TMI Blog2018 (11) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... ed representatives. Notice of the meetings shall also be published in Delhi and Haryana editions of the newspaper, namely, ‘Business Standard‟, (both in English and Hindi) in terms of the Companies (Court) Rules, 1959, at least 21 (twenty one) days before the date appointed for the respective meetings. The Chairpersons and Alternate Chairpersons will be at liberty to issue suitable directions to the applicant in order to ensure that the aforesaid respective meetings are conducted in a just, free and fair manner. The fee of the Chairpersons and the Alternate Chairpersons for all the meetings shall be ₹ 1,00,000/- each, in addition to meeting their incidental expenses, to be borne by the applicants in advance. The Chairpersons shall file their reports within 2 (two) weeks from the date of holding of the aforesaid respective meetings. - CO.APPL.(M) 115/2016 and CA 332/2018 - - - Dated:- 16-10-2018 - MR. JAYANT NATH J. Applicants Through: Mr. Bhavit Yadav and Mr. Kushal Mangal, Advs. for P-1/Mr. Sunil Gandhi Mr. Arvind K. Nigam,Sr.Adv. with Mr. Maninder Singh, Ms. Smriti Asmita, Mr. Mikhil Sharda and Mr. Mehtaab Singh Sandhu, Advs. for applicant No.2/Maj. S.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est/penalty, or for assured return. etc. 4. Another project of the company is the Spire Woods Project which is a residential scheme located in Sector 103, Gurgaon, Haryana. This has 12 Towers containing 620 dwelling units out of which 517 units are booked. It has been pleaded that within 27 months from the effective date as per the proposed scheme, the project would be completed. A designated escrow account of the respondent will be opened and the amounts to be collected from the existing allottees will be deposited in the designated escrow account and utilized for meeting the liabilities, costs and the expenses of the respondent Company for construction, development and implementation of the said Spire Woods project. 5. It has also been pleaded that upon sanctioning of the scheme, the propounders/original shareholders within 90 days will organize, contribute and cause to be contributed a sum of ₹ 24 crores to be used for the revival of the respondent Company and its projects. It is pleaded that a bank guarantee of ₹ 6 crores has already been furnished in this court. Certain adjustments are proposed on the part of the flat owners which are spelt out in the scheme. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding creditors, allottees, flat buyers and shareholders. Hence, the present application has been filed. 9. I have learned counsel or the parties. 10. Learned counsels appearing for the applicants has stressed that after holding the necessary meetings, the applicants would get in a sum of ₹ 24 crores and to show bona fide, a bank guarantee of ₹ 6 cores has already been filed with the Registry of this court. He has relied upon the judgments of the Supreme Court in the case of Infrastructure Leasing and Financial Services Ltd. vs. B.P.L. Ltd, (2015) 3 SCC 363, Chembra Orchard Produce Ltd. Ors. vs. Regional Director of Company Affairs and Anr.; AIR 2009 SC 1278 and Meghal Homes Pvt. Ltd. vs. Shree Niwas Girni K.K.Samiti Ors., AIR 2007 SC 3079 to plead his case. 11. Mr. T.K. Ganju, learned senior counsel appearing for some of the flat buyers has vehemently pleaded that the applicant-Mr. Sunil Gandhi cannot be trusted with. It has been pleaded that he is a proclaimed offender. He also points out that order dated 08.03.2016 passed in CO.PET. No. 704/2014 has not been complied with. He has also stated that more than ₹ 73 crores would be required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B, C, D have been Registered and some portions are unregistered in favour of the allottees. It has been stressed that very few areas are left which are unsold. He has also pointed out that the scheme makes a completely erroneous request that the allottees of Blocks B, C and D be not subjected to any voting in the elections. He has strongly objected to this plea. 14. Having heard the pleas of the learned counsel for the parties, the question is what would be the best interest of the respondent Company and its creditors and allottees. Having given any anxious consideration to the entire scheme and keeping in view the promise of the management to infuse fund and especially the fact that a bank guarantee of ₹ 6 cores has already been placed on record and also keeping in view the strong interest envisaged before court by the proposed investor-Alfa Corp. Development Pvt. Ltd, it appears that the scheme is a plausible mechanism to move forward and try and complete the project so that the interest of allottees is taken care off. In the absence of any move forward, the investment that made by the allottees may languish as the project may remain incomplete for a considerable length ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutory majority are acting bona fide and are not coercing the minority in order to promote interest adverse to those of the class whom they purport to represent, and thirdly, that the arrangement is such as an intelligent and honest man, a member of the class concerned and acting in respect of his interest, might reasonably approve. The court does not sit merely to see that the majority are acting bona fide and thereupon to register the decision of the meeting, but at the same time, the court will be slow to differ from the meeting, unless either the class has not been properly consulted, or the meeting has not considered the matter with a view to the interest of the class which it is empowered to bind, or some blot is found in the scheme. xxx 25. In this context, we may usefully refer to Palmer's Treatise on Company Law, 25th Edn., wherein delineating with the concept of class, it has been stated thus: What constitutes a class The court does not itself consider at this point what classes of creditors or members should be made parties to the Scheme. This is for the company to decide, in accordance with what the Scheme purports to achieve. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed creditors. (See Halsbury's Laws of India, 2007, Vol. 27.) 17. In Chembra Orchard Produce Ltd. Ors. vs. Regional Director of Company Affairs and Anr., (supra), the Supreme Court held as follows:- 12. A reading of the above judgment would, therefore, show that at the stage of issuance of summons for directions to convene a meeting, though the Company Judge has to apply his mind, prima facie, on the genuineness of the scheme, basically the entire exercise is to verify whether the numerous conditions prescribed in Rule 69 are satisfied read with Form 33 and Form 34. 18. Hence, the Supreme Court took the view that at the stage of issuance of summons for directions to convene a meeting, the Company Judge has to only apply his mind on the genuineness of the scheme. 19. A scheme of revival may also be filed when a company is pending liquidation. Reference in this context may be had to the judgment of the Supreme court in Meghal Homes Pvt. Ltd. vs. Shree Niwas Girni K.K.Samiti Ors.(supra) wherein the Court held as follows:- 16. Now to recapitulate, the Company was ordered to be wound up on 25-7-1984 and the Official Liquidator was directed to take p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members indicating that the provision would apply even in a case where an order of winding up has been made and a liquidator had been appointed. Equally, it does not appear to be necessary to go elaborately into the question whether in the case of a company in liquidation, only the Official Liquidator could propose a compromise or arrangement with the creditors and members as contemplated by Section 391 of the Act or any of the contributories or creditors also can come forward with such an application. By and large, the High Courts are seen to have taken the view that the right of the Official Liquidator to make an application under Section 391 of the Act was in addition to the right inhering in the creditors, the contributories or members and the power need not be restricted to a motion only by the liquidator. For the purpose of this case, we do not think that it is necessary to examine this question also in depth. We are inclined to proceed on the basis that the Somanis, as contributories or the members of the Company, are entitled to make an application to the Company Court in terms of Section 391 of the Act for the purpose of acceptance of a compromise or arrangement with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onduct the said meetings. ii) The Quorum of the above said meetings of Block A allottees, Furnished Offices allottees, Block E allottees shall be 50% in number. 26. There are in total four Equity Shareholders in Class A, B and C. A meeting of all Class A‟, B‟ and C‟ Equity Shareholder shall be held on 25th November, 2018 at 10:30 a.m.; 12:00 p.m.; and 2:30 p.m., respectively at CP-04, Sector 8, IMT Manesar. The necessary details qua the said meetings to be held are as follows: i) Mr.Sachin Chopra, Advocate (Mobile No.: 9910827777) is appointed as the Chairperson and Mr.Hemant Gupta, Advocate (Mobile No.: 9899009971) is appointed as Alternate chairperson to conduct the said meetings. ii) The Quorum of the said meeting of Class A‟, B‟ and C‟ Equity Shareholder shall be 50% in number and more than 50% in value of the shares. 27. A perusal of the application shows that there are 146 Unsecured Creditors and only one Secured Creditor. A direction is sought to convene and hold meetings to seek its approval to the proposed scheme. Considering the fact and circumstances as aforesaid, the meetings of the Unsecured Creditor and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 393 of the Act along with the proxy form, shall be sent to all the applicants herein by speed post at their registered or last known addresses at least 21 (twenty one) days before the date appointed for the respective meetings, in their presence or in the presence of their authorized representatives. 32. Notice of the meetings shall also be published in Delhi and Haryana editions of the newspaper, namely, Business Standard‟, (both in English and Hindi) in terms of the Companies (Court) Rules, 1959, at least 21 (twenty one) days before the date appointed for the respective meetings. 33. The Chairpersons and Alternate Chairpersons will be at liberty to issue suitable directions to the applicant in order to ensure that the aforesaid respective meetings are conducted in a just, free and fair manner. 34. The fee of the Chairpersons and the Alternate Chairpersons for all the meetings shall be ₹ 1,00,000/- each, in addition to meeting their incidental expenses, to be borne by the applicants in advance. The Chairpersons shall file their reports within 2 (two) weeks from the date of holding of the aforesaid respective meetings. 35. This applications stand d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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