SHIV KUMAR SHARMA, J. - (1.) THE issue springing for consideration in this petition under sections 391(2) and 394 of the Companies Act seeking approval of the scheme of arrangement by the four petitioner companies, is as to whether an unsecured creditor whose alleged dues have been bona fidely disputed has a locus standi to oppose the sanctioning of the scheme ?
(2.) A perusal of the record demonstrates that objector M/s. In Touch Technology India Pvt. Ltd. (for short the 'objector company') claims to be an unsecured creditor of Shyam Telelink Ltd. (petitioner No. 3). The objector company filed a winding up petition against petitioner No. 3 (S. B. Company Petition No. 26 of 2004). This Court vide order dated December 14, 2004, dismissed the petition with the following observations: After going through the contents of the reply of the respondent -company dated December 26, 2002, and the letter of the petitioner dated November 26, 2002, I am satisfied that the respondent -company has raised bona fide dispute in the matter of claim of the petitioner. It is not a moonshine defence nor can it be said to be manufactured or concocted as the same has been raised by the respondent -company much before the statutory notice of the winding up. That apart, it is not the case where for the recovery of the amount of alleged dues against the respondent -company, the petitioner has no remedy. It has efficacious and effective remedy of filing the suit and it cannot be permitted to use the forum of winding up in the matter where, prima facie, the respondent -company has raised a bona fide dispute against the claim of the petitioner. The objector company preferred special appeal under Section 483 of the Companies Act against the said order. The appeal stood admitted by the Division Bench of this Court on August 31, 2005, but no interim order was passed. The special appeal is lying pending for final hearing. In the mean -while, undeniably, the objector company invoked arbitration proceedings by referring the matter to the Indian Council of Arbitration.
(3.) IT appears that petitioner No. 1 is a listed company carrying on the business of manufacturing of telecom/transmission equipment and providing telecommunication services (unified telephony services) through its wholly owned subsidiary companies. Petitioner No. 2 is a wholly owned subsidiary of petitioner No. 1. It is primarily engaged in manufacturing of telecom/ transmission equipment. Petitioner No. 3 is also a wholly owned subsidiary of petitioner No. 1. It is primarily engaged in the business of rendering telephony services. Petitioner No. 4 is a company incorporated with the object to promote and form other companies and association for the execution of undertakings, works, projects in the telecom industry and to hold shares or other securities in the companies engaged in the telecom sector.;