2016 (1) TMI 760

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....ing or initiated against the Company (in liquidation) and is praying the official liquidator be restrained from taking possession of the said plot. 2. On 29.05.2012, the representatives of the official liquidator went to take possession of the said plot, the applicant stated that he purchased the said plot and he and his son are carrying on business in the said plot. According to the applicant, he and his son were carrying on business in the same MIDC area and in view of his expanding nature of business, he negotiated with the director of the Company (in liquidation) to purchase the said plot. The plot was mortgaged with bank of Baroda and upon Bank of Baroda giving an NOC, dated 22.03.2011, an agreement for Deed of Assignment dated 30.04.....

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.... the Company (in liqn.) and the applicant. 8 30.07.2011 Board Resolution of the Company to sell the plot of land 9 14.09.2011 Application for transfer of lease submitted by the applicant. 10 20.03.2012 Company ordered to be wound up and the official liquidator appointed. 11 18.05.2012 Notice issued by the official liquidator for taking possession of the said plot. 12 25.05.2012 Company wrote to official liquidator that the said plot is mortgaged to the Bank of Baroda. 13 28.05.2012 The Appeal filed by Company (in liquidation) against order dated 20.03.2012, is dismissed 14 29.05.2012 The liquidator visits the said plot to take possession 15 7.06.2012 The applicant files an application to MIDC to assign the said plot ....

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....nsideration for the plot of land is Rs. 25,00,000/-, it is not clear that as to how the Company has paid Rs. 37,50,000/-. Moreover, the order of winding up and appointment of liquidator was passed on 20.03.2012. On 29.05.2012, the liquidator has visited the said plot to take possession. Despite that and when the applicant was aware that the liquidator has been appointed, still the applicant applied to MIDC on 7.06.2012 to transfer the lease of the said plot to the applicant. On 4.07.2012, the applicant writes to the official liquidator requesting not to take possession again but still proceeds on 24.12.2012, i.e., more than 9 months after the Company was ordered to be wound up and the liquidator was appointed, and enters into a Deed of Assi....

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....continue as a going concern and to protect the interest of the shareholders and creditors that such a power is conferred and must be exercised. Of course, whether a transaction was in the best interest of the Company or not, is a factual aspect to be pleaded and proved by the party seeking validation. In this case, there is not even a pleading in the affidavit in support that the transaction was in the best interest of the Company. In fact, the application is not made by any ex-directors but by a person who claims to have bonafide purchased the said plot without notice. I have anyway stated above that I doubt his bona-fide. I find support for my view above in the judgment of a Single Judge of this Court (S.J.Kathawalla, J.), in the matter ....