TMI Blog2007 (9) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... OC, West Bengal. The company has also been made a respondent to the present petition. 2. Background facts, in nutshell, as per the petition, are that in November, 2001, one Minerva Telelinks Ltd. (MTL) and Minerva Holding Ltd. (MHL) had applied for sanction of a loan from the petitioner for a sum of ₹ 3,00,00,000/-. An equipment loan cum hypothecation agreement dated 30.11.01 was executed by and between the petitioner and MIL and MHL pursuant to which the loan amount was disbursed. In June, 2002, the said MTL and MHL again approached the petitioner for a term loan of ₹ 4,50,00,000/-. One more equipment loan cum hypothecation agreement dated 28.6.02 was executed by and between the petitioner and MTL and MHL towards the second loan. The respondent company which holds 49.19% shares in MIL also mortgaged its office in Mumbai by deposit of title deeds, by way of collateral security. Thus, the company has created a charge. After passing a resolution under Section 293(1)(a) of the Act on 25.6.02, for the purpose of creating the charge over the property of the company, an undertaking dated 26.6.02, was also given by the company (the respondent herein) through one of its dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shareholders of the company and the Board of Directors of the company in connection with creation of the mortgage and/or furnishing of security, are illegal, null and void. The petitioner slates that the said suit is misconceived mala Fide and has been instituted by suppression of material facts and is a clear abuse of the process of Court which is liable to be dismissed. Although an application had also been moved, no interim reliefs have been pressed for. The said interlocutory application is still pending before the Calcutta High Court. The claim of the petitioner is n substantial claim. Despite making efforts, the petitioner was unable to lake immediate steps for registering the charge with the ROC. West Bengal, after coming to know that the charge has not been registered. The petitioner has also been actively pursuing and defending the proceeding in connection with the said loan transaction which has also prevented the petitioner from taking immediate steps to register the charge. The petitioner was not aware that the company has deliberately not registered the charge which they were under an obligation to do under the provisions of the Act. By its advocate's letter da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34,43,300 shares in MTL which constitutes about 49% shares in MTL. One Ajay Shankar Bhartia ( ASB ) held 2,96,900 equity shares in the company. ASB also held 1,12,100 shares in MTL. Although it has been alleged by the petitioner that it had granted certain loans and/or advances to MTL and MHL, the company has not received any loan from the petitioner. ASB who was in a position to exercise substantial control over the affairs of the company, caused induction of one Ajeet Mathur as a director of the company. ASB in collusion and conspiracy with the said Ajeet Mathur and Sharad Vaid purported to create a board resolution for allegedly mortgaging the said property with the petitioner for securing repayment of the loan allegedly granted by the petitioner to MTL and MHL. The said Sharad Vaid ceased to be a director of the company on 21.10.03. The company has also initiated criminal proceeding against the said Ajeet Mathur which is pending. The alleged mortgage is clearly unauthorized, fraudulent and consequently illegal and not binding upon the company and its shareholders. The alleged mortgage was not in the benefit or interest of the company in any manner whatsoever. Subsequent to deat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te any right or interest whatsoever in favour of the petitioner. The company continues to be the lawful owner of the said property and the said property continues to be free from all charges and encumbrances. The company in its written statement, filed before the DRT, has clearly stated that the alleged mortgage is wholly unauthorized, illegal, null and void. It is denied that the petitioner learnt about non-registration of the alleged charged from the opposition filed by the company. The company has denied that the title deeds of the said property have been deposited with the petitioner and no sale deed relating to the said property has been obtained by the company from the vendor and the question of the company depositing original title deeds of the said property with the petitioner docs not arise at all. Since the said properly has not been lawfully mortgaged or charged in favour of the petitioner, the company was under no obligation to register the alleged charge. The company has not lawfully created any charge in favour of the petitioner. The petitioner has not acquired any right in the said property of the company. The present application under Section 141 of the Act is wholl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a director of both BONANZA and the company and was a party to board resolution of 25.6.02. The suit has been filed by BONANZA only after the petitioner instituted proceedings before the DR.T for recovery of its debts and also for enforcement of a charge in respect of the Hat. The suit has been filed by BONANZA with ulterior purpose and mala fide motive and is in collusion and conspiracy between BONANZA, MTL and the company. The issue sought to be raised are not relevant for the purpose of granting relief in the instant application. 5. Reiterating the pleadings, Shri Ratnanko Banerjee, learned Counsel, appearing for the petitioner, has submitted that the delay in filing with the ROC, West Bengal, in the prescribed Form Nos. 8 and 13, the particulars of charge created by the company on 28.6.02 in favour of the petitioner vide Collateral Security Agreement dated 28.6.02 entered into by and between the petitioner and the company to secure the repayment of Rupee Term Loan of ₹ 4,50,00,000/-, was due to inadvertence on the part of the company. Both the Form Nos. 8 and 13 (Annexure P. 5 to petition) have been signed by the petitioner and the company and the mortgaged properly b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re discretionary. If it is established that the delay in filing was due to sufficient cause, in the exercise of the discretionary powers, this Board can condone the delay. According to the petitioner, it came to know of the non registration of the charges only in November, 2003 whereafter due to other proceedings in connection with the said loan transaction, it was not in a position to take immediate steps to register the charge. I am satisfied that the delay on the part of the petitioner was due to causes beyond its control and that the petitioner has shown sufficient cause for the delay. Therefore, the prayer of the petitioner for condonation of delay deserves to be granted. 7. However, the company has raised certain disputes with regard to the validity of the documents creating charge by one of its directors and has contended that in view of this challenge on the validity of the charges, the prayer of the petitioner should not be granted. In a proceeding under Section 141 of the Act, the power of this Board is limited and does not extend to adjudicate or look into the validity or otherwise of the charges created. The respondent company has neither in its reply to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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