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The majority envisaged in the above provision was in respect of creditors/shareholders who are present at the meeting either in person or by proxy. There was no requirement that such persons must also be actually voting. The base under this provision was much wider than the base in Sub-section (2) of Section 391 of the Act, which requires three-fourths majority of the members who are not only present in person or by proxy, but who also exercise their right to vote. Thus, in Section 391(2) of the Act, persons who are present in the meeting but do not vote are excluded from consideration.

In this provision again, the three-fourths value is required to be calculated in respect of the value of shares/credits represented by the persons who are present and voting at the meeting.

(vi) In the English Company Law by Professor Robert R Pennington (5th edition), at page 590, the use of words "present and voting" has been explained as under :

"... It appears that proxies may both speak and vote at meetings of creditors or members, and that the inability of proxies for members to speak at general meetings of a public company does not apply to meetings called to approve schemes of arrangement. The vote on the scheme at each meeting of members or creditors is taken by a poll, and for a resolution approving the scheme to be carried, the persons who are present in person or by proxy at the meeting and who vote in favour of the scheme must comprise a majority in number of all persons who vote in person or by proxy, and they must also hold three-quarters in value of the interests of all such persons. The number and the value of the interests of persons who do not attend and are not represented at the meeting, or who do attend the meeting but abstain from voting, are immaterial, and do not enter into the calculation at all. Likewise, the interests of persons who appoint proxies are disregarded if the proxies do not attend the meeting, or do attend but do not vote . . ."
In all these three cases the requisite majority is of the members entitled to vote and actually voting either in person or by proxy where proxy voting is allowed. This may and, in the case of a public company normally will, be much less than a majority of the total membership, and may even be less than a majority of the members present at the meeting, for those who refrain from voting are ignored. To take an extreme case : A meeting of a company with 5,00,000 preference shares without voting rights, and 5,00,000 ordinary shares each with one vote, is attended only by five ordinary shareholders, four with one share each and one with a hundred shares. If on a poll a resolution is voted for by three of the holders of one share and against by the fourth shareholder with one share, the holder of the hundred shares abstaining, the resolution will have been duly carried even if it is an extraordinary or special resolution, notwithstanding that only three out of a total of one million shares, three out of 5,00,000 total votes and three out of 104 votes exercisable at the meeting, have actually been polled in its favour. As we shall see later, the procedure of voting on a show of hands, unless a poll is effectively demanded, may produce even greater anomalies."

8. Mr. Amit Singh, appearing in C. P. No. 138 of 2003, reiterated the arguments advanced by Mr. Divan. Additionally, he drew our attention to Article 368 of the Constitution of India dealing with amendment of the Constitution. Clause (2) of Article 368 requires the Amendment Bill to be "passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting". He further referred to Article 169 of the Constitution wherein, for the purposes of abolition or creation of legislative councils in the States, similar majority has been prescribed. The scope and meaning of the expression "present and voting" in this context had come up for consideration before the Madras High Court in D. Jayaraman v. Govt. of Tamil Nadu, AIR 1987 Mad 215. On May 13, 1986, a Government resolution was moved in the legislative assembly for abolition of the legislative council which came up for discussion on the very next day, i.e., May 14, 1986. The members present in the House on that date were 222. However, before the voting took place, 60 members belonging to Congress I and the lone G. K. N. C. member withdrew from the House. The resolution was passed with 136 votes in favour and 25 votes against it. The question for consideration was as to whether 136 votes constituted "two-thirds of the members of the assembly present and voting". The Madras High Court held that (page 220): "by a plain reading of the article, the words 'present and voting' occurring in Article 169(1) would mean only those who were physically present and voting. It will not include those who withdrew from the House at the time of voting". He, therefore, contended that the three-fourths majority for the purposes of Section 391(2) of the Act has also to be construed in the same manner from out of the value of the creditors/shareholders who are present and voting either in person or by proxy at the meeting. According to him, the plain language of this provision cannot possibly be stretched to hold that the majority prescribed is of three-fourths of the value of total creditors/shareholders of the company. He also referred to the observations made to the same effect in Halsbury's Laws of England (fourth edition), in para. 1531, the learned author, while dealing with identical provisions of subsection (2) of Section 206 of the Companies Act, 1948, has observed that the majority required is the majority in number representing three-fourths in value of those present and voting at the meeting in person or by proxy.