my clind has a partnership firm, on the date of 20th september 2009 applied for company and company approval done on 23rd of september, on this date company payment the fees and on 1st of october 2009 received incorporation certificate. But misguided, company transper the prperty partnership firm to company a/c on 30th of september2009. what is the process to rectified this matter.
the transfer in favor of the unincorporated company has no legal effect , it is void abinitio, since the legal transfer of property is only possible when both the tranferer and the transferee are juristic persons , unincorporated company is not a legal person and therefore , property does not pass infavor of the company, it can be remedied by retransfer of the property infavor the incorporated company
The property was purchased by the Partnership Firm and if a Company incorporated under Part IX of the Companies Act, 1956, then the property transfered automatically from Firm to the Company but the Company was incorporated directly under other Companies of Companies Act 1956, nothing will happen.
Contracts made by the Company prior to incorporation of the Company, may also needs to be looked from the perspective of section 15(h) and 19(e) of the specific Relief Act, 1963. As per these sections, specific performance may be enforced against the company where the promoters, have before its incorporation entered int a contract for the purposes of the company and such terms and conditiosn are warranted by the terms of incorporation i.e. by inclusion in the Articles of association of the Company. Please also see the commentary of SEction 46 in Companies Act By Ramaiya..
So all pre-incorporation contracts per se may not be void ab initio under the specific relief act. however but since registration of immovable property needs to under the Transfer of property ACt, the relevent provisions may need to be confirmed therefrom.