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Friday, January 11, 2008

Transfer for Benefit of All Creditors (Section 532)

1. A transfer of property or delivery of goods made in the ordinary course of
business of the company; or
2. A transfer of property or delivery of goods in favour of a purchaser or
encumbrancer in good faith and for valuable consideration.
Transfer for Benefit of All Creditors (Section 532)
Any transfer or assignment by a company of all its property to trustees for the benefit of all its creditors shall be void.

Liabilities and Rights of Certain Fraudulently Preferred Persons (Section 533). Section 533 provides as follows:
Where in the case of a company which is being wound-up, anything made, taken or done is invalid under Section 531 as a fraudulent preference of a person interested in property mortgaged or charged to secure the company's debt, then the person preferred shall be subject to the same liabilities, and shall have the same rights, as if he had undertaken to be personally liable as surety for the debt, to the extent of the mortgage or charge on the property or the value of his interest, whichever is less.
The object of the aforesaid provision is to give protection to the creditor of a company which is being wound-up. Where the creditor has been paid by the company with the fraudulent motive on the part of the company to relieve from liability or reduce the liability of a person who has stood surety or guarantor to the creditor on behalf of company. For instance, where an Ex-managing Director has given guarantee on behalf of the company to a creditor and just before the company goes into liquidation, the company pays that particular creditor the whole or a good portion of the amount guaranteed by the Ex-managing Director with a view to relieve that guarantor of his liability as guarantor to the creditor. In such a case the creditor is fraudulently preferred by the company in order to benefit the person who stood surety or guarantor, and though in such a case the creditor to whom the payment is made may not have been a party to the fraudulent payment, the payment itself is a fraudulent preference for the benefit of the guarantor. In such a case, this section provides that the creditor who is obliged to refund to the liquidator the amount paid by the company, may recover the amount from the surety or guarantor, and the winding-up Court has jurisdiction to determine the question and order payment to the creditor by the surety or guarantor, even though that subject-matter is unconnected with the winding-up. For this purpose, the surety or guarantor may be brought in as a third party in the same proceedings which relates to the recovery of the company's money paid to the creditor.
Effect of Floating Charge [Section 534]. Where a company is being wound-up, a floating charge on the undertaking or property of the company created within the twelve months immediately preceding the commencement of the winding-up, shall, unless it is proved that the company immediately after the creation of the charge was solvent, be invalid.
However, the charge, as aforesaid, shall not become void where it relates to the amount of any cash paid to the company, whether at the time of or subsequently to the creation of, and in consideration for, a charge. The same can be recovered along with interest at the rate of five per cent per annum or such rates as may be notified by the Central Government.

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