TaxTMI 
TaxTMI 
2010 (4) TMI 607
X X X X Extracts X X X X
X X X X Extracts X X X X
....eafter referred to as 'DDB holders') and to direct the respondent-company to pay the DDB holders, who have purchased the bonds after the date of the sanctioning of the scheme in good faith and without notice thereof, interest at the rate of 15.5 per cent per annum and the maturity value of Rs.50,150 as promised, guaranteed and assured at the time of issuance of the bonds. It is also prayed to condone the delay, if any, in filing of the present application. 2. Heard Mr. A L Shah, learned counsel with Mr. Gandhi, learned counsel for the applicant and Mr. M J Thakor, learned counsel with Mr. Singhi, learned counsel for the respondent for final disposal of the application. 3. It is an undisputed position that the scheme of arrangement was....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... holders as a separate class and separate meeting was required to be convened, which has not been done in the present case. The submission, therefore, is that the mandatory procedure is not followed and, therefore, the court may not get the jurisdiction to sanction the scheme or in alternate, it was submitted, the sanctioned scheme be recalled or modified, in any case, to the extent of maintaining the contractual rate of interest as was promised to the DDB holders, which would include the interest of the applicant herein. 5. Whereas the learned counsel for the respondent-company contended that the DDB holders are secured creditors and they have been rightly classified as secured creditors. It is submitted by the learned counsel for the r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ess be considered de novo by de-classifying the existing secured creditors and thereby the recalling of the order. 8. It was submitted that had the applicant been aggrieved by the sanction granted by this court, the proper remedy for the applicant was to prefer OJ Appeal against the decision of the company court and such a miscellaneous civil application, that too, after a belated period of purchasing the DDB would not be maintainable. 9. Whereas the learned counsel for the applicant contended that when there was correspondence received, at that stage the applicant came to know about the aforesaid scheme and at the earliest, the application has been preferred. 10. If the requirement of the statute is to be considered as per the pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erest to be considered for the purpose of classification would be not based on individual contractual terms of such creditors, who are in the category of secured creditors, but is to be seen in light of the interest by way of security created or having security interest in the property of the company. The microscopic classification as sought to be canvassed based on the terms of each and every secured creditor at the time of creation of security with the company, is not a classification conceived by the scheme of the statute, nor can be termed as practicable when the scheme of arrangement is to be offered to large number of secured creditors. 11. Further, the important aspect of interest of the secured creditors can also be gathered on t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 12.75 per cent per annum till the cut-off date and 10 per cent per annum from the appointed date upto the take out offer date, i.e., on completion of 8 years from the date of allotment of DDBs. In case of take out, value per DDB calculated at the revised interest/yield would be Rs. 11,817 per bond (subject to deduction of tax, if applicable). In respect of the existing lenders who have provided the term loans and/or other debt facilities other than DDBs, the interest at the rate of 10 per cent per annum shall be payable monthly. (ii) All amounts of penal interest and/or compound interest and/or liquidated damages remaining due and unpaid upto the cut-off date, relating to the term loans and/or other debt facilities availed from the exi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... court by the order dated 5th May, 2005 and the meeting thereafter was held and the scheme was approved. 14. Mr. Thakor, learned counsel appearing for the respondent, during the course of hearing, did refer to the material in furtherance to the chairman's report, wherein the voting for DDB holders is separately considered and as per the said material, amongst the DDB holders, 77.82 per cent representing in value have supported and approved the scheme of arrangement as against' the opposition of 22.18 per cent in value. Therefore, if such material is to be considered, it can be said that even if the separate class of DDB holders-is considered, the fact remains that the scheme was approved by the requisite majority in value of the DDB pres....