Petition For Rectification Of The Register Of Charges And For Other Reliefs

Petition For Rectification Of The Register Of Charges And For Other Reliefs Deed Format

Before the Company Law Board Bench, Eastern Region

9 Old Post Office Street, Calcutta 700 001

Company Petition No. …………… of 2000

In the matter of the Companies Act 1956 section 141 of the said Act and Regulation 44 of the Company Law Board Regulations 1991 And In the matter of: 1. X Co. Ltd. a company registered under the Companies Act 1956 having its registered office at …………… Calcutta 2. Y Co. Ltd. a company registered under The Companies Act 1956 having its registered office at …………… Calcutta And ELH Bank Ltd. a Banking Company within the meaning of the Companies Act 1956 and carrying on business inter alia, at ……………… Calcutta Petitioner versus 1. X Co. Ltd. a company registered under the Companies Act 1956 and carrying on business at ……………… Calcutta 2. Y Co. Ltd. a company registered under the Companies Act 1956 and carrying on business at ………………… Calcutta 3. The Registrar of Companies West Bengal, having its office at Nizam Palace, 226 A.J.C. Bose Road, Calcutta 700 020 Respondents The humble petition of ELH Bank Ltd., the petitioner above-named most respectfully

Sheweth:

1. Particulars of the company. (a) The first respondent was incorporated on …………… and the second respondent was incorporated on …………………

(b) The registered offices of the respondents Nos. 1 and 2 are at …………… Calcutta.

(c) The authorised, issued, subscribed and paid-up capital of the first respondent is Rs. 10,00,000. The authorised, issued, subscribed and paid-up capital of the second respondent is Rs. 15,00,000. The shares of both the companies comprise of equity shares of Rs. 10 each fully paid-up.

(d) The objects for which the respondents Nos. 1 and 2 were established are to manufacture and deal in jute goods and allied products. The objects of the two companies will appear from the Memorandum of Association of each of the two companies to which your petitioner will crave leave to refer.

(e) The management of the first respondent has been amalgamated with the second respondent and all the assets and liabilities of the first respondent are vested in the second respondent.

2. Particulars of the Petitioner. (a) The petitioner was incorporated as a Banking Company in 1982 and is carrying on banking business at ………………… Calcutta.

(b) The petitioner granted credit facilities to the first respondent against hypothecation of movable assets and mortgage of its immovable properties. The petitioner is a secured creditor.

(c) The second respondent has taken over the assets and liabilities of the 1st respondent and the petitioner has claims against the second respondent and is entitled to a charge over all its movable assets and mortgage on its immovable properties being the successor of the first respondent.

3. Particulars of the respondents. (a) The respondents Nos. 1 and 2 are public companies, the first respondent has been amalgamated with the second respondent. The first respondent has not yet been dissolved.

(b) The terms and conditions on which the first respondent has been amalgamated with the second respondent will appear from the order dated ………………… of the Hon’ble High Court at Calcutta sanctioning the scheme, a copy whereof is annexed hereto.

(c) The charges and modifications of charge created by the first respondent in favour of the petitioner have been filed with the Registrar of Companies, West Bengal but the respondent No. 3 has not yet issued the Certificates and the reasons for not issuing such Certificates could not be ascertained.

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4. Jurisdiction of the Bench. The petitioner declares that the subject-matter of the petition and the respondents are all within the jurisdiction of this Hon’ble Bench.

5. Limitation. The petitioner further declares that the present petition is within the period of limitation laid down by the Companies Act 1956 and the petitioner’s cause of action arises from day to day.

6. Facts of the case. (a) The petitioner bank granted credit facilities to first respondent against hypothecation of its movable assets and mortgage of its immovable properties. The first respondent executed several Banking documents. The Charge and Modifications thereof were filed with the Registrar of Companies, respondent No. 3.

(b) From time to time the limit of credit facilities was enhanced and further banking documents were executed by the respondents. The necessary forms were filed with the Registrar of Companies for Registration of Modification of Charges.

(c) Respondent No. 3 has not yet issued any Certificate either for the Original Charge created or for the subsequent Modification of Charges. On enquiries no specific explanation was given by the Registrar of Companies except that it was stated that there was some defects in the forms submitted.

(d) Your petitioner verbally requested the respondents Nos. 1 and 2 to look into the matter and regularise the same but nothing so far has been done.

(e) In the facts of the case your petitioner states that respondents Nos. 1 and 2 be directed to correct the defects, if any, in the forms submitted by them. In view of the said hypothecation and mortgage the Respondent No. 3 be directed to issue the necessary Certificate of Charges and Modification of Charges.

(f) The delay or omission in filling the requisite forms or incorporation of the particulars therein or annexing any documents thereto or furnishing any explanation asked for by the Registrar of Companies be condoned and the Register of Charges be correspondingly rectified and the requisite certificates be issued to the petitioner.

(g) The petitioner is ready and willing to do all such acts and things and make payment of such fees as this Learned Bench may direct.

7. Matters not previously filed or pending with any other court. Your petitioner declares that your petitioner has not filed any application, writ petition or suit regarding the matter in respect of which this petition has been made before any other court of Law or authority or Bench of the Board, and no such application, writ petition or suit is pending before any of them.

8. Reliefs sought. In the facts and circumstances mentioned hereinbefore your petitioner prays for the following reliefs:

(a) The delay in filing the particulars of Charge and Modification of Charge and modification thereof be condoned;

(b) The omission or misstatement in Form 8 and Form 13 or in any other Form filed with the Registrar of Companies be allowed to be rectified;

(c) Registrar of Companies be directed to specify reasons for not issuing the Certificate of Registration and Certificate of Modification of Charge to the petitioner;

(d) Leave be given and delay be condoned to comply with the requisition that may be made by the Registrar of Companies and/or to make good the defect and/or defects within such time as this Learned Bench may direct;

(e) The respondents be directed to comply with the provisions of law in regard to the Charge and/or Modifications thereof in respect of the assets and properties of the respondents Nos. 1 and 2 in favour of the petitioner;

(f) Further Orders be made as to this Learned Bench may deem fit and proper.

9. Interim Order, if prayed for. Pending final decision on the petition your petitioner seeks issue of the following Interim Orders:

(i) Registrar of Companies be directed to make an enquiry into the Registration and Modification of Charges in favour of the petitioner and submit a report to this Learned Bench;

10. Particulars of Bank Draft. Bank draft No. 56 dated ………for Rs. ……… drawn by and payable at petitioner’s branch at ………………… Calcutta.

(Cause Title as above)

Affidavit verifying the petition

I, ……………………… son of …………………, aged ……………… years, by occupation service working for gain at ………………… Calcutta do hereby solemnly affirm and say as follows:

1. I am the Branch Manager and a principal officer of ELH Bank Ltd. …………………… Calcutta. I know and I have made myself acquainted with the facts and circumstances of this case and I am able to depose thereto. I am authorised and competent to affirm and I do affirm this affidavit on behalf of the petitioner-bank.

2. The statements in paragraphs ………………… of the petition shown to me and signed by me and marked with letter X are true to my knowledge and those mentioned in paragraphs ……………… of the said petition are based on information derived from records maintained by the said bank and believed by me to be true, and those in paragraphs ………………… of the said petition are my humble submissions to this Learned Bench.

Solemnly affirmed by the said

…………… at Calcutta this

……… day of …………………

2000 Signature

Before me

Notary Public

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