9911796707
TMI Blog2015 (3) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... 536 is not mandatory but discretionary in nature and the said issue has not been raised by the Official Liquidator, the said cannot be supported as Section 536(2) of the 1956 Act makes it clear that any disposition of property after commencement of winding-up proceedings “shall” be void. Assuming that the said issue has not been raised by the Official Liquidator, the language of the section itself renders such disposition void as the same is without jurisdiction and non-est in the eye of law. - Decided against the appellant. - C.A. No.570 of 2013, C.P. No. 116 of 1996 - - - Dated:- 29-8-2014 - THE HON BLE JUSTICE PATHERYA, JJ. For the applicant : Mr. Surajit Nath Mitra, Arindam Mukherjee, Deepak Jain, Jishnu Chowdhury, Amitra Basu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 21st June, 2013 that the Official Liquidator has informed the applicant that necessary directions be sought from the Hon ble Court as the subject premises is not in its possession but in the possession of the applicant. The only defence taken by the Official Liquidator in its affidavit is that of Section 531 of the 1956 Act. Section 536(2) of the 1956 Act is not mandatory but is discretionary and will not apply to the facts of this case. To allege an agreement to be void, the same must be pleaded. Similarly it must be shown that the transaction is not in good faith or for valuable consideration. Both of these are absent in the instant case. The conduct of the parties be must also be looked into. Reliance is placed on 74 Co. Case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be allowed as no right, title or interest vests with the applicant. By the 1999 agreement the applicant seeks to extend the time prospectively. 3 years from 1999 would expire in 2001, and no proceeding in 2013 will lie. Reliance is placed on 140 Co. Cases 754 to expound the meaning of the term disposition . Counsel for the petitioner in reply submits that the 1999 agreement has not been challenged by the Official Liquidator. Article 54 of the Limitation Act will come to the aid of the applicants. The Official Liquidator. is aware of the agreement between the parties and, therefore, has requested the ex-directors to furnish Sale Deed/Transfer Deeds. Two valuations were made before sale of the immovable asset and under valuation c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration price was also extended. On the basis of the said MOU a lease agreement was executed in March 1999 for a period of 10 years subject to renewals. Possession of the land and factory of the company was given by the company to the applicant at an annual lease rent of ₹ 7.50 lakhs, to be paid on running of the factory. All steps for making the factory operational lay with the applicant. The statutory liabilities was to be paid by the applicant. The factory was purchased by the applicant as a going concern but no step was taken by it to make the factory operational. The lease period of 10 years expired in 2009 but no step was taken by the applicant seeking renewal either. The 1995 agreement contemplated payment of statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id agreement possession and lease have been granted. This will amount to variation of the terms of the 1995 agreement and disposition of property and will therefore be hit by Section 536(2) of the 1956 Act. This will render the MOU of February 1999 and the lease agreement of March 1999 void. Although a plea was taken by Counsel for the applicant that Section 536 is not mandatory but discretionary in nature and the said issue has not been raised by the Official Liquidator, the said cannot be supported as Section 536(2) of the 1956 Act makes it clear that any disposition of property after commencement of winding-up proceedings shall be void. Assuming that the said issue has not been raised by the Official Liquidator, the language of the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
