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1 - 3 of 3 (0.22 seconds)Star Chemicals (Bombay) Ltd. vs Vitta Mazda Ltd. And Anr. on 24 November, 2005
The
decisions upon which the learned counsel for the applicant has
relied upon are not in the facts as exist in the present case nor
the present case is to be considered as against the rights of other
ordinary creditors. Further, the transaction in question is not in
ordinary course of business of the Company nor it is demonstrated
arising out of extreme necessity of the Company in liquidation.
Therefore, such decisions since were in different facts and
situation than as arising in the present applications, are of no
help to the applicant. At this stage, it may be recorded that for
exercise of powers under Section 536(2) of the Act, this Court in
the case of Star Chemicals (Bombay) Limtied Vs. Vitta Mazda Limited,
reported at 2005(0) GLHEL 216070, summarized the principles as
under:
Farokh S. Todywalla vs O.L. Of Vitta Mazda Ltd. on 14 June, 2005
The
reliance placed upon the another decision of this Court by the
learned counsel for the applicant in the case of Farokh S. Todywalla
Vs. OL of Vitta Mazda reported in Company Application Nos. 310/03
and allied matters, is also ill-founded inasmuch as since the Court
found in that case as the OL has not been able to trace the record
and therefore, the defence of the OL is made unbelievable and the
orders were passed for validation of such transaction. Such is not
the fact situation in the present case inasmuch as, as observed
earlier, firstly the burden is upon the beneficiary of the
transaction who is seeking validation. It is only after that burden
is satisfactorily discharged, OL may contend otherwise. The proof
including the Bank Certificate only goes to show that the amount is
debited from the account of the applicant, but it does not show as
to whether the same were credited in the account of the Company in
liquidation. If the cheques are drawn as crossed cheques and
other than by way of A/c Payee cheque, it could be credited in
the Bank account of any party though the amount may be debited from
the Bank account of the drawer of the cheques. Therefore, unless
the said aspect is satisfactorily proved, the beneficiary of the
transaction would not be entitled for validation of such transaction
as against intention of the statute to treat such transaction as
void. Therefore, the said decision is of no help to the learned
counsel for the applicant.
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