9911796707
TMI Blog2009 (10) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant an ex-director of respondent No. 3 company (in liquidation), under section 536 of the Act seeking post sale approval in respect of the property belonging to the company (in liquidation) has been dismissed doubting, the bona fides of the sale made apart from other grounds. 2. The brief facts of the case are that a winding up petition was filed by the respondent Citi Bank being C.P. No 374 of 2002 on November 12/2002, before this court. The Allahabad Bank-respondent No. 2\ six months prior in time had filed O.A. No. 117 of 2002 before the Debts Recovery Tribunal, New Delhi (for brevity "the DRT"). The property of respondent No 3, i.e., M/s. Venire Industries Ltd. (in liquidation) was attached by the Debts Recovery Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the mortgage had since been redeemed and Plot No. J15 was no longer subject to any charge (A5). The Allahabad Bank withdrew its recovery application since its claim had been settled and the original application was disposed of vide order dated August 22, 2005 (A6). The Government of Orissa permitted the transfer of the aforesaid property in favour of M/s. Siksha "O" Anusandhan vide memo dated July 21, 2007 (A7). The appellant-applicant has stated that tripartite deed is required to be executed for effecting the formal transfer in favour of M/s. Siksha "O" Anusandhan. 3. It has come on record that after the filing of C. P. No. 374 of 2002 on November 12, 2002, the winding up order was passed on February 23, 2007. 4. The application was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition for winding up before this court, the sale without reference to the official liquidator could not be validated. Placing reliance on the judgment of the hon'ble Supreme Court in the case of Pankaj Mehra v. State of Maharashtra [2000] 100 Comp. Cas. 417 ; [2000] 2 SCC 756, the learned company judge held that disposition of the property during the pendency of the winding up proceedings is not void ab initio as it is qualified with the expression used in the same section namely unless the court otherwise orders.1 Accordingly, if there is disposition of the property under the orders of the court by virtue of section 536(2) of the Act then the disposition shall be valid. The provision of section 537 of the Act is attracted only when s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented for the sale, it would have come to a similar result of the property being sold at the instance of the creditor whose debt was fully satisfied. By the one-time settlement, scaling down the debt had no meaning for no benefit was obtained by the company. As stated above, the entire security was lost to the company for the satisfaction of the creditor who held the property as his exclusive security. Even in the absence of one-time settlement, the company could have realised the money by sale of the property and if there was still a shortfall and if there had been any personal liability of the directors, the personal remedy may have been available for the creditor. In such an event, the one-time settlement would have meant saving their ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid property through auction within a period of two weeks. It also allowed the company to locate a prospective buyer who could pay the maximum price of the property as and when so notified to be sold through auction by the Allahabad Bank. The exercise was required to be completed within a span of two months which would take care of the litigation pending between the company and the Sales Tax Department, Bhubneswar. The Allahabad Bank was allowed to recover the advertisement and other incidental charges incurred by it in undertaking this exercise which would include publication in two leading news papers of which one should be vernacular circulating in Orissa and one in English daily the Pioneer. There is no whisper in the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
