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TMI Blog2008 (1) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessary to examine if the petitioners are otherwise entitled to be discharged on the ground that the complaint does not contain specific allegations in regard to the role played by each of them. For the aforesaid reasons, the petition is allowed. The summoning order dated 25-4-2003, passed by the learned Metropolitan Magistrate is hereby set aside. Petitioner Nos. 1 to 10 hereby stand discharged and vis-a-vis them the Complaint Company Case No. 349 of 2003 titled Vinay Bharat Ram (supra) stands hereby quashed. - CRL. M.C. NO. 305 OF 2005 - - - Dated:- 30-1-2008 - DR. S. MURALIDHAR, J. R.N. Mittal and Dharmender Arya for the Petitioner. Rakesh Gosain and Anil Sharma for the Respondent. JUDGMENT 1. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company had applied to this Court under section 391/394 of the Act for confirmation of a scheme of restructuring and arrangement under which the assets and liabilities of the company were to be restructured. In the said Company Petition No. 247 of 2000 in this Court, the Regional Director, Northern Region, Department of Company Affairs filed an affidavit dated 23-10-2000, in which in paragraph 9 it was stated as under : "That the Company Law Board, Northern Region Bench, New Delhi, initiated an enquiry under section 58A(9) of the Companies Act, 1956, against the petitioner transferor company, for which the petitioner transferor company filed a detailed re-schedulement plan before the Hon ble Company Law Board for rearranging the debts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme. ( m )All the classes of creditors and members were fairly represented in the meetings. 12. In the above circumstances, I am, therefore, of the view that none of the objections to the scheme now survive and, accordingly, the sanction under section 394 of the Companies Act is granted to the proposed scheme of restructuring and arrangement." 6. Mr. Mittal further points out that acting on the aforementioned approved scheme of rearrangement, the company in fact proceeded to repay the deposits. Out of all the deposits of a total value of Rs. 30.42 crores which were outstanding as on the date of the scheme of restructuring, deposits worth Rs. 26 crores have already been repaid till date. Compliance statements were being filed befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities of the company which required to be accounted for. However, after being asked to show anywhere in the approved scheme of the arrangement of a mention being made of liabilities of the company other than the fixed deposits referred to in the complaint, Mr. Gosain was unable to do so. His only submission was that the mere fact that this Court had approved the scheme of arrangement could not absolve the petitioners of their liability in terms of section 58A(9) of the Act. 10. In the first place it requires to be noticed that the order dated 18-12-2004, of the learned ASJ dismissing the revision petition filed by the petitioner on the ground of maintainability following the judgment of the Supreme Court in Adalat Prasad v. Rooplal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 391/394 of the Act. In that affidavit, as already noticed, the Regional Director informed this Court that the scheme as directed by the Company Law Board by its order dated 10-9-1998, was proposed to be implemented. Therefore, as on the date of grant of sanction, i.e., 1-11-2002, it is inconceivable that the Regional Director had formed an opinion that the company or its directors intended not to comply with the scheme as approved by the Company Law Board in its order dated 10-9-1998. Therefore, the very basis on which the complaint was filed was non-existent. What is in fact strange is that the Registrar of Companies did not mention in the complaint before the learned Metropolitan Magistrate anything about the pendency of the petition f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m or opposed to its being sanctioned. It has statutory force in that sense and, therefore, cannot be altered except with the sanction of the Court even if the shareholders, and the creditors acquiesce in such alteration ( Smt. Premila Devi v. Peoples Bank of Northern India Ltd. [1938] 4 All ER 337; [1939] 9 Comp. Cas. 1 (PC)). The effect of the scheme is to supply by recourse to the procedure thereby prescribed the absence of that individual agreement by every member of the class to be bound by the scheme which would otherwise be necessary to give it validity . ( Palmer s Company Law , 20th edition, 664). Sub-section (2) of section 391 of the Act allows the decision of the majority prescribed therein to bind the minority of creditors an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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