- (1.) INSTANT review petition has been filed by the review petitioner M/s.IndusInd Bank Ltd. u/S.114 of the Civil Procedure Code against the judgment and order dt.22.07.2008 passed in S.B.Company Petition No.19/2006.
(2.) THE Company Petition No.19/2006 was presented by M/s.Modern Denim Ltd. (in short ''the Company '') u/S.391 of the Companies Act, 1956 for sanctioning the scheme of compromise between the Company and its creditors/members. It was alleged in the Company Petition that the Company till 1997 was earning profits and its operations were profitable. But thereafter, the Company suffered losses on account of overall recession and the situation became worst in 2001 -02 and on account of accumulated losses, the net worth of the Company was completely eroded as on 31.03.2000 and on reference to Board for Industrial and Financial Reconstruction (in short ''BIFR ''), the Company was declared as a sick company. Thereafter efforts were made for revival of the scheme which was under progress but the debt of the Company reached at unserviceable level and it became impossible for the Company to carry out its business effectively, without reducing the debts due to the creditors, to a serviceable level and it was felt for rescheduling and restructuring of the existing debts and elaborate scheme of compromise was prepared in order to enter into compromise with the secured creditors of the Company which may be in the best interest of the Company and also the creditors to settle the debts, in terms of the scheme of compromise which would prevent the Company from getting insolvent. The Company in its board meeting held on 10.08.2006 approved the scheme of compromise by unanimously passing a resolution and thereafter the Company filed Company Application No.44/2006 before the Company Court and vide order dt.18.08.2006, the Company Court directed to convene meeting of the secured creditors for the purpose of considering scheme of compromise. The meeting of secured creditors was convened on 20.09.2006 which was attended by 11 secured creditors and total value of their debt was Rs.224.86 crores and the proposed scheme was approved by 7 secured creditors holding Rs.181.53 crores of the secured debt representing 80.73% in value of the total value of debts as against 4 secured creditors holding Rs.43.33 crores of the secured debts representing 19.27% of the total value of debt present and voted. The Regional Director of the Company Affairs also in its affidavit deposed that out of 11 secured creditors who participated in voting, 4 secured creditors, having their debts aggregating Rs.43.33 crores, voted against the scheme of compromise. It is also intimated to its office regarding receipt of some complaints for non -payment of fixed deposits u/S.58 -A of the Companies Act and the Company vide its letter dt.18.11.2006 informed that the scheme of compromise is for the secured creditors and not for the shareholders and that was a reason for which No Objection Certificate (NOC) from Jaipur Stock Exchange was not obtained.
(3.) THE present review petitioner being one of the secured creditor also filed its objection to the proposed scheme of compromise, which was referred to by the Company Court in para -6 of the judgment impugned dt.22.07.2008 and after taking note of objections raised by the secured creditors and pointed out by the Registrar of Companies regarding the scheme of compromise, the Company Court distinguished the case of Modern Syntex (India) Ltd. with that of the proposed scheme of compromise placed for consideration by M/s.Modern Denim Ltd. and taking note of the ratio laid down by the Apex Court and by the Company Court in Lords Chloro Alkali Ltd. (Company Petition No.21/2006) decided on 15.03.2007 and so also the fact that there was only one objector who filed objections against the scheme, out of four objectors, who voted against the scheme in the meeting, convened by the order of Company Court out of total 11 secured creditors, the Company Court deemed it appropriate to hold that scheme was not unjust and unfair to the secured creditors and further observed that the scheme appears to be reasonable, according to law and in the interest of the secured creditors and finally the scheme of compromise was sanctioned in terms of prayer clause (a), referred to by the Company in its Company Petition No.19/2006.;