TaxTMI 
TaxTMI 
2015 (5) TMI 1263
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....e 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 125 of the Act. 3. The appellant-IDBI Trusteeship Services Ltd. is referred to in the proceedings and in the impugned order as ITSL. The appellant is a Debenture Trustee of which the beneficiaries are four nationalized insurance companies, namely, Life Insurance Corporation of India; General Insurance Corporation of India; New India Assurance Co. Ltd. and Oriental Insurance Company Ltd. A Trustee Agreement dated 31.11.1995 was entered into between the first respondent which is a company in liquidation and respondent No.2-IDBI. The appellant is the successor-in-interest inter-alia to the benefit of the trustee agreement. Apparently, in view of section 13A of the SEBI (Debenture Trustees) (Amendment) Regulations, 2000, respondent No.2 was prohibited from acting as Trustees and the Debenture trustee business of respondent No.2 was, therefo....
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....ny shall provide and furnish to the Trustees to the satisfaction of the Trustees such additional security as may be acceptable to the Trustees to cover such deficiency. 2.3 ACQUISITION OF ADDITIONAL IMMOVABLE PROPERTIES So long as any monies remain due and outstanding to the Debenture holders, the company undertakes to notify the Trustees in writing of all its acquisitions of immovable properties and as soon as practicable thereafter to make out a marketable title to the satisfaction of the Trustees and charge the same in favour of the Trustees by way of first charge in such form and manner as may be decided by the 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 re....
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....ishes the registration of the charge and thereby enables us to do justice. 8. A hypothecation agreement was also executed on 03.11.1995 i.e. the day on which the trustee's agreement was executed. Forms 10 and 13 had obviously been filed. The same is evidenced by a receipt dated 20.11.1995 issued by the "Department of Company Affairs, Registrar of Companies Cash Counter receipt, office of the Registrar of Companies" acknowledging receipt of a sum of Rs. 130/- in respect of the said Forms 10 and 13. Form-10, however, is allegedly not traceable in the records of the first-respondent company. Respondent No.2 has not produced the same either. On account of the receipt issued by the Registrar of Companies, it must be presumed that both the Forms were filed. Neither respondent No.1 nor respondent No.2 contended that they were not filed. Form-13 is, however, dated 28.12.1995 i.e. after the date of the receipt. That Form, however, may have been different from the one which is on record. The fact of the matter, however, is that on the basis of the receipt, it must be presumed that Forms 10 and 13 had been filed for otherwise the Registrar of Companies would not have issued the receipt. ....
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.... to 4 as well as the four insurance companies had a pari-passu first/exclusive charge on the company's fixed assets. The letter admitted that the aggregate principal amount due to the four insurance companies is Rs. 200 lacs. This admission 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 presume that the authorities concerned in the Registrar of Companies fulfilled the statutory obligation of registering the charge. There was no legal bar to the charge being registered. 13. Faced with this, the lear....