1969 (12) TMI 57 - HC - Companies Law

Shares Allotment of, Shares Power, to discount, Share capital - Further issue of, Reduction of , Reduction of share capital Application to Tribunal for confirming order, objections by creditors, and settlement of list of objecting creditors, Meetings and Proceedings - Representation of Corporation at Meetings of Companies & Creditors, Ordinary and special resolutions, Contents and manner of service of notice and persons on whom it is to be served, Compromise and arrangement, Winding up Fraudulent preference.

Issues Involved:
1. Compliance with statutory provisions under Section 391(2) of the Companies Act, 1956.
2. Allegations of fraudulent preferences and the necessity of winding up for investigation.
3. Legality of scrapping Unit No. II without permission.
4. Reorganization of share capital, including reduction and increase.
5. Proper classification and separate meetings of different classes of creditors and members.
6. Adequacy of the statement under Section 393(1).
7. Conduct of the meetings of creditors and members.
8. Approval of the scheme by a statutory majority.
9. Commercial and economic viability of the scheme.

Detailed Analysis:

Issue 1: Compliance with Statutory Provisions
The petitioner was required to disclose all material facts relating to the company, including its latest financial position and auditor's report, as per Section 391(2). The court determined that these disclosures are mandatory at the stage of sanctioning the scheme, not at the initial stage of seeking directions under Section 391(1). The court found that the petitioner complied with this requirement by submitting an auditor's report detailing the company's financial position up to 29th July, 1968.

Issue 2: Allegations of Fraudulent Preferences
The objectors claimed that the company gave fraudulent preferences to certain creditors, which could only be investigated in winding-up proceedings. The court found that the charges created in favor of the five creditors were not registered and were relinquished, making them void. The mortgages in favor of the Union Bank and the Provident Fund Commissioner were not deemed fraudulent preferences. The court concluded that the alleged fraudulent preferences did not necessitate winding up, as the scheme addressed these issues.

Issue 3: Legality of Scrapping Unit No. II
The scheme proposed scrapping Unit No. II to realize funds for paying secured creditors. The court found that the company had obtained permission from the Government of India to scrap the mills, which was initially held in abeyance but not revoked. Therefore, the permission was considered valid, and the scheme's provision for scrapping Unit No. II was legal.

Issue 4: Reorganization of Share Capital
The scheme included reducing the face value of shares and issuing new shares to unsecured creditors. The court held that Section 391 is a complete code for reorganization of share capital, and such reorganization could be carried out as part of the scheme without following the separate procedures for reduction and increase of share capital under other provisions of the Companies Act. However, the procedure for reduction of share capital as prescribed under Section 100 onwards must be followed, which was done in this case.

Issue 5: Proper Classification and Separate Meetings
The court directed separate meetings for ordinary shareholders, preference shareholders, secured creditors, and unsecured creditors. The court found that the classification was proper except for the grouping of preferential creditors (workers and Employees' State Insurance Corporation) with other unsecured creditors. The court analyzed the votes and concluded that the scheme was approved by the statutory majority in each class.

Issue 6: Adequacy of the Statement under Section 393(1)
The statement required under Section 393(1) was annexed to the notice convening the meetings. The court found that the statement complied with the statutory requirements, providing sufficient information for creditors and members to make an informed decision. The court also addressed objections regarding the statement's contents and concluded that it did not contain false or misleading information.

Issue 7: Conduct of the Meetings
The court found that the meetings were conducted in accordance with the statutory provisions and the court's directions. The objections regarding the provision of information, adoption of amendments, and participation of certain creditors were addressed and found to be without merit.

Issue 8: Approval by Statutory Majority
The court analyzed the votes and found that the scheme was approved by the statutory majority in each class of creditors and members. The court also considered the objections regarding the classification and conduct of meetings and concluded that the scheme was validly approved.

Issue 9: Commercial and Economic Viability
The court evaluated the scheme's feasibility and reasonableness, considering the company's financial position, the concessions made by creditors, and the potential benefits of resuscitating the company. The court concluded that the scheme was commercially and economically viable and preferable to winding up the company.

Conclusion:
The court sanctioned the scheme of compromise and arrangement, subject to certain modifications to ensure its proper working. The court also confirmed the reduction of share capital as part of the scheme. The scheme was found to be fair, reasonable, and in the best interests of the creditors and members, providing a viable alternative to winding up the company.

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