9911796707
TMI Blog2008 (3) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... end the prayer to this effect. 2. The suit is filed by the plaintiff as a trustee for the holders of the bonds issued by the defendants inter alia to recover as sum of about Rs. 45 crores with interest thereon. For the purpose of this chamber summons it is necessary only to note that the plaintiff has also sought a declaration that the said amounts are secured by a mortgage in favour of the plaintiff of various immovable and movable properties including the property which is the subject-matter of the above chamber summons namely land admeasuring about 3.70 acres in the village Puzhal, Ambattur Taluk, Tiruvallur District, Tamil Nadu State (hereinafter referred to as 'the said property'). 3. The said property was charged in favour of the plaintiff by any Indenture of Trust and Mortgage dated 11-6-1999 executed between the defendant and the plaintiff. The said charge was registered on 14-6-1999 under section 125 of the Companies Act. As this fact was not admitted I had by an order dated 14-3-2008 directed the Registrar of Companies to produce the records of the defendant in this regard which he did. The records were inspected by all the parties and the fact of the registration under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alienating, and encumbering, selling, transferring, disposing of, creating third-party rights in or otherwise dealing with any or all of the mortgaged and hypothecated properties including the said property. By a further order dated 19-7-2005 in the said notice of motion the Court Receiver was appointed as the receiver of the properties of the defendant including the said property. By yet another order dated 13-4-2006 the plaintiffs said notice of motion No. 3503 of 2003 was made absolute by appointing the court receiver inter alia in respect of the said property with a direction to the court receiver to take possession of the said property with the help of the police, if necessary. 7. On 18-6-2007 the court receiver took physical possession of the said property from the applicant. The applicants alleged that at that time they furnished the court receiver with copies of all the relevant documents in their possession. The applicants by a letter dated 20-6-2007 objected to the court receiver's action. The applicants further alleged that they were shocked to come across a public notice dated 25-9-2007 in the New Indian Express, Chennai advertising the sale of the said property. 8. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and any transfer of shares in the company or alteration in the status of its members, made after the commencement of the winding up, shall, unless the [Tribunal] otherwise orders be void." 12. It is true that no application had been made by the applicants to have the transactions validated. That by itself however would not have entitled the plaintiff to succeed at this stage. If that was the only contention, the sale could have been sanctioned subject however to any orders that may be passed in an application under section 538 of the Companies Act if made by the applicants. 13. Mrs. Srikrishna then submitted that even assuming that the transfer by the defendant to the first purchasers and by the first purchasers to the applicants was valid the said transfers would be subject to the prior mortgage created on 11-6-1999 by the defendant in favour of the plaintiff. She submitted that on creation of the mortgage the plaintiff acquired an interest in the property and that the defendant mortgagee was left only with the equity of redemption with respect to the said property. Accordingly, it was submitted that the defendant retained only the right to redeem the mortgage by paying the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Interpretation clause.-In this Act, unless there is something repugnant in the subject or context,- ****** 'a person is said to have notice' of a fact when he actually knows that fact, or when but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation I.-Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908) from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated : Provided that- (1)the instrument has been registered and its registration completed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for the sale of the property could have been passed even if the applicant had been a party to the suit. At the highest even if the suit is dismissed for any reason including for default the applicants would be entitled to the sale proceeds which when realised will be deposited in court with a suitable order for investment thereof. In that event the applicants would always be at liberty to enforce their rights if any against the sale proceeds or even otherwise. 19. Moreover, as stated above the plaintiff registered the charge in respect of the said mortgage under section 125 of Companies Act on 14-6-1999 i.e., prior to the alleged sale by the defendant to the first purchaser. The effect thereof is contained in section 126 of the Companies Act which reads as under :- "126. Date of notice of charge.-Where any charge on any property of a company required to be registered under section 125 has been so registered, any person acquiring such property or any part thereof, or any share or interest therein, shall be deemed to have notice of the charge as from the date of such registration." 20. As rightly submitted by Mrs. Srikrishna had the applicants been diligent and acted prudently b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered under section 125 the effect of section 126 would operate even on subsequent purchasers. 24. I must clarify that it was not contended on behalf of the applicants that although they had or may be deemed to have notice of the charge they did not in fact and cannot be deemed to have notice of the terms thereof. I therefore express no opinion on this aspect. 25. Mrs. Srikrishna raised various other points in support of her contention that the sale by the defendant to the first purchaser and the sale by the first purchaser to the applicants were void. The submissions were based on the ground of non-compliance with the provisions of section 32A of the Registration Act and section 48 of the Companies Act. She further submitted that the said sales were contrary to and in violation of the orders of this Court dated 30-11-2001 and were therefore void. 26. Considering the view that I have taken namely that even assuming that the said sales were valid they are subject to and do not affect the plaintiffs rights under the said mortgage I do not consider it necessary to deal with these submissions. Suffice if to state that the said submissions were strangle urged by Mrs. Srikrishna b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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