- (1.) THE Applicant herein by the present application has sought a declaration that the Respondent M/s. Dhake Dyes and Chemicals pvt. Ltd. (In Liquidation)through the official Liquidator has no claim whatsoever on the factory premises situated at plot No. 22/2. Roha Industrial Area village Dhatav. Taluka Roha District raigad ad measuring 12152 sq. mtrs. In support of their application. It is the contention of the Applicant that an advertisement appeared at the behest of maharashtra State Financial Corporation (MSFC) in the Times of India dated 13th december 1993. Their offer in an amount of Rs. 80 lacs was accepted on 16th february. 1994. On 27th June, 1994 possession was handed over to the Applicant. On 23rd September, 1994 conveyance was executed in favour of the applicant by the MSFC. On 19th June, 1991. a petition for winding up of the company was presented before this court. On 22nd April, 1998 an order was passed to wind up the company based on the suo moto petition on reference by the B. I. F. R. Though the papers from B. I. F. R. were received or placed before the Court On 19th June, 1991 orders for winding up was passed on 22nd April, 1998. On 6th July, 1998. Official liquidator issued a letter proposing to take possession of the registered office on 9th July. 1998 and factory premises on 14th July. 1998. The Applicant came to be aware about this through the Ex-Management of the Company and SICOM. On 13th July. 1998 Applicant moved this court. The official Liquidator was directed not to take possession. Matter was adjourned to 15th July, 1998. On 15th July, 1998 Official Liquidator sought time to file reply, matter was adjourned on various dates before it was finally heard. In the course of the proceedings notice was given to MSFC and SICOM as secured creditors. They have been subsequently added as Respondents. This was because on the sale of the assets which is the subject matter of the present application the sale proceeds were apportioned amongst the two secured creditors. An affidavit in support of the Application has been filed along with the Annexure in support thereof. In the affidavit dated 13th July, 1998 it is averred that the entire consideration has been paid by the Applicant in terms of the offer accepted by MSFC. It is contended that the Respondent No. 1 has no right to take possession without making necessary inquiries which constitutes a grave danger to the business and reputation of the Applicant company. It is therefore prayed that the relief as prayed for by the Applicant be granted. An affidavit in reply has been filed on behalf of the official Liquidator pointing out that on 22nd April, 1998 this Honorable Court was pleased to order winding up the company and the Official Liquidator was appointed as Liquidator thereof. It is contended that in terms of section 536 (2) of the Companies Act. 1956 any disposition of the properly (including actionable claims) of the company and any transfer of shares in the company or alteration in the status of its members made after the commencement of the winding up shall unless the court otherwise orders be void. It is further pointed out that the sale of assets had taken place after the presentation of the winding up petition and in view of the provisions of section 536 of the Companies Act the sale is void. An affidavit has also been filed on behalf of the Respondent No. 3 In the said affidavit it is pointed out that respondent No. 2 was the lead Financial Institution which has arranged finance for the company in liquidation. Being the lead institution the Respondent No. 2 in order to protect the interest and recover the pan passu charges of Respondent Nos. 2 and 3 against the company in liquidation caused the mortgaged assets to be sold in exercise of its powers under Section 28 of the State Financial Corporation Act. It is further pointed out that the sale effected was bonafide and in accordance with the legitimate rights of Respondent No. 2 under the State Financial Corporation Act. It is further pointed out that no Liquidator was appointed previous to 22nd April, 1998 and as such the charge of the workmen of the company in Liquidation were not crystallized nor was a provisional Liquidator appointed. In the circumstances. It is contended the question of seeking relief did not arise at all. Without prejudice it is contended that the sale is bonafide.
(2.) AT the hearing of the petition it is contended that:-- (a) the sale was by secured creditors outside the winding up and as such no permission was required under section 537 of the Companides Act. (b) The Claim of the workmen would only arise on the Court passing an order for winding up or appointing a provisional Liquidator. The sale having been effected before the order of winding up there was no right created in favour of the workmen. (c) Under Section 536 (2) of the Companies Act all that the court must consider is whether the sale is bonafide and no other consideration can weigh with the court in granting the permission. At any rate it is pointed out that the sale is not void. The sale becomes only void if the court refuses to grant approval. Respondent No. 2 has supported the contention of the Applicant. It is contended that the question of returning the sale proceeds docs not arise and all that has to be examined is as to whether the sale was validly conducted or not. The manner in which the sale proceeds were dealt with is not a question that can be gone into in the present application. It is contended that to decide whether the sale was valid or not the manner in which the sale proceeds were dealt with cannot be a criteria. It is therefore further contended that the present application which seeks relief in respect of the disposition of the property does not require decision of question whether the disposal of sale proceeds was valid or not and as such this court would not go into the question as to how the sale proceeds were disposed of in the present application. It is reiterated that charge/right in favour of the workers created by Section 529 and 529a comes into existence only with effect from the date of winding up and as such only transactions after that date require the permission of the Court. This it is argued is the principle adopted by the Madras High court in A. Shanmugham v/s Official Liquidator and others (1992) 75 Company cases 181. The judgment of the learned single Judge was confirmed in appeal as reported in (1994) 80 Company Cases 531. The said contention has also been taken on behalf of Respondent No. 3. In the light of the above the application can now be decided.
(3.) BY virtue of section 441 (2) of the Companies Act except in the case of voluntary winding up the winding up of the company shall be deemed to commence at the time of the presentation of the petition for winding up. In other words once an order for winding up is made it relates back to the date of presentation of petition by a deeming provision. Section 536 (2) provides that in case of winding up by or subject to the supervision of the Court any disposition of the property and any transfer of shares or alteration in the status of its members made after the commencement of the winding up shall unless the Court otherwise orders be void. By virtue of section 536 therefore the disposition of property, transfer of shares or alteration in the status of its members is not void abinitio but in the event a transaction has taken place after a petition is presented it is subject to the order of this court. If the court does not grant its approval the transaction is rendered void. The other Section is section 537 which provides that where any company is being wound up by or subject to the supervision of the Court any attachment distress or execution put in force without leave of the court, against the estate or effects of the company, after the commencement of the winding up any sale held without leave of the court of any of the properties or effects of the company after such commencement shall be void. Section 537 therefore applies in a case where any sale is held of the properties of the company. Whereas Section 536 (2) are transaction by the company including sale after the winding up order. Effect is therefore the same if the transactions are done without the leave of the court.;