- (1.) This special appeal has been shown as defective because of non-filing of the certified copy of the judgment and order passed by the learned Single Judge. However, since the same has been placed before the Court, the defect is cured and the judgment and order, which is being pronounced herein below, will be issued by giving regular number.
(2.) The appeal has been filed challenging the order passed by the learned Singe Judge dated 8th February, 2010 sitting in company jurisdiction under Judge's summons with regard to the amalgamation under Sections 391 and 394 of the Companies Act, 1956 (hereinafter referred to as 'the Act'). The appellant before us is a Bank (being MTM Creditor), which was not present in the Court before the learned Single Judge when the order impugned was passed. The grievance of the appellant is that the learned Judge sitting in Company jurisdiction was pleased to direct to issue notices to all the creditors individually without making a provision for separate meeting for separate categories of creditors. The secured, the unsecured and the MTM creditors have been directed to be served notices and they will be heard in a meeting, which is reflected from the order of the learned Single Judge, therefore, the same is in non-application of mind.
(3.) Mr. Navin Sinha, learned Senior Counsel appearing on behalf of the appellant - Bank, has relied upon various judgments of different High Courts as well as of the Supreme Court. On the basis of the probative value of the judgment of a learned Single Judge of the Delhi High Court reported in (2005) 1 Comp LJ 369 (Del) In Re: Siel Ltd., Siel Sugar Ltd., Siel Holdings Ltd., and Shivajimarg Properties Ltd., and on the basis of another judgment of a learned Single Judge of the Bombay High Court reported in (51) Company Cases 266 In Re: Sakamari Steel & Alloys Ltd., Mr. Sinha has submitted that there should be different meetings for different categories of creditors. Ultimately, he relied upon a judgment of the Supreme Court reported in , Chembra Orchard Produce Ltd. and Ors. v. Regional Director of Co. Affairs and Anr. Mr. Sinha, 2009 2 SCC 547 further submitted before us that hearing before the learned Single Judge sitting in Company jurisdiction in making an order for compromise or amalgamation under Section 391(1) of the Act is not a signpost but a check post whereas it is duty of the Court to examine the genuineness and bona fide of the Scheme itself. According to him, Section 391(1) of the Act gives an indication about the creditors and class of creditors, therefore, it is pre-requisite that the cases of class of creditors will be different which cannot be determined in a meeting in respect of all types of creditors. He has also referred to Rule 69(1) of the Companies (Court) Rules, 1959 (hereinafter referred to as 'the Rules'), which also speaks determination of class or classes of creditors and/or of members whose meeting or meetings have to be held for considering the proposed compromise or arrangement.;