KOTAK MAHINDRA BANK LTD. Vs. BALARAM CEMENTS LTD.

JUDGEMENT

(1.) BY way of this petition, the applicant Kotak Mahindra Bank Ltd., considered to be a secured creditor of the company in liquidation has prayed for an appropriate order to recall the order dated December 26, 2006, made in Company Application No. 663 of 2006 and to cancel the meetings of the shareholders and the secured creditors of the respondent -company scheduled to be held on January 29, 2007. It is required to be noted that by order dated December 26, 2006, passed in Company Application No. 663 of 2006, on an application made by the respondent -company, this court passed an order of convening the meetings of the shareholders and the creditors of the respondent -company to consider and if thought fit, approve with or without modification the proposed scheme of arrangement and/or compromise.

(2.) RELYING upon the judgment of the hon'ble Supreme Court in the case of NGEF Ltd. v. Chandra Developers P. Ltd. : (2005)8SCC219 Shri Pahwa, learned advocate appearing on behalf of the applicant has submitted that in view of the fact that the respondent -company is before the Board for Industrial and Financial Reconstruction and the Board for Industrial and Financial Reconstruction is seized of the matter and Industrial Development Bank of India is appointed as an operating agency and Industrial Development Bank of India as an operating agency is required to submit the scheme for rehabilitation and/or revival, the proposed scheme of arrangement and/or compromise before this court under Section 391 of the Companies Act, 1956, is not maintainable. The learned advocate appearing on behalf of the applicant wanted to make number of submissions on merits. However, in view of the discussion hereinafter, this court is of the prima facie opinion that all these questions are not required to be considered at this stage and are required to be considered only at the time when the respondent -company approaches this court by way of appropriate company petition to consider and/or to approve/sanction the scheme of arrangement. At that stage all the objections or submissions raised on behalf of the applicant can be considered and therefore, this court has not permitted the learned advocate appearing on behalf of the applicant to make submissions on merits inclusive of the jurisdiction of this court and/or the maintainability of the proposed scheme of arrangement/compromise.

(3.) THIS application is accordingly disposed of at this stage with above observations, without deciding anything on merits of the case.