Gujarat High Court
Bhupendra vs Respondent(S) on 22 August, 2008
Author: C.K.Buch
Bench: C.K.Buch
Gujarat High Court Case Information System
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COMA/427/2008 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No. 427 of 2008
=========================================================
BHUPENDRA
BHAGWATPRASAD PATEL & 1 - Applicant(s)
Versus
.
- Respondent(s)
=========================================================
Appearance
:
MR.S.N.SOPARKAR,
LD.SENIOR ADVOCATE FOR WITH MR.A.S.VAKIL for
Applicants.
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
Date
: 22/08/2008
ORAL
ORDER
By way of the present Company Application filed under Section 391 (2) of the Companies Act 1956, the applicants have prayed for convening the meetings of the various creditors and Equity Shareholders of the Prasad Mills Limited (in liquidation) (the Company) for the purpose of considering and if thought fit approving with or without modification a scheme of compromise proposed to be made between the Company and its creditors viz., secured creditors, statutory creditors, other creditors, equity shareholders, workmen. The applicants have also prayed for a direction as to the method of convening, holding and conducting the meetings and as to the notices and advertisements to be issued in that behalf. The applicants have also prayed for appointing a Chairman of the said meetings who shall report the result thereof to this Court.
The Company being in liquidation, a copy of the present Company Application has been served upon the Official Liquidator / Liquidator of the Company in terms of Rule 68 of the Companies Rules, 1959 (?Sthe Rules??). The Liquidator has filed his report dated 8.08.2008 (page 86-89).
Upon the said Application of the applicants and by summons dated 28.07.2008 and upon hearing Shri S.N.Soparkar, Senior Advocate with Mr.A.S.Vakil, Advocate for the applicants and upon hearing the Official Liquidator and upon reading the affidavit dated 28.07.2008 of the applicant No.1.-Bhupendra Bhagvatprasad Patel in support of the summons and the Exhibits therein referred to following orders are passed:
That a meeting be convened at Elisbridge Gymkhana, Ahmedabad on 25.09.2008 at 11 AM of the secured creditors of the Company for the purpose of considering and if thought fit approving with or without modification a scheme of compromise (Exh.B, page 58-81 of the Application) proposed to be made between the Company and its secured creditors.
That a meeting be convened at Ellisbridge Gymkhana, Ahmedabad on 25.09.2008 at 12:00 Noon of the statutory creditors of the Company for the purpose of considering and if thought fit approving with or without modification a scheme of compromise (Exh.B, page 58-81 of the Application) proposed to be made between the Company and its statutory creditors.
That a meeting be convened at Ellisbridge Gymkhana, Ahmedabad on 25.09.2008 at 1:00 pm of the other creditors (as defined in the scheme) of the Company for the purpose of considering and if thought fit approving with or without modification a scheme of compromise (Exh.B, pages 58-81 of the application) proposed to be made between the Company and its other creditors. However, it is stated in pagraph 9 and 10 of the Affidavit accompanying the summons that from the copy of the Statement of Affairs available with the applicants it is noticed that the address in respect of several persons / other creditors has not been provided therein. The particular thereof has been tabulated in paragraph 9 of the affidavit accompanying the summons. Accordingly it has been stated in paragraph 10 of the affidavit accompanying the summons that it is not possible to give individual notices to such persons whose address is not available to the applicants. It is further stated that the address of the persons whose dues as per the statement of affairs are more than 75% in terms of value are available. The liquidator who has filed his report dated 08.08.2008 has not disputed the contents of paragraph 9 and 10 of the affidavit accompanying the summons. In view thereof individual notices to persons whose address is not available to the applicants is dispensed with.
That a meeting be convened at Ellisbridge Gymkhana, Ahmedabad on 25.09.2008 at 2:00 PM of the equity shareholders of the Company for the purpose of considering and if thought fit approving with or without modification a scheme of compromise (Exh.B, pages 58-81 of the application) proposed to be made between the Company and its equity shareholders.
The meeting of the workmen of the Company is dispensed with in view of the affidavit dated 26.07.2008 (Annexure ? C, pages 82-85). In terms of the said affidavit dated 26.07.2008 the Textile Labour Association has given its consent to the scheme and waived its right to call for and attend the meeting. By the said affidavit dated 26.07.2008 the TLA has affirmed its support to the scheme. Accordingly the meeting of the workmen of the Company would be an empty formality resulting in unnecessary expenses. In the report dated 08.08.2008 filed by the Liquidator and more particularly paragraph 4 thereof, the Liquidator has not disputed and / or opposed the averments made in paragraph 11 of the affidavit accompanying the summons. In fact in the said paragraph 4 of the affidavit dated 08.08.2008 of the Liquidator, it has been stated that the Liquidator in principle does not have any objection in directing the holding of meetings of creditors for considering the scheme of compromise and arrangement as proposed.
That at least 21 clear days before the day appointed for the meeting, an advertisement convening the same and stating that copies of the said compromise or arrangement and of the statement required to be furnished pursuant to Section 393 and forms of proxy can be obtained free of charge at the office of the advocate of the applicants i.e. 'Rashmi', 24, Saurabh Society, Manav Mandir Road, Navrangpura, Ahmedabad 380009 be published in the Indian Express, Ahmedabad Edition and Jansatta (vernacular) Ahmedabad Edition. The publication in the official gazette is dispensed with.
That in addition at least 21 clear days before the meeting to be held as aforesaid, a notice convening the meeting/s at the place and time aforesaid together with a copy of the said compromise / arrangement, a copy of the statement required to be sent under Section 393 and the prescribed form of proxy shall be sent by prepaid letter post under certificate of posting addressed each of the secured creditor, statutory creditors, other creditors, (to the extent not dispensed with hereinabove) and equity shareholders at their respective last known address.
That Shri Devesh Khandelwal, a practicing Company Secretary, failing him Shri Ullas Shah a practicing Chartered Accountant and failing him Shri Parag Raval, a practicing Chartered Accountant shall be the chairman of the meetings to be held on 25.09.2008 as aforesaid and in respect of any adjournments thereof. That the said Chairman appointed for the meeting to issue the advertisements and send out the notices of the meetings referred to above. It is further directed that the Chairman of the meetings shall have all powers under the Articles of Association of the company and under the companies (Court) Rules, 1959 in relation to conduct of meetings including an amendment to the Scheme of resolution, if any, proposed at the meetings by any person (s) and to ascertain the decision of the meetings on a poll.
The quorum for the meeting of the Secured Creditors, Statutory Creditors, shall be 2(two) and that of the equity shareholders and other creditors the same shall be 3 (three) respectively, either present in person or through proxy or through authorized representative.
That the voting by proxy be permitted, provided that a proxy in the prescribed form duly signed by the person entitled to attend and vote at the meeting or by his authorized representative is filed with the applicant No.2's office at 'Sera' not later than 48 hours before the meeting.
That the value of vote of each equity shareholders, secured creditors, statutory creditors and other creditors shall be as per the records / register of the Company and where the entries therein are disputed, the Chairman shall determine the value or the number for purpose of meeting/s and his decision in that behalf would be final.
The Chairman shall report to this Court the result of each of the meetings within 14 days of the conclusion of the meetings and the said report shall be verified by his affidavit.
(C.K.BUCH, J.) sompura Top