9911796707
TMI Blog2006 (7) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Companies (Court) Rules, 1959 and sections 141 and 145 of the Indian Contract Act, 1872, for an order to declare all the liabilities of the Punjab National Fertilizers and Chemicals Ltd. (in liquidation) to the Industrial Development Bank of India in C.A. No. 258 of 2005 and to the ICICI Bank Ltd. in C.A. No. 260 of 2005 stand transferred to the applicant as secured creditor. 2. The applicant is a State Government undertaking. The company in liquidation was a joint sector company promoted by the applicant. The said company in liquidation has availed financial assistance from various financial institutions and banks. The applicant has issued corporate guarantees in favour of the banks for due repayment of the advances taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the official liquidator would be now required to treat the applicant as secured creditor of the company in liquidation in place of the banks/financial institutions. 6. On the other hand, the official liquidator has taken up a stand in the reply that as per provisions of section 125 of the Act, every charge created by the company whereby any security of the company is conferred as per the charge would be void against the liquidator unless the said charge together with the instrument by which the charge is created are filed with the Registrar of Companies for registration. It is thus, the stand of the official liquidator that the instrument of charge in favour of the applicant has not been registered with the Registrar of Companies and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held to the following effect ( see 38 Comp. Cas.) : "...In this connection it is necessary to consider the provisions of section 140 of the Indian Contract Act, 1872, which states : Where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety, upon payment or performance of all that he is liable for, is invested with all the rights which the creditor had against the principal debtor . This section embodies the general rule of equity expounded by Sir Samuel Romily as counsel and accepted by the court of Chancery in Craythorne v. Swinburne [1807] 14 Ves. 160, namely : The surety will be entitled to every remedy which the creditor has against the principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India presented a winding up petition against India Electric Works Ltd. However, the said company was taken over under section 18A of the Industries (Development and Regulation) Act, 1951 and the entire claim of the bank together with accrued interest was paid by the Central Government to the said State Bank of India. A deed of assignment was executed by the State Bank of India in favour of Union of India in respect of the mortgage by and between the bank and the company. It was submitted that by virtue of the said assignment the Central Government has the right of subrogation under the said deed of assignment, and as such the Central Government stepped into the shoes of the State Bank of India and became a secured creditor of the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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