R.K.AGRAWAL,J. - (1.) M /s. Shamken Spinners Limited (hereinafter referred to as the Company) filed an application under sections 391 and 394 of the Companies Act, 1956 (hereinafter referred to as the Act) for a direction to convene a meeting of the secured creditors of the company for approving the proposed scheme of arrangement between the Company and Mr. Rajiv Raina, strategic investor of M/s. SDR Capital Ltd. The Court vide order dated 15.5.2008 convened the meeting of the secured creditors on 28.6.2008 at 4:00 P.M. at the registered office of the company and also appointed Chairman and alternate Chairman to conduct the meeting. Necessary directions were also issued for publication in two daily Newspapers namely, 'Times of India' (English) published from Delhi and 'Amar Ujala' (Hindi) published from Agra. Individual notices were also directed to be sent under certificate of posting to each of the secured creditors.
(2.) ON an application being made by the company, the date of the meeting was refixed for 6.9.2008 and notices were directed to be published in the Newspaper 'Indian Express' published from Delhi instead of Times of India'. The scheme of arrangement in the meantime, was modified by the company and, this Court permitted the modified scheme of arrangement to be considered in the proposed meeting of the secured creditors.
(3.) BEFORE the meeting could be held, an application was filed by ING Vysya Bank Ltd. seeking recall of the order directing convening of the meeting of the secured creditors and dismissing the company application as not maintainable. The application was filed on the ground that ING Vysya Bank Ltd. is a secured creditor and the company had filed a reference before the Board for Industrial and Financial Reconstruction (in short BIFR) under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the SICA). The reference was registered as BIFR Case No. 181 of 2004. This reference was rejected by the BIFR as not maintainable against which the company had preferred an appeal before the Appellate Authority for Industrial and Financial Reconstruction (in short AAIFR) and the matter is pending adjudication. In the meantime, the company filed another reference before BIFR, which was registered as Case No. 114 of 2006, which was also rejected by the BIFR and, in appeal, the AAIFR vide o/der dated 29.9.2007 had remanded the matter back to the BIFR, which order has been challenged by one of the secured creditors before the Delhi High Court and is pending adjudication. As the matter is before the BIFR, the present application filed under sections 391 and 394 is not maintainable.;