V.K.SINGHAL,J. - (1.) THIS appeal has been filed under Rule 164 of the Companies (Court) Rules, 1959, against the order dated August 29, 1991, passed by the official liquidator attached to this court by which the claim of the Rajasthan Financial Corporation was not allowed in respect of the following three items : (i) The claim of the appellant has been admitted as an ordinary claim instead of preferential claim. (ii) Interest has been allowed up to December 1, 1983, and claim of interest for subsidy period has not been allowed. (iii) The expenses of Rs. 15,040 have not been allowed. Jaipur Spinning and Weaving Mills Ltd. (in liquidation) applied for a loan to the appellant. A loan for a sum of Rs. 19.50 lakhs was sanctioned but an amount of Rs. 16,88,000 was disbursed. A claim was filed as a secured creditor for Rs. 18.87 lakhs in respect of principal and interest from August 15, 1981, to February 28, 1991. The amount of Rs. 15,040 was also claimed on account of expenses incurred in connection with the loan. The claim was admitted for a sum of Rs. 16.88 lakhs as principal which was advanced by the appellant and the interest of Rs. 11,11,656 up to December 1, 1983. This claim was allowed as an ordinary creditor and the plea of the Rajasthan Financial Corporation that it was a secured creditor was not accepted.
(2.) I have considered over the matter. So far as the question of considering the claim of the appellant as a secured creditor is concerned, the provisions of Section 125 of the Companies Act provide that a charge has to be created and the instrument by which the charge is created is filed with the Registrar of Companies for registration. It is only after the registration of the charge that the claim of the appellant could have been considered as a secured one and in the absence of creating such a charge the official liquidator was not bound by it. It is considered as void against the official liquidator. In the absence of registration, therefore, the official liquidator was justified in treating the claim as an ordinary one and not as secured one. The application which has been filed after nine years of the winding up proceedings cannot be of any assistance to the appellant as the position has to be seen on the date of order of liquidation. The charge was filed in the year 1990 and before that time the assets were already taken in custody of the official liquidator. The compliance with the provisions of Section 529 was also not made by the appellant. Besides this, in the resolution dated May 30, 1981, a four party agreement was required to be executed between the appellant, SBI, Government of Rajasthan, and the company. The agreement in accordance with the resolution dated May 30, 1981, was not executed. Section 534 provides that where a company is being wound up a floating charge on the undertaking or property of the company created within twelve months immediately preceding the commencement of the winding up shall, unless it is proved that the company immediately after the creation of the charge was solvent, be invalid except to the amount of any cash paid to the company at the time or subsequently to creation or in consideration for the charge together with interest on that amount at the rate of 5 per cent. per annum or such other rate as may for the time being be notified by the Central Government in this behalf in the Official Gazette. In the present case, the charge was created as a third charge in respect of all present and future assets in addition to the first charge on the diesel generating set. Since the charge was not created within 12 months preceding the commencement of winding up the appellant cannot claim to be a secured creditor. The movable and immovable properties of the company in liquidation were already having first charge in favour of the SBI and the Government of Rajasthan is also a guarantor and the second charge was created in favour of the guarantor. No document was produced before the official liquidator that no objection certificate from the SBI or from the Government was taken even in respect of creation of first charge on the generating set. Any modification of the charge as required under law was not filed with the Registrar of Companies and the order of the official liquidator, therefore, on this point is upheld and the contention of the appellant is rejected. In respect of the claim of the appellant for expenses and interest from the order passed by the official liquidator, I find that the said order is neither speaking nor the provisions of law have been considered. With regard to expenditure incurred the estimate has to be made in accordance with Rule 154 of the Companies (Court) Rules, 1959, and for the purpose of interest provisions exist under Rule 156 of the said rules. The responsibility remains of the creditor for proving the debt. In the order of the official liquidator though it is mentioned that entries in respect of expenditure are not existing in the books of the company in liquidation, it has to be seen as to whether the creditor has been able to establish the claim and the same is the position in respect of interest as to under law how much interest could be allowed. The order of the official liquidator in this regard cannot be sustained.
(3.) CONSEQUENTLY , the appeal is partly allowed and the official liquidator is directed to pass a fresh order in respect of the claim of the appellant in respect of expenses and interest.;