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TMI Blog2012 (5) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... not in dispute that the flat aforesaid was owned by and in possession of the company in liquidation. The company was ordered to be wound up on 05.06.1998 and the Official Liquidator was appointed as the Provisional Liquidator of the company and directed to take charge of the assets of the company. 4. The appellant claims, that the company in liquidation had engaged one Smt. Anita Jain, carrying on the business of an advertising agency in the name and style of Flying Colours, for its promotional work and the company in liquidation owed a sum of Rs. 1.25 crores to the said Smt. Anita Jain for the work done for the company in liquidation and in part payment of which cheques for Rs. 30,00,000/- issued had also been dishonoured; that the company in liquidation, to clear the part of the debt owed by it to the said Smt. Anita Jain vide deed dated 23.03.2001 agreed to sell the said flat to the said Smt. Anita Jain; that pursuant to the said 'sale', the Housing Society recognized Smt. Anita Jain as the bonafide owner of the flat in question; that Smt. Anita Jain vide Agreement to Sale dated 13.12.2001 agreed to sell the said flat to the appellant; that pursuant to the said 'sale', the fla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.9,00,000/- and Rs.10,71975/- on 14.02.2002 and 16.02.2002 respectively; (ix) that the Agreement to Sell in favour of the appellant was on a stamp paper bearing the date of 31.10.2001; thereafter on 14.02.2002 i.e. one day after the transaction in favour of Smt. Anita Jain the balance stamp duty was paid; (x) the aforesaid also showed collusion between the appellant, Smt. Anita Jain and the company in liquidation; (xi) that after the company went into liquidation on 05.06.1998, no transfer of its assets could have been made; (xii) that thus the transfer of the flat of the company in liquidation was after the order of liquidation and the transfer was void; (xiii) that even otherwise there was no registered document of transfer of title; (xiv) that the transaction was aimed at saving the flat from the hands of the official liquidator; (xv) all the aforesaid also showed that the transfer in favour of the appellant was not fair and genuine; (xvi) that in case the appellant felt that she had been cheated by Smt. Anita Jain, she could take her remedy in that regard. The Committee thus concluded that the alleged transfer of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; that once a winding up order is passed, the creditors acquire a right to have the assets of the Company realized and distributed among them pari passu and any single creditor cannot be allowed to steal a march over the other creditors of the company - reliance in this regard was placed on J.K. (Bom.) (P.) Ltd. v. New Kaiser-I-Hind Spg. & Wvg. Co. Ltd. [1970] 40 Comp. Cas. 689 (SC) 7. This appeal came up before us first on 23.03.2012 when after substantial hearing, we enquired whether there was any relationship between the ex-management of the company in liquidation particularly Sh. V.K. Sharma earlier the Managing Director of the company in liquidation and Smt. Anita Jain. The counsel for the appellant as well as the counsel for the official liquidator appearing on advance notice took time to enquire in this regard. 8. When the matter was taken up today for hearing, the counsel for the appellant categorically stated that enquiries had been made and he was instructed to state that there was no relationship between Smt. Anita Jain and Sh. V.K. Sharma. However subsequently when the counsel for the Official Liquidator appeared, he informed that Sh. V.K. Sharma on enquiry had infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. The question which thus arises is as to in what cases the Court should order the transfer effected (of the property of the company), after the commencement of winding up as otherwise then void. The learned Company Judge in this regard has already referred to J. Sen Gupta (P.) Ltd. (In Liquidation) (supra) and The Sidhpur Mills Ltd. (supra). We find that the Supreme Court in Pankaj Mehra v. State of Maharashtra [2000] 2 SCC 756 to have laid down the, 'test of whether the transfer was under compulsion of circumstance or other commercial compulsion to enable the company in liquidation to run its business'. We further find a Division Bench of the Bombay High Court in Shri Laxman Yeswant Prabhudesai v. NRC Ltd. [2010] 99 SCL 250 (Bom.) to have, after noticing a large volume of case law on the subject deduced that the transaction undertaken by company in liquidation can be validated if under Section 536(2) under compulsion of circumstances, in order to save or protect the company, provided evidence is produced about such compulsion; it was further held that the assets of the company (in liquidation) cannot be disposed of at the mere pleasure of the company and only such disposal s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed therein as part amount due from the company in liquidation to the said Smt. Anita Jain; the company in liquidation has also under the said Agreement handed over possession of the said flat. The Registration Act, 1908 was amended with effect from 24.09.2001 i.e. prior to the said Agreement and after the said amendment documents containing contract to transfer for consideration any immovable property for the purposes of Section 53A of the Transfer of Property Act are required to be compulsorily registered. The counsel for the petitioner upon being confronted with the same has contended that the subject flat is a Housing Society flat and it is only a share in the Society which is transferred and which share is a movable property and does not require compulsory registration. It is contended that in Mumbai, the Housing Society flats are transferred by transfer of share in the Housing Society and which share is movable property and thus no registered document is required. However the Agreement for Sale is not of the transfer of share in the Housing Society but of transfer of flat. The said argument is thus of no avail; (ii) The Agreement for Sale executed by Smt. Anita Jain in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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