Section 440, The Companies Act, 2009

(1) Where anything made or done after thecommencement of this Act is void under section 439 as a fraudulent preference of a person interested in property mortgaged or charged to secure the company’s debt– (a) the person preferred shall, without prejudice to any liabilities or rights apart from this section, be subject to the same liabilities and have the same rights, as if he had undertaken to be personally liable as surety for the debt to the extent of the charge on the property or the value of his interest, whichever is the less; and (b) the value of that person’s interest shall be determined as at the date of the transaction constituting the fraudulent preference, and shall be determined as if the interest were free of all incumbrances other than those to which the charge for the company’s debt was the subject. (2) Where, for the purposes of this section an application is made to the court in respect of any payment on the grounds that the payment was fraudulent preference of a surety or guarantor, the court may- (a) determine any questions in respect of the payment arising between the person to whom the payment is made and the surety or guarantor; and (b) grant relief in respect thereof notwithstanding that it is not necessary to do so for the purposes of the winding up, and may for that purpose give leave to bring in the surety or guarantor as a third party as in the case of an action for the recovery of the sum paid. (3) Subsection (2) shall apply with the necessary modifications to a transaction other than payment of money as it applies to payment of money.