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TMI Blog2018 (3) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Commercial Borrowings (ECB). The initial borrowing is in compliance with the provisions of the Foreign Exchange Management (Borrowing or lending in foreign exchange) Regulations 2000, Foreign Exchange Management Act 1999 and in consonance with ECB policy. It is not the matter of doubt that as a result of the failure of the company to repay the debt, the loan agreement came to be terminated. Loan amounting to US$ 3,128,855 together with interest of US$ 96,950.37 was due from the Petitioner as on 30 September 2006. Respondent No.4 entered into a Sale and Purchase Agreement of the debt with Respondent No.1 and the Petitioner's debt qua AFIC came to be assigned to Respondent No.1. An Application was moved by Respondent No.1 for condonation of delay occurred in registering the debt with Registrar of Company-Respondent No.2 herein, and on payment of the charges levied by Respondent No.2 on account of delay and in pursuance to the Application tendered by Respondent No.1, the debt came to be registered with Respondent No.2, on 29 July 2015. 4. The Petitioner is praying for quashment of order dated 29 July 2015 whereby, the loan amount of US$ 4,500,000 approximately equivalent to R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition was dismissed on the ground that, it raises disputed questions of fact. Respondent No.1 preferred an appeal, bearing Appeal No. 124 of 2013, which has been admitted by the Hon'ble Court and is pending before the Court. The contentions raised by the Petitioner in the instant Petition in respect of assignment of the debt in favour of Respondent No.1 have already been raised by the Petitioner in the pending proceedings before the Hon'ble Court. In order to avoid the liability of payment, the Petitioner is indulging the multiplicity of proceedings and the instant Petition is a step-in-aid for the said objections. The Petitioner is trying to create a defence to the claim of Respondent No.1 in the winding up proceedings, by raising such contentions in the instant Writ Petition. So far as the assignment of debt is concerned, it is pointed out that the ACTIS AFIC Credit Management Limited is a sister concern of AFIC. In view of certain internal arrangement, which is concluded in a Deed of Trust dated 7 June 2005, various financial assets were divided amongst three different companies. The outstanding debt owed by the Petitioner was agreed to be held by ACTIS AFIC Credit Mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her grounds, it is just and equitable to grant relief, may, on the application of the company or any person interested and on such terms and conditions as seem to the Central Government just and expedient, direct that the time for the filing of the particulars or for the registration of the charge or for the giving of intimation of payment or satisfaction shall be extended or, as the case may require, the omission or misstatement shall be rectified. (2) The Central Government may make such order as to the costs of an application under subsection (1) as it thinks fit. (3) Where the Central Government extends the time for the registration of a charge, the order shall not prejudice any rights acquired in respect of the property concerned before the charge is actually registered.] 8. In exercise of powers under Section 141 of the Companies Act, 1956, the Authority is not empowered to go into the merits of the charge and declare that the charge created by a company is null and void and direct deletion of charge from the record of Registrar of Companies. The Regional Director, in view of the powers delegated to him under Section 141 of the Companies Act, is not empowered to go into th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the Court, the Company Law Board has overlooked the aspect of omission or misstatement and, therefore, has erred in holding that it did not have jurisdiction to entertain the Petition. The Company Law Board ought to have considered the Petition so far as it relates to allegation that Respondent No.1 had misrepresented or made misstatement of the particulars of charge; and after giving an opportunity to the Petitioner, should have decided whether any rectification should be made or not by the Registrar. According to the High Court, the Company Law Board has clearly committed an error of Law which is apparent on the face of record. 10. That so far as the transaction between the ACTIS AFIC and AFIC as has been recorded, in view of the internal arrangement concluded by the Trust Deed dated 7 June 2005 between the Groups of Companies, the outstanding debt owed by the Petitioner was agreed to be held by ACTIS AFIC Credit Management Limited. The deed of assignment with Respondent No. 1 has been executed by Respondent No.4 in its capacity as Trustee of the outstanding debt of the Petitioner on its own behalf and on behalf of ACTIS AFIC credit Management Limited. The challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order passed in Company Petition No. 221 of 2012 is a matter of challenge in Appeal 124 of 2013 presented by Respondent No.1Deutsche Bank and the same is admitted and pending for adjudication. The Petitioner herein has raised all the objections relating to the permissibility to recover the amount on account of bar of limitation, so also the issue relating to the validity of the Sale and Purchase Agreement with Respondent No.1Deutsche Bank. These objections are likely to be considered in the pending Appeal. Even otherwise, considering the scope of Section 141 of the Companies Act, the prayers made in the instant Petition do not deserve to be considered. 14. In this context, it would be appropriate to refer the Judgment of the ICICI Bank Ltd. Vs. International Industries Ltd. [2008] 84 CLA 1 (CLB) wherein, it is observed that: "7. ............. In this connection, I may refer to the judgment of Madhya Pradesh High Court in Choudhary Builders (P) Ltd. Vs. Sanghi Brother s (Indore) Ltd. [2000] 37 CLA 341=107 Comp Cas 466, wherein the Court has considered a case of similar nature. In that case, the CLB had condoned the delay in spite of the objections raised by the company that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner shall file with the RoC, West Bengal, a certified copy of this order, along with the aforesaid documents, within the period as fixed by this order. In case the RoC lakes on record the documents without the e-Form being signed on behalf of the company, then the petitioner shall pay a sum of Rs. 5,000/towards costs payable to the said RoC. 8. The petition is disposed of in the above terms." 15. The instant Petition thus, does not deserve to be entertained, since the Respondent Company Law Board/the Regional Director, Western Region was within its rights in registering charge of Respondent No. 1, in pursuance to the Application tendered in that regard, in exercise of Powers under Section 141 of the Companies Act, 1956. The challenge raised by the Petitioner in the instant Petition does not come within the purview of Section 141 of the Act 1956, and it would be open for the Petitioner to raise the challenge relating to the documents, its enforceability, execution or the entitlement of the concerned Respondent to recover the amount from the Petitioner or defence in respect of bar of limitation, before an appropriate forum available in law. 16. The Petition is devoid o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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