TMI Blog1991 (12) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... benefits accruing to her under the deed of hypothecation dated July 26, 1973, registered with the Registrar of Companies for a sum of Rs. 1,40,000 with interest thereon. The date of the impugned document is July 26, 1973. A creditor of the company came forward with an application in C.A. No. 128 of 1974, for winding up of the company under section 392(2) of the Act. That application was presented on March 19, 1974. The order of winding up was made on August 22, 1975. The deed dated July 26, 1973, however, was presented before the Registrar of Companies under section 125 of the Act on August 14, 1973. It was registered on March 27, 1974. As against the move of the official liquidator, the appellant/creditor took out a petition for a declaration that the charge was valid. Shan-mukham J., who heard the applications, held as follows: "In this case, the impugned document is dated July 26, 1973. It was presented for registration on August 14, 1973, as is obvious from the date-seal of the Registrar of Companies. It is seen from the evidence of AW-2, the Registrar of Companies, that as Form No. 8 as presented on August 14, 1973, was defective, it was returned. The evidence is not cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttempt made by the respondent to prove the date of representation, I am forced to hold that it is most likely the same was represented after the creditor presented C. A. No. 128 of 1974, for winding up. The burden is certainly on the respondent to place evidence in proof of the date of representation, because the registration is after March 19, 1974. From the foregoing circumstances, there is no escape from the conclusion that exhibit A-160 is void as against the applicant according to the plain mandate found in section 125". Having held as above, the learned trial judge has considered the objection as to the genuineness of the transaction under sections 531 and 531A of the Act and found that it was not a transfer in the ordinary course of its business by the company, that it lacked good faith and valuable consideration and that it created no valuable right in favour of the creditor. Part V of the Act contains provisions as to registration of charges. Section 125 in that part provides as follows: "(1)Subject to the provisions of this part, every charge created on or after the 1st day of April, 1914, by a company and being a charge to which this section applies shall, so far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y thereof verified in the prescribed manner, may be filed for registration, notwithstanding that further proceedings may be necessary to make the charge valid or effectual according to the law of the country in which the property is situate. (7)Where a negotiable instrument has been given to secure the payment of any book debts of a company, the deposit of the instrument for the purpose of securing an advance to the company shall not, for the purposes of this section, be treated as a charge on those book debts. (8)The holding of debentures entitling the holder to a charge on immovable property shall not, for the purposes of this section, be deemed to be an interest in immovable property". This section is followed by certain provisions as to the date of notice of charge and particulars with respect to certain types of charges, etc., and section 132 provides as follows: "The Registrar shall give a certificate under his hand of the registration of any charge registered in pursuance of this part, stating the amount thereby secured; and the certificate shall be conclusive evidence that the requirements of this part as to registration have been complied with". The provision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value of the said fact A, in relation to the proof of the existence of fact B? In regard to the category of facts in respect of which an irrebuttable presumption is prescribed by a rule of evidence the position is that the inherent probative value of fact A in that behalf is very great and it is very likely that when it is proved in a judicial proceeding, the judicial mind would normally attach great importance to it in relation to the proof of fact B. The rule steps in with regard to such facts and provides that the judicial mind should attach to the said Met conclusiveness in the matter of its probative value. It would be noticed that as in the case of a rebuttable presumption, so in the case of an irrebuttable presumption, the rule purports to assist the judicial mind in appreciating the existence of facts. In one case the probative value is statutorily strengthened but yet left open to rebuttal and in the other case, it is statutorily strengthened and placed beyond the pale of rebuttal. Considered from this point of view, it seems rather difficult to accept the theory that whereas a rebuttable presumption is within the domain of the law of evidence, an irrebuttable presumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court is precluded from considering other evidence once such fact is established. Therefore, where the law makes a fact conclusive proof of another the fact stands proved and the court must proceed on that basis. But, the argument proceeds, where the law does not go that far and makes a fact only 'conclusive evidence' as to the existence of another fact, other evidence as to the existence of the other fact is not shut out. In support of the argument reliance is placed on section 4 of the Evidence Act which in its third paragraph defines 'conclusive proof.... The paragraph thus provides that further evidence is barred where, under the Evidence Act, one fact is regarded as proof of another. But it says nothing about what other laws may provide. There are a number of laws which make certain facts conclusive evidence of other facts... Since evidence means and includes all statements which the court permits or requires to be made, when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact, it implies that that fact can be proved either by that evidence or by some other evidence which the court permits or requires to be advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rubber Industries [1986] 60 Comp Cas 472 has taken the same view in this regard in these words (at page 476): "This matter is not res integra . A similar case came up before me in Company Petitions Nos. 34 and 35 of 1981 ( Haryana Financial Corporation v. Depro Foods Pvt. Ltd. ) decided on December 3, 1981. After noticing the relevant provisions of the Companies Act, it was observed by me that the filing of particulars of the charge together with the instrument or copy thereof within 30 days after the date of creation of the charge is necessary and not registration of the charge with the Registrar. The reason is that the registration of the charge is within the jurisdiction of the Registrar and in case he makes delay in doing so, the charge-holder cannot be held responsible. The Registrar has also been given power to allow the charge-holder to send the particulars, etc., within seven days after the expiry of the limitation period if he satisfies that he could not file the same for sufficient cause within the prescribed period. After the particulars, etc., have been filed, then the responsibility of the registration of the charge shifts on to the Registrar. It is further obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade, taken or done before the commencement of this Act, this sub-section shall have effect with the substitution, for the reference to six months, of a reference to three months. (2) For the purposes of sub-section (1), the presentation of a petition for winding up in the case of a winding up by or subject to the supervision of the court, and the passing of a resolution for winding up in the case of a voluntary winding up, shall be deemed to correspond to the act of insolvency in the case of an individual". Since the charge document was created on July 26, 1973, and presented for registration on August 14, 1973, it was beyond six months of the filing of the petition for winding-up which was presented on March 19, 1974. Section 531 thus may not be attracted at all. Section 531A, inserted by Act 65 of 1960 in the Act, reads as follows: "Any transfer of property, movable or immovable, or any delivery of goods, made by a company, not being a transfer or delivery made in the ordinary course of its business or in favour of a purchaser or encumbrancer in good faith and for valuable consideration, if made within a period of one year before the presentation of a petition for winding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould make the document itself a proof of the disposition. Ordinarily, a court of appeal does not interfere with the findings of fact of the trial court, unless it finds that the findings are unreasonable or vitiated for the reason of an error of law, procedure or omission of a kind that rendered the finding perverse or unreasonable. The appellate court shall not substitute its own views on the evidence and facts for the views of the trial court. If the view taken by the trial court is one that can be taken by a reasonable person, the appellate court shall desist from interference. In the instant case, we have noticed two serious errors of law in considering the effect of the certificate of registration on the one hand and the shifting of onus of proof upon the creditor on the other. These two errors, in our opinion, have rendered the judgment of the trial court unsustainable. For the above reasons, we are inclined to interfere with the judgment, but have decided not to enter into the facts ourselves but remit the case to the trial court for fresh hearing lest the parties are denied their right of appeal on the facts. In the result, the appeals are allowed. The impugned orders ..... X X X X Extracts X X X X X X X X Extracts X X X X
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