9911796707
TMI Blog1969 (4) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... k of Maharashtra Ltd., Poona; which claims to be a secured creditor, and the second respondent is the official liquidator. The Bank of Maharashtra Ltd. filed Company Application No. 143/67 praying for permission to continue to retain its possession of the properties mortgaged to it and to allow it to remain outside the winding-up proceedings and to enforce its rights as mortgagee. The Company Application No. 20/68 was filed by the official liquidator praying for an order declaring that the mortgages and hypothecations by the company of its properties in favour of the bank are invalid and not binding on the company, that the bank has no power of sale of the land and building belonging to the company in liquidation, to direct the bank to deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operties, that it has also the power of selling the said properties without the intervention of court for the purpose of recovering the moneys due to it in accordance with the provisions of the Transfer of Property Act and the Contract Act, that the bank will be accountable to the company in liquidation as a mortgagee in possession and if it exercises its power of sale without the intervention of court, it will be accountable for the moneys realised by sale in accordance with the terms of section 69 of the Transfer of Property Act. He expressed no opinion as to the exact amount due to the bank and directed the bank to deliver all articles of furniture belonging to the company now in its possession to the official liquidator. It is against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddhist or a member of any other race, sect, tribe or class, specified in this behalf by the State Government. But we are unable to see how such an inference can be drawn. Section 69(1) refers to the powers of a mortgagee or any person acting in his behalf and the property dealt with in that section is the mortgaged property and what is referred to is the mortgage money. A mortgage is defined under section 58( a ) of the Transfer of Property Act as the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directors shall not borrow moneys after the commencement of this Act, where the moneys to be borrowed, together with the moneys already borrowed by the company, will exceed the aggregate of the paid-up capital of the company and its free reserves without the consent of the company. Section 293(1)( a ) of the Companies Act will apply when the whole or substantially the whole of the undertaking of the company is sold, leased or otherwise disposed of. Webster's New Standard Dictionary describes the word "undertaking" as meaning a business or project engaged in. The word "undertaking" has been defied as "any business or any work or project which one engages in or attempts as an enterprise analogous to business or trade", according to the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act, 1956, and that the said offending clauses are invalid and unenforceable. The said clauses in the document are severable. Hence, it cannot be said that they invalidate the transactions themselves. We are in agreement with the learned company judge on this point also, and reject the contention of the appellant. For the reason stated above both the appeals are dismissed. In view of the opinion expressed by us on the abovesaid points, Sri G. S. Ullal, the learned counsel for the respondents did not find it necessary to urge the cross-objections in O.S.A. No. 9/68. The appellant will pay the costs of respondent No. 1. The costs shall be paid in one set out of the assets of the company. We fix the advocate's fee at Rs. 250. - - TaxTM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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