Section 444, The Companies Act, 2009

or any other voidable transaction under sections 446and 447 set aside shall– (a) file in the court a notice to that effect specifying the transaction or charge to be set aside and, in the case of a transaction, the property or value which the liquidator wishes to recover and also the effect of subsections (2), (3) and (4); and (b) serve a copy of the notice on the other party to the transaction or the grantee of the charge and on every other person from whom the liquidator wishes to recover. (2) A person– (a) who would be affected by the setting aside of the transaction or charge specified in the notice; and 308 309 Fraudulent preference. Liabilities and rights of persons fraudulently preferred. Procudure for setting aside voidable transactions and charges. (b) who considers that the transaction or charge should not be set aside, may apply to the court for an order that the transaction or charge not be set aside. (3) Unless a person on whom the notice was served has applied to the court under subsection (2), the transaction or charge shall be set aside one month after the date of service of the notice. (4) If one or more persons have applied to the court under subsection (2) the transaction or charges shall be set aside on the day on which the last application is finally determined unless the court orders otherwise. 442. If a transaction or charge is set aside, the court may make one or more of the following orders:– (a) an order requiring a person to pay to the liquidator in respect of benefits received by that person as a result of the transaction or charge such sums as fairly represent those benefits; (b) an order requiring property transferred as part of the transaction to be restored to the (c) an order requiring property to be vested in the company if it represents in a person’s hands the application of either proceeds of sale of property or of money so transferred; (d) an order releasing in whole or in part a charge given by the company; (e) an order requiring security to be given for the discharge of an order made under this section; (f) an order specifying the extent to which a person affected by the setting aside of a transaction or by an order made under this section is entitled to claim as a creditor in the liquidation. 443. (1) The setting aside of a transaction or an order made under section 442 does not affect the title or interest of a person in property which that person has acquired- (a) from a person other than the company; (b) for valuable consideration; and (c) without knowledge of the circumstances under which the property was acquired from (2) The setting aside of a charge or an order made under 442. does not affect the title or interest of a person in property which that person has acquired– (a) as the result of the exercise of a power of sale by the grantee of the charge; (b) for valuable consideration; and (c) without knowledge of the circumstances relating to the giving of the charge. (3) Recovery by the liquidator of property or its equivalent value whether under this Act or under any other enactment may be denied wholly or in part if– (a) the person from whom recovery is sought received the property in good faith and has altered his position in the reasonably held belief that the transfer to that person was validly made and would not be set aside; and (b) in the opinion of the court it is inequitable to order recovery or recovery in full. 444. (1) Where– (a) a transaction was entered into by a company within the specified period referred to in subsection (3); 310 311 Orders upon setting aside transaction or charges. Additional provisions relating to setting aside transactions and charges. Transactions at undervalue. (b) the value of the consideration or benefit received by the company was less than the value of the consideration provided by the company or the company received no consideration or benefit; and (c) when the transaction was entered into the company- (i) was unable to pay its due debts; (ii) was engaged or about to engage in business for which its financial resources were unreasonably small; or (iii) incurred an obligation knowing that the company would not be able to perform the obligation when required to do so; (d) when the transaction was entered into the other party to the transaction knew or ought to have known of the matter referred to in subparagraph (i), (ii) or (iii) as the case may be of paragraph (c), the liquidator may recover from any other party to the transaction any amount by which the value of the consideration or benefit provided by the company exceeded the value of the consideration or benefit received by the company. (2) Where– (a) a transaction was entered into by a company within the specified period; (b) the value of the consideration or benefit received by the company was less than the value of the consideration provided by the company or the company received no consideration or benefit; (c) the company became unable to pay its due debts as a result of the transaction; and (d) when the transaction was entered into the other party to the transaction knew or ought to have known that the company would become unable to pay its due debts as a result of the transaction, the liquidator may recover from any other party to the transaction any amount by which the value of the consideration or benefit provided by the company exceeded the value of the consideration or benefit received by the company. (3) For the purposes of this section- (a) “transaction” includes the giving of a guarantee by a company; (b) “specified period” means- (i) the period of a year before the commencement of the winding up; and (ii) in the case of a company that was put into winding up by the court, the period of a year before the making of the application to the court together with the period commencing on the date of the making of that application and ending on the date on which the order of the court was made.