9911796707
TMI Blog2011 (12) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... l Liquidator on 5th June, 1998. He points out that the present applicant is the owner of the aforesaid land by virtue of a gift deed registered in his favour on 31st January, 2008. 2. Since the agreement to sell, receipt of consideration and handing over of possession by the company in liquidation are prior to the injunction order as well as appointment of Provisional Liquidator, issue notice to the Official Liquidator. Mr. Rajiv Bahl, Advocate accepts notice on behalf of the Official Liquidator. He prays for and is granted four weeks' time to file a reply affidavit. List on 3rd January, 2012. CA 2349/2011 1. Present application has been filed under Sections 536 and 537 of the Companies Act, 1956 (for short 'Act') challenging the Repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire sale consideration and to get the sale deed executed in her favour before the commencement of the winding up proceedings. Consequently the vendee is not entitled to allotment of plot no. C-363 measuring 300 Sq. yds...... The claim of Smt. T.L. Bhavani is disposed of with the following observations. (a) The claimant shall not be entitled to the allotment of plot no. C-363 measuring 300 Sq. yds. (b) The claimant shall be entitled to refund of Rs. 68,154,05/-with interest as may be fixed by the Hon'ble Court or to the proportionate amount as the case may be. (c) The claimant may recover a sum of Rs. 75,000/- from the company (s) he deposited with after 05/06/1998 in accordance with law. The claim of Smt. T.L. Bhavani is, accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company or alteration in the status of its members, made after the commencement of the winding up, shall [unless the Tribunal] otherwise orders, be void." "537. Avoidance of certain attachments, executions, etc,. in winding up by Tribunal- (1) Where any company is being wound up by Tribunal- ** ** ** (b) any sale held, without leave of the Tribunal of any of the properties or effects of the company after such commencement shall be void." 6. The Calcutta High Court in J. Sen Gupta (P.) Ltd., In re AIR 1962 Cal. 405/ 32 Comp. Cas. 876 (Cal.) while dealing with Section 536(2) of the Act has observed as under:- "12. It seems to me, therefore, upon considering various authorities on this subject that the following principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentation of the winding-up petition. The discretion is to be exercised on recognized principles which guide the exercise of judicial discretion generally with particular attention to the interest of the company. The Court can validate such impugned transaction in those bona fide cases which demand protection of equitable consideration. (See B.B. Khanna v. S.N. Ghose 1976 Tax L.R. 1740)." 8. Keeping in view the aforesaid judgments as well as the explicit language of the Sections reproduced hereinabove, this Court is of the view that it has the discretion to validate any disposition of the property made after passing of the winding up order, but the said discretion is not an untrammeled one, as it has to be exercised on sound judicial prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s supplied) 10. In fact, the Reserve Bank of India vide order dated 18th October, 1997, had prohibited the company in liquidation from accepting deposits or alienating any assets without prior written permission of the Reserve Bank of India except for the purpose of repayment of deposits. 11. This Court is of the view that since in the present case, only a sum of Rs. 68,154.05/- had been paid out of the total consideration of Rs. 1,84,421/- prior to the appointment of the Provisional Liquidator and consideration of Rs. 75,000/- paid after the appointment of the Provisional Liquidator has not been accounted for in the accounts of the company in liquidation, the present sale should not be confirmed. Moreover, once a winding-up order is pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g-up from granting new or completing imperfect rights in security as the individual bankrupt is by his bankruptcy. This, indeed, is the necessary effect of the express provisions of the Companies Act that the estate is to be distributed among the creditors pari passu. Every creditor is to have an equal share, unless any one has already a part of the estate in his hands, by virtue of an effectual legal right." (Cf. Tulsidas Jasraj v. Industrial Bank of Western India, 32 Bom LR 953 at p. 967 = (AIR 1931 BOM 2 at pp.8-9)). Similarly, in Re Anglo-Oriental Carpet Manufacturing Co., (1903) 1 Ch 914 it was held that even where a company had executed a trust deed and issued debentures creating a charge on its assets but the charge had not been regi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
