Calcutta High Court
Unit Construction Co. Pvt. Ltd vs Unknown on 11 June, 2013
Author: Harish Tandon
Bench: Harish Tandon
1
ORDER SHEET
CA No. 164 of 2013
IN THE HIGH COURT AT CALCUTTA
Original Jurisdiction
IN THE MATTER OF:
UNIT CONSTRUCTION CO. PVT. LTD.
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
Date : 11th June, 2013.
Appearance:
Mr. S. N. Mukherjee, Sr. Adv.
Mr. Ratnanko Banerji, Adv.
Mr. Tarun Aich, Adv.
Mr. Siddhartha Banerjee, Adv.
Mr. Somdutt Bose, Adv.
The Court: The company seeks for the sanction of the scheme relating to the payment of the unsecured creditors in phase-wise manner. This Court directs that the service to be effected upon the secured creditors and it appears that on an earlier occasion the consortium of the secured creditors appeared and raised an objection relating to the sanctioning of this scheme. The affidavit was invited from the secured creditors but none of the secured creditors filed any affidavit as yet.
Mr. Siddhartha Banerjee, learned Advocate appearing for the Axis Bank Ltd., submitted that his client has an objection to the sanctioning of this scheme, as it would affect the claims of the secured creditors which it had against the company.2
Mr. Mukherjee, learned Senior Advocate appearing in support of the petitioner, submits that the company has approached the Corporate Debt Reconstructing Scheme (CDRS) for reconstructing of its debt under the CDR mechanism and a meeting was held on May 23, 2012 and the letter of approval has been forwarded to the State Bank of India to ensure the implementation of the conditions mentioned therein. At this juncture, Mr. Mukherjee submits that the scheme is restricted to the modality for payment of the debts of the unsecured creditors which forms the homogenous class. According to Mr. Mukherjee, the interest of the secured creditors, if at all is not affected by the said scheme and can be sufficiently taken care of by the Court before sanctioning the scheme upon affording the opportunity to the secured creditors to raise objections.
The petitioner submits that there are difficulties in holding and/or convening the meeting of the unsecured creditors forming the homogenous class and the secured creditors may be permitted to take objection before the scheme is sanctioned by the Court. There is no fetter in proposing the compromise or an arrangement in respect of a class of the creditors, provided they comes within the ambit of homogenous class.
Since the scheme is restricted to the payment of the debt of the unsecured creditors this Court does not find any impediment in permitting the petitioner to convene a meeting of the unsecured creditors as required under Section 391(2) of the Companies Act of 1956.3
That a meeting of the unsecured Creditors as mentioned in the Scheme (Exhibit "A" being the copy of the Scheme of Compromise and/or Arrangement) of Unit Construction Company Pvt. Ltd. shall be convened and held at "Thyagraj Hall" of P-37, Basanta Roy Road, Kolkata-700029 on 2nd August 2013 at 11 a.m. for the purpose of considering and if thought fit, approving without or with modification the Scheme of Compromise and/or Arrangements of the Creditors (as mentioned in the Scheme) of the applicant abovenamed.
That at least 21 days before the day appointed for the meeting to be held as aforesaid, a notice convening the said meeting at the place and time as aforesaid together with a copy of the said Scheme of Arrangements as also a copy of the statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed form of proxy be served by Speed Post or by Courier or by hand through personal messenger addressed to each of the Creditors of the applicant Company at its last known address.
That at least twenty one clear days before the date of the meeting to be held as aforesaid an advertisement convening the said meeting and stating that the copy of the said scheme together with the copy of the statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed form of proxy can be obtained free of charge at the registered office of the applicant Company or at the office of its Advocates M/s. Mukherjee & Biswas of No. 10, Old Post Office Street, 3rd Floor, Kolkata-700001 be inserted once in "The Telegraph" and once in the "Bartaman". The publication in the Calcutta Gazette is dispensed with.4
The Advocate-on-Record for the Applicant Company do within 7 days (after obtaining an authenticated copy of this order) file in Court the form of advertisement, the form of the notices and the statement to accompany the notice and the same shall be settled by the Assistant Registrar (Company) of this Court.
That Mr. Arijt Banerjee, Advocate shall be the Chairman of the meeting of the Creditors of Unit Construction Company Pvt. Ltd. to be held at aforesaid at a remuneration of 2500 Gms.
That the Chairman or any person(s) authorized by him do issue the advertisement and send out the notice of the meeting referred of above.
The quorum for the meeting of the Creditors of the Unit Construction Company Pvt. Ltd. be fixed at 5 (five) persons present either in person or by proxy.
That voting by proxy be permitted, provided that a proxy in the prescribed form only signed by the person(s) entitled to attend and to vote at the meeting, is filed with applicant company at its registered office not later than forty-eight hours before the said meeting. The Chairman shall have the power to adjourn the meeting, if necessary.
That the value of each member shall be in accordance with the books of Applicant Company and where entries in the books are disputed, the Chairman shall determine such value for the purposes of the meeting. 5
That the Chairman do report to this Court, the result of the said meeting within seven weeks from the date of the conclusion of the meeting and his report shall be verified by his affidavit.
Summons be signed as of date. C. A. No. 164 of 2013 is accordingly disposed of without any order as to costs.
Urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.
(HARISH TANDON, J.) sg2