SANJAY KISHAN KAUL, J. - (1.) THE inability of three different financial institutions to settle between themselves the ratio of appropriation of the amount realized from the sale of secured assets of a loanee has given rise to the present writ petition.
(2.) M /s Lifeline Injects Limited entered into a Foreign Currency Loan (in short FCL) agreement with the IFCI Limited, the petitioner herein. In order to secure the loan, M/s Lifeline Injects Limited executed a deed of hypothecation on the same date qua the movable assets and created mortgage by deposit of title deeds on 28.04.1989 in favour of the petitioner. The disbursement of the loan was made on various dates amounting to US $ 5,10,924.50 and based on the applicable exchange rates on the date of disbursement the amount is stated to be crystallized at Rs. 74.53 lacs. In so far as repayment of the loan by M/s Lifeline Injects Limited is concerned, clause 2.9 of the FCL agreement qua computation of the borrower's liability reads as under: - "2.9. Computation of Borrower's Liability in Rupee Currency: Notwithstanding anything contained in this agreement any amount payable/repayable by the borrower to the lenders shall in the first instance be computed in dollars and the rupee equivalent thereof will be calculated in accordance with the rate of exchange prevailing at the time of payment. For the purpose of this section, the following conditions shall apply: - (a) X X X X X X X X X X (b) The rupee equivalent of the amounts, if any, remaining unpaid by the borrower on the due dates shall be determined on the basis of the exchange rate prevailing on the date of remittance by the lenders to the foreign lenders.
(3.) SUBSEQUENTLY , respondents No. 1 and 2 also provided financial assistance to M/s Lifeline Injects Limited which resulted in an inter se agreement between the three parties to the present petition on 10.05.1989.This agreement provided that the mortgage, hypothecation and charge created there under shall all inter se rank pari -passu in point of security without any preference or priority of one over the other for all intents and purposes. The relevant clause in this behalf is recital clause (viii) which reads as under: - "(viii) It has been agreed by and between the parties hereto that the securities created under the HFC mortgage, HSIDC charge and the IFCI charge shall all inter - se rank pari -passu for all purposes and to all intents and that all moneys resulting from the enforcement and realization of the joint securities as hereinafter defined shall be distributed and shared among HFC, HSIDC and IFCI ranking pari -passu without any preference or priority of one over the other or others and for all purposes and to all intents and that for such purpose and certain other ancillary purposes an agreement being these presents should be entered into by and between the parties hereto in the manner hereinafter appearing." ;