9911796707
TMI Blog2005 (7) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhatia, Company Secretary of the applicant-company. Mr. Mihir Thakore and Mr. S.N. Soparkar, learned Senior advocates appearing with Mr. Sandeep Singhi, learned advocate for the applicant, have submitted that the applicant had earlier filed Company Application No. 171 of 2005, inter alia, praying for convening separate meetings of Existing Lenders, Equity Shareholders, Preference Shareholders and Unsecured Creditors of the applicant-company to consider and if thought fit, approve with or without modification, the said Scheme. This Court vide its order dated 10-5-2005 has disposed of the said application directing to hold separate meetings of the Existing Lenders, equity shareholders, preference shareholders and unsecured creditors of the applicant-company on 25-6-2005 at the Regd. office of the applicant- company. Pursuant to the said order, separate meetings of Existing Lenders, Equity Shareholders, Preference Shareholders and Unsecured Creditors of the applicant-company were held at the Regd. Office of the applicant-company on 25-6-2005. The said Scheme was unanimously approved by requisite majority by the Existing Lenders and unanimously by the Equity Shareholders, Preferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process, the applicant- company explored the option of counting the votes of only the Unsecured Creditors of OCM Division, being transferred to OCM (India) Ltd. under the Scheme, present and voting at the meeting held on 25-6-2005, excluding the votes of other Unsecured Creditors. However, it was found that the requisite quorum of such Unsecured Creditors was not available. Hence, the applicant-company was constrained to approach this Court for convening the meeting of the Unsecured Creditors of OCM Division, being transferred to OCM (India) Ltd. Mr. Thakore has, therefore, submitted that the meeting of the Unsecured Creditors of the OCM Division of the applicant-company, being transferred to OCM (India) Ltd. under the Scheme may be permitted to be held at the Regd. office of the applicant- company or at such other place as this Court may direct and on such date or dates and such time as this Court may direct and that Chairman may be appointed for the meeting to be held. 5. Since this application is ordered to be heard along with Company Application No. 230 of 2005 and directions sought for in the present application, if issued, are likely to affect the interest of the Exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s realised that it has erroneously convened the meeting of the Unsecured Creditors of the company instead of convening the meeting of Unsecured Creditors of the OCM Division which is to be demerged and transferred to OCM (India) Ltd. Such a course is not open for the applicant- company and it is also barred by principles of res judicata as well as the principle of estoppel. 7. Mr. Joshi has further submitted that this Court has ample jurisdiction either to reject the present application at the threshold or to give suitable directions for convening the meeting of the Unsecured Creditors. Rule 69 of the Company (Court) Rules, 1959 was considered by this Court in the case of Shree Rama Multitech Ltd. [Company Application No. 01 of 2005, dated 24-2-2005] and in the case of Essar Oil Ltd., In re [Company Application No. 217 of 2005, dated 30-6-2005] 1 and has taken the view that the plain reading of rule 69 itself makes it clear that the powers are conferred on the Company Judge even to dismiss the Summons at the stage of hearing of Summons. The Court has further taken the view that the observation made by the Hon ble Supreme Court in the case of Rainbow Denim Ltd. v. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, submitted that even if this Court inclines to issue the direction to the company to convene the meeting of the Un-secured Creditors, in that case, the meeting should not be restricted to only those Unsecured Creditors of the OCM Division of the applicant-company but the meeting should be convened of all the Unsecured Creditors of the applicant-company, irrespective of the fact as to whether any Scheme has been offered to them or not. Even as per the company s own perception, the arrangement is proposed to all Unsecured Creditors as the OCM Division is transferred and certain Unsecured Creditors alleged to be the Unsecured Creditors of the OCM Division are also transferred to OCM (India) Ltd. Likewise, the other Unsecured Creditors are retained with the applicant-company with restructured loan and, hence, this arrangement would also cover all Unsecured Creditors of the company. He has, therefore, submitted that the Unsecured Creditors being a separate class by itself should not further be sub-classified only with a view to achieve an ill-motive by excluding the applicant-Exim Bank from the said meeting. He has, therefore, submitted that suitable directions be issued eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme whose overall fairness and feasibility has been judged by the Court under section 394 of the Act. 9. Mr. Thakore has further relied on the decision of this Court in the case of Gujarat Lease Financing Ltd., In re [2002] 36 SCL 838 wherein the Court has taken the view that section 391 of the Act itself permits compromise between the company and a class of its Creditors and it is not necessary that the compromise must be between the company on the one hand and all its Creditors on the other hand. Mr. Thakore has, therefore, submitted that there is no infirmity in moving the present application for seeking direction of convening the meeting of Unsecured Creditors of the OCM Division of the applicant-company. Mr. Thakore has further submitted that even if it is assumed that the Exim Bank and other Creditors of a like nature may be adversely affected by the proposed Scheme, this is not the stage to consider their objections, but at the time when the substantive petition is filed by the company, the Court can certainly go into the merits of those objections and if ultimately, the Court is of the view that the Scheme is not just and proper or the classification made by the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsecured Creditors for considering the Scheme of Arrangement and Compromise. Initially, Exim Bank was kept away on the ground that the Exim Bank is a Contingent Creditor and now it is on the ground that the Exim Bank is not the Unsecured Creditor of OCM Division and the Scheme is offered to only those Unsecured Creditors who are the Unsecured Creditors of OCM Division of the applicant-company. The Court does not approve this course of action as the earlier application moved by the applicant-company is fully exhausted. Directions were sought for. The meeting was convened. The said meeting has unanimously approved the Scheme and the company is now supposed to file a substantive petition before this Court based on the outcome of the said meeting. Instead of doing that the company has moved present application knowing it fully well that the said Scheme is strongly to be objected to by the Unsecured Creditors like the Exim Bank and it is very difficult for the company to sustain the Scheme before the Court. The applicant-company has neither invited the Exim Bank in the meeting nor it allows Exim Bank to reach at the stage where the Exim Bank can raise its voice and objects the Scheme as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angement, a copy of the Statement required to be furnished pursuant to section 393 of the Companies Act, 1956 and the prescribed Form of Proxy, shall be sent by prepaid letter post under Certificate of Posting addressed to each of the Unsecured Creditors of the applicant-company at their respective last known addresses. The notice shall be sent to the Unsecured Creditors of the applicant-company with reference to the list of persons appearing on the record of the applicant-company as on 30-6-2005 and also to the Exim Bank and other like Creditors of the company. 4.The settling and/or approval of the advertisement, the Form of Notice and the Statement to accompany the Notice by the Registrar of this Court is dispensed with. 5.Dr. G. Goswami, Director of the applicant-company, and failing him Mr. A.C. Mukherji, Director of the applicant-company, and failing him Mr. C.L. Rathi, Director of the applicant-company shall be the Chairman of the aforesaid meeting to be held on Wednesday, dated 31-8-2005 and the Chairman shall put the Scheme to vote in the said meeting without fail. 6.The Chairman appointed for the aforesaid meeting do issue the advertisement and send out the notices o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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