1934 (5) TMI 16

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....933, which had been convened under an order of this Court, made on 9th May, 1933 under the provisions of sub-Section (1) of Section 153, Companies Act. That sub-section provides: "Where a compromise or arrangement is proposed between a company and its creditors or any class of them, or between the company and its members or any class of them, the Court may, on the application in a summary way of the company or of any creditor or member of the company, or in the case of a company being would-up, of the liquidator order a meeting of the creditors or class of creditors or of the members of the company or class of members as the case may be, to be called, held and conducted in such a manner as the Court directs." The section then proceeds to ....

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.... was opposed by certain creditors including the present appellant Mihirenda Kishore Dutt and certain of his relatives. The matter came before Ameer Ali, J., on 14th August, 1933, and on that occasion the company was represented by counsel and the opposing creditors were represented and there was also represented a secured creditor, the Comilla Union Bank. It appears that the matter was discussed before the learned Judge, and in the result, he thought fit to refuse the appliction for the sanction of the scheme. The order made was in these terms: "Application refused. Mr. Sen's client will add costs to claim." That is to say, the opposing creditors were to be allowed to bear costs which they already had against the company. It appears that t....

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....n Palmer's Company Precedents, Fourteenth Edition, Part 1 which appears at p. 1236. That passage is in these words: "The scheme of arrangement usually contains a clause empowering the company or its liquidator to assent to any modifications or conditions approved or imposed by the Court, and the clause is sometimes qualified, e.g., by adding the words "and by the trustees for the debenture holders." The paragraph then continues thus: "In the absence of any such clause it is more than doubtful whether the Court can sanction a modified scheme or impose conditions which must operate by way of modification." Mr. Page has pointed out to us that it is usual for the scheme to contain a provision empowering some one, be he a liquidator or some ....

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.... was concerned, petitioned the Court to sanction the scheme "with such modifications if any which the Court might think right to impose." That fact provides a key, if I may call it, to the answer to the contention put forward by Mr. Banerjee, because I find that the form which is usual in cases of this kind is to be found at p. 1251 of Palmer's Company Precedents, the volume to which I have already referred. It contains a clause in these terms: "The directors may give effect to any modification of the scheme which the Court may approve or impose as a condition of giving its sanction to this scheme." In the present instance, there was before the Court no one who was empowered to assent to a modification of the scheme, either on behalf of t....