TMI Blog1982 (7) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessary to go into the facts because at the stage of admission of the petition the parties filed consent terms. Under these consent terms, the company acknowledged its debt to the extent of Rs. 74,053 together with interest thereon at the rate of 12 per cent per annum, from 14th September, 1978, till payment and the costs of the petition fixed at Rs. 1,31064. Under the consent terms, the petitioners also recorded that the company was to pay the cost of the machinery purchased by the petitioners from M/s. Grind well Engineering Industries, as per Invoice No. 15 dated 1st May, 1977. The amount of the invoice was Rs. 20,000 as stated across the Bar. The consent terms provided that in the event of the company failing to pay any instalmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o agree to any adjournment for realising the cheques and submitted that they were entitled to an order of winding-up being made against the company who indisputably had admitted its liability and was unable to pay the debt. It was also pointed out on behalf of the petitioners that the company has shifted its machinery to Gujarat. The company had disposed of a flat at Andheri on or about 5th August, 1981. In the past, the cheques issued by the company had bounced twice. In these circumstances, the hearing of the petition had to proceed, but before doing so, I desired that the petitioners should deposit in court the said amount of Rs. 68,510.64 realised from the company. To this, Shri Jhunjhunwala, the learned counsel appearing for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operating order" incorporated in the consent terms with the approval of the court, the petition simply gets admitted in case of default without recourse to the court. In other words, the winding-up petition is revived and is back on the track of the provisions of the Companies Act, 1956, and the Companies (Court) Rules, 1959. Presently, the petition is at the stage of hearing and final disposal. I think the court can take account of all that has passed under the bridges since the filing of the petitioner in order to pass an appropriate order. In most of the petitions for winding-up, a creditor uses this cheap and expeditious remedy for recovery of his dues and the court normally allows the parties to work out the settlement without pesterin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors and further invalidates such transaction of payment. Now, apart from the question of the applicability of section 531 to the facts of our case, the burden of proving that the transaction is fraudulent preference would be on the official liquidator. He might not be able to establish the motive in making the payment to prefer the petitioners. This is a case of a winding-up and in the event of an order of winding-up being made the order is to take effect from the date of the presentation of the petition. The payments made by the company to the petitioners are during the pendency of the petition and, therefore, the payments are not antecedent to the winding-up but made during the course of the winding-up proceedings. The court has, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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