2002 (3) TMI 829 - HC - Companies Law

Summary

Issues Involved:
1. Whether the petitioners are noteholders.
2. Whether the petitioners are debenture holders or holders of any security as contemplated by the Companies Act.
3. Whether the petitioners are creditors under section 439(1)(b) of the Companies Act.
4. Enforceability of the petitioners' claims in view of clause (6), condition No. 13.

Detailed Analysis:

1. Whether the petitioners are noteholders:
The petitioners claim to be beneficial owners of floating rate notes (FRNs) issued by Essar Steel Ltd. The respondent-company argued that the petitioners, being mere beneficial owners, do not have a legal right to file a winding-up petition. The court found that the petitioners are noteholders as the respondent-company itself recognized the concept of beneficial owners of the notes. The court held that the petitioners, although beneficial owners, are entitled to enforce their rights under the notes. The court rejected the first preliminary contention of the respondent-company.

2. Whether the petitioners are debenture holders or holders of any security as contemplated by the Companies Act:
The court examined whether the FRNs qualify as debentures under the Companies Act. It was argued that the notes are not marketable securities and thus not debentures. The court referred to judicial pronouncements defining debentures and concluded that the notes fit into this definition as they acknowledge a debt and promise to return it with interest. The court held that the petitioners are debenture holders and overruled the second preliminary contention.

3. Whether the petitioners are creditors under section 439(1)(b) of the Companies Act:
The respondent-company contended that the petitioners are not creditors as they cannot give a valid discharge, only the trustee can. The court noted that sub-section (2) of section 439 deems debenture holders as creditors. The court held that the petitioners, as debenture holders, are creditors and can file a winding-up petition, but the trustee is a necessary party in such proceedings. The court rejected the third preliminary contention with a clarification that the trustee must be joined as a necessary party.

4. Enforceability of the petitioners' claims in view of clause (6), condition No. 13:
The respondent-company argued that the petitioners cannot bring any action unless the trustee, required by 20% of the noteholders, fails to act. The court found that condition No. 13 provides a mechanism for enforcement but does not obliterate the statutory right to file a winding-up petition. The court held that the petitioners' right to file the petition is not affected by condition No. 13, provided the trustee is joined as a necessary party. The court noted that the enforceability clause must be considered in light of the trustee's stand and the petitioners' holding in the notes.

Orders:
The court overruled the preliminary contentions raised by the respondent-company and held that the trustee is a necessary party to the proceedings. The court granted the petitioners time to join the trustee as a party and adjourned the hearing to consider the applicability of condition No. 13 in light of the trustee's stand and the petitioners' holding in the notes.