Gujarat High Court Case Information System
Print
OJA/62/2007 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
O.J.APPEAL
No. 62 of 2007
In
OFFICIAL
LIQUDATOR REPORT No. 81 of 2002
In
COMPANY
PETITION No. 160 of
2000
=================================================
RAJESH
DAHYABHAI CHAVDA - Appellant(s)
Versus
O.L.
OF HEXONE PHARMACEUTICALSLIMITED & 5 - Opponent(s)
=================================================
Appearance
:
MR AB MUNSHI for Appellant(s) :
1,
OFFICIAL LIQUIDATOR for Opponent(s) : 1,
MR MRUGESH JANI for
Opponent(s) : 1,
MR HS MUNSHAW for Opponent(s) : 2,
NOTICE
SERVED BY DS for Opponent(s) : 3,
SERVED BY RPAD - (N) for
Opponent(s) : 4, 6,
DELETED for Opponent(s) :
5,
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.S.SHAH
and
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 13/09/2007
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The
appellant ? original respondent No.6 has filed this Appeal against
the order passed by the learned Company Judge on 9.4.2007 in OLR
No.81 of 2002, wherein the learned Company Judge has directed the
present appellant to hand over the possession of the property in
question to the Official Liquidator within a period of two weeks from
the date of the said order.
2. It
is the case of the appellant that the Company, namely, M/s.Hexone
Pharmaceuticals Ltd., was ordered to be wound up by an order dated
14.7.2005 in Company Petition No.160 of 2000. Prior to the winding
up order the Official Liquidator was appointed as the Provisional
Liquidator of the Company by an order dated 21.12.2001 and the
Provisional Liquidator was directed to take possession of the
properties of the Company. The Company had its Registered Office at
26 Shroff Building, 1st Floor, Valsad ? 396 001. The
said property was given on rent to one M/s. Bijoy Medical Agency, a
sole proprietorship concern of one Mr. Dilip Kumar Ray. The said
Dilip Kumar Ray was also a Director of the Company in liquidation.
He had, therefore, given the said address as the Registered Office
of the Company. As a matter of fact the Company was never a tenant
nor an owner of the said property and had no right, title or interest
in the said property.
3. It
is also the case of the appellant that the Company shifted the
address of its Registered Office from the said property to Kharvel,
Taluka ? Dharampur, Dist. Valsad with effect from 20.11.2001 and
filed Form No.18 with the office of the Registrar of Companies,
intimating the change in the address of its Registered Office. The
appellant purchased the said property from its owner by registered
sale deed dated 24.1.2002. Since the Official Liquidator was
appointed as Provisional Liquidator of the Company on 21.12.2001 and
since the said property was the Registered Office of the Company, the
Official Liquidator had asked the appellant to hand over the said
property to him. The appellant raised objection against the said
demand and pointed out that he had purchased the said property and
the property was neither given on rent to Company nor the company was
owner of the said property. The Official Liquidator therefore filed
OLR No.81 of 2002 before the learned Company Judge seeking inter
alia, direction to take possession of the said property. The present
appellant has filed an affidavit-in-reply and pointed out the correct
facts. The appellant has raised a specific plea before the learned
Company Judge that the Company had no right, title or interest either
as a tenant or as the owner in the said property. The appellant has
also pointed out that the Company had already shifted its Registered
Office from the said property to another place. The Company had not
transferred this property since the Company had no right, title and
interest in the said property, and hence provisions of Section 531 of
the Act which relate to the fraudulent transfer were not attracted
at all. Despite this fact, the learned Company Judge has passed an
order and held as under :-
?SOn going through
relevant records, it cannot be disputed that the Registered Office of
the Company in liquidation was situated at 26, Shroff Building, 1st
Floor, Valsad. It is also not in dispute that petition for winding up
was filed on 26.01.2000. After the presentation of the winding up
petition, it appears that Registered Office of the Company was
shifted and even surrender of the possession by Bijoy Medical Agency
and purchase of the property in question by respondent No.6 was after
winding up petition. Thus prima
facie it seems that all the transactions and transfers are hit
by Section 531 of the Companies Act. Under the circumstances,
respondent No.6 is required to hand over the possession of the
aforesaid property to the Official Liquidator within a period of 2
(two) weeks from today. However, it will be open for respondent No.6
to submit an appropriate application for validating the transaction
in his favour and the same can be dealt with in accordance with law
and on merits. Prayer in terms of paragraph No. 15(b) is granted.??
4. It is this order of
the learned Company Judge, which is under challenge in the present
Appeal. This Court has passed a detailed order on 25.4.2007, whereby
the Appeal was admitted and in OJ Civil Application the Court has
directed the appellant to deposit an amount of Rs.50,000/- with the
Official Liquidator and on depositing the said amount the Official
Liquidator was directed to remove the seal and hand over the property
in question to the appellant and the appellant was permitted to make
use of the said property. Pursuant to the said order the amount have
also been deposited by the present appellant and the Court has passed
further order on 21.6.2007. The Court has observed that the amount
of Rs.50,000/- deposited by the appellant shall be invested in a
fixed deposit with a nationalized bank for a period of six months and
interest accruing thereon shall be accumulated.
5. Learned Counsel Mr.
Ashok L. Shah with Mr. A.B.Munshi for the appellant submitted that
the Company in liquidation has nothing to do with the property in
question and the appellant has not purchased the said property from
the Company. There is no question of invoking the provisions of
Section 531 of the Companies Act, 1956, as there was no fraudulent
transfer. The property in question does not belong to the Company.
When the Company is neither tenant nor the owner of the said property
and merely the Director has given address of this property as the
Registered Office of the Company it cannot be said that the said
property belongs to the Company and the Company is either tenant or
owner of the said property. He has, therefore, submitted that the
interim order passed by the Court, whereby the present appellant was
allowed to have possession of the said property should be made final
and the amount of Rs.50,000/-, which was deposited pursuant to the
interim order should be refunded to the appellant alongwith the
interest accrued thereon.
6. Mr. Mrugesh Jani,
learned advocate appearing for the Official Liquidator has relied on
the Official Liquidator Report dated 12.9.2007 and stated that the
Company or the Managing Director has neither clarified at any point
of time about the actual transaction of the property made by the
owner with the Company nor produced any certified copy of resolution
showing or disclosing the facts of the same. He has, therefore,
submitted that since the property was shown as Registered Office of
the Company after passing of provisional winding up order by this
Court and since the sale deed for the said property was made in
favour of the said Mr. Chavda on 24.1.2002, the same is hit by
Section 531 of the Companies Act, 1956 and hence order passed by the
learned Company Judge should not be interfered with.
7. Having heard the
learned advocates for the respective parties and having gone through
the impugned order passed by the learned Company Judge as well as the
documents produced before the learned Company Judge and before this
Court, we are of the view that the Company in liquidation has nothing
to do with the property in question as the said property was neither
given on rent to the Company nor the Company was owner of the said
property. Simply because the said property was used by way of an
address of Registered Office of the Company it cannot be said that
the said property was given on rent to the Company or the Company has
purchased the said property. The present appellant has purchased the
said property by registered sale deed and he became absolute owner of
the said property. Section 531 of the Companies Act, 1956 cannot be
applied in the present case as the property in question does not
belong to the Company in liquidation. We are, therefore, of the view
that the order passed by the learned Company Judge is required to be
quashed and set aside and accordingly it is quashed. An amount of
Rs.50,000/- which was ordered to be deposited at the time of passing
of interim order, shall be refunded to the present appellant
alongwith the interest accrued thereon. Office is directed to encash
the fixed deposit prematurely, if necessary, and hand over the
amount alongwith the interest accrued thereon to the appellant
forthwith.
8. The appellant is
relieved from the Undertaking filed on 25.4.2007 pursuant to the
order passed by this Court on 25.4.2007 in OJ Civil Application
No.187 of 2007.
9. This appeal is
accordingly allowed without any order as to costs.
( M. S. SHAH,
J.)
(K. A.
PUJ, J.)
kks
Top