9911796707
TMI Blog2010 (3) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... case for giving the subject plot and the transaction in that behalf. We find no error in the conclusion reached by the learned Single Judge. In the result, the appeal fails and it is, accordingly, dismissed - APPEAL NO. 461 OF 2009 IN COMPANY APPLICATION NO. 593 OF 2008 IN COMPANY PETITION NO. 731 OF 1998 - - - Dated:- 3-3-2010 - ANIL R. DAVE AND S.C. DHARMADHIKARI, JJ. Arul Rajadhyaksha and A. Dubey for the Appellant. Mrs. A.S. Pai for the Official Liquidator. A.Z. Mookhtiar for the Respondent. JUDGMENT S.C. Dharmadhikari, J. - This appeal under section 483 of the Indian Companies Act, 1956 read with clause 15 of the Letters Patent is directed against an order dated 30-7-2009, passed by the learned Company Judge in the above company application. 2. The appellants before us are the original applicants. They moved the above company application praying that the order dated 21-4-2007 in company application No. 3 of 2007 be set aside and this Court should direct the Official Liquidator, High Court, Bombay to forthwith remove attachment of Plot No. R-34 situate at MIDC, Trans Thane Creek Industrial Area, Village Tetavali, District Thane, Navi Mum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The search was carried out and thereafter, public notice was issued. 5. Once again it is asserted that the total sum of Rs. 1,75,00,000 has been paid and the shares of the company have been transferred to the other applicants by the said Arsh International Chemical Pvt. Ltd. Further, the possession of the subject plot was handed over. The MOU was also signed between the parties. Thereafter, permission from the Maharashtra Industrial Development Corporation was sought to demolish the existing structure which came to be granted. Thereafter, other permissions so as to carry out manufacturing of electrical goods were also applied for. 6. However, when the site was being cleared on 21-9-2007, some officers from the office of Official Liquidator, High Court, Bombay came at site and told the applicants that the High Court has directed attachment of the plot. On that statement being made, the opponent of the affidavit called up the other Director Mr. Anwar Merchant of M/s. Arsh International Chemicals Pvt. Ltd. who told him that he did not have any knowledge of Court proceedings. Therefore, the Director did not assist the applicant No. 1 and the firm in resisting the attachment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the Director of M/s. Aminex Alkalies Limited (company in liquidation). He states that he is not aware of the transaction in respect of the subject plot of the applicants. He states that the company in liquidation was manufacturing chemicals on two plots viz., the subject plot and plot No. R-35. On the other hand, Anwar Ismail Merchant and Ismail Hasan Merchant from whom the applicants claimed their rights in the subject plot were carrying on business in the firm name and style of M/s. Merchant Transports and M/s. Merchant Roadways. The said Merchants were transporting the goods manufactured by the company in liquidation from both plots for more than 13 years. It is stated that the Merchants had to recover some amount from an associate company of the company in liquidation and, therefore, they requested that the subject plot which was neither mortgaged to any bank or financial institution be transferred to them and they would withdraw the cases they had filed against the company in liquidation and its group companies. Therefore, on their insistence, the subject plot was transferred in the name of their company (M/s. Arsh International Chemical Pvt. Ltd.). A Deed of Assignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inex Holdings Investments after winding up petition was filed in this Court. It is stated that the rights were purportedly transferred within three days of the filing of the winding up petition. Therefore, by virtue of the statutory provisions, these transactions are void and reliance was placed on sections 536(2) and 537(1) of the Companies Act, 1956. The Official Liquidator, therefore, denied that the subject plot is not belonging to the company in liquidation. In fact, he relied upon the minutes drawn at site when taking possession. On earlier occasion, the possession was not taken, according to the Liquidator, for the reason that the valuer had informed the Official Liquidator by letter dated 24-1-2003 that the only asset of the company in liquidation is Plot No. R-35 and not the subject plot. However, when all the events and transactions were brought to the notice of the Liquidator including the order of this Court that he moved in the matter. The Liquidator denied all allegations of collusion between him and the Merchants. He, therefore, prayed that no reliefs can be granted in this company application and it be dismissed. 13. The applicants filed an additional affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, complete inaction on the part of the Official Liquidator and when for nine long years he did not take any steps to take possession of the subject plot, the Single Judge should not have rejected the company application. The transaction could have been regularised and saved as the applicants are bona fide purchasers of the subject plot. For all these reasons, this is a fit case where the Liquidator should be directed to hand over the possession of the subject plot to the applicants after regularisation of the deal. Moreso, when the applicants had parted with Rs. 1,80,00,000 already and they would be badly affected in the business. 17. On the other hand, Ms. Pai appearing on behalf of the Official Liquidator invited our attention to the report of the Official Liquidator which was filed pursuant to the orders of the Division Bench of this Court. She submits that the Official Liquidator while denying all the allegations of inaction, negligence and collusion, has pointed out the true and correct position at site. He has in paras 5 to 7 of the report dated 4-1-2010 explained the position. Ms. Pai submits that the Official Liquidator should be permitted to go ahead and dispose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en declared void by statute for the protection or benefit of a certain party, or class of parties, is voidable only." 15. For discerning the legislative idea in employing the word "void" in the context set out in section 536(2) of the Companies Act the second aspect to be noticed is that the provision itself shows that the word void is not employed peremptorily since Court has power to order otherwise. The words "unless the Court otherwise orders" are capable of diluting the rigour of the word "void" and to choose the alternative meaning attached to that word. 16. In Chittoor District Co-operative Marketing Society Ltd. v. Vegetols Ltd. 1987 (suppl) SCC 167 a two-Judge Bench of this Court considered a plea for validation of payments made by a Company after presentation of a petition for winding up. One set of payments were made thereafter. This Court declined to validate such payments on the ground that "there is no evidence to show that those payments were made either under compulsion of circumstances in order to save or protect the property of the company or that there was any commercial compulsion to enable it to run its business". The decision only indicates that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Navjivan Mills Ltd., In re [1986] 59 Comp. Case. 201 : (1986 Tax LR 1817) in favour of adopting a pragmatic attitude when a Company Court was approached for approval of certain dispositions which a company made after presentation of a petition for winding up. A clear distinction was drawn by the Division Bench between the period till the passing of the order for winding up and thereafter, so far as dispositions are concerned. The following reasoning is useful for consideration of the issues involved : "The Court can exercise the jurisdiction under section 536(2) of the Companies Act, 1956, of giving directions validating proposed transactions pending a petition for winding up but before the winding up order is made for the obvious reason that unless these transactions are saved from the consequence which may ensue, if at all, on an order of winding up being made, the company might find it difficult to keep itself going and its business might be paralysed. The purpose underlying the investment of the power in Court is for the benefit and interest of the company so as to ensure that a company which is made the subject of a winding up petition may nevertheless obtain the money n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the applicants was in good faith and honest intention. It may be true that the applicant has paid the monies to the merchants in good faith unaware of any orders of this Court. Further, the Liquidator may not have moved in the matter for nine years but that by itself without anything more cannot be a ground to save the subject deal and transaction. That would amount to putting a premium on the acts of the ex-Directors of the Company in liquidation. 22. It is in such circumstances that we had suggested to Shri Rajadhyaksha that instead of pursuing the company application and the appeal, the applicants must take recourse to filing substantive proceedings against all including the Official Liquidator and claim appropriate declarations and reliefs pertaining to their title. However, on instructions, Shri Rajadhyaksha made a statement that the applicants do not wish to do so but would be content with applying to this Court to exercise its powers under section 536(2) of the Companies Act. After applying the aforestated principles to the facts of this case, we are of the view that this is not a fit case wherein the powers conferred by section 536(2) of the Companies Act, 1956 can b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
