COMPANY LAW BOARD, MUMBAI BENCH
Royal Bank of Scotland N.V. (RBS)
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KANTHI NARAHARI, JUDICIAL MEMBER
CO. PETITION NO. 81 OF 2011
Date of Pronouncement –08.08.2011
1. The present petition is filed by invoking various provisions of the Companies Act, 1956, seeking direction to the respondent-company to file Form No. 8 with the RoC, Pune. Ms. Shweta S. Sharma, learned counsel for the petitioner, submitted that the petitioner bank sanctioned a sum of Rs. 38 lakhs with 7% interest p.a. as loan on 29 June, 2005, to the respondent-company. The said loan was sanctioned for a period of 180 months with 180 instalments each consisting Rs. 34,156. The petitioner bank was required to create security by way of mortgage of respondent-company’s immovable property. Accordingly, the respondent-company created a mortgage by way of deposit of title deeds of immovable property. In pursuance of aforesaid mortgage, the ‘memorandum of entry first time mortgage’ by deposit of title deeds dated 29 June, 2005, was executed between the petitioner and the respondent and was countersigned by the respondent through its directors, Mr. Suresh Shankar Joshi and Mrs. Rohini Suresh Joshi. By way of compliances required to be statutorily followed by the respondent-company under section 125 of the Act, the respondent was required to file Form No. 8 notifying the ROC, Pune, the particulars of charge created by the respondent-company within a period of thirty days. The said condition was also incorporated in the loan agreement at clause 3.3. It is submitted that the petitioner has been time and again reminding the respondent-company through its directors to comply with the aforesaid compliances. The respondent-company gave false assurances that it will provide the certificate of registration but till date nothing has been provided. The petitioner states that the respondent has not filed form No. 8 with the RoC within the period prescribed under law.
2. Heard the learned counsel for the petitioner, perused the pleadings/documents. None appeared for the respondent-company. The petitioner had produced copy of the fax dated 8.6.2011 addressed to the petitioner bank wherein it is stated that the copy of the loan agreement and other relevant documents have not been given to the respondent-company in order to register charge under section 125 of the Companies Act. It is further stated that in absence of basic documents required for registration of charge the company was unable to take any required action for the reasons beyond the control of management. This bench by its order dated 25 July, 2011, directed the petitioner to serve copy of the petition along with the copy of the order of this bench to the respondent-company. Apart from direction this bench also sent notice dated 27 July, 2011, along with copy of the order dated 25 July, 2011, to the respondent-company intimating the date and time of the hearing of this petition. As per the date fixed, the matter has been taken up today for hearing. However, none appeared for the respondent-company. This bench received letter dated 5 August, 2011, from the respondent-company addressed to the bench officer of this bench, on 8 August, 2011, wherein the respondent-company stated that they acknowledge the receipt of copy of the order dated 25 July, 2011, and also note that the next date of hearing of the petition is on 8 August, 2011, at 10.30 a.m. The respondent-company simply requested the bench to postpone the hearing stating the circumstances caused beyond its control. From the letter it is clear that the respondent-company received the copy of the order of this bench and very well knew about the date and time of the hearing of the petition. In spite of full knowledge about the date and time of the hearing, however, decided to remain absent for the reasons known to them. This bench presumes that the respondent has no say in the matter. Therefore, this bench has no other option except passing the following order. The petitioner enclosed copy of the loan agreement dated 29 June, 2005 entered between the petitioner and the respondent-company which was signed by the petitioner and one Mr. Suresh Joshi and Mrs. Rohini Joshi representing the respondent-company. There is no denial or dispute in respect of the loan agreement. Clause 3.3 of the loan agreement specifically states that ‘where the borrower is a body corporate it shall cause the charges under this agreement with the Registrar of Companies, in accordance with the provisions of section 125 of the Companies Act, 1956, within the prescribed time and deposit the certificate of registration with the bank’. It is the case of the petitioner that inspite of several requests the respondent-company has not filed the Form No. 8 with ROC, Pune. The petitioner bank caused notice dated 14 February, 2011, under section 614 of the Companies Act, 1956, to the respondent-company to file Form 8 within 14 days failing which the petitioner will approach the CUB for direction. From the documents I could not find any reply to the above notice from the respondent-company. As stated supra there is no denial or dispute with regard to loan agreement entered between the petitioner and the respondent-company through its authorized representatives. The respondent-company is bound to comply with the statutory requirement of law. In the present case, the respondent-company failed to file Form 8 with the concerned RoC. Therefore, I hereby direct the RoC, Pune, to exercise his powers under section 234(1) of the Companies Act by calling information with regard to filing of Form No. 8 and direct the respondent-company to make good the default in non filing of e-form No. 8 under section 125 of the Act. In case the respondent-company fails to comply with the order, the RoC may take appropriate action against the respondent-company in accordance with law. With the above direction the CP No. 81 of 2011 is disposed off. No orders as to cost.