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TMI Blog2012 (8) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... e be served in granting permission to the appellant to sue the Company in liquidation – appeal dismissed - CO. APP. NO. 24 Of 2012 - - - Dated:- 1-5-2012 - RAJIV SAHAI ENDLAW, J. Sudhir Nandrajog and Mohit Singla for the Appellant. Rajiv Bahl for the Respondent. JUDGMENT 1. This appeal under Section 483 of the Companies Act, 1956 impugns the order dated 23rd January, 2012 of the learned Company Judge dismissing Co.Appl. No.732/2008 and Co.Appl. No.341/2009 preferred by the appellant in Co. Pet. No.75/2002, for winding up of M/s Koshika Telecom Ltd. 2. The petition for winding up of M/s Koshika Telecom Ltd. was filed on 8th February, 2002, Provisional Liquidator was appointed and the final winding up order passed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the appellant to be unregistered, it was put to the senior counsel for the appellant as to how the same was enforceable. Attention of the senior counsel for the appellant was invited to the amendment in the State of Uttar Pradesh, where the land is situated, to the Registration Act, 1908 making registration of such an agreement to sell compulsory. The senior counsel had then sought an adjournment to study the matter. 6. The senior counsel for the appellant has today been unable to controvert that:- ( i ) the land being situated in the State of Uttar Pradesh, the law as applicable in Uttar Pradesh would apply; ( ii ) as per the law in Uttar Pradesh, the agreement to sell was required to be compulsorily registered and is not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence Act prescribes that when the terms of a contract or any other disposition of property have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract or disposition of property except the document itself. Thus once the Registration Act as applicable to the State of Uttar Pradesh prescribes an agreement to sell to be in writing and registered, the only evidence which can be given of such an agreement is the registered agreement itself and none other. The appellant thus cannot be heard to urge that notwithstanding the agreement to sell being not registered it is entitled to give other evidence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for specific performance when as per the admitted facts the appellant is unable to prove and/or is prohibited from proving the agreement. The Supreme Court in Sudarsan Chits (I) Ltd. v. O. Sukumaran Pillai [1984] 4 SCC 657 held that Section 446(2) of the Companies Act is intended to save the Company in liquidation from expensive litigation and to accelerate the disposal of winding up proceedings and it must receive such construction at the hands of the Court as would advance the object of enacting Section 446(2) and at any rate not thwart it. Similarly in Central Bank of India v. Elmot Engg. Co. [1994] 81 Comp. Cas. 13 (SC) it was observed that in granting leave under this Section, the Court has to take into consideration whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e where the agreement to sell (leave for specific performance of which was sought) was in violation of injunction against restraining the Company from transferring or parting with its assets. It was held that such an agreement was opposed to public policy. In fact relying on J.K. (Bom.) (P.) Ltd. v. New Kaiser-i-Hind Spg. Wvg. Co. Ltd. [1970] 40 Comp. Cas. 689, it was also held that once a winding up order is made, no permission can be granted under Section 446 which has the effect of creating new right or completing incomplete rights. 13. In the light of the aforesaid, need is not felt to consider the other argument of the appellant or to discuss Motorola India Ltd. v. DSS Mobile Communications Ltd. [2004] 113 DLT 176 and Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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