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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMPANY APPLICATION NO.14 OF 2009
WITH
COMPANY PETITION NO.5 OF 2009
In the matter of Companies Act,
1956
In the matter of Sections 100 to
104 of the Companies Act, 1956 ;
And
In the matter of reduction of paid
up share capital of Tata Realty and
Infrastructure Ltd.
....Company
Tata Realty & Infrastructure Ltd. ....Petitioner
Mr.D.J.
Khambata i/b M/s.Doijode Associates for the
Petitioner.
CORAM : S.J. VAZIFDAR, J.
DATED : 9TH JANUARY, 2009.
ORAL JUDGMENT :-
1. I have today passed an order dispensing with
the procedure under Section 101(2) of the Companies
Act, 1956. This is in view of the averments made in
the affidavit in support of the Company Petition and
in a further affidavit dated 19.12.2008 inter-alia to
the effect that the creditors of the Company are of
the value of about Rs.127 crores ; creditors of an
aggregate value of about 99.38% have given their
consent and that subsequently the remaining creditors
have been paid and/or have also given their consent.
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2. The Company Registrar has invited my
attention to an order of a learned single Judge of
this Court dated 19.12.2008 in Company Petition
No.1067 of 2008 connected with Company Application
No.1680 of 2008 which is similar to the present
application. The learned Judge called for a
certificate from a qualified Auditors/Chartered
Accountants empanelled with the Registrar of
Companies/Regional Director on the question as to
whether the proposed reduction therein does or does
not involve
prejudicial
diminution of
to the interests of the
liability and
creditors/public
is not
in general. The learned Judge observed that depending
on the opinion expressed in such report, appropriate
orders would be passed in that matter. It was further
observed that this course would not only subserve the
interests of the creditors/public in general but also
facilitate the Court in taking an informed decision.
The learned Judge therefore issued notice to the
Government of India, through the Regional Director
(Western Region). The Regional Director was directed
to take such measures as required for issuance of the
certificate in consultation with the appropriate
authorities and to submit a certificate to the Company
Registrar.
3. I do not read the order to hold the above
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procedure to be mandatory in every matter. It is
quite obvious that the learned Judge passed that order
as he was of the opinion that in the facts of that
case the procedure was so required. The Company Court
is always entitled to satisfy itself regarding the
merits of the application and for that purpose to seek
such assistance as may be required including as
directed in the above matter.
. The provisions of the Companies Act, 1956
including Sections 78 and 100 to 105 do not make a
recourse
necessary
to
such a procedure mandatory.
for the Company Court to
It
pass
is not
such
directions or follow the said procedure in every such
matter. The reports such as the one called for are
only an aid to the Company Court and are not mandatory
in every case.
4. The interests of the public in general or of
the creditors in particular cannot possibly be
affected by not following such a procedure. There are
adequate safeguards in the Companies Act to protect
their rights. For instance, in any event it is the
duty of the Company Court to secure the creditors and
to pass necessary directions. Moreover the creditors
always have the right to oppose the application.
5. In the present matter I am satisfied that the
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Company is entitled to the orders sought without
taking recourse to the said procedure and I have
accordingly signed the order.
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