Director
For X. Bank Ltd.
Sd/-
Constituted Attorney
For ELH Financial
Corporation Ltd.
Sd/-
Managing Director
Signature of Executant
For ELH Financial Corpn. Ltd.
Sd/-
Managing Director
For Castings Ltd.
Sd/-
Managing Director
Thumb impression of the
Executants are dispensed with,
Identified by Mr sonof residing at 6 Garia Road,
Calcutta, by Religion-Hindu by
occupation-service
Signed by Mr.
of 6 Garia Road, Calcutta
Dated
Signature of
Registrar of Assurances, Calcutta
Having visited the residence and/
or offices of Mr.
and
Mr.
both ofX. Bank Ltd.,
2 Garia Road, Calcutta
I have this day examined the said
Mr.
and Mr.
who have
been identified to my satisfaction by
Mr.
son of
of
7 Garia Road, Calcutta, by religion-
Hindu, by occupation service and
the said officer of the Bank as
Constituted Attorney admitted
execution of this document.
Dated
Signature of
Registrar of Assurances