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TMI Blog2000 (7) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... e expiry of the period of payment of the cheque amount before passing of the order of winding up under section 433( e ) and ( f ) of the Companies Act, 1956. Since the relevant facts involved in all the cases are similar and a common question of law arises in all the cases, they were heard together and they are being disposed of by this order. 2. The factual score depict that post-dated cheques were issued on behalf of the company in favour of the complainant in the course of the business of the company. When the cheques were presented for encashment, they were dishonoured by the drawee bank. The complainant issued notice to the company calling upon it to pay the amount. As the company failed to pay the amount, a complaint was filed bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of properties. He submitted that even if any transfer takes place, such transfer would be void . He further submitted that in such a situation the company and its directors would be entitled not to make payment because if such payment is made it would be void . He submitted that the court cannot force a company or its directors to make a void payment or do something, which is not sanctioned or permitted by law. He further submitted that on 12-8-1999, an order of winding up was passed by the Company Court and an official liquidator was appointed, which bars the company and its directors from making any payment. According to him, the said bar would operate retrospectively by virtue of section 441 but the bar would come into existence only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by the company and its directors. In Pankaj Mehra v. State of Maharashtra JT 2000 (2) SC 113, similar question was raised before the Supreme Court. After analysing the scope and ambit of sections 441(2) and 536(2) of the Companies Act and section 138/141 of the Act, their Lordships of the Supreme Court have held that the company and its directors cannot escape from penal liability under section 138 on the premise that a petition for winding up of the company has been presented and was pending during the relevant time. Their Lordships have also held that issuance of a cheque does not amount to disposition of property. Their Lordships have further held that it is difficult to lay down that all disposition of property made by a compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawing of a cheque can be considered as a step towards disposition of property, but that is insufficient to amount disposition of property." "There is no provision in the Companies Act which prohibits enforcement of the debt due from a company. When a company goes into liquidation, enforcement of debt due from the company is only made subject to the conditions prescribed therein. But that does not mean that the debt has become unenforceable altogether. Perhaps due to want of sufficient assets for the company the realisation of a debt would be difficult. But that is no premise to hold the debt is legally unenforceable. Enforceability of a debt is not to be tested on the touchstone of the modality or the procedure provided for its realisa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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