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TMI Blog2012 (5) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the order restraining such transfer was under compulsion or for the benefit of the company in liquidation - claim under Section 536(2) rejected. - Co. Application No. 28 of 2012 - - - Dated:- 10-4-2012 - A.K. SikrI, Rajiv Sahai Endlaw, JJ. Prabhjit Jauhar for the Appellant. Rajiv Bahl for the Respondent. JUDGMENT Rajiv Sahai Endlaw, J. The appeal impugns the order dated 23.01.2012 of the Company Judge dismissing the Company Appeal (SB) 37/2009 preferred by the appellant against the order dated 17.03.2006 of the Committee constituted by the learned Company Judge vide order dated 22.07.2004 in Company Petition No.265/1998 to verify the claims preferred before the Official Liquidator relating to the immovable properties of M/s JVG Finance Ltd. (under liquidation). 2. The appellant had preferred a claim with respect to Flat bearing No. 202, admeasuring 882 sq. ft. on the Second Floor in B-Wing of Panch Mukhi Cooperative Housing Society Ltd. on the plot of land bearing C.T.S. No.1202/A of Yari Road, Panch Marg opposite Fisheries Institute, Versova village, Andheri (West), Mumbai-400061. 3. It is not in dispute that the flat aforesaid was owned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anita Jain have been receiving regular payments of her dues from the company in liquidation; ( iv ) that thus the dues from the company in liquidation to Smt. Anita Jain were not clearly established and the transaction in favour of Smt. Anita Jain Could not be said to be a bona fide one; ( v ) that Smt. Anita Jain had closed the business of advertising agency in or about January, 1999 due to non payment of outstanding bills by the company in liquidation; ( vi ) that even if the version of the appellant was to be believed, the same amounted to the company in liquidation giving a preferential treatment to one of the creditors i.e. Smt. Anita Jain; ( vii ) that the documents executed by the company in liquidation in favour of Smt. Anita Jain with respect to the said flat were without any date and not registered and the stamp thereon was of 12.03.2002; ( viii ) that the appellant in support of her plea of having paid the price of Rs.22,00,000/- for the said flat to Smt. Anita Jain had produced a letter of the Citi Bank qua clearance of cheques from the account of the appellant to the account of Smt. Anita Jain for Rs.9,00,000/- and Rs.10,71975/- on 14.02.2002 and 16.02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is settled law that the Court will not allow the assets of a company in liquidation to be disposed of at the pleasure of the Company and allowing such a sale/alienation will be violative of the fundamental principle of equality amongst the creditors; ( e ) execution of any Sale Deed in disobedience of interim order is a nullity reliance in this regard was placed on Krishna Kumar Khemka v. Grindlays Bank P.L.C. [1990] 3 SCC 669, Satyabrata Biswas v. Kalyan Kumar Kisku [1994] 2 SCC 266 and on Surjit v. Harbans Singh [1995] 6 SCC 50 besides on judgments of various High Courts including of this Court in Praveen Garg v. Oriental Bank of Commerce [2006] 128 DLT 811; ( f ) that the discretion vested in the Court under Section 536(2) to say that the transaction is not void ought to be exercised when the transaction was for the benefit of and in the interest of the company or for keeping the Company going or keeping things going generally - reliance in this regard was placed on J. Sen Gupta (P.) Ltd., In re [1962] 32 Comp. Cas. 876 (Cal.) and on Sidhpur Mills Co. Ltd. In re [1987] (1) CLJ 71 (Guj.) ( g ) that once a winding up order is passed, the creditors a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on within the meaning of Section 531A and 536 (2) of the Companies Act, 1956 and is not a nullity. It is further argued that the appellant had paid the then prevalent market price for the flat. The appellant in this regard has also filed an additional affidavit along with documents being the Sale Deeds of the other flats and valuation reports with respect to the property. 10. The purported transfer of the flat aforesaid in the present case is admittedly after the order of winding up and appointment of provisional liquidator. Upon such happening the ex-management of the Company which is alleged to have transferred the flat, lost any right to act on behalf of the Company or to transact any of the properties of the Company. The transfer thus claimed by the appellant has not been affected by any person authorized to do so. Section 531A of the Companies Act deals with transfers within a period of one year before the presentation of a petition for winding up and has no application to the facts of the present case. Section 536(2) declares transfers of the property of the company after the commencement of winding up as 'void' unless otherwise ordered. 11. The question which thus ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immaterial. A reference with benefit in this regard may also be made to M.L. Gupta v. Ceat Financial Services Ltd. [2007] 77 SCL 73 (Delhi) and to Kamani Metallic Oxides Ltd. v. Kamani Tubes Ltd. [1984] 56 Comp. Cas. 19 (Bom.) (DB). 12. Applying the aforesaid test, it can by no stretch of imagination be said that transfer of subject flat, after the order of winding up and in violation of the order restraining such transfer was under compulsion or for the benefit of the company in liquidation. The learned Company Judge has thus rightly rejected the claim under Section 536(2). 13. We are further of the opinion that no case for ordering otherwise, within the meaning of Section 536(2) of the Companies Act is made out for the following reasons: ( i ) The Agreement to Sell executed by the company in liquidation in favour of Smt. Anita Jain bears the date of payment of stamp duty of 13.02.2002. The same describes the company in liquidation as the owner of the flat aforesaid and there under the Company has agreed to sell the said flat to Smt. Anita Jain for a total sale consideration of Rs. 20,00,000/- which is shown to be adjusted against Rs. 57,57,142/- recorded ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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