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TMI Blog2018 (3) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Writ Petition No. 280 of 2016 - - - Dated:- 5-3-2018 - R.M. BORDE AND R.G. KETKAR, JJ. Mr. Arun Khosla a/w Mr. Prakash Panjabi i/by Prakash Panjabi Co. for the Petitioner. Dr. Birendra Saraf a/w Mr. Nimay Dave, Mr. Rashid Boatwala, Mr. Vijayendra Purohit i/by M/s. Manilal Kher Ambalal Co. for Respondent No.1. Mr. Dhanesh R. Shah a/w Mr. H. V. Mehta for Respondent Nos. 2 and 3. JUDGMENT (PER R.M. BORDE, J.): Heard the respective counsel appearing for the parties. 2. The Petitioner company is engaged in polyester chips manufacturing and its unit is located at Kurkumbh in Pune District. The company was set up in 1993 however, due to the industrial sickness, it was required to be registered with the Board of Investment and Financial Reconstruction (BIFR), which proceedings concluded with the execution of an amended Loan Agreement dated 24 November 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No.1 and in turn, Respondent No.1 does not have any entitlement to maintain an application seeking registration of debt under Section 141 of the Companies Act, 1956. The Petitioner also contends that the Sale and Purchase Agreement dated 30 March 2007, assigning the debt in favour of Respondent No.1, being without consent of Reserve Bank of India (RBI), is not legal. It is also contended that the Petitioner-company shall be deemed to have repaid the loan and Respondent No.4 is not entitled to recover anything from the Petitioner-company, in view of bar of limitation. 5. Respondent No.1 has presented an affidavit in reply, objecting the contentions and has prayed for dismissal of the Petition. It is the contention of Respondent No.1 that the Petition is not maintainable in law and liable to be dismissed in view of availability of alternate and efficacious remedy for maintaining a challenge to the order dated 29 July 2015 under Section 10F of the Companies Act, 1956, which remedy, the Petitioner has admittedly, not availed of. It is also contended that the Petition is purely an abuse of process of law. Respondent No.1 had presented various proceedings before the various co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to the Petitioner Company and; (iii) Declaration that the registration of charge in favour of Deutsche Bank as against the Petitioner is nonest, null and void and void-ab-initio. 7. In order to consider the controversy, it is desirable to quote the provisions of Section 141 of the Companies Act, 1956, which reads as under: 141. Rectification by Central Government of register of charges: (1) The Central Government, on being satisfied: (a) that the omission to file with the Registrar the particulars of any charge created by a company or of any charge subject to which any property has been acquired by the company or of any modification of any such charge or of any issue of debentures of a series, or that the omission to register any charge within the time required by this Part or that the omission to give intimation to the Registrar of the payment or satisfaction of a charge, within the time required by this Part, or that the omission or misstatement of any particular with respect to any such charge, modification or issue of debentures of a series or with respect to any memorandum of satisfaction or other entry made in pursuance of section 138 or 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition stands dismissed. 9. Being aggrieved by the order, the Petitioner approached the Hon'ble High Court of Bombay and filed Writ Petition No. 2037 of 2013. The Writ Petition came to be allowed and matter came to be remitted back to the Regional Director/Company Law Board with a direction to examine the case of the Petitioner and take decision on merits and in accordance with law. The Hon'ble High Court also observed that Section 141 of the Companies Act, 1956, clearly indicates that the Company Law Board is entitled to rectify any omission or misstatement made to the Registrar regarding particulars of any charge created by the Company and Company Law Board, therefore, can entertain the application for rectification which can be preferred either by company or any person interested as envisaged in sub-clause (b) of Section 141 (1). In the present case, the Petitioner who claims to be the person interested has filed the application on the ground that the change recorded in the Register of Charges has been done on account of omission or misstatement of facts with respect to such charge. Though it is well settled that under section 141, the Company Law Board is not to go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 12. So far as challenge raised to the legality and enforceability of document is concerned, the same does not fall within the purview of the Company Law Board and the liberty of the Petitioner to question the validity of the document has been kept open in the order dated 29 July 2015. The Petitioner has also raised certain objections in respect of the proceedings initiated by Respondent No.1Deutsche Bank. In fact, those proceedings relate to the winding up of the Company. The Company, in its capacity as the lender under the Sale and Purchase Agreement dated 30 march 2007, in its own right has presented the Company Petition. The Company Petition presented by Respondent No.1 was not entertained for the reason that it involves various questions, which need to be adjudicated before accepting the averments of the present Petitioner Pearl Engineering Polymers Ltd. 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 ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the facts and circumstances of each case and explanation offered before it by a company and then to form an opinion on the question whether the company has made out that it could not file intimation within the stipulated time due to inadvertence or some other sufficient cause . We do not think the provisions of Section 141 arm the Company Law Board to go into the merits of the charge or satisfaction of the charge in part or in full . Thus, it is amply clear that this Board has no powers to adjudicate or look into the validity or otherwise of a charge while considering a petition under Section 141 of the Act. Since the company has not raised any serious objection on condoning the delay nor has contested that the bank has not shown any sufficient cause for condoning the delay, the prayer of the petitioner for condonation of delay deserves to be granted. The petitioner has sought for a direction to the RoC to accept and take e-Form No. 8 on record without the e-Form No. 8 being signed on behalf of the company. As I have observed earlier, the powers of this Board under Section 141 is limited only to the extent of condoning the delay or allow rectification. The powers do not e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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