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TMI Blog2014 (4) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Oil and Natural Gas (supra) wherein this Court had directed that the ONGC is at liberty to take immediate steps to recover the charges due from the respondents in the light of the judgment. This Court did not direct that in view of the undertaking dated 27th May, 1987 the respondents have created enforceable charge in favour of ONGC. Furthermore, it is a matter of record that even the ONGC did not consider itself to be a secured creditor. At the time when the Ambica Mills Co. Ltd. came under the jurisdiction of the Official Liquidator, none of the two options adverted to earlier was exercised by ONGC. The plea of being a secured creditor is clearly an afterthought. Therefore, in our opinion, the judgments rendered by the learned Single Judge and the Division Bench of the Gujarat High Court do not call for any interference - Decided against appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... th April, 1987, this Court passed an interim order directing that the members of the Association including the Respondent shall be supplied gas at the rate of Rs.1000/- per 1000 cubic metres subject to an undertaking that the respondent shall not charge, encumber or alienate except with the leave of this Court any of the immovable assets. 8. Pursuant to the order dated 15th April, 1987, an undertaking was given by Ambica Mills Co. Ltd. thereby making available their immovable assets for discharge of its respective liability on 27th May, 1987. 9. Appellant filed Company Petition No. 66 of 1983 seeking winding up of Respondent No. 1- Ambica Mills Co. Ltd. 10. C.A. No. 8530-8540 of 1983 was finally decided by this Court and the judgment was delivered in the same matter on 4th May, 1990 (reported in 1990 Suppl. SCC 397). This Court, as regards the price fixation, had set aside the direction given by the High Court in Para 36 of the judgment dated 30th July, 1983. It was observed that the ONGC would be at liberty to take immediate steps to recover the charges due from the respondents therein, in the light of this judgment. 11. Soon after the aforesaid judgment, ONGC filed an applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquidation. This recommendation of the BIFR came up before the Gujarat High Court along with other winding up on 17th October, 1997, when the High Court appointed a provisional liquidator. 12. Soon thereafter, it appears that the Company Application No.445 of 2000 in official liquidator report No. 44 of 1999 in Company Petition No.121 of 1995 was filed in the Gujarat High Court seeking directions for payment of the amounts due to ONGC by the Ambica Mills (company in liquidation). On 17th January, 1997, the High Court ordered winding up of M/s. Ambica Mills Co. Ltd. and the official liquidator was appointed as the liquidator of the company. Thereafter the official liquidator filed an application before this Court in respect of the disposal of the properties of the company in liquidation and disbursement of the amounts realised. This Court by order dated 17th October, 1997 directed as follows :- "That out of the assets of the company under liquidation, the dues of ONGC Limited are required to be paid off first and the question of making any payment to any other creditor can realise only out of the surplus if any remaining after the fill dues of the ONGC Limited have been paid of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act would follow the claims of Secured Creditors and the Workmen under Sections 529 & 529A of the Act. In case the claim of ONGC is not proved to be preferential under Section 530 of the Act they would therefore fall for consideration along with all other claims of other creditors as ONGC, on its own saying, is a decree holder. 2.16B In view of what is stated hereinbefore this application cannot be granted at this stage, i.e. before claims of Secured Creditors and workmen are processed under Sections 529 and 529A of the Act. Despite categorical statement at the Bar, under instructions, that ONGC did not want to lodge any claim before the Official Liquidator, it will be open to ONGC to lodge its claim in accordance with law and seek its satisfaction when claims of other Creditors of the Company in liquidation are taken up for consideration for distribution of the funds which may be available at that time. The application is accordingly rejected. Notice is discharged." 16. Aggrieved by the aforesaid directions, ONGC filed O.J. Appeal No.51 of 2004. On 18th October, 2004, the Division Bench stayed the judgment of the learned Single Judge subject to disbursement of the workers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant a secured creditor of Ambica Mills Co. Ltd. It is pointed out by the learned counsel that even in the judgment dated 4th May, 1990 of this Court in Oil and Natural Gas Commission & Anr. Vs. Association of Natural Gas Consuming Industries of Gujarat & Ors. reported at 1990 (Supp) SCC 397 did not hold that the order dated 15th April, 1987 or the undertaking dated 27th May, 1987 have conferred upon the appellant status of a secured creditor. This Court only directed that the ONGC will be at liberty to take immediate steps to recover the dues from the respondent in the light of the judgment. Similarly no charge was created by this Court while passing the order dated 6th April, 1993. Explaining the order dated 17th October, 1987, it is submitted by the learned counsel for the respondent that the order only directed that in case of sale of the assets of the company in liquidation, the dues of the ONGC shall be paid off first. But this order was subsequently reviewed on 12th April, 2004 directing that the order dated 17th October, 1997 would have to be read subject to the provisions of Sections 529 and 529A of the Companies Act. Therefore, the secured creditors had two options, eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following the expiry of the said period of thirty days on payment of such additional fee not exceeding ten times the amount of fee specified in Schedule X as the Registrar may determine, if the company satisfies the Registrar that it had sufficient cause for not filing the particulars and instrument or copy within that period. (2) Nothing in sub-section (1) shall prejudice any contract or obligation for the repayment of the money secured by the charge. (3) When a charge becomes void under this section, the money secured thereby shall immediately become payable. (4) This section applies to the following charges: (a) a charge for the purpose of securing any issue of debentures; (b) a charge on uncalled share capital of the company; (c) a charge on any immovable property, wherever situate, or any interest therein; (d) a charge on any book debts of the company; (e) a charge, not being a pledge, on any moveable property of the company; (f) a floating charge on the undertaking or any property of the company including stock-in-trade; (g) a charge on calls made but not paid; (h) a charge on a ship or any share in a ship; (i) a charge on goodwill, on a patent or a licence under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on J.K. (Bombay) (P) Ltd. Vs. New Kaiser-I-Hind Spinning and Weaving Co. Ltd. (1969) 2 SCR 866 In the aforesaid judgment, undoubtedly it is held that "no particular form of words is necessary to create a charge and all that is necessary is that there must be a clear intention to make a property security for payment of money in praesenti." The aforesaid observations of this Court ought not to be read out of context. The judgments of this Court are not to be read as statutory instruments. The ratio of the judgment has to be culled out, keeping in view the facts and circumstances involved in a particular case. The facts in that case are noticed in paragraph 26 from wherein the aforesaid three lines have been extracted by Mr. Kuhad in support of his submission. We quote the relevant part of paragraph 26 of the aforesaid judgment which is as under: "26……. It was argued that where an agreement specifies a property out of which a debt is to be payable and is coupled with an intention to subject such property to a charge, the property becomes subject to a charge in praesenti even though a regular mortgage is to be executed at some future date. Such an intention, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge. In both these decisions the Board came to the conclusion that there was a clear intention on the part of the parties to create a charge in praesenti. The argument of the learned Attorney- General was that if an agreement indicated a property out of which a debt is to be paid and an intention to subject it to a charge in praesenti, the court must find the charge. Certain other decisions were also brought to our notice but it is not necessary to burden this judgment with them because in each case the question which the court would have to decide would be whether the agreement in question creates a charge in praesenti.: ………" 22. The aforesaid observations would indicate that the court was examining the submissions made by the learned Attorney General. The effort of the Attorney General was to persuade this Court, on the cases mentioned in the aforesaid paragraph that there was an agreement which established an intention to create a charge. A reading of the order dated 15th April, 1987 clearly shows that it firstly gives the direction to the ONGC to continue the supply of gas at the rate of Rs.1000/- for 1000 cubic meter. Such a direction would be impleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mode for payment of that money was indicated. Then there is a default clause. That default clause contained a twin option either of initiating a fresh winding up proceeding or of executing the balance as a decree of court. It is only in the event of an option being exercised in favour of the last contingency, viz., in the event of the execution as a decree of court, that the security which was furnished pursuant to the order of R.M. Dutta J. would be a security for the applicant company for the satisfaction of the decree and would be the security for the decree until the decretal dues were paid. Thus, the benefit of the security in so far as the applicant company is concerned is entirely the creature of the order of Roy Chowdhury J. dated August 1, 1978. This can, in my view, by no stretch of imagination, be called a charge created "by a company" within the meaning of Section 125 of the Companies Act, 1956, requiring registration under the above section. It would follow, therefore, from what I have said that the question as to whether the security as originally furnished was registered under Section125 of the Companies Act, 1956, or not, would be totally irrelevant for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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