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15. At the same time C.P. No. 18 of 1999 is also filed on April 6, 1999, seeking an order of winding up of the company or such other order as may be made in that compromise. A copy of the M. C. A. is an annexure to the company petition. In such circumstances, I thought that it is fit to direct the petitioner to give notice to counsel for the company. Accordingly notice was so given to the company and the company has filed a counter-affidavit in this company petition.

16. In the meanwhile the meeting as directed in the order dated January 21, 1999, in M.C.A. No. 6 of 1999 was conducted on March 7, 1999, and the chairman appointed by this court has filed his report. It is stated in the report that notices were sent to 1863 creditors. But only 893 were present in the meeting. When the voting was taken up 427 present alone voted. Shri Boby Varghese, who has filed the M.C.A. No. 6 of 1999 in his capacity as director, had voted for 1033 proxy holders. The result of the votes including by proxies through the applicant in M. C. A. No. 6 of 1999, shows that there was majority support to the resolution. But it has to be taken note of that out of 1883 creditors to whom notices were sent only 893 persons participated in the meeting and out of 893, more than 50 per cent. viz., 465 persons did not cast their vote, added to this about 1033 proxies in the pocket of the director himself. It is in this background that annexure A1 to C. A. No. 91 of 1999 wherein Mr. Boby Varghese had cautioned each of the creditors that in case the resolution is voted out, he could not be in a position to honour his promise and the company may go into liquidation has to be viewed. In this background, the allegation of undue influence exerted by Sri Boby Varghese has to be considered.

17. It is contended by the creditors who opposed the arrangement that the meeting itself was illegal as--(1) no notice was given to all the creditors ; (2) there was untrue statement in the notice that the directors were not interested in the compromise ; (3) the necessary statement and copy of the compromise were not made known to the participants as enclosures to the meeting and (4) there was undue influence on the part of Sri Boby Varghese by issuing communications as mentioned above to each of the creditors to force them to give proxy in favour of the resolution, as evident from his own voting for 1033 persons. It is admitted before me that Sri Boby Varghese himself is not a creditor entitled to be present in the meeting of creditors, he participated as proxy holder of 1033 creditors.

28. Added to this, there is an important fact reported by the chairman in paragraph 8 of the report. It is reported as follows :

"On a general scrutiny of the votes polled by Sri Boby Varghese, in his capacity as proxy for the depositors, I find that certain votes polled by him in his capacity as proxy have to be treated as invalid votes as those persons who had given proxies themselves had come in person for the meeting and had voted in the meeting. Therefore, the votes polled by Sri Boby Varghese for and on behalf of those persons who had actually participated in the meeting and voted cannot be counted."

29. The details and number of such persons are not given. Thus, there was a chance of dual voting in persons and proxies by some of the persons or there is chance of invalidating the proxy's votes because those who had given the proxies were present and voted. Therefore, the votes cast by proxy holder, viz., the director of the company Sri Boby Varghese do not reveal the real votes. It is submitted by counsel for the company that even disregarding the entire votes polled by Sri Boby Varghese on proxy the remaining votes in favour of the resolution by the persons present would be sufficient to hold that the resolution was duly passed. Out of 1863 creditors only 893 were present and out of them only 427 voted and all are not in favour of the resolution. 465 persons, more than 50 per cent. per-sons present, did not vote at all. In this background it is submitted that the depositors association had submitted a counter proposal. This is admitted by the chairman in his report. But that counter proposal was not put to vote as according to the chairman's report when the name of the person who put forward the counter proposal on behalf of the association was called, he was not present. It was 4 p. m. at that time. It is submitted by those who filed objections to the report that there was a walk out by several of the members as Sri Boby Varghese unnecessarily intervened in the meeting and the entire show was stage managed by him and the mike was put off when the objectors had spoken in the meeting. This has to be viewed, in overall circumstances of the conduct of Sri Boby Varghese in the dealings of the company as also in collecting the proxies as mentioned above. Thus, it is clear that, even as reported by the chairman, the majority of the members present in the meeting did not cast their votes and even several of the votes polled through proxies were not valid, because of the presence of members who had given proxies. Thus the voting conducted cannot reflect the will of the majority of the depositors. The proposal cannot be accepted as there was no proper voting in the meeting of the creditors.