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He also referred to Industrial Credit and Investment Corporation of India Ltd. v. Srinivas Agencies [1996] 86 Comp Cas 255 (SC) in support of his contentions. Learned counsel has also placed before this court the deed of hypothecation dated January 11, 1982, executed by the company in favour of the SFC, inter se agreement creating a pari passu charge dated January 11, 1982, between the company, the SFC and Canara Bank, the supplementary agreement inter se between the participating institutions and the memorandum of deposit of title deeds executed by the directors of the company.

Office is directed to number this C. A. No. 257 of 2002 as appeal and not as company application and furnish the copy of this order to learned counsel urgently, (emphasis (Here printed in italics) supplied)

14. The appellant again approached the official liquidator by filing a fresh claim in Form No. 66 reiterating its earlier stand. They did not produce any evidence in proof of their claim like charge in Form No. 8. They produced a certificate issued by Canara Bank dated August 8, 1981, original bank guarantee dated August 7, 1981, original agreement dated August 3, 1981, with Canara Bank, resolution of the board of directors of the company and copy of the letter from the SFC dated June 11, 1981, addressed to the company. They did not produce Form No. 8 registered by the company creating charge over the assets in their favour. The appellant merely relied on pari passu agreement with Canara Bank and it expected the official liquidator to draw an inference that the charge created by the company in favour of Canara Bank also enures to the benefit of the company. The same was rejected by the official liquidator by the impugned order. This court repeatedly asked learned counsel for the SFC to produce any charge in Form No. 8 created if any in favour of the SFC. Except filing an affidavit, no such document is produced. In fact, in the affidavit accompanying the present appeals, the SFC stated that they have called for the documents from Canara Bank, which were not produced to them, and, therefore, the official liquidator passed the rejection order. This would show that even according to the SFC, the documents are not placed before the official liquidator. Therefore, this court is of the considered opinion that based on the material placed before him the official liquidator has arrived at an appropriate decision and the same does not in any manner warrant interference under Rule 164 of the Companies (Court) Rules or the order of the official liquidator cannot be said to be illegal. Now, I will take up the documents produced before this court by learned standing counsel for the SFC in support of the claim that there was a charge created by the company in favour of the SFC.

(3) If the official liquidator does not consent, the SFCs have to move the company court for appropriate directions to the official liquidator who is the pari passu charge holder on behalf of the workmen. In any event, the official liquidator cannot act without seeking directions from the company court and under its supervision."

18. Therefore, unless and until the pari passu agreement between SFC and Canara Bank and memorandum of deposit of title deeds executed by the company are treated as a charge by operation of law, i.e., company law, the SFC cannot claim to be a secured creditor. It is not denied that the company registered charge in Form No. 8 in favour of Canara Bank. No such charge was created or registered by the company in favour of the SFC. There was, however, an inter se agreement pari passu between Canara Bank, the SFC and the company wherein it was covenanted that hypothecation deed dated January 11, 1982, created by the company in favour of the SFC and Canara Bank shall rank pari passu with other creditors. There was also a supplementary agreement inter se between the participating institutions dated August 5, 1986, i.e., Canara Bank, the SFC and the company wherein it was agreed by the parties that the company has created charge over the movable and immovable properties in favour of consortium of the Canara Bank and SFC by executing deed of hypothecation in favour of SFC for Rs. 30 lakhs, deed of hypothecation and indenture of equitable mortgage dated January 11, 1982, deed of hypothecation dated May 5, 1980, for Rs. 200 lakhs, letter evidencing deposit of title deed dated May 5, 1980. Clause 3 of the supplementary agreement provided that the right in respect of the security created in favour of participating institutions by way of hypothecation/equitable mortgage shall rank pari passu in all respects and for all purposes inter se the participating institutions and without any preference or priority over the other.

19. These two documents above referred to are mainly pressed into service in support of the contention that these documents amount to creating a charge in favour of SFC. I am afraid, I cannot agree with the same. Hypothecation deed, equitable mortgage, letter of depositing title deeds, etc., may amount to charge. In the absence of such charge being registered with the Registrar of Companies as required under Section 125 of the Companies Act, these documents would not operate against the liquidator or any creditor. This does not, however, mean that the SFC cannot impose the charge against the company by reason of the hypothecation deed, deed of mortgage and pari passu agreement. However, for the purpose of Section 529A(i)(b)/ the debt covered by an unregistered charge cannot be treated as secured. Be it noted, under Section 528 of the Companies Act, all debts payable by the company in liquidation shall be admissible to proof against the company, but the debts of workmen shall be paid equally with all other debts.