OFFICIAL LIQUIDATOR Vs. INDIAN BANK

JUDGEMENT

(1.) ALL these applications are filed by the Official Liquidator who is the Liquidator appointed in the matter of Chemmeens Exports(P)Ltd.in liquidation.They have come before us on reference by the learned Judge in company jurisdiction.In company Petition 18/1978,on 1st March 1979,the Company Court passed the winding up order.The assets have not yet been realised and the liabilities have not yet been fixed.

(2.) THE first respondent therein,Indian Bank,appears to be a secured creditor of the company.First respondent moved the Company Court for leave to file suit against the Company under liquidation to recover the amount due to them from the company mentioning also the fact that the company had deposited title deeds in regard to its immov­able property and other assets.Notice was given to the Official Liquidator.On the Official Liquidator stating that he had no objection to leave being granted,the Com­pany Court granted leave.Accordingly,first respondent filed suit O.S.169/1980 in the Subordinate Judge's Court,Cochin against the company represented by the Official Liquidator as well as the erstwhile Managing Director and Director of the company and their wives who appear to have signed the promissory notes and made themselves personally hable.The company represented by the Official Liqui­dator filed written statement stating,inter alia,that the charge(created by way of deposit of title deeds)has not been registered in accordance with section 125 of the Com­panies Act,1956(for short 'the Act ') in regard to the immovable property or the machinery but that it has been registered only regarding stock -in -trade.Therefore,the charge cannot be enforced against the property or machinery.The Civil Court did not consider this submission but answering the issues in favour of the plaintiff,passed a preliminary decree for sale of the charged property.Ext.A -1 is copy of the relevant entries in the register of charges maintained by the Registrar of Companies.Ext.A -2 is a copy of the judgment and Ext.A -3,copy of the decree in the suit.The decree was passed on 28th May 1982.Apparently,the Official Liquidator has not preferred appeal against the decree.However,it is submitted that some of the other defendants in the suit have preferred appeal and the same is pending.

(3.) LEARNED counsel representing the Official Liqui­dator contended that the charge in regard to the immovable property and the machinery ought to have been registered under section 125 of the Act and the same,not having been registered,is void and unenforceable against the Official Liquidator and the creditors,that the Official Liquidator as such or the Official Liquidator as representing the body of creditors was not impleaded in the civil suit filed by the first respondent and the Official Liquidator was in the picture only as representing the company in liquidation(first defendant)and therefore could not have raised the plea under section 125 of the Act(though as a matter of fact,he did raise the plea ),that the civil court could not have decided the plea in that suit since the charge is bind­ing on the company and therefore the decree is unenforce­able in regard to the assets covered by the charge to the extent it is not registered and the interests of the body of creditors should not be allowed to suffer and the Company Court has the duty and right to protect the interest of the body of creditors.Learned counsel also contended that his right to move the Company Court on behalf of the body of creditors is unaffected by the leave granted by the Company Court for filing the suit.According to learned counsel,the Company Court has jurisdiction in this behalf under section 446(2)of the Act.