9911796707
TMI Blog1999 (3) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... he consent of both the parties, the application has been heard and disposed of. 3. The bare facts necessary for disposal of the application may now be set out. 3.1 The applicant is a non-banking finance company. It has given on lease to the company machineries/equipment. On 25-2-1990 the applicant received a notice dated 17-2-1999 from the respondent-company, intimating to the applicant, the convening of a meeting of the unsecured creditors, for obtaining sanction for the scheme of amalgamation. The applicant on receipt of the notice by letter dated 25-2-1999 requested for xerox copies of the documents enumerated in the letter and which were agreed to be furnished in the explanatory statement issued by the company. The company according to the applicant failed to provide the said copies. The applicant was constrained to put this on record by letter of 26-2-1999. A further request made has also not been acceded to. It is then averred that by letter of 1-3-1999 the applicant called on the company to clarify the criteria, based on which the classification of the different creditors had been made. The applicant also called on the company to furnish the list of non-banking finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecured creditors which would enable this Court to come to conclusion that the applicant is a homogeneous class by itself and as such a sub-class amongst the unsecured creditors for which a separate meeting is required. It is also pointed out that the applicant is guilty of suppression of material particulars and in that context this Court should not interfere with the meeting called for. At any rate it is pointed out that meeting is yet to be held. In the scheme itself there are no distinct provisions for making payment to the applicant and the unsecured creditors and in that light of the matter also the application ought to be rejected. 4. At the hearing of the application the learned counsel for the applicant has principally raised two contentions which can be formulated as under : ( 1 ) That the applicants are a distinct class by themselves amongst unsecured creditors and as such a separate meeting of this class ought to be held. ( 2 ) That the explanatory statement and other matters is not satisfactory and in that light of the matter also the scheme of amalgamation should not be approved. 4.1 However, while arguing the contentions, the learned counsel points out tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement dated 13-2-1998 the lease agreement dated 19-11-1994 and hire purchase agreement dated 27-11-1995 stand determined. It, is, however, the contention of the company that in view of non-compliance of the terms of the agreement dated 13-2-1998 more specifically clauses 4 and 8 of the agreement the said agreement has been determined by the applicant and, consequently, it is the lease agreement dated 19-4-1994 which is in force. I do not propose to deal with the legalities thereto as in my opinion, the matter can be disposed of by proceeding on the footing that the interest of the applicant are the interest of a non-banking financial institution. 7. The question, however, remains is whether the applicant can be treated as a distinct class by themselves. A class as understood must be homoge-neous in character. It must have special characteristic which distinguishes them from the others. In so far as class for the purpose of the Act is concerned, the interest of the class must be different from the interest of the others. In other words, in matters of application of mind and cones-quence judgment, it must be apparent that the interest would be different. Once the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cured creditors. The Division Bench upheld the contention that on the facts of that case amongst the unsecured creditors there were sub-classes and accordingly set aside the order of the learned Single Judge and remanded the matter for rehearing. However, what is important in the said judgment are observations therein. The Division Bench referred to the judgment of the Gujarat High Court in the case of Maneckchowk Ahmedabad Mfg. Co. Ltd., In re [1970] 40 Comp. Cas. 819 . The Gujarat High Court in Maneckchowk Ahmedabad Mfg. Co. Ltd. s case ( supra ) had relied on the commentary by Buckely on the Companies Act, 13th edn., p. 406, wherein it has been set out that the creditors composing different classes must have different interests. The test laid down was : could the different state of facts existing amongst different creditors affect their minds and their judgment. In such a situation they could constitute a separate class by themselves. Another test was that members belonging to the class must form a homogeneous group with commonality of interest. The next test would be is whether the nature of compromise offered to different groups of classes are different. If a differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, if a meeting of the secured creditors is held there would be no different interest of the unsecured creditors which on application of mind would affect their judgment in approving or rejecting the scheme of amalgamation. There-fore, apart from the nomenclature there is nothing distinct between the applicant and the other unsecured creditors to treat them as a class by themselves. Proceeding further even in the scheme of arrangement/ compromise it is not provided for dealing differently or distinctly between the applicant and the other unsecured creditors. Therefore, none of the tests which would make the applicant a distinct and different class by themselves which would require a separate meeting of persons like the applicants herein has been satisfied. If that the case the matter would be covered in my opinion with the observations of the Apex Court quoted above in the case of Miheer H. Mafatlal ( supra ). Calling of a separate meeting of such group of non-banking financial companies is to call a separate meeting of the applicants is rejected. 8. In the light of that the company application rejected. 9. No order as to costs. Application rejected. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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