bank m t ltd vs heildeberg east africa ltd 2 others 2010 tzhccomd 23 13 december 2010

bank m t ltd vs heildeberg east africa ltd 2 others 2010 tzhccomd 23 13 december 2010

The Applicant/Objector's debenture, properly registered and stamped, secures the outstanding credit facilities advanced to the 2nd Respondent. The subsequent facilities constitute a rescheduling of old facilities and do not create new charges requiring separate registration. The Applicant, as a secured creditor, has priority over the attached assets, and execution may proceed only subject to the Applicant's charge. The prayer for perpetual injunction is not available in these proceedings. The Applicant has not established irreparable loss, given the existence of a legal mortgage with value exceeding the outstanding sum. The Speed Master machine is excluded from the charge as it is subject...

Citation
bank m t ltd vs heildeberg east africa ltd 2 others 2010 tzhccomd 23 13 december 2010
Parties
Applicant/objector: Bank M Tanzania Ltd; 1st Respondent/decree Holder: Heildeberg East Africa Limited; 2nd Respondent/judgment Debtor: The Print Factory Limited; 3rd Respondent: Mamba Auction Mart
Court
TZHCCOMD
Jurisdiction
Tanzania
Judgment Date
13 December 2010
Procedural Posture
Objection Proceedings (order XXI Rule 57, 58, 59, 61 Cpc) / Ruling on Objection to Attachment in Execution
Outcome
Application partly allowed, partly dismissed.
Legal Topics
Attachment and Execution of Decrees, Priority of Secured Creditors, Debenture and Charge Registration, Garnishee Orders, Mortgage Enforcement, Company Insolvency and Winding Up
Source Language
English
Civil Procedure Banking and Finance Insolvency Secured Transactions Attachment and Execution of Decrees Priority of Secured Creditors Debenture and Charge Registration Garnishee Orders +2 more

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Parties

Bank M Tanzania Ltd

Applicant/objector

Heildeberg East Africa Limited

1st Respondent/decree Holder

The Print Factory Limited

2nd Respondent/judgment Debtor

Mamba Auction Mart

3rd Respondent

Procedural Posture

Objection Proceedings (order XXI Rule 57, 58, 59, 61 Cpc) / Ruling on Objection to Attachment in Execution

Legal Issues

  1. 1 Whether the attached properties of the 2nd Respondent are liable to attachment in execution given the prior debenture/charge in favour of the Applicant/Objector.
  2. 2 Whether the Applicant/Objector as a secured creditor has priority over the Decree Holder in execution proceedings.
  3. 3 Whether subsequent variations to the debenture required registration and stamping under the Companies Act and Stamp Duty Act.

Ratio Decidendi

The Applicant/Objector's debenture, properly registered and stamped, secures the outstanding credit facilities advanced to the 2nd Respondent. The subsequent facilities constitute a rescheduling of old facilities and do not create new charges requiring separate registration. The Applicant, as a secured creditor, has priority over the attached assets, and execution may proceed only subject to the Applicant's charge. The prayer for perpetual injunction is not available in these proceedings. The Applicant has not established irreparable loss, given the existence of a legal mortgage with value exceeding the outstanding sum. The Speed Master machine is excluded from the charge as it is subject...

Court Disposition

Application partly allowed, partly dismissed.

Orders

  • Execution to proceed as ordered by the Court, subject to the charge over the assets of the 2nd Respondent in favour of the Applicant/Objector.
  • No order as to costs; each party to bear its own costs.