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2015 (7) TMI 1338

..... winding up petition and therefore in terms of Section 531A of the Act, it was clearly void and hence, the present application - HELD THAT:- 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. Incidentally, it is on record that the applicant is receiving rent from the respondent in terms of the lease deed. Therefore, to characterize the lease deed as being void is akin to approbating and reprobating, which is not permissible. This is 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 .....

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..... he parties on 22.1.2000, which is 1 month and 22 days before the presentation of the winding up petition and therefore in terms of Section 531A of the Act, it was clearly void and hence, the present application. 4. The learned counsel for the Official Liquidator would submit that the lease deed, on the fact of it, is executed only to defeat the object of winding up and to ensure that the assets of the company are kept out of the hands of the Official Liquidator. As seen from the terms of the lease deed, the lease amount is a paltry sum of ₹ 1,250 per month in respect of a vast extent of land measuring over 6.29 acres and that the transaction having been entered into, just prior to the presentation of the winding up petition, would fall within the mischief of Section 531-A of the Act. The application is hotly 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, th .....

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..... ontend that the application be allowed without reference to the question of limitation. Further, it is pointed out that the present respondent had earlier approached this court seeking permission to purchase the property, which according to the learned counsel for the Official Liquidator, was turned down by this court, observing that the transaction under which the respondent claims to be in possession appears to be illegal and fraught with dishonesty and therefore the relief claimed by the respondent could not be granted. And a challenge to the said order of the Company Judge before the division bench of this court had only resulted in dismissal of the appeal. The Division Bench, has observed that the respondent is not entitled to any such exclusive sale in his favour and if and when the property is brought to sale 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 referen .....

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..... m serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. And further, if the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. In the instant case on hand, it is pointed out that the lease deed is a registered document and if it is sought to be canvassed that it is void or voidable, it is for the official liquidator to make an application in that regard, which is apparently the present application. Therefore, to contend that the Limitation Act, 1963 would not apply is a misleading 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 applicati .....

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