TaxTMI 
TaxTMI 
1978 (10) TMI 123
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....s at this stage. In the first place, it has been urged by him that under section 391 of the Companies Act when a company is being wound up the only person who can frame an arrangement in respect of the company is the liquidator and not anybody else. In this connection, he has relied on the language of section 391, sub-section (1), which is as follows : "391. Power to compromise or make arrangements with creditors and members.-(1) Where a compromise or arrangement is proposed- (a)between a company and its creditors or any class of them ; or (b)between a company and its members or any class of them ; the court may, on the application of the company or of any creditor or member of the company, or, in the case of a company which is ....
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....s. 476 (Cal.) and Muhammed Abdulla Tharaganar v. Official Liquidator, Cape Comorin General Traffic Co. Ltd. [1953] 23 Comp. Cas. 161 ; AIR 1952 Trav-Coch. 243. In the latter case, the court came to the conclusion that under the old section 153(1) of the Indian Companies Act, 1913, which is in pari materia with the present section 391 of the Companies Act, the introduction of the words "in the case of a company being wound up, of the liquidator" is intended to provide an additional and not an exclusive person who could make the application. In Rajendra Prosad Agarwalla v. Official Liquidator [1978] 48 Comp. Cas. 476 (Cal.), also a similar statement is made. Hence, the applicants are entitled to make the present application. The applicants ar....
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....e Palmer's Company Law, 21st Edn, p. 328). A handing over of share certificates as mentioned in Form No. 141 can never constitute such a surrender ; under section 41(2) every other person who agrees in writing to become a member of a company and whose name is entered in its register of members, shall be a member of the company. Hence, every person who has agreed to be a member and whose name appears in the register of members is a member. Section 150(1)(a) to ( d) reads as follows : "150. Register of members.-(1) Every company shall keep in one or more books a register of its members, and enter therein the following particulars:- (a)the name and address, and the occupation, if any, of each member; (b)in the case of a company having....
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....e, no substance in the second contention of the official liquidator either. It has further been argued by the official liquidator that the proposed scheme is not a scheme or an arrangement contemplated under section 391 of the Companies Act because the scheme does not propose any arrangement or re-arrangement regarding the rights of the creditors or shareholders of the company. It is, however, not necessary that an arrangement under section 391 should be an arrangement with the creditors of the company or should involve any changes in the rights of the shareholders of the company. In the present case, all the creditors of the company have been paid off. There are, therefore, no creditors of the company at present. Some of the members of ....