Petition No 7962 of 1977
Application for Intervention Civil Appeal No 1347N of 1977 Shankar Das Ghosh J B Dadachanji K J John and Shri Narain for the Appellants in the Appeal and Opp
party in CMP
796277
A K Sen R P Bhatt E C Agrawala section section Khanduja and section Sahni for Respondents Nos
1 6 425 Niren De and section V Tambvekar for the applicantInterveners Bharat Refineries
The Judgment of the Court was delivered by DESAI J
This miscellaneous petition by Interveners raises a short but interesting question in the field of Company Law
Briefly stated the facts leading to the present miscellaneous petition are that Company Petition
No 85 of 1975 was filed by Jairam Das Gupta and others for short Gupta Group  in the Calcutta High Court under sections 397 398 of the  complaining of oppression by the majority and praying for various reliefs
Respondents in this petition were Cosmosteels Private Limited for short the Company  and three others who would be referred to in this judgment as Jain Group
By an order made by the Company Judge on 21st April 1977 the Board of Directors of the Company was superseded and one Mr Sachin Sinha Advocate was appointed as Administrator to discharge various functions set out in the order
The Court also appointed Mr N Chakraborty a Chartered Accountant and Auditor to investigate into the accounts of the Company and one Mr  A K Dey Engineer and Surveyor for valuation of the assets of the Company and further the Auditor and the Surveyor after investigation of the accounts and evaluation of the assets of the Company were to determine the break up value of the shares as on the date of the petition and on the determination of such break up value the Administrator was to call upon the Jain Group to purchase the shares belonging to the Gupta Group within a period of three months from the date of service of notice failing which the Administrator was directed to purchase the shares of the Gupta Group for the Company at the break up value determined as hereinabove mentioned
A further direction was given that if the Company was required to purchase the shares of Gupta Group on the failure of the Jain Group the capital of the Company would protanto stand reduced
There were also some other directions which are not relevant for the purpose of this judgment
Against this Order made by the Company Judge the Jain Group and the Company preferred an appeal under the Letters Patent and certain interim reliefs were sought
On an undertaking given on behalf of the Jain Group the order superseding the Board of Directors and payment of Rs 7 lacs to certain parties was stayed but the order directing valuation of the shares was not stayed and the proceeding for valuation was to go on
The Company was restrained by an injunction of the Court from creating any encumbrance on the assets of the Company and dealing with or disposing of its assets or spending any of its money except in usual course of business with a certain ceiling fixed
This interim relief was modified by the order made on 25th April 1977 by which the Company was directed to carry out the order for payment of Rs 7 lacs to the persons named in the order under appeal within a fortnight from the date of the order failing which the Administrator appointed by the learned trial Judge was to take over possession for the purpose of making payment of Rs 7 lacs
The direction for investigation of the accounts of the Company was stayed and simultaneously the proceeding for evaluation was also 426 stayed
This order dated 25th April 1977 was challenged in Special Leave Petition No 2042 of 1977 preferred by the Company and the Jain Group
380177 was moved on behalf of the appellants for certain interim reliefs
This Court by an order dated 12th May 1977 granted stay of the order of the Division Bench dated 25th April 1977 directing refund of Rs 7 lacs by the Company and in default by the Administrator
The order of injunction granted by the learned trial Judge and confirmed by the Division Bench was kept alive subject to the same condition about not encumbering the assets of the  Company
The appellants then sought liberty to amend the Special Leave Petition by including a prayer for special leave against the order of the learned Company Judge dated 21st April 1977 which was granted by the Court and also special leave to appeal was granted
The appeal came to be numbered as Civil Appeal No 1347N of 1977
The parties settled the dispute as per the consent terms and requested this Court to make an order in terms of the consent terms
The Court accordingly made an order on 31st May 1977 disposing of the appeal in terms of the consent terms
The only term relevant for the present purpose is the one by which the Company was directed to purchase 1300 shares held by the Gupta Group
The price of the shares was to be determined by Messrs Price Water House and Peet Chartered Accountants and Auditors as on the date of the filing of the petition under sections 397 398 on the basis of the existing as also contingent and anticipated debts liabilities claims payments and receipts of the Company
The Chartered Accountants were to determine the value of the shares after examining accounts and calling for necessary explanations and after giving opportunity to both the groups to be heard in the matter and the determination of the value by the Chartered Accountants was to be final and binding and not open to any challenge by either side on any group whatsoever
On the value being so determined the Company had to purchase the shares and on such purchase the share capital of the Company was to stand reduced protanto
After the appeal was thus disposed of on 31st May 1977 the interveners filed the present miscellaneous petition on 22nd August 1977 requesting the Court to permit them to intervene in the proceedings pending in Civil Appeal No 1347 of 1977 and to postpone the purchase of shares by the Company until such time as the Company adopts proceedings in a competent Court by following the procedure laid down by the  and particularly sections 100 to 104 for reduction of the share capital
In the alternative there was a prayer for safeguarding the claims of interveners by modifying the order dated 31st May 1977
The interveners claim to be the creditors of the Company to the tune of Rs 40 lacs
They say that the Cosmos Pioneer  an Oil tanker belonged to the Company
By a Tanker Time Charter Party executed on 21st November 1972 between the Company on the one hand and Burmah Shell Oil Storage and Distribution Co of India Ltd and ESSO Eastern Inc on the other the vessel Cosmos pioneer was chartered in Indian Coastal waters for carriage of petroleum products
Pursuant to this contract the vessel was loaded at Bombay Port on 42 7 15th June
1973 for carrying cargo to the port of Kandla
On the voyage the vessel ran aground and was stranded on 18th June 1973 and the vessel and the cargo were abandoned
Intervener No 2 is the underwriter with whom the charterers had effected an insurance covering the marine adventure of the aforesaid cargo and presumably on payment of the loss the underwriter has been subrogated
The interveners have filed two suits being Suit No 72974 by the inter venerpetitioners and another suit No 93376 by Bharat Refineries Ltd and Hindustan Petroleum Corporation against the Company and the total amount sought to be recovered in the two suits comes to Rs 40 lacs
Both the suits are pending
The interveners say that they are thus creditors of the Company and before any reduction in the share capital of the Company is effected the creditors are entitled to notice because by the reduction they are likely to be adversely affected
There was some dispute before us whether there was any subs tance in the claims of the
interveners and whether they could be said to be creditors of the Company but for the purpose of this judgment we will proceed on the assumption that they are creditors of the Company
But even on this assumption can it be said that the order of this Court dated 31st May 1977 directing the Company to purchase the shares of the Gupta Group and providing that consequent upon this purchase the share capital of the Company would protanto be reduced is bad for want of notice to the interveners and other creditors of the Company  Section 77 prohibits the Company from buying its own shares unless the consequent reduction of capital is effected and sanctioned in pursuance of sections 100 to 104 or section 402
This section places an embargo on the Company purchasing its own shares so as to become its own member but the embargo is lifted if the Company reduces its share capital protanto
It is clear that this section envisages that on purchase by a Company of its own shares reduction of its share capital may be effected and sanctioned in either of two different modes  i according to the procedure prescribed in sections 100 to 104 or ii under section 402 depending upon the circumstances in which reduction becomes necessary
Sections 100 to 104 specifically prescribe the procedure for reduction of share capital where the Articles of the Company permit and the Company adopts a special resolution which can only become effective on thee Court according sanction to it
On the other hand reduction of share capital may have to be done pursuant to a direction of the Court requiring the Company to purchase the shares of a group of members while granting relief under section 402
Both the procedures by which reduction of Capital of a Company may be  effected are distinct and separate and stand apart from each other
It would not therefore be correct to say that whenever it becomes necessary to reduce the capital of a Company the reduction can be brought about only by following the procedure prescribed in sections 100 to 104
There is another independent procedure prescribed in section 402 and recognised by section 77 by which reduction of the share capital of a Company can be effected
But both these 2 1146 SCI77 428 procedures have one feature in common namely that there is Court s intervention before the Company can reduce its share capital and this is of vital importance from the stand point of creditors of the Company
Sections 100 to 104 provide a detailed procedure for reduction of share capital
Without being exhaustive section 100 mentions three modes of reduction of share capital viz i extinction or reduction of the liability on any of the shares in respect of share capital not paid up ii cancellation of any paid up share capital which is lost or is unrepresented by available assets and iii paying off any paid up share capital
Section 101 provides that a Company which has adopted a special resolution for reduction of share capital has to move the Court by a petition for an order confirming the reduction
A detailed procedure is prescribed which the Court should ordinarily follow before confirming the resolution
This procedure has to be followed where the proposed reduction of share capital involves either the dimunition of liability in respect of unpaid share capital or payment to any shareholder of any paid up share capital and in any other case if the Court so directs
But even in first mentioned two cases sub section 3 confers a discretion on the Court to dispense with the procedure if the Court having regard to any special circumstances thinks proper to do so
The procedure envisages a Est of creditors to be settled and a notice to be published which will enable the creditors whose names are included in the Est to object to the reduction and a provision has to be made in respect of dissenting creditors
Sections 397 and 398 enable the minority shareholders to move the Court for relief against oppression by majority shareholders
In a petition under sections 397 and 398 section 402 confers power upon the Court to grant relief against oppression inter alia by providing for the purchase of shares of any of the members of the Company by other members thereof or by the Company and in the case of purchase of its shares by the Company the consequent reduction of the share capital of the Company
Rule 90 of the Companies Court Rules 1959 provides that where an order under sections 397 and 398 involves reduction of capital the provisions of the Act and the Rules relating to such matter shall apply as the Court may direct
The question is whether when on a direction given by the Court while granting relief against oppression to the minority shareholders of the Company to the Company to purchase the shares of some of its members which would ipso facto bring about reduction of the share capital because a Company cannot be its own member is it obligatory to serve a notice upon all the creditors of the Company  It was conceded that the procedure prescribed in sections 100 to 104 is not required to be followed where reduction of share capital is necessitated by the direction given by the Court in a petition under sections 397 and 398
Section 77 leaves no room for doubt that reduction of a share capital may have to be brought about in two different situations by two different modes
Undoubtedly where the Company has passed a resolution for reduction of its share capital and has submitted it to the Court for confirmation the procedure prescribed by sections 100 429 to 104 will have to be followed if they are attracted
On the other hand where the Court while disposing of a petition under sections 397 and 398 gives a direction to the Company to purchase shares of its own members a consequent reduction of the share capital is bound to ensue but before granting such a direction it is not necessary to give notice of the consequent reduction of the share capital to the creditors of the company
No such requirement is laid down by the Act
Two procedures ultimately bringing about reduction of the share capital are distinct and separate and stand apart from each other and one or the other may be resorted to according to the situation
That is the clearest effect of the disjunctive or in section 77
The scheme of sections 397 and 406 appears to constitute a code by itself for granting relief to oppressed minority shareholders and for granting appropriate relief a power of widest amplitude inter alia lifting the ban on company purchasing its shares under Court s direction is conferred on the Court
When the Court exercises this power by directing a purchase of its shares by the Company it would necessarily involve reduction of the capital of the Company
Is such power of the Court subject to a resolution to be adopted by the members of the Company which when passed with statutory majority has to be submitted to Court for confirmation  No canon of construction would permit such an interpretation in which the statutory power of the Court for its exercise depends upon the vote of the members of the Company
This would inevitably be the situation if reduction of share capital can only be brought about by resorting to the procedure prescribed in sections 100 to 104
Additionally it would cause inordinate delay and the very purpose of granting relief against oppression would stand self defeated Viewed from a slightly different angle it would be impossible to carry out the directions given under section 402 for reduction of share capital if the procedure under sections 100 to 104 is required to be followed
Under sections 100 to 104 the Company has to first adopt a special resolution for reduction of share capital if its articles so permit
After such a resolution is adopted winch of necessity must be passed by majority and it being a special resolution by a statutory majority it will have to be submitted for con firmation to the Court
Now when minority shareholders complain of oppression by majority and seek relief against oppression from the Court under sections 397 and 398 and the Court in a petition of this nature considers it fair and just to direct the Company to purchase the shares of the minority shareholders to relieve oppression if the procedure prescribed by sections 100 too 104 is required to be followed the resolution will have to be first adopted by the members of the Company but that would be well nigh impossible because the very majority against whom relief is sought would be able to veto a at the threshold and the power conferred on the Court would be frustrated
That could never have been the intention of the Legislature Therefore it is not conceivable that when a direction for purchase of shares is given by the Court under section 402 and consequent reduction in share capital is to be effected the Procedure prescribed for reduction of share capital in sections 100 to 1 04 should be required to be followed in Order to make the direction effective
430 A very serious apprehension was voiced by Mr De that if the Court directs the Company to purchase the shares of some of its
members while granting relief against oppression the Company would part with its funds which would jeopardise the security of the creditors of the Company and that if such a direction for reduction of share capital can be given by the Court behind the back of the creditors the Creditors would be adversely affected and therefore it was contended that even though while giving direction under section 402 directing the Company to purchase the shares of its members it is not obligatory upon the Court to give notice to the creditors such notice ought to be given in the interests of the creditors
This apprehension is in our opinion unfounded
Even when the Court is moved to confirm the resolution for reduction of share capital under sections 100 to 104
the Court may in its discretion dispense with the procedure prescribed in that group of sections devide section 1013
Undoubtedly the Court would use the discretion only upon proof of special circumstances as contemplated by section 1013 but when such discretion is used the creditors would have no opportunity to object to the reduction
The opportunity to object would thus depend upon the Court exercising its discretion one way or the other
It may be noticed that until the Company submits its resolution for reduction of share capital to the Court the creditors have no say in the matter and therefore the Court is empowered to ascertain the wishes of the creditors by following the procedure prescribed in sections 101 to 104
The object behind prescribed this procedure requiring save in special circumstances as contemplated in section 1013 the Court to give notice to the creditors is that the members of the Company may not unilaterally act to the detriment of the creditors behind their back
If such a procedure were not prescribed the Court might unaware of all the facts be persuaded by the members to confirm the resolution and that might cause serious prejudice to the creditors
But such a situation would not be likely to arise in a petition under sections 397 and 398
In such a petition the Court would be better in a position to have all the relevant facts and circumstances before it and it would be the Court which would decide whether to direct purchase of shares of the members by the Company
Before giving such a direction the Court would certainly keep in view all the relevant facts and circumstances including the interest of the creditors
Even I the petition is being disposed of on a compromise between the parties yet the Court before sanctioning the compromise would certainly satisfy itself that the direction proposed to be given by it pursuant to the consent terms would not adversely affect or jeopardise the interest of the creditors
Therefore it cannot be said that merely because section 402 does not envisage consent of the creditors before the Court gives direction for reduction of share capital consequent upon purchase of shares of some of the members by the Company there is no safeguard for the creditors
But quite apart from that it is clear on the facts of this case that the apprehension of Mr De is not well founded
The order of the Court dated 31st May 1977 clearly provides that the Chartered Accountants and Auditors will determine the value of the shares as on 431 the date of filing of the petition under sections 397 and 398 on the basis of the existing as also contingent and anticipated debts liabilities claims demands and receipts of the Company underlining is ours and for the purpose of determining the value they will be at liberty to examine the accounts of the Company for the last five years
There fore while ascertaining the break up value of the shares on the date of filing of the petition under sections 397 and 398 the Chartered Accountants and Auditors will have to take into account the assets of the Company as also the existing contingent and anticipated debts liabilities claims demands etc
This would indisputably include the claims made by the interveners in the two suits filed by them to the extent to which they appear genuine and well founded
They need not therefore have the slightest apprehension that their interests are not safeguarded by the direction given by the Court
It must also be made distinctly clear that the order of the Court does not fix any minimum price at which the shares shall be purchased by the company
The order makes it clear that if the value of the shares is more than Rs 65 per share the Company will have to pay the balance and if it is less than Rs 65 per share the Gupta Group who have to sell the shares will have to refund the difference between the price of the shares calculated at the rate of Rs 65 per share and the rate determined by the Chartered Accountants and Auditors within four weeks from the date of such determination
This pragmatic and flexible approach clearly safeguards the interests of the creditors including the interveners
There could have been a legitimate apprehension if some minimum price were fixed at which the company was bound to purchase the shares
Then it could have been plausibly argued that if such minimum price were higher than the real value of the shares the company would have to part with some of its funds jeopardising the security of the creditors
Such not being the position there is no scope for apprehension on behalf of the interveners that the reduction of share capital to be effected under the Court s direction without reference or notice to creditors would adversely affect their interests
We may also point out that a right to notice by reason of any rule of natural justice which a party may establish must depend for its existence upon proof of an interest which is bound to be injured by not hearing the party claiming to be entitled to a notice and to be heard before an order is passed
If the duty to give notice and to hear a party is not mandatory the actual order passed on a matter must be shown to have injuriously affected the interest of the party which was given no notice of the matter
The facts discussed above by us show that no interest of the interveners on whose behalf we have heard Mr De at length has been injured by not hearing them before the order was passed
They have not shown us how the order could be different if they had been heard by issuing notices to them under the inherent powers of the Court under rule 9 of the Company Court Rules 1959 even though there was no statutory duty to hear them
Hence we hold that the order passed by this Court on 31st May 1977 is not vitiated on such a ground
432 It was also urged that the Court was in error in making the order without notice to the Central Government
Section 400 provides
that the Court shall give notice of every application made to it under sections 397 or 398 to the Central Government and shall take into consideration the representation if any made to it by that Government before passing a final order under that section
It was urged that before this Court made the final order dated 31st May 1977 the record does not show that any notice was given to the Central Government and therefore also the order is vitiated
We see no merit in this contention
Undoubtedly when a petition is made to the Court under Ss 397 and 398 it is obligatory upon the Court to give notice of the peti tion to the Central Government and it would be open to the Central Government to make a representation and if any such representation is made the Court would have to take it into consideration before passing the final order in the proceeding
But section 400 does not envisage afresh notice to be issued at the appellate stage
The present petition under sections 397 and 398 was made to the Calcutta High Court and it was not disputed that before the learned single Judge finally disposed of the petition inter alia directing purchase of shares of the Gupta Group by the Company notice was issued to the Central Government
as envisaged by section 400
The Central Government apparently did not appear and make any representation
The matter came before this Court initially against the interim order made by the appellate Bench of the Calcutta High Court in the appeal against the order of the learned single Judge but subsequently special leave was obtained for appealing against the order of the learned single Judge also and it was after this special leave was granted that this Court made the final order
Therefore there was no question of issuing fresh notice to the Central Government under section 400 and the contention must be negatived
Accordingly we find no merits in the Civil Miscellaneous Petition and it must be rejected
Before parting with this case we would like to point out that unfortunately though Suit Nos
72974 and 93376 have been filed  by the interveners in the High Court at Bombay as far back as 1974the written statements in these suits have not been filed though more than 3 years have elapsed
The decision in the suits may have a bearing on the value of shares to be determined under the directions of this Court dated 31st May 1977
We therefore direct that Suit Nos 72974 and 93376 may be expedited and they may be heard and disposed of without delay at any rate within a period of six months


Summary:
In Appeal No 1347N 1977 by special leave against the interlocutory orders dated 21 4 1977 of the Company Judge of the Calcutta High Court in the company petition No 8575 filed by the respondents sections 397398 of the Companies Act 1956 complaining of oppression by majority and praying for certain reliefs against the appellants and also the orders dated 25 4 1977 of the Division Bench against that order this Court made an order on 31 5 1977 in terms of an agreement reached between the par ties
By one such term the company was directed to purchase 1300 shares held by the respondents petitioners
The price of the shares was to be determined by Messrs Price Water House and Peet Chartered Accountants and Auditors as on the date of the filing of the petition sections 397 398 on the basis of the existing as also contingent and anticipated debts liabilities claims payments and receipts of the  company
The Chartered Accountants were to determine the value of the shares after examining accounts and calling for necessary explanations and after giving opportunity to both the groups to be heard in the matter and the determination of the value by the Chartered Accountants was to be final and binding and not open to any challenge by either side on any ground whatsoever
After such determination of the value the company has to purchase the shares and on such purchase the share capital of the company was to stand reduced protanto
The order made it fear that if the value of the shares is more than Rs 65 per share the company will have to pay the balance and if it is less than Rs 65 per share the respondents who have to sell the shares will have to refund the difference between
the price of the shares calculated at the rate of Rs 65 per share and the rate determined by the Chartered Accountants and Auditors within four weeks from the date of determination
After the appeal was thus disposed of the interveners claiming to be the creditors of the company to the extent of 40 lakhs in their petition dated 22 8 1977 requested the Court i to permit them to be heard and ii to postpone the purchase of shares by the company until such time as the company adopts proceedings in a competent court by following the procedure laid down by the  particularly in Sections 100 to 104 for reduction of the share capital
In the alternative they prayed for safeguarding their interests by modifying the Court s order dated 31 5 1977
Rejecting the petition to interfere with its order dated 31 5 1977 the Court after hearing the interveners HELD  i Section 77 envisages that on the purchase by a company of its own shares reduction of its share capital may be effected and sanctioned in either of two different modes  i according to the procedure prescribed in Sections 100 to 104 or ii under section 402 depending upon the circumstances in which reduction becomes necessary
427E F ii Section 77 of the prohibits the company from buying its own shares unless the consequent reduction of capital is effected and sanctioned in pursuance of Sections 100 to 104 or Section 402
It places an embargo on the company purchasing its own shares so as to become its own member but the embrago is lifted if the company reduces its share capital protanto
427E 423 iii Section 77 leaves no room for doubt that reduction of share capital may have to be brought about in two different situations by two different modes
Undoubtedly where the company has passed a resolution for reduction of its share capital and has submitted it to the Court for confirmation the procedure prescribed by Sections 100 to 104 will have to be followed if they are attracted
On the other hand where the Court while disposing of a petition under Ss 397 and 398 gives a direction to the company to purchase shares of its own members consequent reduction of the share capital is bound to ensue and before making such a direction it is not always necessary to give notice of the consequent reduction of the share capital to the creditors of the company
No such requirement is laid down by the Act
The two procedures ultimately bringing about reduction of the share capital are distinct and separate and stand apart from each other and one or the other may be resorted to according to the situation
That is the clearest effect of the disjunctive or  in section 77
428H 429AB iv Where the reduction of share capital is necessitated by directions given by the Court in it petition under sections 397 and 398 the procedure prescribed in Sections 100 to 104 is not required to be followed in order to make the direction effective
428G v It would not be correct to say that whenever it becomes necessary to reduce the capital of a company the reduction can be brought about only by following the procedure prescribed in Ss 100 to 104
Sections 100 to 104 specifically prescribe the procedure for reduction of share capital where the Articles of the company permit and the company adopts a special resolution which can only become effective on the Court according sanction to it
Reduction of share capital may also take pursuant to a direction of the Court requiring the company to purchase the shares of a group of members while granting relief us 402
Both the procedures by which reduction of capital of a company may be effected are
distinct and separate and stand apart from each other
427F H vi The scheme of Ss 397 to 406 is to constitute a code by itself for granting relief to oppressed minority shareholders and for granting appropriate relief a power of widest amplitude inter alia lifting the ban on company purchasing its share under Court s direction is conferred on the Court
When the Court exercises this power by directing a purchase of its shares by the company it would necessarily involve reduction of the capital of the company
Such a power of the Court is not subject to a resolution to be adopted by the members of the company which when passed with statutory majority has to be submitted to Court for confirmation
No canon of construction would permit such an interpretation in which the statutory power of the Court for its exercise depends upon the vote of the members of the company
428C E vii If reduction of share capital can only be brought about by resorting to the procedure prescribed in Ss 100 to 104 it would cause inordinate delay and the very purpose of granting relief against oppression would stand self defeated
428E F viii When minority shareholders complain of oppression by majority and seek relief against oppression from the Court under Ss 397 and 398 and the Court in a petition of this nature considers it fair and just to direct the com pany to purchase the shares of the minority shareholders to relieve oppression if the procedure prescribed by Ss 100 to 104 is required to be followed the resolution will have to be first adopted by the members of the company but that would be well nigh impossible because the very majority against whom relief is sought would be able to veto it at the threshold and the power conferred on the Court would be frustrated
That could never have been the intention of the Legislature
428F H ix The object_behind prescribing this procedure requiring in special circumstances as contemplated in Section 1013 the court to give notice to the creditors is that the members of the company may not unilaterally act to the detriment of the creditors behind their back
If such a procedure were not prescribed the Court might unaware of all the facts be persuaded by the members to confirm the resolution and that might cause serious prejudice to the creditors
But such a situation would not be likely to arise in a petition 424 under Ss 397 and 398
In such a petition the Court would be in a better position to have all the relevant facts and circumstances before it and it would be the Court which would decide whether to direct purchase of shares of the members by the company
Before giving such a direction the Court Would certainly keep in view all the relevant facts and circumstances including the interest of the creditors
Even if the petition is being disposed  of on a compromise between the parties yet the Court before sanctioning the compromise would certainly satisfy itself that the direction proposed to be given by it pursuant to the consent terms would not adversely affect or jeopardise the interest of the creditors
Therefore it cannot be said that merely because section 402 does not envisage consent of the creditors before the Court gives direction for reduction of share capital consequent upon purchase of shares of some of the members by the company
there is no safeguard for the creditors
430EH In the instant case there is no scope for apprehension on behalf of the interveners that the reduction of share capital to be effected under the Court s direction without reference or notice to creditors would adversly affect their interests because  1 As per the order of the Court dated 31st May 1977 while ascertaining the break up value of the shares on the date of filing the petition under Sections 397 and 398 the Chartered Accountants and Auditors will have to take into account the assets of the company as also the existing contingent and anticipated debts liabilities claims and demands etc as revealed in the accounts of the company for the last five years which would indisputably include the claims made by the interveners in the two suits filed by them to the extent to which they appear genuine and well founded and
ii the order of the Court did not fix any minimum price at which the shares shall be purchased by the company
431A C D x A right to notice by reason of any rule of natural justice which a party may establish must depend for its existence upon proof of an interest which is bound to be injured by not hearing the party claiming to be entitled to a notice and to be heard before an order is passed
If the duty to give notice and to hear a party is not mandatory the actual order passed on a matter must be shown to have injuriously affected the interest of the party which was to be given no notice of the matter
431G In the instant case after hearing the intervener  it was found that no interest of theirs has been injured by not hearing them before the order was passed
The order passed by this Court on 31st May 1977 is not vitiated on the ground of non issue of notices to them under the inherent powers of the Court under Rule 9 of the Company Court Rules 1959 even though there was no statutory duty to hear them
431H 432A xi Undoubtedly when a petition is made to the Court under Ss 397 and 398 it is obligatory upon the Court to give notice us 400 of the petition to the Central Government and it would be open to the Central Government to make a representation and if any such representation is made the Court would have to take it into consideration before passing the final order in the proceeding
But Section 400 does not envisage a fresh notice to be issued at the appellate stage
432C D The Court directed to expedite the suit Nos
72974 and 93376 filed by the interveners in the Bombay High Court and dispose off within a period of six months