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2013 Supreme(Guj) 731
IN THE HIGH COURT OF GUJARAT
K.M. Thaker, J.
Kishor Motilal Balsara & 1 Ors. - Applicants
Versus
O.L. of Vitta Mazda Ltd. - Respondents
Company Application No.170 of 2013
Decided On : 14-10-2013
For the Appellant :Mr. A.D. Desai, Advocate
For the Respondents:Mr. R.M. Desai, Advocate, Official Liquidator
Headnote:
Companies Act, 1956 - Sections 536, 441, 433 & 434 - Income Tax Act, 1961 - Section 281 - Transfer of Property Act, 1882 - Section 3 - Winding Up of Company in liquidation - Transaction entered into during winding up proceedings, disputed transactions are executed in absence of and without proper authority duly conferred/delegated in favour of said person by passing appropriate and requisite resolution - Any material to establish that proper and requisite resolutions were passed and requisite authority was duly and properly conferred/delegated in favour of said person and thereafter the disputed transactions were executed is not placed on record - Property under attachment under Section 281 of Income Tax Act - When the property was put to auction vide public notice, no steps taken by applicant - Held, Order of winding-up of a company relates back to the date of filing of winding-up petition - Sale void ab initio and hit by delay and laches, In absence of requisite resolution and proper authorization, the impugned transaction and the sale-deed cannot be enforced against the company and the official liquidator and the impugned transaction would not bind the official liquidator - Besides this, any justification to approve and validate the impugned transaction is not made out - Application rejected.
JUDGMENT :
K.M. Thaker, J.
In present Judges summons dated 16.4.2013 which is taken out after 20 years' delay and which is registered as Company Application No.170 of 2013, the applicant has prayed:-
"2(A) Your Honour may be pleased to allow this Application and regularise the Sale Transaction of two plots of Non Agricultural Land bearing Survey No. 78 of 127 (private plot no.: 11 in Sector No.:3) & 78 of 128 admeasuring 4,231.86 Sq. Feet i.e. 393.14 Sq. Mtrs. & 78 of 128 (private plot no.: 12 in sector no.:3) of Village Kathriya, Nani Daman, now in boundary of Municipal Council of Daman, with rights of ways, trees, easements and appurtenances whatsoever, from M/s/Vitta Mazda Limited a Company incorporated under the Companies Act, 1956, and having it's Registered Office at Park View, Lunsikui, Navsari, 396445 vide a Registered Sale Deed bearing 1491 of 93 and 1492 of 93 respectively, which were executed between the parties on 24/12/1993 before the Sub Registrar of Daman.
(B) Your Honour may be pleased to restrain the Respondent – O.L. of Vitta Mazda Ltd., from putting two plots of Non Agricultural Land bearing Survey No.: 78 of 127 (private plot no.: 11 in Sector No.:3) & 78 of 128 admeasuring 4,231.86 Sq. Feet i.e. 393.14 Sq. Mtrs. & 78 of 128 (private plot no.: 12 in sector no.:3) of Village Kathriya, Nani Daman, now in boundary of Municipal Council of Daman, with rights of ways, trees, easements and appurtenances whatsoever, from M/s/Vitta Mazda Limited a Company incorporated under the Companies Act, 1956, and having it's Registered Office at Park View, Lunsikui, Navsari, 396445. A Registered Sale Deed bearing 1491 of 93 and 1492 of 93 respectively, which were executed between the parties on 24/12/1993 before the Sub Registrar of Daman, till final disposal of this Application.
(C) Your Honour may be pleased to direct the Respondent – O.L. of Vitta Mazda Ltd., to observe status quo, in respect to possession and title in respect to the two plots of Non Agricultural Land bearing Survey No.: 78 of 127 (private plot no.: 11 in Sector No.:3) & 78 of 128 admeasuring 4,231.86 Sq. Feet i.e. 393.14 Sq. Mtrs. & 78 of 128 (private plot no.: 12 in sector no.:3) of Village Kathriya, Nani Daman, now in boundary of Municipal Corporation of Daman, pending notice and admission of the Application."
2. The applicant has filed affidavit in support of the said summons wherein the applicant has averred, inter alia, that the applicant has purchased two plots of land, which, according to the applicant, are non-agricultural land. The parcels of land purchased by the applicant are plots bearing Survey No.78 of 127 (private plot No.11 in Sector No.3) & 78 of 128 (private plot no.12 in Sector No.3) admeasuring 4,231.86 Sq. Feet i.e. 393.14 Sq. Mtrs. The said plots, according to the applicant, are situate in the boundary of Municipal Council of Daman. It is also claimed that the applicant purchased the said plots from the respondent company, i.e. M/s. Vitta Mazda Limited. The applicant has also claimed that the sale deed between the constituted attorney of the applicant and the constituted attorney of the company, i.e. the owner of the land in question, was executed on 24.12.1993 and the sale deed came to be registered at Sr. No.1491 of 93 and 1492 of 93 in the register of Sub Registrar, Daman.
3. After having purchased the said parcels of land in December 1993, the applicant has taken out present application after delay of almost 20 years.
4. In support of present application, the applicant has averred in the affidavit dated 16.4.2013 that:-
"(8) The Applicants have bonafidely purchased a piece of Non Agricultural Land bearing Survey No.: 78 of 127 (private plot no.: 11 in Sector No.:3) both plots are admeasuring 4,231.86 Sq. Feet i.e. 393.14 Sq. Mtrs & 78 of 128 (private plot no.: 12 in sector no.:3) of Village Kathriya, Nani Daman, now in boundary of Municipal Council of Daman, with rights of ways, trees, easements and appurtenances whatsoever, from M/S/Vitta
