TMI Blog2005 (5) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant states that in this application that this property was purchased by him in a public auction held by the court of Civil Judge (SD), Fifth Fast Track Court, Nainital in C. E. No. 36 of 2001. It appears that one Khadak Singh Rawat had filed a suit against Crystal Credit Corporation Limited which is in liquidation (hereinafter referred to as "the company") and obtained a decree against the company. Thereafter, he filed execution application for recovery of the amount in the said court. This application was filed some time in the year 2001 which would be clear from the number of the petition, viz., 36 of 2001. In those proceedings the property in question belonging to the company was attached and order dated October 29, 2002, was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dator under the supervision of the company court. Any transfer/sale of the assets by any other person is void. This legal position is stated in section 536 of the Companies Act, 1956 (for short "the Act") which 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 Tribunal, any disposition of the property (including actionable claims) of the company, and any transfer of shares in the company o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( ii )If the disposition is made for the purpose of preserving the business as a going concern, then, also the discretion of the court must be exercised. ( iii )A disposition must not be validated merely because the party bona fide entered into the transaction. ( iv )Knowledge of the presentation of the winding up is immaterial. 7. One may usefully refer to the case of Steane's (Bournemouth) Ltd., In re [1950] 1 All ER 21 Ch. D) wherein the court observed (page 25) : "The legislature, by omitting to indicate any particular principles which should govern the exercise of the discretion vested in the court must be deemed to have left it entirely at large, and controlled only by the general principles which apply to every kind of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld at a consideration which is more than the value fixed by the valuer. ( e )Perusal of the auction report reveals that the necessary procedure which is required for auctioning such properties by the court was followed and it was an open public auction in which a number of per sons participate. The bids were allowed to start at a minimum price fixed in the valuation report and inter se bidding took place in which the bidders kept on revising their bids and ultimately bid of the applicant at Rs. 6,05,000, being the highest bid, was accepted. 10. Even if the property was to be auctioned by the official liquidator under the supervision of this court, the same procedure would have been followed. As no infirmity in the procedure is found; ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
