Disclaimer of onerous property in an LLP case which is being wound-up.
1, where any LLP property which is being wound up consists of
a, Any tenure land, burdened with onerous covenants.
b, Companies registration stock or shares.
c, Any other property which is unsaleable or is not sale able readily, by reasons of it’s the process or binding thereof either to any onerous performance or to the payment of any sum of money or
D, Contracts unprofitable.
The liquidator or the LLP liquidator, notwithstanding that he has endeavored to sell or has taken the property possession, or exercised thereto any act of ownership, or done anything of the contract in pursuance,may, with the leave of the (Tribunal) and subject to this section provisions,by writing signed by him, at any time after the commencement within twelvemonths of the winding up or the period extended such as may be permitted by the property disclaimed.
Provided that where such any property has not come to the liquidator knowledge or LLP liquidator after the winding up commencement within one week of the LLP, the disclaiming property power may be exercised within twelve months at any time after he has become aware thereof or such period extended as may be permitted by the (Tribunal).
2. The disclaimer shall determine to operate, as from the disclaimer date, the rights, interest and the LLP liabilities and the LLP property, in or in accordance of the disclaimed property, but shall not, so far except is important for the LLP releasing purpose and the LLP property from liability, affect the rights or any other person liabilities.
4. The liquidator or the LLP liquidator shall not be disclaim property that may be any or not be entitled in any case where in writing an application has been made to him by any other person interested in the property requiring him to make sure whether he will or will not disclaim,and the liquidator or Liquidator has not, within a twenty-eight days period after the application receipt or such period extended as may be permitted by the (Tribunal), given the applicant notice that he intends to apply to the(Tribunal) to disclaim for leave; and in case of the property is a contract, if the LLP liquidator or liquidator, after such an aforesaid application, does not within the mentioned period or disclaim the contract, extended period, (he shall be deemed to have adopted it).
5. The (Tribunal) may, on any person application who is, as against the LLP liquidator or liquidator, entitled to the subject to the burden or benefit or a contract made with the LLP, made an rescinding order on such terms the contract as to the payment by or to either damages of the party for the contract non-performance, or otherwise as the (Tribunal) just thinks; and any payable damages under the order to any such person by him may be proved as a debt by him in the winding up.
6. The (Tribunal) may, on any person application who either claims any interest in any disclaimed property or is under not discharged by any Act in accordance of any property disclaimed, and after hearing any such persons as it thinks fit, make an order for the property vesting in, or the property delivery top, any person entitled thereto or whom just it may seem that the property should be delivered by way of compensation as aforesaid for such liability, or a trustee for him, and on terms such as the (Tribunal) thinks just; and on any such vesting order being made, the comprised property therein shall vest accordingly in the person named therein in that behalf without any conveyance or for the purpose of assignment.
Provided that where disclaimed property is of a lease-hold nature the (Tribunal) shall not make a vesting order of any person in favor claiming under the LLP, whether asunder-lessee or as mortgage or of charge holder by way of demise, except upon of making that person the terms—
a, subject to the liabilities that are same and obligations to which the LLP as those was subject under the lease in accordance of the property at the winding-up commencement; or
b, if the (Tribunal) thinks fit, only subject to the liabilities that are same and obligations as if lease to that person has been assigned at that date,
and in either event (if so requires case) as if the lease had only consists property in the vesting order; and under-lessee or any mortgage declining to accept a vesting order upon such terms to be excluded from all interest in and upon the property security, and, if there is no claiming person under the LLP who is willing an order to accept upon such terms, the(Tribunal) shall have power the estate to vest and the LLP interest in any person in the property liable, either personally or in a character which is representative and either alone or with the LLP jointly, to perform the covenant’s lessee’s, freed and from all estates discharged, interests and encumbrances therein created by the LLP.
Any injured persons of a disclaimer by the operation under this section shall be deemed to be the LLP creditor to the compensation amount or payable damages in accordance of the injury and accordingly may prove the amount as the winding up debt.
Avoidance of transfers, etc., after the winding up commencement.
In a voluntary winding up case, any transfer in the LLP contribution, not being made a transfer to or with the LLP liquidator sanction and any alteration in the status of the LLP partners made after the winding up of the commencement shall be null.
2. In the winding up case by (The Tribunal), any property disposition (including the claims actionable) of the LLP, and any contribution transfer in the LLP or status alteration of its partners, made after the winding up commencement, shall (unless the tribunal) orders otherwise, be void.
Avoidance of attachments certain, executions, etc., by the Tribunal winding up.
- Where by the Tribunal any LLP is being wound.
- Any attachment, execution put in force or distress, without the Tribunal leave against the estate or the LLP effects,after the winding up commencement , shall (unless the Tribunal) orders otherwise be void. Or
- Any sale held, without the Tribunal leave of any of the properties or the LLP effects after such commencement shall be null.
- Nothing in this section applies for the recovery to any proceedings of any tax or impost or any payable dues to the Government.
Offences of LLP by officers in liquidation.
1, If any person, being the LLP present officer or the past,which at the commission time of the offence alleged, is being wound up, whether by (the tribunal) or voluntarily, or which is ordered subsequently to be wound up (by the tribunal) or which passes subsequently a resolution for winding up.
A, does not, to the best of this knowledge and fully belief, and discover truly to the LLP liquidator or all the property LLP liquidator, movable and immovable, if the LLP and how and to whom and for consideration what and when the disposed LLP of thereof any part, except as has been disposed such part of in the LLP business ordinary course.
B, does not deliver up to the LLP liquidator or the liquidator, or as he directs, all movable and immovable property such parts of the limited liability partnership asunder his control as in his custody and which he is needed by law to deliver up.
C, does not deliver up to the LLP liquidator or to the liquidator, or as he directs all such papers and the LLP papers as are in his custody or under his control and which he is needed to deliver up by the law.
D, within twelve months next before the winding up commencement or thereafter at any time, removes fraudulently any part of the LLP property to the one hundred rupees value or upwards or any debt conceals due to or from the LLP.
E, within twelve months next before the commencement of the winding up or thereafter at any time,removes fraudulently any company property of the LLP or one hundred rupees value or upwards.
F makes any omission of the material in any statement relating to the LLP affairs.
G, believing or knowing that the debt is false by any person has been proved under the winding up, fora one month period fails to inform the LLP liquidator thereof or the liquidator
H, after the winding up commencement prevents any book production or affecting paper or relating to the property or the LLP affairs.
I, Next within the twelve months before the winding up commencement or thereafter at any time,destroys, conceals, falsifies or mutilates, or to the concealment is privy, destruction,falsification or mutilation of, any book or affecting paper or relating to, the property or the LLP affairs.
J, Next within the twelve months before the commencement of the winding up or thereafter makes at any time, or is privy to the making of, any entry which is false in any paper or book affecting or relating to , the property or the LLP affairs.
K, Within the next twelve months before the commencement of the winding up or thereafter at anytime, parts fraudulently with, alters or makes any omission in or to the fraudulent parting with is privy, altering or making of any omission in, any affecting paper or any book relating to the LLP affairs or the property.
L, After the winding up commencement of at any creditors meeting of the LLP within the next twelvemonths before the winding up commencement attempts to account for any LLP property any part by fictitious expenses or losses.
M, within the twelvemonths next before the winding up commencement or thereafter at any time, by any representation or other fraud, gets on credit or on the LLP behalf, any property which the LLP does not pay for subsequently.
N, within the twelve months next before the commencement winding up or thereafter Any time, pledge,pawns or any property disposes of the LLP which has been got on credit and hasn’t been paid for, otherwise such pledging, pawning or disposing is in the business ordinary course of the LLP; or
P is guilty of any representation which is false or other fraud for the obtaining purpose of the creditor’s consent of the LLP or any of them, to an agreement to the LLP affairs with reference or to the winding up.
He must be punishable,in any offences mentioned any of the clauses (m), (n) and (o), for a term with imprisonment that may extend to five years or with fine or with both/, and of any other offence in case, with imprisonment which may extend to two years for a term or with both or with fine.
Given that it should be a good defence-
A, Under any of the clauses (b), (c), (d),(f),(n) and (o), if the accused proves to defraud that he had no intent.
B, to a charge under any of the clauses (a), (h), (i) and (j), if he proves that he had to conceal the LLP state of affairs or to defeat the law.
2. Where any person pawns or disposes of any property in circumstances which amount to an offence under clause (o) of sub-section (1), every person who takes in pledge or pawn or otherwise the property received, knowing it to be pledge, pawned, or disposed as aforesaid in such circumstances, shall be punishable for a term with imprisonment that may extend with fine or with both or with two years.
3. For this section purposes, the expression “officer:” shall include any person in respect with whose instructions or directions the limited liability partnership designated partners to act have been accustomed.