IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.109 OF 2008 WITH COMPANY APPLICATION NO.559 OF 2010 CONNECTED WITH COMPANY APPLICATION NO.359 OF 2002 IN COMPANY PETITION NO.253 OF 1991 In the matter of Companies Act, 1956; And In the matter of Chevron Organics (P) Ltd. (In Liquidation); And In the matter of Sections 391-394 of the Companies Act, 1956; And In the matter of Scheme of Compromise & Arrangement between the Applicant (Member & Contributory) of Chevron Organics (P) Ltd. (In Liquidation) and its Creditors. Mr. Kishore Gobindram Hinduja .. Petitioner Mr. Vijay Gharat, Advocate for Petitioner. Dr. T. Pandian, Official Liquidator present. Ms. Purnima Awasti i/b. Mr. H. P. Chaturvedi for Regional Director. CORAM: S. J. Kathawalla, J. DATE : 1st July, 2011 P.C.: 1. Heard Counsel for the parties. - 1 - 2. The sanction of the Court is sought under Sections 391 to 394 of the Companies Act, 1956 to a Scheme of Compromise and/or Arrangement between the Applicant (Member and Contributory) of M/s. Chevron Organics Private Limited (in Liquidation) and its Creditors submitted by the Petitioner who is a Contributory and ex-Director of the said Company. 3. The Counsel appearing on behalf of the Petitioners has stated that they have complied with all the requirements as per directions of this Court and they have filed necessary affidavits of compliance in the Court. Moreover, the Petitioner undertakes to comply with all the statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made thereunder. The said undertaking is accepted. 4. The Regional Director has filed an affidavit, inter- alia, stating therein that the Scheme is not prejudicial to the interest of Unsecured Creditors / Contingent Creditor inasmuch as majority of the Unsecured Creditors’ portion is pertaining to ex-Director and sufficient amount is available in the hand of the Official Liquidator to meet the claims of - 2 - the Contingent Creditors. However, in paragraph 8 of the said affidavit, it is stated that : “………as the company is in liquidation, the workers dues if any, payable by the company (in Liqn) have priority over and above the claim of unsecured creditors and statutory creditors. However the present scheme of compromise and arrangement is silent with respect of workers due if any payable”. 5. In reply to the aforesaid query raised by the Regional Director, the Petitioner states that he has paid all the dues of the workers and that he undertakes to pay the dues of the workers of the Company (in Liqn.) in future if any claims of the workers are found to be unpaid. The undertaking is accepted. 6. The Official Liquidator has filed his report in Company Scheme Petition No.109 of 2008. According to the Official Liquidator, the winding up order in respect of M/s. Chevron Organics Pvt. Ltd. (In Liqn.} has been passed on 14th June, 1994 and the Official Liquidator has been appointed as a Liquidator thereof with usual powers under the Companies Act, 1956. - 3 - 7. The Official Liquidator has, inter alia, stated that the Petitioner had taken out a Company Application No.359 of 2002 in Company Petition No.253 of 1991 under Section 391 to 394 of the Companies Act, 1956. By an order passed by this Court in the abovesaid Company Application on 19th July, 2002, the meetings of the members and creditors of the different classes, viz. (i) Unsecured Creditors of Class listed in Exhibit ‘B’ to the Affidavit-in- Support of Summons for Direction and (ii) the Unsecured Creditors of the Contingent Class, listed in Exhibit ‘C’ to the said affidavit, for the purpose of considering, and if thought fit, approving, with or without modification, the Compromise or Arrangement proposed to be made for reconstruction of the Company between the Petitioner and the Creditors of the Company (In Liqn.). 8. Mr. Kishore G. Hinduja, the Petitioner herein was appointed as the Chairman of the said Meeting. As per the report filed by the Chairman, the meeting of the Members and Unsecured Creditors was unanimously of the opinion that the Compromise and/or Arrangement should be approved. However, according to the Official Liquidator, there is no specific Resolution attached along with the said - 4 - Report of the Chairman to know whether the Resolution was carried out with or without modification. 9. As far as the meeting of the Contingent Creditors is concerned, it is stated that the Creditors have neither voted ‘for’ nor ‘against’ the Resolution. According to the Official Liquidator, as the Contingent Creditors have neither approved nor rejected the Scheme, it cannot be said that the aforesaid order dated 9th July, 2002 of this Court in respect of approving the proposed Scheme, with or without modification, has been strictly complied with. It is also stated that the minutes of said meeting of the class of Contingent Creditors has also not been attached with the Report of the Chairman. 10. In reply to aforesaid query raised by the Official Liquidator, the Counsel for the Petitioner states that as far as the meetings of the Members and Unsecured Creditors are concerned, all the Members and Unsecured Creditors present in the meeting have unanimously approved the proposed Scheme, hence no Resolution was required. - 5 - 11. So far as the meeting of the Contingent Creditors is concerned, the Counsel for the Petitioner states that in all three Contingent Creditors attended the meeting. However, the said Contingent Creditors did not vote either in favour or against the proposed Scheme, as they stated that they did not have sufficient powers to waive interest or grant time as mentioned in the proposed Scheme. 12. The Counsel for the Petitioner further submits that the Petitioner has already deposited a sum of Rs.15,00,000/- in this Court, as per directions given by order dated 3rd March, 2008 in Company Application No.275 of 2008 in Company Application No.359 of 2002 in Company Petition No.253 of 1991 and subsequent order dated 5th June, 2008 in Company Application No.818 of 2008. The Petitioner submits that as per the books of account, the claim of Contingent Creditor is Rs.5,53,945/-. The Official Liquidator is directed to pay the sum of Rs.5,53,945/- to the Contingent Creditors out of the sum of Rs.15,00,000/- deposited by the Petitioner. Petitioner undertakes to pay any other contingent creditors if a claim is made to the Official Liquidator. The undertaking is accepted. - 6 - 13. From the material on record, the Scheme appears to be fair and reasonable and is not violative of any provision of law and is not contrary to public policy. None of the parties concerned has come forward to oppose the Scheme. 14. The Petitioner has taken out a Company Application No.559 of 2010 praying for amending the Petition by incorporating a new prayer in the Petition. The said Company Application is made absolute in terms of prayer clause (a). Amendment to be carried out forthwith. 15. Since all the requisite statutory compliances have been fulfilled, the Company Petition No.109 of 2008 filed by the Petitioner is made absolute in terms of prayer clauses (a) and (e). 16. The Petitioner Company to lodge a copy of this Order and the Scheme, duly authenticated by the Company Registrar, High Court, Bombay, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty payable, if any, on the same within 60 days from the date of the Order. - 7 - - 8 - 17. The Petitioner to pay costs of Rs.10,000/- each to the Regional Director, Western Region, Mumbai, and also to the Official Liquidator, High Court, Bombay. Costs to be paid within four weeks from today. 18. Filing and issuance of the drawn up order is dispensed with. 19. All concerned authorities to act on the copy of this order along with the Scheme duly authenticated by the Company Registrar, High Court, Bombay. (S.J. KATHAWALLA J.]