2003 (12) TMI 327 - HC - Companies Law

Summary

Issues:
- Ex parte order under section 391(6) of the Companies Act, 1956
- Lack of notice to secured creditors and bankers
- Incorrect representation regarding deposit amounts
- Lack of bona fides in the proposed scheme of compromise/arrangement
- Disputed scheme lacking material particulars and consent of banks
- Wide discretion of the Court under section 391(6) and considerations for granting stay
- Duty of fair disclosure by the applicant
- Exclusive jurisdiction of Debt Recovery Tribunals
- Refusal of stay on criminal proceedings under section 138 of the Negotiable Instruments Act

Analysis:

The High Court of Bombay addressed the issue of an ex parte order under section 391(6) of the Companies Act, 1956, moved by the Central Bank of India to vacate the order granted on an application for a stay by a company proposing a compromise/arrangement with creditors. The Court noted the lack of notice to secured creditors and bankers, violating Rule 71 of the Companies Court Rules, 1989, which necessitates notice in such cases.

The judgment highlighted the incorrect representation made by the company regarding deposit amounts to meet liabilities, leading to a stay on various legal proceedings across the country. The Court found a lack of bona fides in the proposed scheme of compromise/arrangement, which lacked material particulars and the consent of banks, including the Central Bank of India and Karnataka Bank.

Regarding the wide discretion of the Court under section 391(6), the judgment emphasized the importance of considering the conduct of the applicant and the presence of bona fide attempts to pay outstanding dues. The Court cited previous judgments to support its decision to decline a stay where there is a lack of bona fides, as seen in this case.

Furthermore, the duty of fair disclosure by the applicant was underscored, especially in light of the company's failure to produce relevant material, such as the order of the Board for Industrial and Financial Reconstruction (B.I.F.R.), which revealed mismanagement and fund diversion. The Court refused to restrain secured creditors, including banks, from pursuing proceedings before Debt Recovery Tribunals, citing the exclusive jurisdiction of such tribunals.

Ultimately, the Court allowed the application to vacate the ex parte order, emphasizing the refusal of a stay on the order granting relief under section 391(6). The judgment concluded by refusing a stay on criminal proceedings under section 138 of the Negotiable Instruments Act, considering the conduct of the company before the Court.