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In Re: East Africa Hardware Company, in Liquidation - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtMumbai
Decided On
Case NumberI.C. No. 57 of 1945
Judge
Reported in(1949)51BOMLR271
AppellantIn Re: East Africa Hardware Company, in Liquidation
Excerpt:
indian companies act (vii of 1913), section 109(c)-mortgage and charge-registration of-company-liquidation-validity of mortgage and charge-liquidator.;under section 109(c) of the indian companies act, 1913, a pledge of moveable property belonging to a company does not require registration, though a mortgage or a charge on such property does require registration, provided the property is not stock-in-trade. - - 1, therefore, fail......a mortgage or a charge, not being a pledge on any moveable property of the company except stock-in-trade; shall, so far as any security on the company's property or undertaking is thereby conferred be void against the liquidator....2. the question for consideration is, what is the meaning to be attached to clause (e) of this section the clause read with the punctuation as it exists in the statute hardly makes sense. i have not heard of such a thing as a 'pledge on a property.' one ordinarily talks of 'of a pledge of property', but a mortgage or charge is 'on' a property. it appears to me that in the punctuation of this clause one must read after the word 'pledge' a comma in order that the clause may make sense. thus read, the clause would be 'a mortgage or charge, not being a.....
Judgment:

Tendolkar, J.

1. The third question, as to the necessity for registration, arises in this manner. Section 109 of the Indian Companies Act states,

Every mortgage or charge created after the commencement of this Act by a company and being either...(c) a mortgage or a charge, not being a pledge on any moveable property of the company except stock-in-trade; shall, so far as any security on the company's property or undertaking is thereby conferred be void against the liquidator....

2. The question for consideration is, what is the meaning to be attached to Clause (e) of this section The clause read with the punctuation as it exists in the statute hardly makes sense. I have not heard of such a thing as a 'pledge on a property.' One ordinarily talks of 'of a pledge of property', but a mortgage or charge is 'on' a property. It appears to me that in the punctuation of this clause one must read after the word 'pledge' a comma in order that the clause may make sense. Thus read, the clause would be 'a mortgage or charge, not being a pledge, on any moveable property of the company, except stock-in-trade...' The result would be that a pledge would not require registration, though a mortgage or a charge on moveable property would require registration, provided the moveable property was not stock-in-trade. The proviso leads to the result that a mortgage or a charge on stock-in-trade would not require any registration. The case I am dealing with is, as I have held, a case of pledge, but, even if I am wrong in holding that in this case possession of the goods had not been handed over to the petitioner it would still be a mortgage or a charge on stock-in-trade. In either contingency to my mind registration is not necessary. The objections urged by respondent No. 1, therefore, fail.

3. The second issue was therefore found in the affirmative.


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