9911796707
TMI Blog2022 (1) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... by the applicant company with the company in liquidation after 11th June, 2012, the date on which the company petition for winding up was filed before this Court, is as under : 3.1) A winding up petition being Company Petition No. 139 of 2012 was filed on 11th June, 2012 against the Company by one of its unsecured creditors on the ground that the Company is unable to pay its debts and that the Company should be wound up. 3.2) The said Company Petition No. 139 of 2012 was admitted by this Court by its order dated 15-1-2013. 3.3) By a further order dated 18-11-2013 passed in Company Application No. 661 of 2013 in Company Petition No. 139 of 2012, this Court directed advertisement of the Company Petition to be published in "Indian Express" and "Divya Bhaskar" 3.4) The advertisements as directed by this Court were published in "Indian Express" and "Divya Bhaskar" on 22-11-2013. The Company was ultimately ordered to be wound up by an order of this Court dated 22-7-2015. 3.5) The Company owned and possessed factory, land and building and plant and machineries at shed being Plot No. A/2/10 admeasuring about 2157 sq. mtrs. along with construction thereon (of approximately 1075 sq. mt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of entering into the Agreement to sell by a cheque dated 25-6-2012 bearing No.966139 and Rs. 2,70,00,000/-was to be directly deposited with the Company's banker Dena Bank against its dues from the Company. Rs. 1,00,000/- was paid to the Company in cash later on at the time of execution of the deed of conveyance on 24-9-2012. 3.8) Before the final deed of conveyance could take place, the applicant obtained the title clearance certificate and for that purpose public advertisements for Title Clearance Certificate were published in Gujarati daily "Gujarat Samachar" on 26-8-2012 (in both Vapi edition and Ahmedabad edition). After the said advertisement and proper verification, Title Clearance Certificate was also issued. The applicant, therefore, through its bank Bhagyodaya Co-operative Bank Limited, Nava Madhupura, Ahmedabad paid of Rs. 2,70,00,000/- directly to Dena Bank, Wadala Branch, Mumbai on behalf of the Company against the dues of the Company to the said Bank. The said payment of Rs. 2,70,00,000/- was made to the Company's Bankers by Bhagyodaya Co-operative Bank Ltd., Nava Madhupura, Ahmedabad on behalf of the applicant by cheque No, 382622 dated 24-9-2012. 3.9) The applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this Court vide order dated 26th February, 2016 and accordingly, this application is filed. 4.3) Learned advocate Mr. Shah also relied upon the decision of this Court in case of Hawa Controls v. O.L. of Tirupati Foundry Private Limited passed in Company Application No. 622 of 2006, in support of his submissions, wherein this Court held as under : "9. After having heard learned advocates appearing for the respective parties and after having gone through the affidavit filed in support of Judge's Summons, documents attached with the Judge's Summons and the affidavit filed by the respondent No.4, the Court is of the view that it is true that during the pendency of the winding up petition, the transactions in question were taken place. However, it has not come on record that the applicant was aware about the fact that winding up proceedings are pending before the Court. It is true that Ex-Directors might be aware about winding up proceedings but nobody has ever contemplated that the winding up order might be passed in the pending winding up petition. It is an admitted position that the winding up order was passed much after the completion of the transactions of sale and whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as further observed in the aforesaid judgment that unless a transaction of transfer of a company's property amounts to a fraudulent preference under the bankruptcy law or insolvency law and it is entered into within a period of six months prior to the commencement of winding up of the company, the transaction in question cannot be treated as void under Section 531 (1) of the Companies Act, 1956. The law does not presume the transaction to be a fraudulent preference merely because it was entered into within a period of six months prior to the commencement of winding up. If the transaction was entered into as a result of lawful pressure of a bona fide creditor to recover his dues, the transaction of transfer could not be treated as a fraudulent preference. This question does not arise in the present case as it is not the case of the applicant that the applicant has entered into the transaction in question as a result of any pressure to recover its dues. 12.Taking overall view of the matter and considering the relevant statutory provisions as well as decided case law on the subject, the Court is fully convinced with the submissions made on behalf of the applicant and hence, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited the entire sale consideration with DENA bank with whom the property which was purchased by the applicant was mortgaged. Learned advocate Mr. Shah has also invited the attention of the Court to the letter dated 25th September, 2012 of DENA bank releasing charge over land and building and plant and machinery of the company in liquidation situated at A-2/10 (Survey No. 724) GIDC, Vapi and submitted that DENA bank had entered into One Time Settlement of Rs. 285 lakhs with the company in liquidation and agreed to release the charge over the property which was purchased by the applicant and it is also acknowledged by DENA bank that the applicant has paid Rs. 270 lakhs on 24th September, 2012 which is also reflected in the registered sale deed executed on 29th September, 2012 which is produced on record at Annexure- K(page-46). 8. Considering the above facts as well as the relevant statutory provisions, the prayers made by the applicant is required to be accepted and declaration sought for in this Judge's Summons is granted. It is declared that the transaction in question cannot be said to be hit by the provisions contained in sections 531 and 531-A of the Act, 1956 and therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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