9911796707
TMI Blog2009 (8) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... nding up order was passed, by exercising the discretion as per Section 536(2) of the Companies Act (hereinafter referred to as 'the Act'). The prayers are also made to declare that the transaction is genuine and bonafide and it is prayed to direct the OL to handover the possession of plant and machinery of the company in liquidation situated at Block No.10, village Dumiya, Taluka Halod, District Panchmahal. 2. In order to appreciate the contention raised by the applicant, certain facts may have relevance and the same are as under: 3. It is not in dispute that the Company Petition No.29/97 was filed against the Company viz. Motorol (India) Ltd. (hereinafter referred to as the Company in liquidation for the sake of convenience) for winding up of the Company on 26.12.1996. It is also not in dispute that thereafter, the Company in liquidation is ordered to be wound up by this Court and has been wound up. The OL has taken over the possession of the assets of the Company of both the plants, one situated at Dumiya, Halol and another at village Ganetha, Jambusar. The winding up order is passed on 19.08.1999 and the possession is taken over on 06.09.1999. At the relevant point of ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant reads as under- 536. Avoidance of transfers, etc., after commencement of winding up. (1) In the case of a voluntary winding up, any transfer of shares in the company, not being a transfer made to or with the sanction of the liquidator and any alteration in the status of the members of the company made after the commencement of the winding up, shall be void. (2) In the case of a winding up by [the Court], any disposition of the property (including actionable claims) of the company, and any transfer of shares in the company or alteration in the status of its members, made after the commencement of the winding up, shall [unless the Court] otherwise orders, be void. 6. The aforesaid provision of the Act and more particularly, sub-section(2) of Section 536 shows that any dispute of the property including executable claim of the Company after commencing of winding up, shall unless the Court otherwise orders, be void. Therefore, the mandate of legislature is to treat such transaction as void, but leaving room for the powers of the Court to declare such transaction as not void or valid. To say in other words, all such transaction are to be treated as void unless any specific decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial institutions, they were specific with the express description of the plant and machinery, which is lacking in the present case. He also contended that the complete record of the registration of the charge is also not produced. It was therefore submitted that the Bank of Baroda is not right in contending that the property of Plant and Machinery which is produced by the applicant was mortgaged with the Bank. 10. Considering the record produced of registration of charge, coupled with the affidavit and also the Judgement and Award passed by the Debt Recovery Tribunal permitting the recovery of the amount from the Company in Liquidation, it is not possible to accept the contention of the learned counsel for the applicant that the plant and machinery which is said to have been purchased by the applicant was not mortgaged with the Bank of Baroda and therefore, the said contention deserves to be rejected. 11. If the property of the Company in liquidation was already mortgaged/hypothecated with the respondent No.2 Bank and the sale has taken place without express consent of the mortgagee or the Bank in whose favour the hypothecation was there, such sale cannot be pressed against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the machinery. Further, the pertinent aspect is that when the representative of the OL took over the possession of the assets of the Company in liquidation, no representative of the applicant was present nor there was any signboard that particular machineries are of the ownership of the applicant or otherwise. The aforesaid goes to show that even if the contention of the applicant is considered for the sake of examination that it has used the machinery for some time after the alleged so called bill, there was no exclusive entrustment of the possession by the Company in liquidation to the applicant. 14. The aforesaid is coupled with the circumstance that the alleged payment by cheque in favour of the Company in liquidation is appearing in the record of the Bank only by way of a transfer entry. Whether such cheques were issued as A/c. Payee in favour of the Company in liquidation or not is not coming on record. The evidence has come on record only to the extent that the amount of so called cheques were debited from the account of the applicant, but it has not come on record that such amount was also simultaneously credited in the Bank account of the company in liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the enforcement of law. If the Bank was having first charge over the assets of machinery which is said to have been purchased by the applicant, the rights cannot be read with the applicant on the alleged transaction frustrating the rights of the Bank. If such is permitted, it will run counter to the rights under law of the Bank with whom the property was hypothecated and therefore consequently, would result into making a declaration against the enforcement of the law which can never be the intention of the Legislature to cloth the power with the Company Court under Section 536 of the Act for declaring the transaction as valid and thereby avoiding the normal voidity of such transaction. Therefore, it appears that none of the elements viz. neither genuineness of the transaction nor bonafides of the transaction exist coupled with the situation that validation of such transaction would result into frustrating the rights of the Bank with whom the property was mortgaged, it would not be a fit case to exercise the discretion for declaring the transaction as valid as against the operation of the statute for treating such transaction as void. 18. The decisions upon which the learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may also put the company in liquidation to fulfill suitable conditions even if the transaction is to be treated as invalid. 19. Even if such principles are taken into consideration, as observed earlier, neither the bonafides nor the genuineness of the transaction is proved. Therefore, until the consideration is proved to have been transferred to the corpus of the Company in liquidation, even if the equitable considerations are to be applied for making the law loss to the parties who entered into the transaction in bonafide, there is no question of passing an order for refund of the consideration or otherwise. 20. The reliance placed upon the another decision of this Court by the learned counsel for the applicant in the case of Farokh S. Todywalla Vs. OL of Vitta Mazda reported in Company Application Nos. 310/03 and allied matters, is also ill-founded inasmuch as since the Court found in that case as the OL has not been able to trace the record and therefore, the defence of the OL is made unbelievable and the orders were passed for validation of such transaction. Such is not the fact situation in the present case inasmuch as, as observed earlier, firstly the burden is upon the ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f prayer 8(c) of the OLR No.20/07. 2. The basis of the present application is that the applicant has purchased the machinery by the transaction which was subject matter of the Company Application No.34/07 and therefore, the directions be issued against the OL as prayed. 3. In view of the reasons recorded by this Court herein above and also the conclusions for declining the relief as prayed in Company Application No.34/07, the order for recalling on the basis of such transaction or alteration in the directions issued to the OL would not be required. Hence, the said application deserves to be dismissed. Hence, dismissed. Company Application No. 79/09 1. Company Application No.79/09 has been preferred for the relief inter alia for modification of the order dated 05.08.2008 passed by this Court (Coram : C.K. Buch, J) in OLR No.20/07 so as to direct the OL to call back the amount of Rs. 4 Crore from the Prothonotary and Senior Court Master, Bombay High Court. 2. It appears that the basis of the present application is that because of the proceedings initiated by the applicant in Company Application No.34/07, the applicant whose offer was accepted has suffered and the amount which was so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch aspect is concluded, the amount as transferred cannot be allowed to remain under control in the proceedings of Suit No.686/98. Therefore, it appears that earlier order dated 05.08.2008 passed by this Court in OLR No. 20/07 so far as it relates to transferring the amount to Prothonotary and Senior Court Master, Bombay High Court, deserves to be modified by recalling of the said amount and to entrust the said amount to OL, subject to the orders which may be passed by this Court for disbursement or apportionment amongst secured creditors and may also be to respondent No.6. Hence, OL shall communicate the order to the Prothonotary and Senior Court Master, Bombay High Court and the amount shall be deposited by the said Prothonotary and Senior Court Master, Bombay High Court either with this Court or with the OL as per the present order within a period of two weeks from the receipt of the order of this Court, if required, after seeking appropriate orders from the concerned forum. 6. It is also clarified that as a consequence of the aforesaid order, the offeror whose sale has been confirmed will have to redeposit the amount which has been returned to him as per the earlier order in fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er direction is required in this regard. 7. The only prayer left to be considered in the OLR No.20/07 is prayer 8(d) which relates to permitting the OL to invite fresh offer for LOT No.C being Motorol House, Vadodara, as no offer is received of the property. Such prayer is required to be considered with the Company Application No.64/04 which relates to the very property and the said application has been preferred to direct the opponent to pay the mesne profit compensation of Rs. 4000/- per month and it is also prayed to direct the OL to handover the vacant possession of the land bearing Survey No.563-1-2 at Vadodara. 8. Mr. Soparkar, learned counsel appearing for the applicant submitted that though the prayer is made, but his client is agreeable if the land and building both are sold and the price realized for the land be given to the owner of the land who is applicant of Company Application No.64/04 and the price realized of the superstructure be given to the Company in liquidation since the construction is made by the Company in liquidation. It appears that no useful purpose would be served in segregating the land from the building which otherwise may get the scrap value. It also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. Be as it may, if the separate valuation of the machineries as are found on site is made by the valuer, no prejudice would be cause to the either side. After the separate valuation, such aspect can be considered after the sale of the property and the money having realized. Even the aspects of availability of the machinery or otherwise can be concluded at the later stage. Therefore, the following order : A) OL shall get the valuation of the machineries separately for which the claim is made by the applicant provided they are found available on the site. If any of the machineries are not found available on the site, the valuer concerned shall make specific note for such purpose and the representative of the applicant may also be kept present at that time. If for any machinery, the claim is stated by the other banker, the said aspect shall also be recorded by the OL. B) After getting the valuation, OL shall be at the liberty to include all such machineries in the Sale process and after the sale is confirmed and the money is realized, OL shall submit the report for disbursement or in the alternative, the applicant may move appropriate application for proportionate disbursement. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
