TMI Blog2011 (9) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 of 2008 And C.P. No. 217 of 2001 - - - Dated:- 23-9-2011 - Kalyan Jyoti Sengupta and Syamal Kanti Chakrabarti, JJ. Pratap Chatterjee for the Appellant. P.C. Sen for the Respondent. JUDGMENT Kalyan Jyoti Sengupta, J. The above appeal has been preferred by the appellant, above named, against the judgment and order passed by the learned company judge, sitting singly, dated October 8, 2007 (Prudential Capital Markets Ltd. (in liquidation), In re [2007] 140 Comp Cas 754 (Cal.)/[2008] 84 SCL 239. By the impugned judgment and order the learned trial judge directed the appellant herein to deliver vacant possession of the shop rooms in question to the official liquidator or his duly authorised representative within seven weeks from the date of passing the order. By the same order the appellant was prohibited from parting with possession in respect of the shop rooms or either of them or creating any interest in respect of the same in favour of any person other than the official liquidator till it hands over the same, to the official liquidator. The aforesaid order was passed in the context of the filing of letter for obtaining direction of the court for eviction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the order of winding up. On February 25, 2002, an application being C. A. No. 99 of 2002 was filed for recalling of the order of winding up and an order was passed requiring the company to deposit a sum of Rs. 40,000 with the official liquidator after which the official liquidator was directed to stay its hands. On May 15, 2002, the RBI filed complaint under section 45MC of the Act of 1934 being C. P. No. 342 of 2002. On July 11, 2003, the said company was directed to be wound up on the petition of the RBI, and the official liquidator was directed to take charge of the company. 3. In December, 2003 the appellant came to know about the order of winding up of the company after the official liquidator had gone to take possession of the said property. Subsequently, the appellant on coming to know about the order of winding up tendered the rent by demand draft, and also at the same time on behalf of the company (in liquidation) paid proportionate maintenance charges and property tax to the appropriate authorities. The official liquidator however returned the demand draft of Rs. 29,594 being the amount of rent to the appellant. On February 11, 2005, the official liquidator asked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for direction, it is well-settled that to succeed in an application under section 531 of the said Act the official liquidator is to aver and prove that the transaction was not in good faith. 9. He submits above with reference to the two decisions one of which is Supreme Court and another of the Madras High Court, in N.Subramania Iyer v. Official Receiver, Quilon, AIR 1958 SC 1 and N. Babu Janardhanam v. Official Liquidator, Golden Cine Studios (P.) Ltd. [1993] 78 Comp Cas 490, respectively. Even the learned trial judge has accepted the aforesaid legal position, in principle, but failed to apply the same to grant relief. 10. His further contention is that section 530 would show that the same did not and could not have any application in the facts and circumstances of this case. It is nobody's case that transfer took place after commencement of the winding up proceeding against the company. The learned trial judge had passed order on the ground which was never alleged by either of the parties. The court cannot make out a new case while passing the impugned order and the learned trial judge has totally ignored such principle. He contends further that undertaking to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment with the support of the judgment in Sakow Industries P. Ltd. (in liquidation), In re [1990] 67 Comp Cas 16 (Cal.), that the adjudication of the rights of the parties herein can be made under section 446(2) of the said Act and the appellant can be evicted if it is found to be trespassers. Even all questions can be determined under section 446(2) of the Companies Act, 1956 and no further specific procedure is required to be followed. 16. He continues referring to the decision of this court in Rajratna Naranbhai Mills Co. Ltd. (in liquidation) v. New Quality Bobbin Works [1973] 43 Comp Cas 131 (Guj.), that it is the duty of the official liquidator to collect all assets of the said company and all questions can be decided under section 446 of the Companies Act, 1956, without requiring any comprehensive suit to be filed. 17. Lastly he contends with the support of the authority, namely, the decision of the court in Kanchan Kumar Dhar, Official Liquidator v. Dr. L. M. Visarai [1986] 60 Comp Cas 746 (Bom.), that transaction entered into after presentation of winding up petition is deemed to be void. The order of the learned trial judge in the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding claims by or against any of its branches in India) ; ( c ) any application made under section 391 by or in respect of the company ; ( d ) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company ; whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960." 20. Thus it is clear from the aforesaid sub-section the claim of the company made by the official liquidator and also defence of the appellant are adjudicatable under clause (b) sub-section (2) of the said Act. It is manifestly clear that no regular suit is required to be filed and the learned trial judge can pass an order on the application in any form. The above procedure is now well firmly applied and established with the judicial pronouncement and it would be found as appropriately urged by Mr. Sen, in the case of Vidyadhar Upadhyay v. Sree Sree Madan Gopal Jew [1990] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... simultaneously power was conferred upon him under section 457(1) to institute or defend any legal proceedings. If he has power to institute or defend legal proceedings and if in performance of his duty he comes across a transaction which is void against him, the transaction becoming void because of the winding up proceedings, it would be a question of fact arising in the course of winding up of the company and this court will have jurisdiction to decide that question. This appears to me to be the scope and ambit of jurisdiction conferred upon the High Court under section 446(2). It is necessary to put liberal construction on section 446(2) so as to widen the jurisdiction of the High Court in dealing with all questions arising in winding up. Under the Companies Act, 1956, jurisdiction is conferred upon the High Court alone to entertain winding up proceeding." 23. Respectfully following observation of the above Division Bench judgments we are of the view that section 446 is a special provision with a summary procedure and it enables the company court through the official liquidator to take all legal measures so that the affairs of the company is not involved in multiplicity of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction passed on September 29, 1997, has taken away the effect of undertaking. Even if it is assumed initial lease was held to be valid, renewal thereof cannot be termed to be lawful as it was obtained on November 23, 2001, after the winding up Petition No. 217 of 2001 was presented by the creditor. 26. We find considerable substance in the submission of Mr. Sen that the learned trial judge has correctly recorded this renewal is void as it is well-settled that under section 536(2) this sort of transaction or act is void by virtue of the said section 536, sub-section (2). The said section is as follows : "536. Avoiding of transfers, etc., after commencement of winding up. -. . . (2) In the case of a winding up by the court, any disposition of the property of the company, and any transfer of shares in the company or alteration in the status of its members, made after the commencement of the winding up, shall, unless the court otherwise orders, be void." 27. It is feebly contended that even if the said second lease being declared to be void then on expiry of three years from the date of initial lease the company has become monthly tenant under the Andhra Pradesh Rent Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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