1979 (4) TMI 125 - HC - Companies Law

Compromise and arrangement Applications under sections 391 and 394 Notice to be given to central government for

Issues Involved:
1. Application for convening a meeting of creditors under Section 391(1) of the Companies Act, 1956.
2. Application for stay of commencement or continuation of suits or proceedings under Section 391(6) of the Companies Act, 1956.
3. Bona fides and feasibility of the proposed scheme of compromise or arrangement.
4. Public interest considerations in the proposed scheme.
5. Adequacy of the sale price of the company's assets.

Detailed Analysis:

1. Application for Convening a Meeting of Creditors under Section 391(1):
The company sought directions for convening a meeting of its secured and unsecured creditors to consider a scheme of compromise or arrangement for the discharge of their dues. The court emphasized that it is not obligatory to grant such directions merely on application. The court must scrutinize the scheme's merits even at this preliminary stage. The court found that the proposed scheme lacked credibility and bona fides, particularly due to inconsistencies and uncertainties in the draft scheme and the offer from M/s. Kontact International. The court also noted that SICOM and the Bank of Maharashtra, representing more than three-fourths in value of the secured creditors, were not interested in the scheme. Consequently, the court dismissed the application under Section 391(1).

2. Application for Stay of Proceedings under Section 391(6):
The company also applied for a stay of the commencement or continuation of suits or proceedings against it, particularly to halt the sale of its factory by SICOM and the Bank of Maharashtra. The court clarified that an order under Section 391(1) is a prerequisite for granting a stay under Section 391(6). Since the application under Section 391(1) was dismissed, the application for stay under Section 391(6) also failed. Moreover, the court noted that the actions of SICOM and the Bank of Maharashtra in realizing their securities did not constitute "suits" or "proceedings" within the meaning of Section 391(6).

3. Bona Fides and Feasibility of the Proposed Scheme:
The court scrutinized the proposed scheme and found several discrepancies and uncertainties. The scheme proposed giving out the factory on a leave and licence basis to M/s. Kontact International or their nominee, but the offer from Kontact International was loosely worded and lacked credibility. The court noted that the company's past conduct in frustrating the efforts of SICOM and the Bank of Maharashtra to lease the factory raised doubts about its bona fides. The court concluded that the scheme was not workable, particularly since the secured creditors had already sold the factory and were not interested in the scheme.

4. Public Interest Considerations:
The court highlighted the importance of public interest in sanctioning schemes of compromise or arrangement. The proposed scheme aimed at not paying past and future interest to the secured creditors, which included financial and banking institutions holding public money. The court found that this aspect of the scheme was detrimental to public interest, as it would result in a significant loss of public funds.

5. Adequacy of the Sale Price:
The company argued that the sale price of Rs. 71 lakhs obtained by SICOM and the Bank of Maharashtra was inadequate. However, the court was not convinced by this bare assertion. The court noted that the company's own balance-sheet valued its fixed assets at approximately Rs. 67 lakhs. Additionally, the valuation report from M/s. M. N. Dastur & Company Pvt. Ltd. estimated the fair value of the fixed assets at about Rs. 67 lakhs. The court concluded that the sale price of Rs. 71 lakhs was not inadequate.

Conclusion:
The court dismissed both the judge's summons for directions under Section 391(1) and the judge's summons for stay under Section 391(6) of the Companies Act, 1956. The company was ordered to pay costs to SICOM and the Bank of Maharashtra.

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