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TMI Blog2022 (1) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... whom the property which was purchased by the applicant was mortgaged - It is declared that the transaction in question cannot be said to be hit by the provisions contained in sections 531 and 531-A of the Act, 1956 and therefore, the transaction is validated as per the provisions of section 536(2) of the Act, 1956 as such transaction cannot be said to be a void transaction. Application allowed. - R/Company Application No. 339 of 2016 And In R/Company Petition No. 139 of 2012 - - - Dated:- 1-12-2021 - Honourable Mr. Justice Bhargav D. Karia For the Applicant(s) : Mr Ashok L Shah For the Respondent(s) : Mr Pathik M Acharya, Official Liquidator ORAL ORDER 1. Heard learned advocate Mr. Ashok L. Shah for the applicant and learned advocate Mr. Pathik M. Acharya for the respondent. 2. Learned advocate Mr. Ashok L. Shah for the applicant seeks permission to delete respondent no.2 who was joined at his request vide order dated 17th July, 2017 as presence of the Director of company in liquidation is not required for disposal of this application which is filed under section 536(2) of the Companies Act, 1956 (For short the Act, 1956 ) for validation of the transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Shri Rushabh Maheshbhai Shah, Director of the Company if the Company would like to sell the said property to the applicant. The applicant was also informed that the Company was also in negotiations with its bankers for one time settlement of its dues, substantially from out of sale of its said property and that ultimately the Company had arrived at a One Time Settlement with its bankers for an amount of ₹ 285/- lakhs. Simultaneously, negotiations also took place between the applicant and the Company for the sale of the said property and ultimately the Company agreed to sell the said property to the applicant firm for a total price of ₹ 2,76,00,000/-. 3.7) The Company s banker, Dena Bank, Wadala Branch, Mumbai had also agreed to release its charge on the said property if an amount of ₹ 2,70,00,000/- was paid to it. It was agreed that out of the total consideration of ₹ 2,76,00,000/- payable by the applicant to the Company, the Company would directly pay to the Company s banker, the amount of ₹ 2,70,00,000/- towards the Company s dues to its bankers and on receipt of the said amount, the Company s bankers would release their charge on the said prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up of the Company vide order dated 27-7-2015 in Company Petition No. 139 of 2012 only when officers of the Respondent Official Liquidator of the Company visited the said premises of the applicant on 11-9-2015 to take possession of the said property. The applicant informed the officers of the Official Liquidator of the fact that the applicant had already purchased the said property way back in the year 2012 and that a sale deed was also executed and registered on 24-9-2012. The officers of the Official Liquidator prepared minutes of the said visit. 4. Learned advocate Mr. Shah submitted that the applicant was not aware at all of the winding up proceedings and the order of winding up passed by this Court against the company in liquidation. 4.1) It was submitted that the applicant has purchased the said property in good faith bona fidely and the entire sale consideration was paid by the applicant to the DENA bank who was the secured creditor of the company in liquidation. It was therefore, submitted that the transaction entered into by the applicant with the company in liquidation is required to be validated under the provisions of section 536(2) of the Act, 1956. 4.2) It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore this Court, reliance was placed on the decision of the Bombay High Court in the case of MONARK ENTERPRISES V/S. KISHAN TULPULE AND OTHERS, 74 COMPANY CASES 89 wherein it is held that Section 531-A of the Companies Act, 1956 provides for avoidance of voluntary transfers made by a Company within a period of one year during the presentation of a petition for winding up (i) if such transfer was not made in the ordinary course of its business, or (ii) if such transfer was not made in good faith for valuable consideration. If the Court comes to the conclusion that such transfer, though made within a period of one year before presentation of the petition, was made either in the ordinary course of business or in good faith and for valuable consideration, such transfer would not be annulled. The burden of proving that the impugned transaction was not entered into in the ordinary course of business or in good faith and for valuable consideration would be on the Official Liquidator or the Creditors impugning the transaction. 11.So far as the present case is concerned, neither the Official Liquidator nor any of the Creditors have come forward and pointed out that the transaction in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of section 531-A of the Act, 1956 to declare the transaction entered into by the applicant company as void. It was also pointed out that as per section 441 of the Act, 1956, the commencement of date of winding up would be the date of filing of the winding up petition before this Court and accordingly, it was submitted that admittedly winding up petition was filed on 11th June, 2012 and therefore, transaction entered into thereafter on 29th September, 2012 would be hit by the provisions of section 531-A of the Act, 1956. 6. Having heard the learned advocates appearing for both the sides and having gone through the materials on record, it appears from the facts which are not in dispute that the sale deed for purchase of the assets, land and building and machineries of the company in liquidation is executed in favour of the applicant prior to the date of admission of the company petition. From the chronology of the events narrated here-in-above, it is clear that the winding up petition was filed on 11th June, 2012 and thereafter, notice of the petition was issued on 27th July, 2012 and this Court admitted the company petition by order dated 15th January, 2013 and till that d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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