SHIV SHAKTI BUILDERS Vs. STATE

JUDGEMENT

(1.) WITH reference to the averments made in paragraph 6 of the report dated 31.8.2006, Official Liquidator submitted that the agreement for Sale/ sale deed executed in favour of Smt. Shakun Kedia, wife of Sri Suresh Kedia by the Managing Director of the Company in Liquidation be set aside by resorting to powers contained in Section 531A of the Companies Act, 1956 (hereinafter referred to as the Act) as the said agreement for sale/ sale deed was executed within a period of one year from the date of presentation of the winding up petition i.e. 15.4.1998. In this connection, he relied on the provisions contained in Section 531A of the Act, which inter alia provides that any transfer of property movable or immovable by a company not being in the ordinary course of its business and/ or for valuable consideration, if made within a period of one year before the presentation of the winding up petition shall be void against the liquidator and in the instant case winding up petition being filed on 15.4.1998, the agreement for sale/ sale deed being executed on 20.10.1997 within six months of the filing of the winding up petition should be declared as void.

(2.) LEARNED Counsel for the purchaser, with reference to his reply dated 12.1.2007 and supplementary affidavit dated 19.4.2007, submitted that the company in liquidation which is a building and financial company sold the subject matter of agreement for sale/ sale deed dated 20.10.1997 in the ordinary course of business as it required money for transacting its business and she being a bona fide purchaser having paid the amount of consideration of Rs. 5,00,000/ - and obtained possession of the property in the due course, the transaction should not be allowed to be impeached in these proceedings. Learned Counsel for the purchaser in this connection placed reliance on the following judgments in the case of N. Subramania Iyer v. Official Receiver, Quilon and Anr. reported in : [1958]1SCR257 paragraph 10, in the case of N. Babu Janardhanam and Anr. v. Official Liquidator, Golden Cine Studios P. Ltd. reported in 1993 (78) Company Cases 490, in the case of Kishan Tulpule and Ors. v. Kishco Mils Pvt. Ltd. and Anr. reported in 1992 (74) Company Cases 89 and in the case of Hearts of Oak Assurance Co. v. James Flower and Sons (A firm) reported in 1936 (6) Company Cases 77. In this connection, it was further submitted on her behalf that the winding up petition may have been presented before this Court on 15.4.1998, whereafter this Court under orders dated 1.5.1998 directed for publishing the notice in terms of Rule 99 of the Company (Court) Rules, 1959 fixing 26.6.1998 as the date for hearing of the matter but before the said date i.e. on 15.5.1998 itself the Official Liquidator, Patna High Court was appointed Provisional Liquidator dispensing with service of notice on the Company as is required under Sub -section (2) of Section 450 of the Act since the winding up petition itself was presented by the company on the basis of the resolution of the share holders and as the formal winding up order is not passed till date the request made by the provisional Liquidator to annul the Agreement for Sale/ sale deed dated 20.10.1997 is absolutely without jurisdiction as according to the learned Counsel this Court will have jurisdiction to annul the sale deed at the request of the Official Liquidator only after formal winding up order is passed.

(3.) IN the circumstances, I am not inclined to annul the sale deed executed by the Ex - Managing Director of the Company in favour of Smt. Shakun Kedia earlier to the presentation of the winding up petition by the company at the request of the share holders of the company.