Lahiri, J. - (1.) Three questions of some importance arise for consideration in this appeal and before I proceed to consider them on merits I must record my grateful appreciation of the ability with which learned Counsel appearing on both sides have presented their respective cases before the Court. The first question is whether an unsecured Creditor of a limited company has any locus standi in a proceeding for extension of time for registration of a mortgage or charge under Section 120 of the Indian Companies Act, 1913 as amended by Act XXII of 1936. The second question is whether the Court is competent to extend the time under that section for registration of a mortgage or charge in a case which comes under Section 109-A of the Indian Companies Act of 1913, and if the answer to the second question be in the negative, the third question is whether an order of extension actually made by the Court under Section 120 (as amended by Act XXII of 19S6) in a case which comes under Section 109-A, is a nullity or an illegal order made by irregular assumption of jurisdiction.
(2.) The facts upon which the above questions arise are as follows : On 30-1-1944, one Ranjit Bose entered into an agreement with one Robert Stanley Treanor for the purchase of a tea estate named the Rangaroon Tea Estate belonging to the latter and in pursuance of the said agreement paid a sum of Rs. 20,001/- as earnest money on 1-2-1944 and was put into possession. Thereafter the said Ranjit Bose approached the Calcutta National Bank Ltd. (now in liquidation) which has been and will hereinafter be described as the Bank, for a loan of Rs. 2,75,000/-. The Bank agreed to lend the said amount provided the said Ranjit Bose agreed to repay the sum with interest at the rate of 6 per cent. per annum and further agreed to secure the repayment by creating a mortgage by deposit of title deeds relating to the Rangaroon Tea Estate. On 18-6-1944, the said Ranjit Bose promoted and registered a limited company named the Rangaroon Tea Estate Co. Ltd., which has been and will hereinafter be described as the company. On 3-8-1944, the Board of Directors of the company passed resolutions authorising Ranjit Bose, who was one of the directors of the company, to act as a trustee of the company in the matter 6f the purchase of the Rangaroon Tea Estate for the company and also in the matter of the mortgage of the said Tea Estate in favour of the Bank. On 30-8-1944, the Bank advanced a sum of Rs. 2,75,000/- to the said Ranjit Bose with a further arrangement to advance upto the limit of Rs. 20,000/- on cash credit account and to secure repayment with costs and interest. Ranjit Bose hypothecated in favour of the Bank by way of first charge the entire Tea Estate with all the tea crops and all the moveables belonging to the Rangaroon Tea Estate and deposited the title deeds of the said Tea Estate. By an indenture dated 30-12-1944, Ranjit Bose transferred to the company the tea estate subject to the mortgage and charge in favour of the Bank. The company did not file particulars of the charge with the Registrar of Joint Stock Companies within the period of twenty-one days allowed by law whereupon the Bank which was not a party to the indenture dated 30-12-1944, filed an application for extension of time on 2-4-1949. No notice of this application was served either upon the company or upon any of its creditors and upon this ex parte application S.B. Sinha, J., made the following order on 4-4-1949 : "It is ordered that the time for registration and for filing of particulars of the charge created under the said memorandum of deposit of title deeds and the said deed of hypothecation dated 30-8-1944, subject to which the properties were acquired by the said company under the conveyance dated 30-12-1944, in the office of the Registrar of Joint Stock Companies West Bengal be and the same is hereby extended by a month from the date hereof."
(3.) Pursuant to the aforesaid order the Bank duly filed particulars of the charge and of the deed of hypothecation with the Registrar of Joint Stock Companies on 27-4-1949. It is clear both from the order of S. B. Sinha, J. and from the application upon which that order was made that in that proceeding the Bank proceeded on the footing that the case was one which came under Section 109-A and not under Section 109 of the Indian Companies Act of 1913.;