TaxTMI 
TaxTMI 
2011 (12) TMI 418
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.... Official Liquidator. Mr. Rajiv Bahl, Advocate accepts notice on behalf of the Official Liquidator. He prays for and is granted four weeks' time to file a reply affidavit. List on 3rd January, 2012. CA 2349/2011 1. Present application has been filed under Sections 536 and 537 of the Companies Act, 1956 (for short 'Act') challenging the Report No. 200 submitted by Mr. J.P. Aggarwal in relation to plot No. C-363 in survey No. 94, 95 and 97 at Kondapur Village, Ranga Reddy District, Hyderabad. 2. The One Man Committee appointed by this Court has rejected the applicant's claim after observing as under:- "...As per the receipts placed on the record the claimant deposited a sum of Rs. 51,864.05/- with M/s. JVG Finance Ltd. and a sum of Rs. 16,290/- with JVG Projects (A unit of M/s. JVG Industries Ltd.) before 05/06/1998 the date of appointment of the Provisional Liquidator. The claimant further deposited a sum of Rs. 75,000/- with JVG Projects after 05/06/1998. Thus the claimant deposited a total sum of Rs. 1,43,154.05/- towards the sale consideration. The photocopies of the receipts of Rs. 1,43,154.05/- are placed on the record (Ext P-1 to P-17). The vendor did not execut....
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....ator was appointed. 5. Having heard the parties at length, this Court is of the view that the primary issue that arises for consideration in the present proceedings is the scope and ambit of Section 536(2) and Section 537 (1) (b) of the Act. The said Sections are as under:- "536. Avoidance of transfers, etc. after commencement of winding up-. ** ** ** (2) In the case of a winding up by [the Tribunal], 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 Tribunal] otherwise orders, be void." "537. Avoidance of certain attachments, executions, etc,. in winding up by Tribunal- (1) Where any company is being wound up by Tribunal- ** ** ** (b) any sale held, without leave of the Tribunal of any of the properties or effects of the company after such commencement shall be void." 6. The Calcutta High Court in J. Sen Gupta (P.) Ltd., In re AIR 1962 Cal. 405/ 32 Comp. Cas. 876 (Cal.) while dealing with Section 536(2) of the Act has observed as under:- "12. It s....
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.... Court, while validating any disposition of the property after the appointment of the Provisional Liquidator, the Company Court, has to keep in view all surrounding circumstances and if it finds that the transaction is a bona fide one for the benefit of the company, then alone the same would be validated. 9. In the present case, the Provisional Liquidator was appointed by this Court on 5th June, 1998. The relevant portion of the order appointing the Provisional Liquidator reads as under:- "** ** ** On consideration of the averments made in the present application, I am satisfied that there are sufficient grounds in the present case for appointment of a Provisional Liquidator. Accordingly, I appoint the Official Liquidator who is attached to this Court as the Provisional Liquidator, who shall take charge of all the assets and properties of the company along with the books of accounts and other records of the company. The Provisional Liquidator shall take immediate custody of all the assets as directed, if necessary shall also seek police assistance in executing the aforesaid order. The Provisional Liquidator will be entitled to seek assistance of a firm o....
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....ation must still receive the effect which the law gives to them. But the company and its liquidators are just as completely disabled by the winding-up from granting new or completing imperfect rights in security as the individual bankrupt is by his bankruptcy. This, indeed, is the necessary effect of the express provisions of the Companies Act that the estate is to be distributed among the creditors pari passu. Every creditor is to have an equal share, unless any one has already a part of the estate in his hands, by virtue of an effectual legal right." (Cf. Tulsidas Jasraj v. Industrial Bank of Western India, 32 Bom LR 953 at p. 967 = (AIR 1931 BOM 2 at pp.8-9)). Similarly, in Re Anglo-Oriental Carpet Manufacturing Co., (1903) 1 Ch 914 it was held that even where a company had executed a trust deed and issued debentures creating a charge on its assets but the charge had not been registered as required by the Companies Act by the time the company had passed an extra-ordinary resolution for voluntary winding-up the debenture holders were not, as against the joint body of creditors, secured creditors. 39. It is thus well established that once a winding-up order is passed the undert....