SHASTRA PROPERTIES P. LTD. Vs. HOMI FRAMROZ PATRAWALA

JUDGEMENT

(1.) THE present company petition is filed by invoking the provisions of Section 141 of the Companies Act, 1956 and sought directions as prayed in paragraph 13 of the petition. Shri S. Suriyanarayanan, learned Counsel appearing for the petitioner in support of his case contended that respondents Nos. 3 and 4 have taken personal loan of Rs. 1.20 crores each from respondent No. 5 as per two Form No. 8 and Form No. 13 filed by respondent No. 5 with the office of respondent No. 6, i.e., the Registrar of Companies, Mumbai, on November 10, 2003, purportedly creating equitable mortgage on the petitioner -company's immovable property. On its verification it is found that Forms Nos. 8 and 13 was filed for the personal loans taken by respondents Nos. 3 and 4 and signed by one Mr. Balasaheb Ramachandra Patil as director of the petitioner -company and respondent No. 4 himself as director of the petitioner -company. Mr. Balasaheb Ramachandra Patil is not a director of the petitioner -company till date as per the petitioner -company's records and as per the records of the Registrar of Companies. Respondents Nos. 3 and 4 did not hold any shares in the petitioner -company and have ceased to be directors of the petitioner -company with effect from June 26, 2004 and to that effect Form No. 32 was also filed. It is to bring to the notice of this hon'ble Bench that the original title deeds of the petitioner -company are lying with the petitioner -company till date. The petitioner -company never created any equitable mortgage by deposit of title deeds in favour of respondent No. 5. Forms Nos. 8 and 13 have to be cancelled and deleted as illegal due to the mis -statements contained therein and the fraudulent filing thereof. The mis -statement contained in Forms Nos. 8 and 13 and their fraudulent nature are obvious and glaring by the fact that the original title deeds of the immovable property are still lying with the petitioner -company and no memorandum or other instrument evidencing deposit of title deeds has been filed with the Registrar of Companies and no board resolutions for securing the loans taken in individual capacity or respondents Nos. 3 and 4 was ever passed by the board of directors of the petitioner -company. The respondents committed fraud and forgery creating such charges in favour of respondent No. 5. Learned Counsel further submitted that the fraud committed by respondents Nos. 3 to 5 are further evidenced by the fact that respondent No. 5 is trying to enter the details of the so called charges filed on November 7, 2003, in the property card of the petitioner -company with the Municipal authorities. In view of the fraud and forgery he submitted that the charges created in favour of respondent No. 5 be declared illegal and cancel the same by deleting them from the register of charges with the records of the Registrar of Companies otherwise the petitioner -company will be prejudiced. In support of his contention he relied upon the following decisions:

(2.) SHRI A. P. Fambanda, advocate for respondents Nos. 1 and 2 filed his counter and denied the averments made in the petition. He submits that the petition is not filed within the prescribed time frame as the resignation of respondents Nos. 1 and 2 was on June 30, 2004, which is 4 1/2 years past from the date of this petition. He submitted that the present directors of the company, i.e., Mr. Naresh Shah and Mrs. Meena Shah, before taking over the petitioner -company, had verified and satisfied themselves about all the said company's documents through due diligence carried out by their chartered accountants/advocates with the Registrar of Companies, Mumbai and also done the scrutiny of the title deeds, plan approvals and all original share certificates, then only accepted the same in principle totally and subsequently got the same duly transferred in their names vide letter dated June 29, 2004 and later on the very next day, i.e., on June 30, 2004, Mr. Naresh Shah filed Form No. 32 showing the resignation of respondents Nos. 1 and 2 signed and submitted with the Registrar of Companies, Mumbai by Mr. Naresh Shah himself. Thus, the petitioner by making bald and vague allegations after 4 1/2 years now cannot hold these respondents responsible. Learned Counsel contended that respondents Nos. 3 and 4 have ceased to be directors with effect from June 26, 2004, before filing the resignation of respondents Nos. 1 and 2, i.e., on June 30, 2004, by the petitioner himself with the Registrar of Companies. It is a simple logic that how come the petitioner was not aware of the facts on June 26, 2004 and June 30, 2004, as due diligence was done by their own chartered accountant/advocates. The petitioner having subjectively satisfied himself is now estopped from claiming ignorance and falsely accusing these respondents. These respondents are no way connected with the fault/ mischief. In view of the facts and reasons the petitioner has not made out any ground to seek interference of this Bench. In support of his case, learned Counsel relied upon the following decisions:

(3.) SHRI Pankaj Kode, learned Counsel appearing for respondent No. 5 filed a detailed counter to this petition and submitted that the petition is false, untrue and devoid of merits. Further, it is submitted that paragraph 13 of the petition is just contrary to the provisions of Section 141 of the Act. Section 141 is not in respect of cancellation of the charge but is only restricted up to rectification of registration of charge. Further, the petition is barred by the law of limitation because the relief sought in respect of charge which has been created on November 7, 2003 and is registered by the Registrar of Companies on November 11, 2003. The present application is filed after five long years, hence the petition is liable to be dismissed on this ground. On merits of the case, learned Counsel submitted that the petitioner -company and respondents Nos. 1 and 2 have in collusion with respondents Nos. 3 and 4 applied for a loan of Rs. 1,20,00,000 each with respondent No. 5 bank, i.e., Karad Janata Sahakari Bank Ltd., Parel Branch by pledging their 50 per cent shares and also by mortgaging the property of the petitioner -company to the extent of their 50 per cent shares. Accordingly an amount of Rs. 2,25,00,000 was paid by way of cheque No. 157212 dated November 27, 2003, drawn on the Kardad Janata Sahakari Bank Ltd., Parel Branch. This respondent has taken all proper care and caution to safeguard its interest and had completed all the documentary formalities. Forms Nos. 8 and 13 have been filed in the office of the Registrar of Companies. The memorandum of entry for deposit of title deeds has been executed in favour of respondent No. 5 on November 7, 2003 and is in existence till today. The original share certificates have been deposited with respondent No. 5 with an intent to create equitable mortgage and to create charge on the same. Without prejudice to the rights of this respondent if any other has been left while recording charges the respondent is ready to rectify the same as per the provisions of Sections 125 and 141 of the Act. But it cannot be said at this juncture that the charge recorded at the office of the Registrar of Companies is fraudulent and allegedly created. Presently, this respondent has filed a copy of the memorandum of deposit of title deed to confirm and assure that the charge has been created by way of deposit of title deeds. The loan availed by respondents Nos. 3 and 4 is utilised by the petitioner -company for its development and construction work. The money provided by this respondent -bank is a public money and is necessary to be recovered in the interest of justice. If the mala fide intentions of the petitioner -company succeeds the public money will be hampered and will lead to suffer irreparable loss. In view of these reasons the petition is devoid of merits and is liable to be dismissed.