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TMI Blog2004 (12) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... property under tenancy in his favour. The matter is taken up today. 2. Sri Madhuresh Prasad, learned counsel appearing for M/s. Indequip Leasing and Finance Ltd., submits that it was not possible for the arguing counsel to seek instructions from the tenant about his offer. 3. Taking into consideration that much time had flown and even on 8-11-2004 time was given to M/s. Indequip Leasing and Finance Ltd. to make the offer and they have not made any offer, I propose to dispose of the application at Flag-439, the arguments on which were already heard. 4. Flag-439, in fact, is an application for review and stay of the operation of the orders dated 27-8-1999, 12-5-2000 and 25-8-2000 to declare that the applicant-company M/s. Indequip Leasing and Finance Ltd. is the lawful tenant in the property, stay the proceedings of the District Magistrate, Dehradun, not to proceed with the proceeding with respect to taking possession of Sahu Jain Court and pass any other orders. In support of the application, it has been contended by M/s. Indequip Leasing and Finance Ltd., the tenant that the property was given in their tenancy on 28-7-1984 and since thereafter they are continuing in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uidator has been appointed, the liquidator or the provisional liquidator, as the case may be, shall take into his custody or under his control, all the property, effects and actionable claims to which the company is or appears to be entitled. (1A) For the purpose of enabling the liquidator or the provisional liquidator, as the case may be, to take into his custody or under his control, any property, effects or actionable claims to which the company is or appears to be entitled, the liquidator or the provisional liquidator, as the case may be, may by writing request the Chief Presidency Magistrate or the District Magistrate within whose jurisdiction such property, effects or actionable claims or any books of account or other documents of the company may be found, to take possession thereof, and the Chief Presidency Magistrate or the District Magistrate may thereupon, after such notice as he may think fit to give to any party, take possession of such property, effects, actionable claims, books of account or other documents and deliver possession thereof to the liquidator or the provisional liquidator. (1B) For the purpose of securing compliance with the provisions of sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer or delivery made in the ordinary course of its business or in favour of a purchaser or encumbrancer in good faith and for valuable consideration, if made within a period of one year before the presentation of a petition for winding up by the Court or the passing of a resolution for voluntary winding up of the company, shall be void against the liquidator. 13. A fair understanding of section 531A of the Act would make it clear that any voluntary transfer which has been made by the company not being any transfer in the ordinary course of its business then such a transfer would be void against the liquidator. The Company Court would have powers to declare that any transfer made within one year prior to filing of the company petition would be void and would not operate against the liquidator. In the present case the company petition was filed on 23-5-1984, notices were directed to be issued and the lease was created on 28-7-1984. If that be so, it has to be held that the transfer made by the company in favour of the tenant by creating the lease rights in the company s property are void and would not bind the Court/liquidator being fraudulent in nature and as the same were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. So far as the judgment in the case of Smt. Nirmala R. Bafna ( supra ) is concerned, it was a matter where the company was the tenant and the tenanted property of the company was sub-let to the third party. The Official Liquidator evicted the sub-tenant and the sub-tenant came to the Court. The Official Liquidator opposed the application saying that the sub-lease was not created by the consent of the original landlord and as such, the sub-lease being illegal, the sub-lessee or the sub-tenant was not entitled to continue in possession and his position was that of a trespasser. The High Court agreed with the submissions made by the Official Liquidator. When the matter went to the Supreme Court, the Supreme Court observed that the question whether the sub-lease was valid or in accor- dance with law, could not be decided by the Company Court. The Supreme Court observed that in a case like that the matter was required to be looked into by the competent rent control Court which in its turn could decide that the sub-lease was valid or not. In the preset case, the company admittedly is the owner of the property and as such the question of the third party rights are not involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and ordered but even for the sake of repetition I would again observe that in a company petition where the company has been put under liquidation and proceedings for dissolution are going on the endeavour of a Company Judge is to convert every property, movable or immovable belong to the company, into liquid cash so that in future no disputes remain pending for consideration and the liquid cash received in the Court is distributed either pari passu or pro rata in accordance with the provisions of the Companies Act. I hasten to add that when any property which is occupied by the tenant is to be sold in the open market, it does not fetch its real market value. The continuance of tenant in the property belonging to anybody in fact is a menace to the landlord because any person who proposes to purchase the property would not purchase a litigation which he will have to face in future against the tenant for his eviction. 23. This Court is trying to dispose of this company petition which is pending for last 20 years. This Court has already ordered that all the persons who are in possession of the company s property be evicted. Offers have been invited from the persons in posses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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