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TMI Blog2010 (4) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... ond holders (for the sake of convenience, hereafter referred to as 'DDB holders') and to direct the respondent-company to pay the DDB holders, who have purchased the bonds after the date of the sanctioning of the scheme in good faith and without notice thereof, interest at the rate of 15.5 per cent per annum and the maturity value of Rs.50,150 as promised, guaranteed and assured at the time of issuance of the bonds. It is also prayed to condone the delay, if any, in filing of the present application. 2. Heard Mr. A L Shah, learned counsel with Mr. Gandhi, learned counsel for the applicant and Mr. M J Thakor, learned counsel with Mr. Singhi, learned counsel for the respondent for final disposal of the application. 3. It is an undisputed position that the scheme of arrangement was moved before this court for sanction and the sanction has been granted by this court on 13th September, 2005 as per the order passed in Company Petition No.131 of 2005 with Company Application No.162 of 2005. It is also undisputed position that the meeting, as was ordered to be convened by this court in the said proceedings, was held. Thereafter, at the meeting, by requisite majority in value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meeting of the secured creditors there was separate voting for each class, inter se, namely, in particular for DDB holders and even if internal consideration of the scheme amongst DDB holders is considered, the same would meet with the statutory requirement of having majority in value exceeding 75 per cent. It was, therefore, submitted that the ground as sought to be canvassed on merits does not deserve to be accepted. 7. The learned counsel for the respondent-company additionally contended that when the proceedings of scheme were on, the applicant has purchased DDB, therefore, apart from the fact that it would be binding to them when the interest was already represented by the predecessor in file at the relevant point of time when one participated, other two, though were served with the notices, did not participate, it can hardly be heard from the mouth of the applicant, who has purchased the DDB pending the scheme that all process be considered de novo by de-classifying the existing secured creditors and thereby the recalling of the order. 8. It was submitted that had the applicant been aggrieved by the sanction granted by this court, the proper remedy for the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry secured creditor at the time of creation of security with the company, is not a classification conceived by the scheme of the statute, nor can be termed as practicable when the scheme of arrangement is to be offered to large number of secured creditors. 11. Further, the important aspect of interest of the secured creditors can also be gathered on the basis of the terms to be offered to such secured creditors. Had the terms offered varied to each secured creditors, one might contend a separate classification, but if the term offered is common for all secured creditors, it can be said to be a homogeneous class of secured creditors, who are to be offered a common term or arrangement in the scheme. The scheme offered to the existing lenders vide clause No. B ( i ), ( ii ), and ( iii ) reads as under: "(B) RELIEFS AND CONCESSIONS BY EXISTING LENDERS TO THE COMPANY: ( i ) With effect from the appointed date the rate of interest/yield on all term loans other debt facilities and DDBs availed from the existing lenders by the company shall be reduced from their respective existing rates to 10 per cent per annum. In respect of DDBs, the DDB holders shall be entitled to the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, it is not possible to accept the contention of the learned counsel for the applicant that there was improper classification at the time when the meeting was to be convened or in compliance to the statutory requirement for offering the scheme of arrangement. The aforesaid is coupled with the circumstances that when the very scheme with the same classification was tendered to the court in the proceedings of Company Application No.162 of 2005 seeking directions to convene the meeting, the same was so permitted by this court by the order dated 5th May, 2005 and the meeting thereafter was held and the scheme was approved. 14. Mr. Thakor, learned counsel appearing for the respondent, during the course of hearing, did refer to the material in furtherance to the chairman's report, wherein the voting for DDB holders is separately considered and as per the said material, amongst the DDB holders, 77.82 per cent representing in value have supported and approved the scheme of arrangement as against' the opposition of 22.18 per cent in value. Therefore, if such material is to be considered, it can be said that even if the separate class of DDB holders-is considered, the fact remai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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