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TMI Blog2015 (5) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the appellant's application to be treated as a first charge holder/secured creditor pari-passu with respondent No.2-Industrial Development Bank of India, respondent No.3-Industrial Finance Corporation of India Ltd. and respondent No.4-Haryana Financial Corporation. The learned Judge dismissed the application on the ground that the appellant's charge had not been registered under section 125 of the Companies Act, 1956 (for short 'the Act'). 2. For the purpose of this appeal, we will proceed on the basis that in the event of a charge not being registered under section 125 of the Act, it would be void against the liquidator and other creditors. We have come to the conclusion that the appellant's charge was infact registered under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the Company's immovable properties, both present and future; and b) a first charge by way of hypothecation in favour of the Trustees of all the Company's movables (save and except book debts), including movable machinery, machinery spares, tools and accessories, present and future, subject to prior charges created and/or to be created in favour of the Company's Bankers on the Company's stocks of raw materials, semi-finished and finished goods, consumable stores and such other movables as may be agreed to by the Trustees for securing the borrowings for working capital requirements in the ordinary course of business; The mortgage and charge referred to above shall rank pari passu with the mortgagees and charges created and/or to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Trustees. 2.4 DECLARATION OF TRUST The Trustees agree that they shall, within a period of three months after the creation of the aforesaid security execute a Declaration of Trust for the benefit of the Debenture holders in a form and manner acceptable to the Debenture holders and cause the same to be registered if considered necessary." 5. It is important to note two letters addressed by respondent Nos.2 and 4 that preceded this agreement. Respondent No.4-Haryana Financial Corporation had by a letter dated 18.07.1994 addressed to respondent No.2 stated that they had no objection in respondent No.1 offering pari passu charge to the said four insurance companies i.e. beneficiaries of the trust to secure the said debentures of Rs. 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the successor-in-interest of the benefit of the trustee agreement pursuant to which the charge was created. The charge was originally created in favour of respondent No. 2 i.e. the appellant's predecessor-in-interest. Respondent No.2 and indeed respondent No.1 i.e. the mortgagor, therefore, have personal knowledge of the facts of the case. Respondent Nos.1 and 2 have for obvious reasons failed to disclose the material particulars of the charge and the registration thereof although they being the original parties to the trustee agreement have knowledge of all the facts and quite possibly are in possession of the original record. Fortunately, even the limited record available establishes the registration of the charge and thereby enables us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vertible Debentures to the extent of Rs. 200 lacs subscribed by LIC, GIC, NIA and OIC". That the declaration states that the mortgage was proposed to be created make no difference. It was admittedly created. This is evident from Form-8 which was filed on 28.12.1995 and which we will refer to next. 10. A receipt dated 29.12.1995 was also issued by the Registrar of Companies to respondent No.1 acknowledging receipt of Rs. 130/- in respect of Forms 8 and 13. Form-8 refers to the said deed of hypothecation against Sr. No.1. It is, however, of vital importance to note the particulars at Sr. No.7 which are as follows:- 7. Particulars of modification specifying the terms, conditions or the extent of operation of charge in which modification i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmission stands. It has never been contended that it was a mistake or made under a mistaken impression. 12. As we mentioned earlier, respondent Nos.1 and 2 do not state that the charge had not been registered. They merely state that the appellant has not been able to establish that the charge was registered. Absent any indication to the contrary, and there is none, it must be presumed that the charge was registered. Admittedly, the charge was created. In any event, it is clear beyond doubt from the above facts that it was. We have referred to the documents and specifically Form No. 8 which establishes that respondent No.1 had submitted the necessary documents for registration in accordance with Section 125 of the Act. We are inclined to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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