Madras High Court
M/S.New Tirupur Area Development ... vs Union Of India on 14 March, 2025
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2025:MHC:786
W.P.No.30011 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.03.2025
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.30011 of 2024
and W.M.P.Nos.32720 of 2024 and 4917 of 2025
M/s.New Tirupur Area Development Corporation Ltd.,
Rep. through its Company Secretary,
Having office at Polyhose Towers,
First Floor No.86, Mount Road,
Guindy, Chennai - 600 032. .. Petitioner
Versus
1. Union of India,
Represented by its Secretary,
Ministry of Corporate Affairs,
Shastri Bhawan, Dr.Rajendra Prasad Road,
New Delhi - 110 001.
2. The RoC,
Tamilnadu, Coimbatore,
No.7, AGT Business Park, I Floor,
Phase II, Avinashi Road, Civil Aerodrome Post,
Coimbatore - 641 014, Tamilnadu.
3. M/s.Infrastructure Leasing & Financial Services Limited,
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W.P.No.30011 of 2024
IL&FS Financial Centre, 9th Floor,
Plot No.C-22, G Block,
Bandra Kurla Complex,
Bandra (east), Mumbai - 400 051.
4. M/s.IDBI Bank Limited,
115, Anna Salai, Post Bag No.805,
Saidapet, Chennai - 600 015.
5. M/s.Small Industries Development Bank of India,
480, Anna Salai, Nandanam,
Chennai - 600 035.
6. M/s.Life Insurance Corporation of India,
Investment Department (Project Appraisal/
credit rating cell),
Yogakshema, Jeevan Bima Marg,
Mumbai - 400 021.
7. M/s.Central Bank of India,
Corporate Finance Branch,
MMO Building, 1st Floor,
Fort, Mumbai - 400 023.
8. M/s.Bank of Baroda,
Tirupur Branch, 642,
Kamaraj Road, P B No.434,
Tirupur - 641 604.
9. M/s.State Bank of India,
Project Finance Group,
Express Towers, 20 Floor,
Nariman Point, Mumbai - 400 021.
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W.P.No.30011 of 2024
10. M/s.General Insurance Corporation of India,
Suraksha, 170 J Tata Road,
Churchgate, Mumbai - 400 023.
11. M/s.National Insurance Company Limited,
Everest House, 4 Floor,
46C J N Road, Calcutta - 700 071.
12. M/s.New India Assurance Company Limited,
87, MG Road,
Mumbai - 400 023.
13. M/s.Oriental Insurance Company Limited,
A-25/25 Asaf Ali Road,
New Delhi - 110 002.
14. M/s.United India Insurance Company Limited,
24, Whites Road,
Chennai - 600 014.
15. M/s.State Bank of Hyderabad,
Overseas Branch,
1204 Tulloch Road,
Colaba, Mumbai - 400 029.
16. M/s.State Bank of Patiala,
Atlanta, Nariman Point,
Mumbai - 400 021.
17. M/s.Bank of India,
Chennai Corporate Banking Branch,
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W.P.No.30011 of 2024
Tarapore Towers, Fourth Floor,
826 Anna Salai,
Chennai - 600 002.
18. M/s.Indian Overseas Bank,
122, Kumaran Road,
Tirupur - 641 601.
19. M/s.Punjab National Bank,
Brady House, VN Road,
Fort, Mumbai - 400 023.
20. M/s.Canara Bank,
Industrial Finance Branch,
Second Floor, World Trade Tower,
Barakhamba Lane,
New Delhi - 110 001.
21. M/s.Oriental Bank of Commerce,
Harsha Bhawan,
E-Block, Connaught Place,
New Delhi - 110 001. .. Respondents
(R4 is substituted vide separate order,
dated 14.03.2025 in W.P.No.30011 of 2024)
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
pleased to issue a Writ of Certiorarifed Mandamus, calling for the records
relating to the impugned order, dated 05.08.2024 passed by the second
respondent herein vide RoC/CBE/SKS/NTADCL/2024 and quash the same
as arbitrary, illegal and discriminatory and consequently direct the second
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W.P.No.30011 of 2024
respondent herein to register the satisfaction of charge as per the petitioner's
representation, dated 16.02.2024 in accordance with law.
For Petitioner : Mr.P.H.Arvindh Pandian,
Senior Counsel,
Asstd. by Mr.C.V.Shailandhran
For Respondents : Mr.AR.L.Sundaresan,
Additional Solicitor General,
Asstd. by Mr.K.Ramanamoorthy,
Central Government Counsel,
for RR-1 and 2
: Mr.P.V.S.Giridhar,
Senior Counsel,
Asstd. by Mr.Cyril Amarchand Mangaldas,
for R3
: Mr.Om Prakash,
Senior Counsel,
Asstd. by Ms.Vinithra Srinivasan,
for R4
: Notice served to RR-5, 7, 8, 10, 12, 17, 18
: Not ready notice for RR-6, 9, 11, 15, 16, 19
to 21
ORDER
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This Writ Petition challenges the order, dated 05.08.2024, issued by
the second respondent, seeking to quash it and consequently, directing the
respondents to register the satisfaction of the charge as per the petitioner's
representation, dated 16.02.2024.
2. The petitioner contends that the petitioner Company availed
financial assistance from respondents Nos.3 to 21 for its purposes. During
this process, a charge was registered by the Registrar of Companies
(hereinafter 'RoC') in accordance with Chapter-VI of the Companies Act,
2013 (hereinafter 'the Act'). The petitioner asserts that it has settled the
entire amount owed to respondents Nos.3 to 21. Consequently, on
16.02.2024, it submitted an application under Sections 82 and 83 of the Act.
The prayer in this application reads as follows:-
"In the light of the above circumstances, it is
respectfully prayed for your immediate intervention on the
subject and request you
1. To register our Satisfaction of charge Application made
to your good office by exercising your power under
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section 82 and 83 of the Act.
2. To issue the suitable direction to IDBI (trustee Bank),
appointed by the lenders to issue the No dues certificates
to the Company, for satisfaction of full Charge.
and release the charge created on the Assets of the
Company i.e. NTADCL, for the above stated Charge id
and sign the CHG-4 form (as Charge Holder), for
completing the intimation pRoCess to the RoC, that need
to be Complied by the Company and charge holder within
stipulated time line. (which could not be complied by the
Company, due to non-issue of No dues certificate for the
above stated un-justifiable reasons by the Lenders and
IDBI (trustee Bank).
We also wish to bring it to your kind attention that the
filing of the e-form (CHG-4) as per sec.82 (1), could not
be done by the Company without signature of charge
holder, which is allowed in spirit by the section 82(2) of
the Act otherwise and Company may not be held Liable
for delay, if any made due to the charge holder's fault from
Procedural Compliance aspect."
(Emphasis supplied)
3. When an inquiry was conducted by the RoC on behalf of the
consortium of creditors and certain individual banks, it was denied that the
charge had been cleared. They expressed their unwillingness to issue a No-
Due Certificate and requested the RoC to keep their charge intact until their
dues were settled. Therefore, the RoC noted that 16 out of 19 charge holders
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unanimously objected to the satisfaction of the charge against the Company
and had not issued a No Objection Certificate, thus, requesting to maintain
the charge in MCA-21 until the dues were settled. Hence, the request was
rejected by the impugned order, dated 05.08.2024. The petitioner is before
this Court challenging the said order.
4. Mr.P.H.Arvindh Pandian, learned Senior Counsel for the petitioner
company, drew the attention of this Court to communications from the
various individual banks intimating that the loan amounts paid and that there
are no dues etc., more specifically, to the communications, dated 31.03.2023,
27.03.2023, 29.03.2023, 24.05.2023 etc., are contained in page No.191
onwards of the paper book filed along with the Writ Petition. He submits
that it is evident that the charge was created solely for the specified loan
amounts and did not encompass any right of recompense. Therefore, when
the petitioner settled the entire amount, the RoC should have considered this
fact and entered satisfaction of the charge in accordance with Section 82 of
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the Act.
5. Alternatively, he would argue that even if any amount is due, the
RoC should have considered that. According to respondent Nos.3 to 21, a
sum of Rs.69.3 crores is due regarding the right of recompense and another
sum of Rs.65.36 crores is claimed by the third respondent. Assuming that
any further sum is due and declared by the creditor institutions as due, the
Registrar should have exercised the power under Section 83 of the Act and
accordingly, recorded part satisfaction of the charge or varied/modified the
charge. The initial charge that mentions the whole amount of borrowings
cannot be maintained as is; therefore, the impugned order must be set aside,
and the Registrar should be directed to modify/alter the charge to that extent.
6. Mr.AR.L.Sundaresan, learned Additional Solicitor General for
respondents Nos.1 and 2, submits that the power granted under Chapter-VI
of the Act must be exercised solely in accordance with the Act. This power
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resembles that of the Registrar in registering transactions between parties
and does not encompass any adjudicatory exercise. The limited discretion is
to examine the evidence regarding any admission of satisfaction by the
parties or any adjudication by the competent forum concerning the debt or
discharge of the charge and to record this. However, when creditors dispute
the Company’s claim, it is not the role of the RoC to make a decision or
pronounce on the matter. Accordingly, he contends that the RoC has
reviewed the case. When the petitioner requested the charge to be removed,
and the creditors objected by not issuing a No-Dues Certificate, the RoC
rightly chose not to remove the charge.
7. Regarding the power under Section 83, unless there is sufficient
evidence on record to satisfy the Registrar, this power cannot be exercised.
It has been stated in the counter-affidavit that the parties did not present any
evidence to satisfy the Registrar. Therefore, the impugned order was
justifiably issued.
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8. Mr.P.V.S. Giridhar, learned Senior Counsel for the third respondent,
submits that, firstly, the respondents' actions amount to forum shopping.
They have made similar requests before the N.C.L.T as well. Secondly, the
fact that they have submitted other applications to different forums is not
pleaded. They have suppressed material facts. On these two grounds, the
petitioner's Writ Petition should be rejected in limini. Furthermore, although
the petitioner's prayer includes making the RoC a party, it essentially seeks
to determine the liability between the petitioner Company and the banks.
This does not involve any public duty, except for the authority being a
statutory body. Since the entire dispute pertains to contractual matters, the
Writ Petition is not maintainable.
9. Regarding the removal of the charge, they have not given their
consent and dispute the claim that all dues are settled. Once they object, the
RoC cannot remove the charge. As long as the last paise remains unpaid, the
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charge will remain intact. Mr.Giridhar refers to the provisions of the
Transfer of Property Act, 1882 in this regard drawing the Court's attention to
Section 60. Additionally, he would submit that the amounts keep varying
and that interest continues to accrue. There is no authority to enter the part
payments periodically or to modify the charge that has been already
recorded.
10. Even with reference to Section 83(b), he contends that unless
consent is forthcoming from the bank, the said power cannot be exercised.
The learned Senior Counsel relies on the judgment of the Hon'ble Supreme
Court of India in Prestige Lights Ltd. Vs. State Bank of India to argue that
the High Court, while exercising its discretionary and extraordinary
jurisdiction, would not grant relief if there is any suppression of material
facts. The learned Senior Counsel also cites the judgment of the Hon'ble
Supreme Court of India in K.D.Sharma Vs. Steel Authority of India
(2007) 8 SCC 449
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Limited and Ors. to assert that when the facts presented in the affidavit are
misleading, the Court should dismiss the Writ Petition. He refers to the
judgment of the Hon'ble Supreme Court of India in Bank of Baroda Vs.
Farooq Ali Khan and Ors. in Civil Appeal No. 2759 of 2025, dated
20.02.2025, to submit that when there is an alternative remedy in the form of
statutory tribunals, the High Court cannot entertain the Writ Petitions. The
learned Senior Counsel relies on the judgment of the Hon'ble Supreme Court
of India in Titaghur Paper Mills Co. Ltd. and Anr. Vs. State of Orissa and
Ors. , to argue that when the statute that creates a right or liability also
provides for a remedy for enforcing it, a Writ Petition cannot be entertained.
11. The judgment of the Hon'ble Supreme Court of India in Binny
Limited and Anr. Vs. V. Sadasivan and Ors. is also relied upon to argue
that a Writ Petition is not a remedy against private wrongs. The learned
Senior Counsel would reference the judgment of the Hon'ble Supreme Court
(2008) 12 SCC 481
(1983) 2 SCC 433
(2005) 6 SCC 657
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of India in Ramakrishna Mission and Anr. Vs. Kago Kunya and Ors. to
assert that it is not the body that matters—whether it is a private or public
body—what is relevant is the nature of the duty, whether it is public or
private. Accordingly, this Court should conclude that the matter at hand is
private in nature and should not entertain the Writ Petition. The learned
Senior Counsel would also refer to the judgment of the Privy Council in
Ram Chand Shah Vs. Parbhu Dayal Pandit and Ors. , to argue that the
provisions of Sections 60 and 82 of the Transfer of Property Act, 1882, apply
in the case of redemption, and unless the last paise is paid to the satisfaction
of the mortgagor, the charge cannot be released. Mr.P.V.S.Giridhar, the
learned Senior Counsel, would submit that even under Section 83, there is a
difference in the exercise of power between Section 83(a) and Section 83(b).
12. Mr.Om Prakash, learned Senior Counsel for the fourth respondent,
submits that the prayer cannot be entertained by this Court, as the borrowers
(2019) 16 SCC 303
1942 SCC OnLine PC 9
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may frequently approach the RoC to record part satisfaction. It is their duty
to settle with the creditors, and if the creditors do not agree, they must
approach the competent forum. They cannot indirectly achieve this by
making the RoC adjudicate such contentious matters. A reading of Chapter-
VI of the Act makes it clear that it is beyond the purview of the RoC to enter
into or entertain such disputes.
13. The learned Senior Counsel would also rely on the relevant rules,
namely, the Companies (Registration of Charges) Rules, 2014, to argue that
the forms are submitted in accordance with these Rules and that, unless the
creditor records some satisfaction, there is no provision for adjudicating or
correcting the said forms. When the petitioner has stated in their application
that the facts are disputed, then, on the face of it, their Writ Petition is liable
to be rejected. The learned Senior Counsel would refer to the judgment of
the Hon'ble Supreme Court of India in Pimpri Chinchwad Municipal
Corporation and Ors. Vs. Gayatri Construction Company and Ors. ,
MANU/SC/7917/2008
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specifically paragraph No.7, to argue that the High Court cannot delve into
contractual matters while exercising powers under Article 227 of the
Constitution of India.
14. I have considered the rival submissions made on either side and
perused the material records of the case.
15. The first question to be decided in this case is whether the
petitioner has suppressed material facts. In this regard, the prayer made in
the Writ Petition pertains to the exercise of power under Sections 82 and 83
of the Act, by the RoC. Since the petitioner disclosed the application made
and the objections raised by the respondents/creditors and has duly added
them as respondents, I do not see any intention or attempt by the petitioner
to suppress material facts. The prayer made before the N.C.L.T and in the
present Writ Petition are not one and the same. Therefore, I answer the
question in favour of the petitioner.
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16. The second question to be decided in this case is whether or not
the Writ Petition is entertainable and whether this amounts to forum
shopping. In this regard, Mr.P.V.S.Giridhar, learned Senior Counsel for the
third respondent, draws the attention of this Court to the application made
before the N.C.L.T. Upon reviewing the prayer itself, it is clear that it does
not relate to the exercise of power under Sections 82 and 83 of the Act.
Furthermore, the prayer in the Writ Petition pertains to the nature of the
RoC's exercise of power under Sections 82 and 83. The Act, is a self-
contained code, and Chapter-VI is a sui generis provision that enables the
registration of all charges related to Companies by the RoC. This ensures
that any person wishing to inspect the records can ascertain the charges
against the Company. It serves the public interest, not just that of any
particular Company or creditor, and aims to secure the interests of creditors
and present and prospective investors.
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17. The charge is also specifically defined under the Act. In this
context, the question raised in the Writ Petition is whether the RoC has
correctly decided the application made by the petitioner under Sections 82
and 83 of the Act. This involves a statutory exercise of power. Therefore, I
conclude that it does not fall within any contractual realm or private dispute
but rather questions the statutory exercise of power. Thus, the Writ Petition
is maintainable.
18. Regarding the merits of the case, the petitioner's prayer was
previously extracted. With respect to the first part of the prayer concerning
the recording of satisfaction of the charge, it is essential to refer to Section
82 of the Act:
"82. Company to report satisfaction of charge.—(1) A
company shall give intimation to the Registrar in the
prescribed form, of the payment or satisfaction in full of
any charge registered under this Chapter within a period of
thirty days from the date of such payment or satisfaction.
Provided that the Registrar may, on an application
by the company or the charge holder, allow such
intimation of payment or satisfaction to be made within a
period of three hundred days of such payment or
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satisfaction on payment of such additional fees as may be
prescribed.
(2) The Registrar shall, on receipt of intimation
under sub-section (1), cause a notice to be sent to the
holder of the charge calling upon him to show cause
within such time not exceeding fourteen days, as may be
specified in such notice, as to why payment or satisfaction
in full should not be recorded as intimated to the Registrar,
and if no cause is shown, by such holder of the charge, the
Registrar shall order that a memorandum of satisfaction
shall be entered in the register of charges kept by him
under section 81 and shall inform the company that he has
done so:
Provided that the notice referred to in this sub-
section shall not be required to be sent, in case the
intimation to the Registrar in this regard is in the specified
form and signed by the holder of charge.
(3) If any cause is shown, the Registrar shall record
a note to that effect in the register of charges and shall
inform the company.
(4) Nothing in this section shall be deemed to
affect the powers of the Registrar to make an entry in the
register of charges under section 83 or otherwise than on
receipt of an intimation from the company."
Thus, it can be observed that whenever a Company claims that
payment has been made or satisfaction of the charge has occurred, the
procedure envisioned is that the Registrar must issue a notice to the relevant
creditors. Only if they do not object or fail to appear before the Registrar to
show cause can a note to that effect be recorded. If the creditors appear and
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contest the assertion that the charge is satisfied, the Registrar has no
authority to adjudicate on the matter and therefore, the Registrar has rightly
rejected the Company's request to remove the charge.
19. The next point concerns the recording of partial satisfaction or
modifying the charge. In this regard, Section 83 of the Act is extracted for
easy reference:
"83. Power of Registrar to make entries of
satisfaction and release in absence of intimation from
company.—(1) The Registrar may, on evidence being
given to his satisfaction with respect to any
registered charge,—
(a) that the debt for which the charge was given has
been paid or satisfied in whole or in part; or
(b) that part of the property or undertaking charged
has been released from the charge or has ceased to form
part of the company’s property or undertaking,
enter in the register of charges a memorandum of
satisfaction in whole or in part, or of the fact that part of
the property or undertaking has been released from the
charge or has ceased to form part of the company’s
property or undertaking, as the case may be,
notwithstanding the fact that no intimation has been
received by him from the company.
(2) The Registrar shall inform the affected parties
within thirty days of making the entry in the register of
charges kept under sub-section (1) of section 81."
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20. In this regard, the counter-affidavit of the RoC, from paragraph
Nos.12 to 18, reads as follows:-
" 12. It is submitted that the objection raised by the
lenders are that the company has not paid the Right of
Recompense amount of Rs.69.83 crores to the lender.
13. It is submitted that the main contention
between the parties is that the rate of Right of Recompense
is not agreed between the company and the lenders.
14. It is submitted that this office has no
jurisdiction to adjudicate on the rate of Right of
Recompense.
15. It is submitted that this office has not received
any proof from the borrower on whether the Right of
Recompense is secured or not secured under the charge ID
No. 90004044. The borrower ought to have submitted
enough evidence about the nature of Right of Recompense
whether secured or unsecured.
16. It is submitted that in the absence of any proof
to the contrary, this office is bound to take a stand that
Right of Recompense is secured and hence passed orders
based on the objection of the lenders.
17. It is to submit that the Hon’ble Court may be
pleased to direct the borrower and lenders to present
enough evidence on whether the Right of Recompense
component is secured or unsecured and if secured,
whether that was covered in charge documents filed
mutually by the borrower and lenders with this office,
which will enable this office to decide upon the case under
the appropriate provisions of Companies Act, 2013.
18. It is to submit that in case RoR (Right of
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Recompense) components are secured by security in the
case (charge ID No. 90004044), The Hon’ble Court may
be pleased to direct the parties to file concerned E-form in
MCA portal for “Modification of Charges” to the extent of
pending payment."
21. Although the counter-affidavit states that appropriate proof was
not filed by the parties to exercise the power, I do not find any reasoning in
the impugned order. The impugned order speaks and considers only the
exercise of power under Section 82, with no mention of the request or
reasons about Section 83. Secondly, even before this Court, the RoC is
indicating that if proper evidence is produced by the parties, it can consider
this within the limited discretion available and in accordance with the letter
of the law under Section 83 of the Act.
22. Mr.P.V.S.Giridhar, the learned Senior Counsel, would submit that
the jurisdiction of the Registrar is not what the RoC perceives, but, it has to
be laid down by this Court as per the law. The contention of both learned
Senior Counsel is that such a prayer from the Company/borrower cannot be
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entertained. I do not find any such embargo under Section 83. Furthermore,
as rightly pointed out to this Court by learned Senior Counsel Mr.Om
Prakash, the manner of registration is also governed by the Companies
(Registration of Charges) Rules, 2014. Rule 3 explicitly addresses the
creation or modification of charges as well. Therefore, this Court is not
entering into a factual dispute regarding whether there is any partial or full
satisfaction or whether it would require modification of the charge. It is for
the RoC to consider the matter. The conclusion I reach is that in the
impugned order, the power exercised concerns the prayer made under
Section 82 of the Act. It is in order. The impugned order does not require
any interference. However, the further alternative prayer made under
Section 83 has not been considered, and no reasons have been provided in
the impugned order. The impugned order need not be set aside regarding
this, as the powers under Sections 82 and 83 of the Act are mutually
exclusive. Section 82(4) of the Act makes this expressly clear. Therefore, I
consider it sufficient to direct the RoC to address the issue concerning its
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exercise of power under Section 83 of the Act. This Court is also not
deciding as to whether the request and exercise of power will be under
Section 83(a) or (b) as all the submissions are to be canvassed before the
RoC.
23. In view thereof, this Writ Petition is disposed of on the following
terms:-
(i) The petitioner, as well as the respondent banks, shall appear before
the RoC on 03.04.2025. The petitioner will be entitled to submit evidence
and make such claim with reference to the exercise of power under Section
83 of the Act in the appropriate form on the specified date;
(ii) The copies thereof shall be provided to respondents Nos.3 to 21 or
any other interested person. Thereafter both sides shall be heard and the
matter be decided in accordance with the law;
(iii) The above exercise shall be completed within eight weeks from
the date of receipt/production of a web-copy of this order without awaiting a
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certified copy of the order;
(iv) There shall be no order as to costs. Consequently, the connected
miscellaneous petitions are closed.
14.03.2025
Neutral Citation : yes
grs
To
1. The Secretary,
Ministry of Corporate Affairs,
Shastri Bhawan, Dr.Rajendra Prasad Road,
New Delhi - 110 001.
2. The RoC,
Tamilnadu, Coimbatore,
No.7, AGT Business Park, I Floor,
Phase II, Avinashi Road, Civil Aerodrome Post,
Coimbatore - 641 014, Tamilnadu.
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D.BHARATHA CHAKRAVARTHY, J.
grs
and W.M.P.Nos.32720 of 2024 and 4917 of 2025
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14.03.2025
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