PAREKH, J. - (1.) THIS judge's summons has been taken out by the official liquidator, inter alia, for a declaration that the transaction entered into between respondent No. 1 and the company (prior to the order of winding -up) is void and, in the circumstances, respondent No. 1 be directed to hand over the premises in question to the official liquidator. The judge's summons is resisted by respondent No. 1 only although the other respondents have been served.
(2.) THE facts that give rise to this judge's summons are that the company being the Star of Cochin Chit Schemes Pvt. Ltd. owns a building known as 'Star of Cochin Building' at Bhandarkar Road, Matunga, Bombay - 400019. This second floor of the said building consists of 10 rooms. Five of these rooms were let out to one Mrs. Devki Amma, mother of one of the directors of the said company. The other five rooms were in possession and/or in use and occupation of the company itself. On July 7, 1978, a winding up petition was filed. It appears that pending the hearing of this petition, the said Devki Amma surrendered the tenancy in respect of the five rooms to the company and the company thereafter rented out the entire second floor (i.e., the five rooms which were formerly in possession of the said Devki Amma and the other five rooms which were in possession of the company), to respondent No. 1 on the terms and conditions incorporated in an agreement dated July 18, 1978. Thereafter an order dated January 19, 1979, was passed for winding up the company. It is the official liquidator's claim that since the transaction between the company and respondent No. 1 was entered into after the filing of the winding -up petition, the transaction is void and respondent No. 1 had, therefore, acquired no right, title and interest in the said premises and is bound to hand over possession of the premises in question to the official liquidator. It is the case of respondent No. 1 (a) that the official liquidator's application is barred by the law of limitation and the official liquidator would be entitled to no relief; (b) that the official liquidator had accepted rent from respondent No. 1 and is, therefore, stopped from contending that the transaction in question is void; and (c) that the transaction in question is bona fide and looking to the nature and circumstances of the case, the court will validate the transaction and deny relief to the official liquidator. At the outset, it may be stated that there is no controversy as regards the fact that the winding up petition was filed on July 7, 1978, and that the winding up order was made on January 19, 1979. It is also not in dispute that the agreement executed between respondent No. 1 and the company is dated July 18, 1978, in other words, after the filing of the winding up petition. If this be the position, then in view of the provisions of section 536, sub -section (2) of the Companies Act, this transaction would be void, and the official liquidator would well be entitled to claim possessions of the premises which he has done by this judge's summons.
(3.) MR . Kenia, the learned counsel for respondent No. 1, contended that by prayer (b) of the judge's summons, the official liquidator had sought a declaration that the agreement dated July 18, 1978, entered into between respondent No. 1 on the one hand and the other respondents, being the directors of the company, be declared null and void. That this application of the official liquidator was barred in view of the provisions of article 59 of the Limitation Act, for the same provides as under : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -Description of suit Period of Time from which period beginslimitation to run - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -59 To cancel or set Three years When the facts entitling theaside an plaintiff to have theinstrument or instrument or decreedecree or for the cancelled or set aside orrescission of a the contract rescinded firstcontract become known to him. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ;