TaxTMI 
TaxTMI 
2018 (11) TMI 197
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.... 1. This application is filed under Sections 391 to 393 of the Companies Act, 1956 seeking approval of the proposed scheme of compromise and arrangement between the respondent Company and its members and creditors. Directions are also sought to convene the meeting of the allotees of various blocks of the two real estate projects of the respondent Company being Spire Edge Project which is located at plot No. CP-4, Sector 8, IMT Manesar, Tehsil and District Gurgaon, Haryana and Sprie Woods Project located at Sector 103, Gurgaon Haryana and of the secured creditors, unsecured creditors, shareholders, etc. 2. CA No. 332/2018 has also been filed seeking essentially the same relief. 3. It is the case of the applicants that the respondent Company launched an IT/Technology Park project being Spire Edge Project in Manesar, District Gurgaon which project comprises of Blocks A to F. As far as Blocks B, C, and D are concerned, it is pleaded that the respondent company has handed over possession of an area equivalent to 8,48,000/- sq.feet. It is stated that the occupation certificate has been received for these blocks and lease deeds have been executed in favour of number of allotees. ....
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....ispensed with of Optionally Convertible Debentures Series A and Optional Convertible Debentures Series B of the respondent Company in view of the fact that they have already given their NOC and also dispense with meeting of allotees of Blocks B, C and D of Spire Edge Project as the respondent Company has already received Occupation Certificate and Completion certificate for them and possession has been handed over to the allottees. Dispensation is sought of meeting of allottees of Block F as there is not a single space/unit sold by the respondent Company. It has also been prayed that an advertisement may be issued for convening of the meeting as noted above in the newspaper "Business Standard" in English and "Business Standard" in Hindi, both in Delhi and Haryana editions. 7. The respondent Company had launched the above noted projects in 2008 and 2011-12 respectively. However, it is pleaded that owing to serious financial crunch, there has been a delay in completion of the project. In the meantime, in Co. Pet. 704/2014 titled "Amarpreet Singh Oberoi & Ors. vs. M/s. A.N. Buildwell Pvt. Ltd., on 08.03.2016 this court had admitted the petition for winding up and appointed the O....
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....t is made, license from the Directorate of Town and Country Planning, Haryana needs to be revived. 13. Mr. Sandeep Agarwal, the learned senior counsel has also made his submissions in CA No. 450/2018 in Co. Pet. 704/2014 filed on behalf of the Spire Edge Maintenance and lease & Facilitation Ltd. The said Company was incorporated under the provisions of the Companies Act, 2013. It is stated that of the total shares of the said Company, a large number of shares have been allotted to the buyers/allottees of the Blocks B, C, D of Spire Edge Project of the respondent Company. The object behind the incorporation of the said applicant Company was operation, leasing, management and maintenance of the said Blocks B, C and D of the Spire Edge project of the respondent Company which was to be handled by the said applicant Company on behalf of the buyers/allottess. The primary object of the applicant was to undertake leasing efforts with respect to the spaces/units allotted to the customers of the respondent Company. Mr. Agarwal has stressed their reliefs in CA 450/2018 where it has been pleaded that revival scheme filed by the propounders is nothing but a ruse and has been filed with a vie....
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....ther the Scheme should be permitted to go through or not and whether the majority creditors or members, through their respective class, have approved the Scheme as required under sub-section (2) of Section 391. It observed that the nature of compromise or arrangement between the company and the creditors and the members has to be kept in view, for it is the commercial wisdom of the parties to the Scheme who have taken an informed decision about the usefulness and propriety of the Scheme by supporting it by the requisite majority vote. Therefore, the Court does not act as a court of appeal and sit in judgment over the informed view of the parties concerned to the compromise as the same would be in the realm of corporate and commercial wisdom of the parties concerned and further the Court has neither the expertise nor the jurisdiction to dig deep into the commercial wisdom exercised by the creditors and the members of the company who have ratified the Scheme by the requisite majority. The Court eventually held that it has the supervisory jurisdiction which is also in consonance with the language employed under Section 392 of the Act. In that context, the Court referred to the observa....
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....st be treated as separate class for the purpose of the Scheme. Moreover, when the company has decided what classes are necessary parties to the Scheme, it may happen that one class will consist of a small number of persons who will all be willing to be bound by the Scheme. In that case it is not the practice to hold a meeting of that class, but to make the class a party to the Scheme and to obtain the consent of all its members to be bound. It is, however, necessary for at least one class meeting to be held in order to give the court jurisdiction under the section." In this regard, reference to a passage from Sovereign Life Assurance Co. v. Dodd [(1892) 2 QB 573 : (1891-94) All ER Rep 246 (CA)] , as stated by Bowen, L.J., would be apt. It reads as follows: (QB p. 583) "... It seems plain that we must give such a meaning to the term 'class‟ as will prevent the section being so worked as to result in confiscation and injustice, and that it must be confined to those persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest." 26. The purpose of the classification of creditors has its signif....
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.... end to the winding-up process. Winding up is dealt with in Part VII of the Companies Act and Sections 433 to 483 occur in Chapter II of that Part. Part VI deals with management and administration of a company and Chapter V thereof deals with arbitrations, compromises, arrangements and reconstructions. In that Chapter occur Sections 390 to 396-A of the Act with which we are concerned. While defining a company for the purpose of Sections 391 and 393, Section 390 clarifies that company means any company liable to be wound up under the Companies Act. SCML was a company that was ordered to be wound up on 25-7-1984. Therefore, when the scheme was originally presented on 3-10-1994, it was at a time when the winding-up order was already in existence. The argument that Section 391 would not apply to a company which has already been ordered to be wound up, cannot be accepted in view of the language of Section 391(1) of the Act, which speaks of a company which is being wound up. If we substitute the definition in Section 390(a) of the Act, this would mean a company liable to be wound up and which is being wound up. It also does not appear to be necessary to restrict the scope of that provisi....
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....Ltd. The said company has filed a CA No.450/2018 in Co.Pet. No.704/2014 pleading that Blocks B, C and D may be bifurcated from the corpus of the respondent company and be handed over to the applicant company. This relief, which is sought in CA No.450/2018, would be heard separately. 22. Accordingly, in my opinion, it would be in the interest of justice, if separate meetings are called for under section 391 of the Companies Act, 1956 for allottees of Block A of Spire Edge Project, allottees of Furnished Offices of Spire Edge Project, allottees of Block E of Spire Edge Project, Equity shareholders in Class A, B and C respectively, unsecured/secured creditors, allottees of Spire Wood Project. 23. There are in total 34 allottees of Block A of Spire Edge Project. Accordingly, a meeting of all allottees of Block A of Spire Edge Project shall be held on 17th November, 2018 at 10:00 a.m. at CP-04, Sector 8, IMT Manesar. 24. There are in total 50 allottees of Furnished Offices. A meeting of all allottees of Furnished Offices of Spire Edge Project shall be held on 17th November, 2018 at 12:30 p.m. at CP-04, Sector 8, IMT Manesar. 25. There are in total 152 allottees of Block E of....
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....The necessary details qua the meeting to be held are elaborated as follows: i) Mr.Upender Thakur, Advocate (Mobile No.: 9711984890) is appointed as the Chairperson and Ms.Lavanya Kalia, Advocate (Mobile No.: 8802229793) is appointed as Alternate chairperson to conduct the said meeting. ii) The Quorum of the said meeting of allottees of Spire Woods shall be 50% in number. 29. The meeting of the following is dispensed with: a) Optional Convertible Debentures Series 'A‟ of the Respondent Company, as they have already given No Objection Certificate; b) Optional Convertible Debentures Series 'B‟ of the Respondent Company, as they have already given No Objection Certificate; c) Block F of the Spire Edge Project, as the respondent company has not told even a single space/unit in the Block F. 30. In case the quorum as noted above for the above meetings is not present at the meetings, then the meetings shall be adjourned by half an hour, and thereafter, the person(s) present and voting shall be deemed to constitute the quorum. For the purpose of computing the quorum, the valid proxies received from the total applicants herein shall also be considered, ....