9911796707
TMI Blog2005 (10) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the construction, plant and machinery thereon of the company in liquidation was mortgaged with the applicant-Bank. As per the applicant, the charge is also registered under the Companies Act for the amount of Rs. 2.55 crores. It appears that the applicant-Bank initiated the proceedings for recovery of the amount before the Debts Recovery Tribunal (DRT) and ultimately in the said proceedings of DRT in O.A. No. 46 of 1999, Recovery Certificate has been issued in favour of the applicant-Bank of Rs. 3 crores. It also appears that the proceedings for winding up of the company in liquidation were initiated before this Court in Company Petition No. 177 of 1996, and in the said proceedings on 17-1-2001 this Court (Coram : K.R. Vyas, J.) passed the order of winding up of the company and Official Liquidator was performing his duty as Provisional Official Liquidator, was appointed as Official Liquidator with all the powers under the Companies Act to deal with the assets and properties of the company in liquidation. 4. It also appears that in the meantime, respondent No. 6-workman had raised some dispute before the Labour Court under the provisions of the Industrial Disputes Act and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders be void." 6. Therefore, in view of the aforesaid statutory provision any disposition of the property after the commencement of the proceedings of winding up shall be void unless the Court otherwise orders. The proceedings of winding up are deemed to have commenced from the date of petition if subsequently the order of winding up is passed by the Court. 7. As observed earlier, the winding up petition was filed in the year 1996 being Company Petition No. 177 of 1996 and, therefore, the proceedings can be said to have deemed commenced from 1996 onwards. There is also no dispute on the point that the order of winding up is passed. Therefore, on the plain application of section 536(2) of the Act, the transaction may be treated as void. 8. However, Mr. Jani, learned counsel appearing for the respondent No. 5 contended that in view of the exceptional circumstances that this Court in exercise of power under article 226 of the Constitution of India, had directed for recovery and that the Bank was aware about the proceedings of auction, and that the respondent No. 5 is a bona fide purchaser, in view of the synopsis given by respondent No. 5 in the affidavit-in-reply, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of Rs. 1,05,000 and has also incurred expenses for conveyance deed which is reflected in the registered sale deed, copy whereof is produced at Annexure "I" with affidavit-in-reply of respondent No. 5. The respondent No. 5 has also stated in the affidavit-in-reply that he has incurred expenses for purchase of the land and thereafter but, no details are given for incurring of the expenses other than that of auction price, stamp duty, etc., which are reflected in the registered sale deed, except the bare statement in affidavit-in-reply by him that he has spent huge amount for developing the land as stated in para 4 of the said affidavit-in-reply. 10. Therefore, it appears that respondent No. 5 has the basis for claiming the status as bona fide purchaser of the property but thereby the rights of the Bank as a mortgagee over the property cannot be allowed to be frustrated creating the situation that the Bank would not be in a position to recover any amount from the property which is purchased by respondent No. 5. The interest is created in favour of the mortgagee and even if respondent No. 5 has purchased the property, the same will be with the security interest of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the applicant-Bank to receive the rights, if any, of the respondent No. 5 can be treated as the expenses for winding up, since during the process of winding up, it has come to the notice of the Court that the property is already disposed of even prior to Official Liquidator takes over the possession of the property, but after the commencement of the proceedings of winding up. 12. In the event the applicant is not ready to pay the amount for relieving, respondent No. 5 from the property in question, it cannot be said that there will not be any enforcement of the provisions of section 536(2) of the Act. It appears that even if the Official Liquidator, is to take over the property and to undertake the process for disposal of the properties of the company in liquidation, the Company Court may examine the issue at a stage when the auction of the whole properties admeasuring 17,604 sq. mtrs., of the company in liquidation is held, and at that stage respondent No. 5 may submit his offer if he so desires to purchase the whole of the property including the area of 6,164 sq. mtrs., with the condition for treating the area of 6,164 sq. mtrs., separately as the Court may deem it pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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