9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (3) TMI 459 - HC - Companies LawWinding up petition - Rectification by Central Government of register of charges - Held that - It is observed by the Court that, the transaction, based upon which the Company Petition was presented, unless screened and declared, the order in respect of winding up of the Company does not deserve to be passed. The foundation of exercise of the discretion shall be, neglect to pay due and agreed amount . It is observed that since the Petition raises disputed questions and the writ petitioner i.e. Respondent No.1 is not remedy-less to recover the amount, and as such, the Court refused to entertain the Company Petition. The instant Petition thus, does not deserve to be entertained, since the Respondent Company Law Board/the Regional Director, Western Region was within its rights in registering charge of Respondent No. 1, in pursuance to the Application tendered in that regard, in exercise of Powers under Section 141 of the Companies Act, 1956. The challenge raised by the Petitioner in the instant Petition does not come within the purview of Section 141 of the Act 1956, and it would be open for the Petitioner to raise the challenge relating to the documents, its enforceability, execution or the entitlement of the concerned Respondent to recover the amount from the Petitioner or defence in respect of bar of limitation, before an appropriate forum available in law.
Issues Involved:
1. Registration and assignment of debt. 2. Validity of the Sale and Purchase Agreement. 3. Jurisdiction and powers of the Company Law Board under Section 141 of the Companies Act, 1956. 4. Bar of limitation for debt recovery. 5. Availability of alternate and efficacious remedies. Issue-wise Detailed Analysis: 1. Registration and Assignment of Debt: The Petitioner company, engaged in polyester chips manufacturing, faced industrial sickness and registered with the Board of Investment and Financial Reconstruction (BIFR). The company borrowed from Respondent No.4 (AFIC) under External Commercial Borrowings (ECB) regulations. Due to repayment failure, the loan agreement was terminated, and the debt was assigned to Respondent No.1 (Deutsche Bank) through a Sale and Purchase Agreement dated 30 March 2007. The debt was registered with the Registrar of Companies (Respondent No.2) on 29 July 2015. The Petitioner challenged this registration, arguing that Respondent No.1 had no entitlement to register the debt and that the assignment was invalid without the Reserve Bank of India's (RBI) consent. 2. Validity of the Sale and Purchase Agreement: The Petitioner contended that the agreement executed by ACTIS AFIC Credit Management Limited, a sister concern of AFIC, was invalid. Respondent No.1 countered that the internal arrangement through a Trust Deed dated 7 June 2005 allowed ACTIS AFIC to hold the debt, and AFIC acted as a trustee. The agreement was executed by AFIC on behalf of itself and ACTIS AFIC. The Court noted that the validity of such private agreements is beyond the Company Law Board's jurisdiction and should be adjudicated by a Civil Court. 3. Jurisdiction and Powers of the Company Law Board under Section 141 of the Companies Act, 1956: The Petitioner sought relief under Section 141, which allows rectification of omissions or misstatements in the Register of Charges. The Court clarified that the Company Law Board (CLB) does not have the authority to declare a charge null and void or to delete it from the register. The CLB can only rectify omissions or misstatements. The Petitioner's earlier application under Section 141 was dismissed for lack of jurisdiction, a decision upheld by the High Court, which remitted the matter back to the CLB for consideration on merits. 4. Bar of Limitation for Debt Recovery: The Petitioner argued that the debt recovery was barred by limitation. Respondent No.1's winding-up petition against the Petitioner was dismissed due to disputed questions of fact, but an appeal is pending. The Court noted that objections regarding the limitation and validity of the Sale and Purchase Agreement should be considered in the pending appeal. 5. Availability of Alternate and Efficacious Remedies: Respondent No.1 argued that the Petition was not maintainable due to the availability of alternate remedies under Section 10F of the Companies Act, 1956. The Court observed that the Petitioner had not availed of these remedies and that the Petition was an abuse of process to avoid liability. Conclusion: The Court dismissed the Petition, stating that the Company Law Board/Regional Director was within its rights to register the charge under Section 141 of the Companies Act, 1956. The Petitioner's challenges regarding the validity and enforceability of the documents, execution, and entitlement to recover the amount should be raised before an appropriate forum. The Petition lacked substance and was rejected.
|
