1966 (12) TMI 36 - HC - Companies Law

Dismissal of Company's Asset Mortgage Application Emphasizes Legal Procedures and Creditor Protection

The court dismissed the application under section 536(2) of the Companies Act, 1956, seeking permission for a company facing winding up to mortgage assets ... Winding up – Avoidance of transfer, etc., after commencement of Issues:1. Maintainability of the application under section 536(2) of the Companies Act, 1956 for permission to mortgage assets to pay arrears of wages and salaries.Analysis:The judgment pertains to an application under section 536(2) of the Companies Act, 1956, seeking permission for a company, facing winding up on a creditor's petition, to mortgage its assets to secure a loan from the State Government for the specific purpose of clearing outstanding wages and salaries owed to its employees. The primary issue revolves around the maintainability of such an application under the mentioned section.The court delves into the interpretation of Section 536 of the Companies Act, particularly focusing on sub-section (2), which deals with the powers of the court in cases of winding up. It emphasizes that any disposition of property or transfer of shares made after the commencement of winding up shall be void unless the court orders otherwise. The judgment highlights that the validity of such dispositions is contingent upon an order for winding up, and until such an order is made, the directors' actions remain valid under general law provisions.The court elucidates that the foundation for the court to issue an order under section 536(2) is the existence of a void disposition of property by the directors, which occurs post a winding-up order. The judgment underscores that the court's discretion under this section is directly linked to safeguarding the interests of creditors and ensuring equitable asset distribution among them as per the law, while avoiding unauthorized preferences.Furthermore, the court discusses the jurisdiction of the court in addressing matters arising between the presentation of a winding-up petition and the actual winding-up order. It notes that the court may need to issue interim orders for company or creditor protection even before the winding-up order. However, in the present case, the court refrains from delving into the merits of the application due to the pending winding-up petition and the lack of substantial material or opportunity to assess the impact on all parties involved.Ultimately, the court dismisses the application, citing the company's appeal against a previous order and the consequent stay on issuing notices by advertisement. It emphasizes the importance of proper legal procedures and the need for all interested parties to have a fair chance to present relevant information before the court. The judgment concludes by encouraging the company or any interested party to pursue appropriate legal proceedings in accordance with the Companies Act to protect their rights effectively.