LAWS(BOM)-1976-7-43

RESHMA ESTATE PRIVATE LTD Vs. STATE OF MAHARASTRA

Decided On July 27, 1976
RESHMA ESTATE PRIVATE LTD. AND ADVANCE COMMERCIAL CO. LTD. Appellant
V/S
STATE OF MAHARASHTRA Respondents

JUDGEMENT

(1.) By this petition, the petitioners seek condonation of delay in filing the particulars of charge created by M/s. Reshma Estate Private Ltd. (hereinafter referred to as "the company") in their favour under an indenture of mortgage dated 30th August, 1971. This petition has been filed on 6th August, 1974, roughly after three years from the date of execution of the aforesaid indenture of mortgage.

(2.) The facts material for the purpose of determining as to whether the petitioners are entitled to condition prayed for by them are not very much in dispute. The company was incorporated on 9th February, 1971. Its incorporation was for the purpose of acquiring an immovable property known as : "Krishna Mahal" situate at Netaji Subhash Road, Bombay. It appears that the company raised funds for the purposes of purchasing the said property. The loan given to the company in connection there in which by the petitioners was secured under an indenture of mortgage dated 30th August, 1971. The said indenture was duly registered with the Sub-Registrar of Assurances at Bombay. On 18th September, 1971, the company filed with the Registrar of Companies an application in Form No. 8, to have the said charge registered in the records of the Registrar. The said fact was intimated by the company to the petitioners by their attorneys' letter, dated 12th November, 1971. It, however, appears that the company did not file a copy of the said indenture of mortgage when the Registrar required the company to file a copy of the said indenture of mortgage. The company having filed the said copy of the indenture on 10th May, 1972, the Registrar intimated to the company that in view thereof an appreciation for condonation of the delay, which was for a period, of 7 months and 10 days, should be made under section 141 of the Companies Act to the competent court. A copy of the letter of the Registrar, dated 22nd June, 1972, was also sent to the petitioners. In response to the letter received by the petitioners, all that the petitioners did was to write two letters to the company on 27th June, 1972, and 27th August, 1972, inter alia, requiring the company to obtain an appropriate order from this court and file a certified copy thereof with the Registrar of Companies. Besides writing the said two letters the petitioners did nothing until July, 1974, when in exercise of powers as mortgages they sought to put up the property, covered by the said indenture of mortgage, for sale. The said sale was scheduled for 27th July, 1974. In the meanwhile, on 26th July, 1974, one Copper Rollers Private Ltd. claiming to be the unsecured creditors by virtue of and under an Unregistered deed of 2nd mortgage, dated 16th May, 1972, filed a petition in this court for an order that the company be wound up under the provisions of the Companies Act. The said Copper Rollers Private Ltd. also took out judge's summons for appointment of a provisional liquidator. These proceedings are pending in this court.

(3.) The basis upon which the petitioners claim relief is that it was the obligation of the company to have the said indenture of mortgage dated 30th August, 1971, registered with the Registrar of Companies; that the petitioners, bona fide, believed that the company would have taken appropriate proceedings to have the said mortgage registered. It is stated in paragraph 6 of the petition that even after the receipt of the letter on 22nd June, 1972, and after writing two letters to the company on 27th June, 1972, 27th August, 1972, "the petitioners remained under the belief that the said company must have taken the appropriate steps and got the mortgage registered under the provisions of the Companies Act and under the said belief did not make any inquiries from the company or the Registrar of Companies as to whether the said mortgage in favour of the petitioners was registered with the Registrar of Companies after obtaining the order of this hon'ble court." It is further stated in paragraph 9 of the petition that, on coming to know of the aforesaid facts, the petitioners had requested the company to take necessary step "as it was incumbent upon them to do and has had been agreed to by them." Upon the basis of the said averments the petitioners claim in para 10 of the petition that the omission to register the charge was "accidental or due to inadvertence and, in any event, was due to sufficient cause."