9911796707
TMI Blog1986 (6) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... Maharashtra (SICOM) advanced a loan of Rs. 45,20,000 to a company called Steel India Pvt. Ltd. upon the security of plant and machinery belonging to it. Mortgage deeds were executed by the company in favour of SICOM on April 21, 1973, and May 23, 1974. On July 30, 1975, the Maharashtra State Financial Corporation (MSFC) sanctioned a loan of Rs. 8 30 lakhs to the company and advanced a sum of Rs. 4,52,800. On April 23, 1976, a mortgage deed (now called "the mortgage deed") was executed by the company in favour of MSFC in respect of the same property as was mortgaged to SICOM (now called "the secured property"). On May 18, 1976, the company filed with the Registrar of Companies, Bombay, particulars of the charge created by the mortgage deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon SICOM to pay to him the sum of Rs. 14,22,347 64, being the difference between the sale proceeds of Rs. 91 51 lakhs and its dues of Rs. 77,28,652 36 within two weeks. On July 19, 1985, and July 22, 1985, replies were addressed to the official liquidator on behalf of SICOM claiming that his contention was not correct. On August 5, 1985, the MSFC issued a judge's summons to which the official liquidator and SICOM were made parties. Prayer ( a ) thereof sought leave under section 446 and/or 537 of the Companies Act to file it. Prayer ( b ) sought a declaration that MSFC was a secured creditor of the company in respect of the secured property and, hence, entitled to remain outside the winding-up. Prayer ( c ) sought a declaration that MS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow before us are filed by MSFC and SICOM, respectively: MSFC's appeal impugns the order dated October 17, 1985. SICOM's appeal impugns the orders of October 17 and October 25, 1985. Counsel for MSFC and SICOM have drawn our attention to section 125 of the Companies Act. Sub-section (1) of section 125 needs to be extracted. "125(1). Subject to the provisions of this Part, every charge created on or after the 1st day of April, 1914, by a company and being a charge to which this section applies shall, so far as any security on the company's property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the charge, together with the instrument, if any, by wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter April 23, 1976. This appears also to be acknowledged in para 9 of the affidavit of the official liquidator dated September 13,1985, in reply to the judges summons. Mr. Parekh relied upon section 132 of the Companies Act in support of his submission that a certificate of registration was imperative for the charge to be valid. Section 132 states that the Registrar shall give a certificate under his hand of the registration of any charge that is registered stating the amounts thereby secured and the certificate shall be conclusive evidence that the requirements had been complied with. This provision in no way assists Mr. Parekh. All that it says is that a certificate of registration shall be issued and shall be conclusive evidence of reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been sold by SICOM in pursuance of the power of sale that it had; and, accordingly, the sale was void having regard to section 537 of the Companies Act. We find it difficult to read the averment in the affidavit in the manner Mr. Parekh wishes us to do. In any event, we have verified that the sale was "in exercise of the powers of sale vested" in SICOM. Section 537 states that where a company is being wound up by or subject to the supervision of the court, any sale held without leave of the court of any of the properties or effects of the company after commencement of the winding-up shall be void. A similar provision in the 1913 Act was interpreted by the Supreme Court in M. K. Ranganathan v. Government of Madras [1955] 25 Comp. Cas. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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