- (1.) This company petition No. 8 of 2010 in the matter of Shamken Multifab Limited is a second motion petition in continuation to the earlier petition No. 10 of 2008 moved under Section 391- 394 of the Companies Act, 1956 (hereinafter referred to as "the Act") for sanction of the scheme of arrangement between the Petitioner-company and its secured creditors. The company has prayed here in this petition that the scheme of arrangement which has been considered in the meeting of the secured creditors of the Company held on 6.9.2008, as per the report of the Chairman of the meeting dated 9.2.2010, be accepted
(2.) The Petitioner-company having its registered office in Mathura, U.P. vide company petition No. 10 of 2008 applied under Section 391 - 394 of the Act for sanction of the scheme of arrangement which was approved by the Board of Directors of the Company; and for convening a meeting of the secured creditors in that regard. This Court vide order dated 14.5.2008 directed for convening the meeting of the creditors of the Petitioner-company on 28.6.2008 and appointed a Chairman to preside over the meeting. The date of the meeting was however modified vide order dated 9.7.2008 and was fixed for 6.9.2008. Before the meeting could be so held, Respondent No. 11, ING Vysya Bank Ltd., one of the secured creditors applied for recall of the order directing for convening the meeting of the secured creditors on the ground that the petition was not maintainable in view of the proceedings on a reference by the Petitioner-company being pending under the Sick Industrial Companies (Special Provisions) Act (hereinafter referred to as the 'SICA') before the BIFR. This Court vide order dated 5.9.2008 however, permitted the meeting to be held as scheduled and Respondent No. 11 was allowed to participate without prejudice to its recall application but directed the result to be kept in sealed cover. Ultimately, the application of Respondent No. 11 raising objections with regard to the maintainability of the petition was rejected on 18.1.2010. The Petitioner-company as such applied to the Court for direction to the Chairman to submit the report of the meeting held on 6.9.2008. The Court vide order dated 3.2.2010 issued necessary directions as prayed for, and accordingly report of the Chairman was submitted on 9.2.2010. Simultaneously, Respondent No. 11 aggrieved by the order dated 18.1.2010 had preferred special appeal No. 281 of 2010 before the Division Bench and when the said appeal came up for consideration, as the report of the meeting had already been submitted, the Court vide order dated 9.3.2010 without going into the merits of the matter, disposed of the appeal on consensus of the parties, relegating Respondent No. 11 to raise the objections about the maintainability of the proceedings under Sections 391- 394 before the Company Judge at the time when the matter comes for confirmation and the Company Judge was permitted to proceed with the matter only after dealing with the objections with regard to the jurisdiction of the Court. It is in pursuance of the order of the Division Bench passed in Special Appeal and on submission of the report by the Chairman when this second motion petition has been moved, Respondent No. 11 and Respondent No. 1 have filed these objections. They have raised an objection that the proceedings under Sections 391-394 of the Act are not maintainable in view of alleged pendency of a reference of the Petitioner-company before the BIFR/AAIFR under the SICA.
(3.) Sri Anurag Khanna, learned Counsel for the Petitioner-company in response to the objections so raised and filed on behalf of Respondent No. 11 has submitted reply on behalf of the Petitioner-company.;