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Companies Act / Liquidator

387. Disclaimer of Onerous Property by Liquidator

The liquidator can disclaim onerous property—unprofitable contracts, unsaleable property, or property burdened with liabilities—but the disclaimer is not a magic eraser. It terminates the company’s obligations, and the counterparty’s claim becomes a provable debt.

29 Oct 20262 min read

The Statutory Power

Section 333 permits the liquidator, with the leave of the NCLT, to disclaim any property that is onerous to the company—for example, an unprofitable lease, a contract that cannot be performed, or property that is burdened with liabilities. The disclaimer must be in writing and must be filed with the NCLT.

The Effect of Disclaimer

The disclaimer terminates the company’s rights and obligations in the property from the date of the disclaimer. The counterparty’s claim for damages becomes a provable debt in the winding up. The disclaimer does not affect the rights of third parties that are not parties to the disclaimed contract.

The NCLT’s Leave

The liquidator must obtain the NCLT’s leave before disclaiming. The NCLT may impose conditions, such as requiring the liquidator to compensate the counterparty or to preserve the property pending the resolution of the counterparty’s claim. A disclaimer without leave is invalid.

The Practical Use

The disclaimer power is most useful for long-term leases, executory contracts, and contaminated land. The liquidator should weigh the cost of the disclaimer against the benefit to the estate. A disclaimer that deprives the estate of a valuable asset is unlikely to be approved.

Call to Action: For disclaimer application drafting, onerous property assessment, or NCLT leave strategy, contact office@anujdesaiassociates.com or 9619456656. Website: https://anujdesaiassociates.com. LinkedIn: linkedin.com/in/ca-anuj-desai-122547230.

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