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5. Mr. Deda and Mr. Desai learned counsel appearing for SEBI and Central Government respectively submitted that neither the provisions relating to reduction of capital under Sections 100 to 104 nor the provision of Section 391 could be invoked if market price was to be paid to the share holders who may opt to sell their schemes to the company. The company can buy back it equity shares only in accordance with Section 77A of the Companies Act. The non-obstante clause in Section 77A gives overriding effect to the said provision and is a complete code for buy-back of shares. Therefore the company desiring to buy-back it equity shares must follow the procedure under Section 77A and SEBI (Buy-back of Securities) Regulations, 1998. In any event in judicial determination which a company court is required to make under the provisions of Section 100 to 104 read with Section 391 must take into account the norms and safeguards provided by Section 77A and SEBI Regulations. The learned counsel further Submitted that the scheme and in particular Clauses 4.1 to 4.8 treat the silence of the shareholder as on offer Unless there is a positive assent of a shareholder to transfer his shares, no transfer can be treated as valid. The scheme thus violate, Section 108 of the Companies Act, Depositories Act, 1996, SEBI (Depositories and participants) Regulations, 1996, and Bye-Laws framed by the NSDL under the Depositories Act The scheme would also violate SEBI (Disclosure and Investor Protection) Guidelines 2000. It was also submitted that there was no adequate disclosure of material facts. A contention was also raised that the provision in she scheme that the share will not be dealt with on the Stock Exchange between 20th May 2002 and 20th June 2002 is violative of SEBI's circular dated 19th January 1996 and Clause 16 of the Listing Agreement executed between the company and the Stock Exchange. Further as a result of the scheme offered to the public there is likelihood of reduction in the public shareholding less than 25% amounting to violation of Regulation 20(3) and 21(3) of the SEBI (Substantial Acquisition of Shares and Takeover) Regulations, 1997. The submissions of Mr. Dada and Mr. Desai were adopted by Mr. Diwan, Mr. Rajiv Kumar and Mr. Khera appearing for the interveners.

6. In reply Mr. Chagla appearing for the company raised a preliminary objection to the maintainability of the present appeals. Mr. Chagla submitted that neither SEBI nor Central Government could be regarded as person aggrieved or person adversely affected Dy the order under appeal, The Companies Act does not contemplate any notice to SEBI nor any right of appeal in conferred on SEBI in the proceedings under Section 391. Merely because Section 394A contemplates prior notice to central Government, the section would not in law render such notices as a person aggrieved or a person adversely affected by the impugned order. Therefore, even Central Government has no right of appeal. Mr Chagla submitted that even assuming the locus of either SEBI or Central Government to maintain any appeal, no cause, much less sufficient case is made out of condoning the delay in filing the appeal. Mr. Chagla refuted the argument of the appellants that Section 77A lays down the only mode for buying back the shares. He submitted that buy back by a company of its shares was permissible even prior to Section 77A was inserted in the statute book and a scheme or arrangement for buying back shares was permitted provided the provisions of Sections 100 to 104 for reduction of capital under the Companies Act had been followed Introduction of Section 77A does not in any manner alter this position. Section 77A is only an enabling provision which grants companies on easier route for buy back of their shares without having to approach this Court under Section 391 and Section 100 to 104 and without undergoing the rigours of those provisions. In regard to the allegation that scheme provides for negative or deemed consent the counsel submitted that an arrangement under Section 391 is essentially contractual in nature and unless there is illegality or fraud involved in the scheme the court cannot decline to sanction the scheme. He submitted that there is nothing unfair and unjust in the scheme. He emphatically denied that there was any violation of any statutory provisions or regulations or byelaws. He submitted that SEBI and the Central Government consciously stood by and acquiesced in and allowed the scheme to go forward and if the appeals are entertained at this belated stage that would result in grave and irreparable prejudice to the company. According to Mr. Chagla the appeals are completely devoid of any substance.

Provided that the Central Government may prescribe a higher ratio of the debt than that specified under this clause for a class or classes of companies Explanation :- For the purposes of this clause, the expression "debt" includes all amounts of unsecured and secured debts ;

 (e)      all the shares or other specified securities for buy back are fully
paid up ; 
 

 (f)       the buy back of the shares or other specified securities listed on any recognised stock exchange is in accordance with the regulations made by the Securities and Exchange Board of India in this behalf: 
 

 (g)      the buy back in respect of shares of other specified securities other than those specified in Clause (f) is in accordance with the guidelines as may be prescribed    
 

 (3)      The notice of the meeting at which special resolution is proposed to be passed shall be accompanied by explanatory statement stating - 
   

 a)       a full and complete disclosure of all material facts ; 
 

 b)        the necessity for the buy back ; 
 

 c)        the class of security intended to be purchased under the buy-back  
 

 d)       the amount to be invested under the buy-back ; and 
 

    e)       the time limit for completion of buy-back.  
 

 
(4)     Every buyback shall be completed within twelve months from the
   date of passing the special resolution (or a resolution passed by the Board) under Clause (b) of Sub-section (2). (5)      ...... 
 

 22. The opening words of Section 77A viz. "Notwithstanding anything

23. The submission of the appellants that the non-obstante clause in Section 77A gives precedence to that section over the provisions of Sections 100-104. Section 391 is misconceived. The non-obstante clause in Section 77A namely "notwithstanding anything contained in this Act..." only mean that notwithstanding the provisions of Section 77 and Sections 100-104, the company can buy back its shares subject to compliance with the conditions mentioned in that section without approaching the court under Sections 100-104 or Section 391. There is nothing in the provision of Section 77A to indicate that the jurisdiction of the court under Section 391 or 394 has been taken away or substituted. It is well settled that the exclusion of the jurisdiction of the Court should not readily be inferred, such exclusion should be explicitly or clearly implied. There is nothing in the language of Section 77 that gives rise to such an inference We are. therefore, inclined to hold that Section 77A is merely an enabling provision and Court's powers under Sections 100-104 and Section 391 are not in any way affected. The conditions provided in Section 77A are applicable only to buy-back of shares under Section 77A. The conditions applicable to Sections 100-104 and Section 391 cannot be imported into or made applicable to a buy-back under Section 77A Similarly, the conditions for a buy-back under Section 77A cannot be applied to a scheme under Sections 100-104 and Section 391 The two operate in independent fields.