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2015 (7) TMI 1338

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..... s one other aspect that is ignored by the Official Liquidator in making the claim that the lease deed was void. Insofar as the contention of the learned Counsel for the Official Liquidator that this court has come down heavily on the respondent in observing that the lease deed is tainted with dishonesty and the lease deed is contrary to Section 531A of the Act and the transaction between the lessor and the lessee is tainted with dishonesty is concerned, that order having been challenged in appeal, the appellate bench has, insofar as the above said observations of the company judge are concerned, has observed that the learned Company Judge was not justified in making certain observations especially when the present application was pending and therefore any such observations cannot be held as precluding the respondent from contesting the claim of the Official Liquidator. Application dismissed. - Company Application No. 826 of 2011 in Company Petition No. 166 of 2001 - Dated:- 21-7-2015 - Anand Byrareddy, J. Shri K.S. Mahadevan and Shri V. Jayaram, Advocates For Official Liquidator. Shri K.G. Raghavan, Senior Advocate Shri Manjunath Advocate For Respondent. Judgment: Anand Byrareddy, .....

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..... contested by the respondent lessee and in view of which, this court had directed that the parties tender evidence in support of their respective claims. The evidence has also been recorded in the present case on hand to demonstrate that even prior to the lease deed, the respondent had been put in possession as a licensee and even if the lease deed were to be cancelled, the possession having been continued as a licensee over a period of time, the respondent could not be disturbed otherwise than under due process of law etc. 5. The learned Senior advocate Shri Raghavan, appearing for the counsel for the respondent would however insist that the application could be disposed of on a preliminary objection as regards limitation. In this regard, he would point out that having regard to the very tenor of Section 458A and giving the benefit of exclusion of time in computing the period of limitation, it was incumbent on the Official Liquidator to demonstrate that the present application was filed in time. In this regard, he would point out that the lease deed is dated 22.1.2000 and the petition for winding up was filed on 14.3.2000 and the winding up order was passed on 1.4.2004 and the pre .....

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..... le by public auction, it would be open for the respondent to also participate. Having regard to those findings, it is contended that the respondent is precluded from resisting the present application and that as the transaction was void ab initio, the application under Section 531-A of the Act would have to be addressed de hors. Section 458A of the Act, and without reference to the law of limitation. 6. The learned Senior Advocate, by way of reply, would place reliance on a decision of a division bench of the Kerala High Court, while pointing out that the question of limitation did not arise for consideration before the Madras High Court in Krishnasamy Reddiar Educational Trust, supra, and the court was proceeding on the basis that the lease deed was unconscionable and the intention of the company was to deny the assets of the creditors and the learned Company Judge having directed the lessee to hand over possession to the Official Liquidator and to pay damages from the specified period till handing over of possession was at the initiative of the court and not on the ground of limitation. On the other hand, a Division Bench of the Kerala High Court in K.N. Narayana Iyer vs. Commiss .....

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..... isleading statement. On the other hand, it is possible for the official liquidator to canvass that the law of limitation is kept in abeyance during the pendency of the winding up petition and would operate in terms of Section 458A. Given the full benefit of the tenor and object of Section 458A of the Act, it is pointed out by the learned Senior Advocate, that the application was clearly barred by time. 7. In the above facts and circumstance, the question whether the official liquidator is in a position to claim avoidance of a transfer on the ground that the transfer is void in terms of Section 531-A can also plead that the period of limitation in seeking such adjudication or seeking recovery of possession pursuant to that transfer of the property in question can plead exemption from the application of the law of limitation. This would necessarily have to be answered in the negative. Notwithstanding the decision in Krishnasamy Reddiar, supra, relied upon by the Official Liquidator, that judgment was rendered in a totally different context and the question of limitation did not fall for consideration therein. The law as laid down by the Kerala High Court to indicate that whether the .....

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