INDUSTRIAL CREDIT AND INVESTMENT CORPORATION OF INDIA LTD. Vs. OFFICIAL LIQUIDATOR OF USHA AUTOMOBILES AND ENGINEERING CO. LTD.

JUDGEMENT

(1.) THE appellant seeks to have its charge in respect of the immovable properties of the company in liquidation recorded in the records maintained by the Registrar of Companies. The appellant applied before the Company Law Board under Section 141 of the Companies Act, 1956 and is here assailing the order of dismissal Industrial Credit and Investment Corporation of India Ltd. v. Official Liquidator, Usha Automobiles and Engineering Co. Ltd. (in liquidation) [2000] 100 Comp Cas 150 (CLB) thereof. The Company Law Board exercises the Central Government's powers under Section 141 of the Act. The two questions of law that have been raised in this appeal limited to legal issues are, as to whether belated registration of a charge can be permitted in respect of any asset of a company which has been directed to be wound up, and, whether a charge comes to be created only upon the formal execution of a document and not on the company's undertaking to the creditor to create a charge. For the reasons that would appear hereinafter, the second question need not be answered if the first question is answered against the appellant.

(2.) THE appeal has been pending for some time. There is an interim order subsisting, restraining the official liquidator from making disbursements pending the disposal of this appeal. Some of the workmen of the company in liquidation have brought the subsisting order in these proceedings to the notice of the court whereupon the appeal has been taken up. Such workmen laboured under the mistaken apprehension that upon the appeal being set down for immediate hearing at their instance, they would be heard, but the workmen were not allowed to address. A.C.O. No. 166 of 2007 is dismissed without any order to costs.

(3.) THE appellant made available to the company prior to its liquidation two loans of Rs. 22 lakhs and Rs. 72 lakhs against the company creating a charge of its moveable properties and a mortgage of some of its immovable properties. Such loans were disbursed by or about the year 1986 and the company acknowledged in its balance -sheet for the year ended March 31, 1986, that the loans advanced by the appellant were secured by the first mortgage of the immovable properties of the company. At a general meeting of the company held on January 29, 1986, the consent of the shareholders was obtained in accordance with Section 293(1)(a) of the Act for creating a mortgage and/or charge of all the immovable and moveable properties of the company.