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TMI Blog1978 (10) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... has been urged by him that under section 391 of the Companies Act when a company is being wound up the only person who can frame an arrangement in respect of the company is the liquidator and not anybody else. In this connection, he has relied on the language of section 391, sub-section (1), which is as follows : "391. Power to compromise or make arrangements with creditors and members.-(1) Where a compromise or arrangement is proposed- (a)between a company and its creditors or any class of them ; or (b)between a company and its members or any class of them ; the court may, on the application of the company or of any creditor or member of the company, or, in the case of a company which is being wound up, of the liquidator, order a meet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Official Liquidator, Cape Comorin General Traffic Co. Ltd. [1953] 23 Comp. Cas. 161 ; AIR 1952 Trav-Coch. 243. In the latter case, the court came to the conclusion that under the old section 153(1) of the Indian Companies Act, 1913, which is in pari materia with the present section 391 of the Companies Act, the introduction of the words "in the case of a company being wound up, of the liquidator" is intended to provide an additional and not an exclusive person who could make the application. In Rajendra Prosad Agarwalla v. Official Liquidator [1978] 48 Comp. Cas. 476 (Cal.), also a similar statement is made. Hence, the applicants are entitled to make the present application. The applicants are some of the shareholders of the original compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g over of share certificates as mentioned in Form No. 141 can never constitute such a surrender ; under section 41(2) every other person who agrees in writing to become a member of a company and whose name is entered in its register of members, shall be a member of the company. Hence, every person who has agreed to be a member and whose name appears in the register of members is a member. Section 150(1)(a) to ( d) reads as follows : "150. Register of members.-(1) Every company shall keep in one or more books a register of its members, and enter therein the following particulars:- (a)the name and address, and the occupation, if any, of each member; (b)in the case of a company having a share capital, the shares held by each member, disting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator either. It has further been argued by the official liquidator that the proposed scheme is not a scheme or an arrangement contemplated under section 391 of the Companies Act because the scheme does not propose any arrangement or re-arrangement regarding the rights of the creditors or shareholders of the company. It is, however, not necessary that an arrangement under section 391 should be an arrangement with the creditors of the company or should involve any changes in the rights of the shareholders of the company. In the present case, all the creditors of the company have been paid off. There are, therefore, no creditors of the company at present. Some of the members of the company now propose to take the company out of the winding-up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Ex. C should not be considered as a scheme under section 391 of the Companies Act. I also do not see any reason why the scheme as proposed should not be put before the members of the company to ascertain their wishes. It has been stated by the applicants that in the explanatory statement they will put forth for the consideration of members proposals regarding the business to be carried on by the company on its being re-started. If the proposals are approved it would be open to the court thereafter to examine whether in the light of all circumstances relating to the present company it would be in the interest of the members to sanction such a scheme or not. There will, therefore, be an order in terms of the minutes which have been hand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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