9911796707
TMI Blog2005 (6) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition No. 212 of 1996 was also presented in this Court seeking winding up of the Company. The said petitions were admitted by the learned Company Judge on 10-10-1990 and 4-9-1996 respectively. The admission of the Company Petition was advertised in newspapers on 28-9-1997. By common order dated 27-8-1998 made on the above-referred two Company Petitions, the Company has been ordered to be wound up. Since the said order, the Official Liquidator, appointed to be the Liquidator of the Company, has taken over possession of the assets of the Company, including the above-referred land Survey No. 78 of village Kathiria. The Official Liquidator advertised the said parcels of land for their disposal. 4. Pending the winding up petitions, the applicant in Company Application No. 310 of 2003 bearing plot No. 19 admeasuring 393.14 sq. meters of the land bearing Survey No. 78 by a registered sale deed dated 28-12-1993. The applicants in Company Application No. 355 of 2003 purchased the parcel of land bearing plot No. 23, admeasuring 393.14 sq. meters of the said land Survey No. 78 by a registered Sale Deed dated 22-6-1992. Pursuant to the order of winding up of the petition and taking over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court as envisaged by section 536(2) of the Act. He has also submitted that one of the objections raised by the Official Liquidator is with respect to the attachment of the concerned parcels of land by the Tax Recovery Officer under the Income-tax Act. He has submitted that the attachment of the land by the Tax Recovery Officer shall not preclude this Court from validating the said transactions in exercise of powers conferred by section 536(2) of the Act. In support of his contention Mr. Kavina has relied upon the judgments in the matters of Park Ward Co. Ltd., In re 261 Chancery Dvn. 828; Tulsidas Jasraj Parekh v. Industrial Development Bank of Western India AIR 1931 Bom. 2; J. Sen Gupta (P.) Ltd. (In Liquidation) AIR 1962 Cal. 405; S.P. Khanna v. S.N. Ghosh 1976 Tax LR 1740; T.W. Construction Ltd., In re [1954] 24 Comp. Cas. 180 (Ch.D); Bank of Tokyo-Mitsubishi Ltd. v. Essar Steel Ltd. [2001] 104 Comp. Cas. 361 1 (Guj.). 6. The applications are contested by the Official Liquidator represented by Mr. Desai. Mr. Desai has submitted that in disposing of the lands, the lack of bona fide is explicit. He has submitted that the consideration money has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that in that case there was not a completed sale made in favour of the applicant. Besides, the learned Company Judge was also pleased to hold that the payment alleged to be made in cash was doubtful and the transaction was not bona fide . 9. In the matters relied upon by Mr. Kavina the disposition of the assets of the company in winding up was held to be bona fide made with a view to keeping the Company going and to meet its expenses. In the matters relied upon by Mr. Desai, the disposition in question of the assets of the Company in winding up was not approved by the Court. Such disposition was not held to have been made in the interest of the Company with a view to meeting the necessities of the Company or for the benefit of its creditors. However, the Courts are at ad idem with respect to the principle underly-ing the provisions contained in section 536(2) of the Act and the principles that govern the Courts jurisdiction under section 536(2) of the Act. It is consistently held that, "section 536(2) of the Act is a wholesome provision enacted with a view to preventing improper disposition or dissipation of the property of a company so as to affect the assets otherwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, or to prefer any particular creditor/s, the same has not been established on the record of the matter. It is not the case of the Official Liquidator that the aforesaid applicant was one of the creditors of the Company or that he had not paid the sale consideration to the Company. Though the Official Liquidator has emphatically denied that the Company had received the sale consideration, the said denial is not supported by evidence on record. The said denial is based on the presumption as the Official Liquidator, according to him, has not been able to locate or inspect the accounts of the Company. It should be noted that pending winding up process the assets of a Company are in custodia legis. The liquidator is allowed to take possession of the assets, to dispose of the assets, to recover the sale proceeds and to distribute the same amongst the creditors, on behalf of the Company Court. It is thus the duty of the liquidator to assist the Court in the winding up process of a Company. In the present case, however, the Official Liquidator appears to have failed in his duty to inspect the record of the Company and to bring the true facts afore. Instead of examining the accounts of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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