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TMI Blog2006 (5) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... e record demonstrates that objector M/s. In Touch Technology India Pvt. Ltd. (for short the ''objector company") claims to be an unsecured creditor of Shyam Telelink Ltd. (petitioner No. 3). The objector company filed a winding up petition against petitioner No. 3 (S. B. Company Petition No. 26 of 2004). This court vide order dated December 14, 2004, dismissed the petition with the following observations : "After going through the contents of the reply of the respondent-company dated December 26, 2002, and the letter of the petitioner dated November 26, 2002, I am satisfied that the respondent-company has raised bona fide dispute in the matter of claim of the petitioner. It is not a moonshine defence nor can it be said to be manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany incorporated with the object to promote and form other companies and association for the execution of undertakings, works, projects in the telecom industry and to hold shares or other securities in the companies engaged in the telecom sector. Broadly speaking the scheme of arrangement is consisting of two parts : ( i )First part deals with the amalgamation of petitioner No. 2 into petitioner No. 1. ( ii )Second part deals with transfer of liabilities of amalgamated company, i.e., petitioner No. 1 to the tune of Rs. 200 crores to petitioner No. 4 and in lieu thereof transfer of investment of petitioner No. 1 in the equity shares of petitioner No. 3 to petitioner No. 4 at par value of Rs. 200 crores scheme further provides distribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present petitioner No. 1 holds investment in two companies and therefore the shareholder of petitioner No. 1 does not get any benefit on account of performance of subsidiaries. The scheme is also intended to achieve enhanced liquidity for the shareholders of petitioner No. 1 in respect of both manufacturing operations telephony services individually. ( k )The listing of two separate companies will create more advantage to the existing shareholders as well as to the prospective investor/shareholder who can decide upon making his investments either in services or in manufacturing business." Petitioner No. 1 (being a listed company) pursuant to listing agreement, submitted the scheme of arrangement to the Bombay Stock Exchange and the Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 was attended by 56 shareholders personally or through proxy and the total number of value of their shares was Rs. 1,92,98,358 and Rs. 19,29,83,580 respectively. The meeting of unsecured creditors of petitioner No. 1 was attended by 10 unsecured creditors and the total value of their debt was Rs. 1,83,00,41,820. The meeting of secured creditor of petitioner No. 2 was attended by 2 secured creditors and their total value of debt was Rs. 25,05,77,165. The meeting of the unsecured creditors of petitioner No. 2 was attended by 54 unsecured creditors and their value of debt was Rs. 17,30,993.20. The scheme of arrangement was read over and explained in these meetings and it got the approval of the meetings. The chairman reported the result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is ordered to be dissolved within the meaning of section 394(l)(iv) of the Companies Act, 1956. I have pondered over the rival submissions and carefully scanned the material on record. It is well-settled that in order to get any relief, the objecting creditor must show : ( i )that there is a debt due to him and the debt is either admitted by the company or the court prima facie comes to the conclusion that the debt is due. ( ii )that the creditor would be adversely affected by sanctioning of the scheme. ( iii )that the scheme is unjust and unfair to the creditors or any class of creditors to whom the objecting creditor belong. (vide Zee Interactive Multimedia Ltd., In re [2002] 111 Comp. Cas. 733 (Bom.)). In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be utilised or permitted to recover disputed money. Such creditors have other remedy to pursue and recover their amount dues. In the instant case where the alleged dues have been bona fidely disputed and arbitration proceedings in regard to said dues have been invoked in my opinion, the objector company has no locus standi to oppose the sanctioning of scheme of arrangement. I do not find any other objection on record to show that the creditors like the objector company would at all be affected if the scheme as such, is sanctioned. The judicial powers in the matters of sections 391 and 394 of the Companies Act can be involved only when it is revealed that the whole scheme is unfair, unreasonable, contrary to law and public policy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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