C.P. No. 98 of 2007, C.P. No. 99 of 2007. Case: Tristar Container Services (Asia) (P) Ltd. and Anr. Vs 1. WW Shipping Agencies (P) Ltd., 2. Saturn Ship Agencies (P) Ltd.. Company Law Board
| Case Number | C.P. No. 98 of 2007, C.P. No. 99 of 2007 |
| Counsel | For Appellant: R. Shankaranarayanan and For Respondents: Krishna Srinivasan |
| Judges | K.K. Balu, Vice-Chairman |
| Issue | Companies Act, 1956 - Section 141 |
| Citation | (2008) 79 CC 379, 85 SCL 197, 83 CLA 304, (2008) 76 CC 112, 141 CompCas 944 |
| Judgement Date | October 12, 2007 |
| Court | Company Law Board |
Order:
K.K. Balu, Vice-Chairman, (At Chennai )
These two petitions are filed under section 141 of the Companies Act, 1956 ("the Act"), seeking directions against M/s. WW Shipping Agencies (P) Ltd. (WWSAPL) and M/s. Saturn Ship Agencies (P) Ltd. (SSAPL):
(a) to extend the time for filing the particulars of charges reportedly created by WWSAPL and SSAPL in favour of the petitioners;
(b) to execute Forms Nos. 8 and 13 filed by the petitioners; and
(c) to direct that Forms Nos. 8 and 13 be registered and accordingly the register of charges be rectified to include the charges in favour of the petitioners.
The petitioners in both the petitions are common, the properties, being the subject-matters of the petitions are jointly owned by WWSAPL and SSAPL and the issues on hand are one and the same and therefore, these petitions are disposed of by this common order.
According to Shri R. Shankaranarayanan, learned counsel, the petitioners are engaged in the business of leasing of marine containers used for stuffing of cargo for carriage in ships all over the world. WWSAPL and SSAPL are in the shipping business which, inter alia, include the taking of containers on lease and use for their clients. In the year 2001, SSAPL, an associate company of WWSAPL approached the second petitioner for taking marine container on lease and the second petitioner provided the containers on lease by and under periodical lease agreements. As at March 31, 2006, the second petitioner had given on lease to SSAPL marine containers worth about Rs. 40 crores. The first petitioner as at March 31, 2006, had given on lease 1,000 marine containers to SSAPL valued at Rs. 10 crores. The lease agreements entered into between the petitioners and SSAPL are subsisting under which the lessee is obliged to pay lease rental. WWSAPL had guaranteed the discharge of obligations by SSAPL in favour of the second petitioner. WWSAPL further ensured the performance of obligations by SSAPL in favour of the first petitioner.
When the lease rentals fell into arrears in the year 2006, the petitioners insisted that WWSAPL and SSAPL provide adequate security for the outstanding rentals and for return of the containers. SSAPL, executed an agreement on June 15, 2006, to create a second charge, first charge being held by the State Bank of India (SBI), Special SIB Branch, Mumbai-400 086, on the one half of the undivided share in all those pieces and parcels of land or ground situated at village Deonor in the registration sub-district of Bandra-Mumbai suburban district admeasuring 1,490 sq. mts. bearing survey No. 91, Hissa No. 2 and CTS No. 284 (Part-B) and the third, fourth and fifth floors in favour of the first petitioner. On June 19, 2006, WWSAPL and SSAPL entered into a memorandum of agreement, whereby they agreed to create a second charge, first charge being held by the SBI, Special SIB Branch, Mumbai-400 086, on the one half of the undivided share in all these pieces and parcels of land or ground situated at village Deonor in the registration sub-district of Bandra-Mumbai suburban district admeasuring 1,490 sq. mts. bearing survey No. 91, Hissa No. 2 and CTS No. 84 (Part-B) and the building on the ground, first and second floors in favour of the second petitioner. Subsequently, WWSAPL and SSAPL have executed on July 14, 2006, a memorandum separately confirming the deposit of certified true copies of the title deeds of lands and buildings in Mumbai in favour of the petitioners with intent to create an equitable mortgage upon the properties for due payment of the rentals, since the original title deeds are held by the SBI as security for its dues.
The Registrar of Companies (Registrar), Tamil Nadu, Chennai, in his report submitted that the petitioners have given loan to respondents to the tune of Rs. 5 crores each mortgaging land and properties on the basis of equitable mortgage but no proper document documenting the equitable mortgage is enclosed either with the Form No. 8 or with the petition. The SBI has got a first charge on the property created by way of equitable mortgage on March 31, 2006, and filed Form No. 8 with the Registrar on May 17, 2006. The charge by way of equitable...
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