9911796707
TMI Blog1983 (7) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... on or about February 18, 1966, by the defendants with the plaintiffs of the title deeds of the property described in the plaint, the plaintiffs are entitled to the mortgage or charge on the said property. It has been further declared that there is due and owing to the plaintiffs on the security of the said mortgage, the sum of ₹ 20,55,541 for principal and ₹ 1,93,135.92 for interest and other amounts as stated therein; under the said decree, the date of redemption is fixed as December 3, 1980. It is further provided that in the event of the defendants committing default in payment of the said principal sum and interest and costs by the prescribed time, the Commissioner of this court for taking accounts do sell by public auction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the manner required by this Act within thirty days after the date of its creation : (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 movable 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 ship or any share in a ship; (i) a charge on goodwill, on a patent or a licence under a patent, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flow from the decree itself. Hence, a decree enforcing a mortgage or a charge is distinct from the mortgage or charge which it enforces. Under sub-s. (4) of s. 125 of the Companies Act, various unregistered charges which became void under that section are enumerated. These include a charge on any immovable property wherever situate or any interest therein . These words do not cover a mortgage decree. This becomes even more apparent if these words are read with the main provision in s. 125(1) which deals with only a charge created by a company A decree on a mortgage, especially one obtained prior to winding up of the company, is, therefore, not governed by s. 125. 5. As a result of the decree in the present case, the rights under the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot hit by s. 125 of the Companies Act. 6. Mr. Zaiwalla, learned counsel for applicants, drew my attention to the provisions of s. 60 of the Transfer of Property Act, 1882, under which the right of a mortgagor to redeem the mortgaged property continues until such right is extinguished either by the act of the parties or by a decree of a court. He drew my attention to a decision of the Full Bench of this court in Rajaram Vithal v. Ramchandra Pandu AIR 1948 Bom 226. In that case, the mortgagor had filed a suit for redemption. The suit abated on the death of the mortgagor; thereafter, the heirs of the mortgagor filed a suit for redemption. The court held that a second suit for redemption was not barred. The court, in the course of its judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is open to the mortgagor to make payment in court of all the amounts due from him under sub-r. (1) of r. 4 on or before the day fixed or at any time before the confirmation of sale made in pursuance of a final decree passed under sub-r. (3) of r. 5. 8. It is difficult to see how these judgments or the provisions of O. 34, r. 5, can be of any assistance to the applicants in the present case. It has been submitted by Mr. Zaiwalla on the strength of these judgments that although a decree may have been passed on the basis of the mortgage, the mortgagor's right to redeem the mortgage continues. In the present case, since the time of redemption under the decree covers a period subsequent to the order of winding up, the mortgage continues ..... X X X X Extracts X X X X X X X X Extracts X X X X
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