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TMI Blog2015 (7) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... any in liquidation, M/s. Mysore Kirloskar Limited, had been ordered to be wound by this court, by an order dated 1.4.2004 in Company Petition No. 166/2001 and he has been appointed as the Official Liquidator by virtue of Section 449 of the Companies Act, 1956 (Hereinafter referred to as the Act', for brevity). 3. The present application is filed seeking cancellation of a lease deed entered into between the erstwhile management of the company in liquidation and M/s Kirloskar Institute of Advanced Management Studies Limited (Hereinafter referred to as the KIAMSL', for brevity). It is alleged that the erstwhile management had executed the lease agreement for a period of 28 years commencing from 22.1.2000, on a lease rent of Rs. 1250/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this court had directed that the parties tender evidence in support of their respective claims. The evidence has also been recorded in the present case on hand to demonstrate that even prior to the lease deed, the respondent had been put in possession as a licensee and even if the lease deed were to be cancelled, the possession having been continued as a licensee over a period of time, the respondent could not be disturbed otherwise than under due process of law etc. 5. The learned Senior advocate Shri Raghavan, appearing for the counsel for the respondent would however insist that the application could be disposed of on a preliminary objection as regards limitation. In this regard, he would point out that having regard to the very tenor o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the even in a case where there was no challenge to a lease deed which was void, for being in violation of section 531-A, the court would be within its inherent power to set at naught the lease deed and permit the official liquidator to take possession of the property. Therefore, on that proposition, the learned counsel for the Official Liquidator would submit that the law of limitation would not apply when the transaction is void ab initio and would hence seek to contend that the application be allowed without reference to the question of limitation. Further, it is pointed out that the present respondent had earlier approached this court seeking permission to purchase the property, which according to the learned counsel for the Official Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or and to pay damages from the specified period till handing over of possession was at the initiative of the court and not on the ground of limitation. On the other hand, a Division Bench of the Kerala High Court in K.N. Narayana Iyer vs. Commissioner of Income-Tax, [1993]78 Company Cases 156, while considering the scope of Section 531-A, has observed that Section 531-A of the Act treats certain transactions as invalid and Section 532 treats another category of transfer as void, Section 531A stands in between treating the transfers covered thereby as void against the liquidator. The expression is often used void as against a person or persons. In strict terminology, a thing cannot be void and valid at the same time. As void denotes a nulli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in his books the fact of its cancellation. In the instant case on hand, it is pointed out that the lease deed is a registered document and if it is sought to be canvassed that it is void or voidable, it is for the official liquidator to make an application in that regard, which is apparently the present application. Therefore, to contend that the Limitation Act, 1963 would not apply is a misleading statement. On the other hand, it is possible for the official liquidator to canvass that the law of limitation is kept in abeyance during the pendency of the winding up petition and would operate in terms of Section 458A. Given the full benefit of the tenor and object of Section 458A of the Act, it is pointed out by the learned Senior Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Senior Advocate. It is even after affording such exclusion, the application is seen to be clearly barred by time and therefore it would result in the Official Liquidator being given license to proceed against the property much after expiry of the period of limitation to recover such possession and hence, the application must be dismissed as being barred by limitation. Incidentally, it is on record that the applicant is receiving rent from the respondent in terms of the lease deed. Therefore, to characterize the lease deed as being void is akin to approbating and reprobating, which is not permissible. This is one other aspect that is ignored by the Official Liquidator in making the claim that the lease deed was void. Insofar as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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