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TMI Blog2010 (3) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... ing regular number. 2. The appeal has been filed challenging the order passed by the learned Single Judge dated 8-2-2010 sitting in company jurisdiction under Judge's summons with regard to the amalgamation under sections 391 and 394 of the Companies Act, 1956 ('the Act'). The appellant before us is a Bank (being MTM Creditor), which was not present in the Court before the learned Single Judge when the order impugned was passed. The grievance of the appellant is that the learned Judge sitting in Company jurisdiction was pleased to direct to issue notices to all the creditors individually without making a provision for separate meeting for separate categories of creditors. The secured, the unsecured and the MTM creditors have been directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be determined in a meeting in respect of all types of creditors. He has also referred to rule 69(1) of the Companies (Court) Rules, 1959 ('the Rules'), which also speaks determination of class or classes of creditors and/or of members whose meeting or meetings have to be held for considering the proposed compromise or arrangement. 4. Therefore, before calling the other side to make its submission, we have to examine the Scheme of Compromise ('the Scheme'). We have thoroughly gone through the Scheme and found that Parts 'C and 'D' are very much specific about the determination of the debt position of the Company as on 31-1-2009, debt profile of the Company with MTM creditors up to 30-6-2009 and restructuring proposal/term loans/ deriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 69 of the Rules? He has further drawn our attention to paragraph 8 of such judgment, which is as follows :- "8. If one reads rule 67 with Form 33 and Form 34, one finds that essentially the Court while issuing such summons is required to apply its mind to checklist indicated in rule 69 and it needs to be prima facie satisfied about the genuineness and bona fides of the application. One aspect needs to be highlighted. Hearing of the motion ex parte does not mean that the Court had not to apply its mind or that the Court is not required prima facie to be satisfied about the genuineness or bona fides. However, it is a preliminary step. One more aspect needs to be mentioned. If hearing is required to be given to contributors, creditors and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction such Scheme has not merely to go by the ipse dixit of the majority of the shareholders or creditors or their respective classes but the Court has to consider the pros and cons of the Scheme with a view to finding out whether the Scheme is fair, just and reasonable and is not contrary to any provisions of law to violate any public policy. 6. M. Shashi Nandan, learned Senior Counsel, further contended before us that when rule 67 of the Rules categorically states that the Judge's summons for direction shall be moved ex parte, the question of prejudice or rule of natural justice does come into play. Mr. Sinha has joined the issue by saying that even paragraph 8 of the judgment in Chembra Orchard Produce Ltd.'s case (supra) quoted above, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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