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TMI Blog2013 (2) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, which was stated as pending. 2. The short facts, which are relevant for the purpose of the present appeal are as under:- 2.1 There was voluntary winding up of the appellant Company under Section 484(1)(b) of the Companies Act w.e.f. 27.9.2001 and such voluntary winding up was also notified in the Gazette dated 16.3.2002. The Liquidator has been appointed under the Companies Act for the purpose of effecting voluntary winding up. As per the Liquidator of the Company, after the winding up and after notification in the Government Gazette, letter dated 16.12.2002 by hand-delivery, respondents No.1 and 2 were intimated about status of the Company, communicating that the Company has been taken into liquidation and they were called upon to declare their claims, if any. On 17.12.2002, Liquidator had addressed a letter through Registered A.D. Post, acknowledging the claim of Respondent No.1 of Rs. 1,03,298. On 26.12.2002, the Liquidator requested respondents No.1 and 2 to appoint their Nominee in the sale committee to dispose of the property of the Company, but such was not responded. As per the appellant, respondent No.1 in the year 2002, took over the possession of the Company's U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking over the possession, Civil Suit No.45 of 2001 was filed, which came to be dismissed on 16.12.2002. There was also litigation of Special Civil Application No.13492 of 2007, which was withdrawn with a view to approach before the Corporation. The second petition being Special Civil Application No.14269 of 2007 was also filed by the Company in liquidation, wherein this Court had issued direction to consider the representation of the Company for the change of date of allotment. The said representation was rejected by respondents No.1 and 2. 4. The learned Company Judge heard the application and he found that there was agreement for licence and the Company could not be said as having vested right in the property and it was further observed that since the property is already sold to the Government concern, GSPC, there was no question of setting aside the said sale, that too, at the behest of the Company in liquidation, which itself was a defaulter and the Company had no say in the sale of the assets of the Company in liquidation. Therefore, ultimately, the learned Company Judge found that no case is made out and dismissed the application, but with the observation that the order sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Counsel appearing for respondent No.3 raised the contention that it was not a matter where winding up order has been passed by the Court, but was a case of voluntary winding up. He submitted that in case of voluntary winding up Section 446 of the Act may have no applicability. Whereas, Mr. Ravi, learned Liquidator submitted that even in case of voluntary winding up provisions of Section 446 of the Act would apply and the bar would start operating from the moment winding up proceedings have commenced. 8. Therefore, the first aspect, which may be required to be considered is whether in case of voluntary winding up provisions of Section 446 would be applicable or not? As per Chapter 3 of the Act, voluntary winding up may be comprising of two types; one would be if the circumstances under Section 484 are satisfied resulting into voluntary winding up either on account of such provisions made under Articles of the Company and the Company has passed the resolution to that effect and another is when the Company passes the special Resolution for voluntary winding up. As per Section 485 of the Act the publication of the resolution of voluntary winding up is required to be made, which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants as per the statute and no creditor can be allowed to march over the legitimate claim of any other creditor. 10. Further, Section 518 of the Companies Act provides that the Liquidator may apply to the Court for determination of any question arising in the winding up of the company or may move the Court to exercise power for staying of the proceedings or other matter when the Court might exercise power if the company were being wound up by the Court. So by virtue of Section 518(1)(b) there are enabling power with the Liquidator to apply to the Court for exercise of the power as if the company was would up by the Court. Under these circumstances, it is not possible for us to accept the contention of Mr. Kapadia, learned Counsel appearing for Respondent No.3 that Section 446 of the Act would have no applicability whatsoever in a case of voluntary winding up. On the contrary as per the scheme of the Act, it has been provided and more particularly Section 518(1)(b) of the Act, that the Liquidator may move the Court for exercise of power as if the Company was ordered to be wound up by the Court. Of course, that does not mean that in every case, Court may exercise the power, but it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate relief. 12. At the same time, it does appear that without making any change in the property GIDC has transferred the property to respondent No.3 on licence basis on the same terms and conditions as was granted to the company against the consideration of Rs. 16,48,600/-. Therefore, the amount of Rs. 16,48,600/- could be said as having realized by GIDC against the spirit of Section 446 and in any case, without prior permission of the Company Court. Therefore, the amount of Rs. 16,48,600/- should be made available to the creditors of the company for appropriation, subject to the deduction of the claim as GIDC may have from the company and the balance should be made available to the company for its appropriation in accordance with law, including for all legitimate creditors and the contributories of the company. 13. The attempt was made by the learned Counsel for GIDC to contend that the property of GIDC was allotted to the company on licence basis and the licence stood terminated and consequently no interest could be said as having continued by the company in the property and GIDC was well within its right to proceed for realization of the outstanding amount and, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction. (7) The purchaser of the property - leasehold right shall step into the shoes of the original lessee - company in liquidation and the rights between the purchaser and GIDC - lessor shall continue to remain in operation as per the lease agreement after the date of the purchase. (8) In the event, there is any dispute on the aspects of settlement of the amount recoverable by GIDC in capacity as the lessor either with the OL or with the purchaser, the matter can be considered by the Company Court for finalization of the amount and upon the payment so made to GIDC - lessor, it would not be open to GIDC lessor to decline the transfer in favour of the purchaser. (9) So far as any other liability of the lessee towards local taxes outstanding of the notified area, it can be termed as individual liability of such company in liquidation who is occupier of the property and such can be equated with the other taxes of the local authorities. As per the decision of the Apex Court in case of Aichampdany Industries Ltd. v. Official Liquidator and Anr. reported in (2009) 4 SCC 486, the amount outstanding towards such taxes would fall in the category of debt under Section 530 and such t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respondent no.3, same type of agreement of licence is entered into by GIDC and the amount realized of Rs. 16,48,600/-. Therefore, even if it is considered that the company was holding a licence, which has been transferred by GIDC to respondent No.3 and the money is realized of Rs. 16,48,600/, there is no reason why such amount should not be made available to the company for its appropriation, of course, after deduction of the legitimate claim of the recoverable amount to GIDC. 16. The aforesaid would lead to examine the aspect as to what amount was validly recoverable by GIDC from the company at the time when the eviction order was passed. The documents are produced with the affidavit-in-reply dated 21.12.2012 by Sharad Parikh, Divisional Manager of GIDC. In the notice dated 15.10.1999 for eviction under PP Act the amount quantified is of Rs. 7,51,289/-. Whereas in the panchnama, the amount mentioned is of Rs. 17,61,383/-. No material is produced to show as to how the amount of Rs. 7,51,289/- is stated in the notice under PP Act was shown resulted into Rs. 17,61,383/- as mentioned in the panchnama. Therefore, we find that the appropriate reliance deserves to be made upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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