NE PLUS TECHNOLOGIES PRIVATE LIMITED Vs. STATE

JUDGEMENT

(1.) THIS application is filed to dispense with the holding of the meeting of the equity shareholders and the creditors of the applicant-company.

(2.) THE applicant has stated that there is a proposal for a scheme of amalgamation to merge the applicant-company with one Opus Software Solutions Private Limited, Mumbai. According to the applicant, the scheme of amalgamation was approved by the board of directors and shareholders of Opus Software Solutions P. Ltd., Mumbai. According to the applicant, there are only six equity shareholders in the applicant-company and all the shareholders have read the copy of the scheme of amalgamation and granted their approval and consent to the scheme of amalgamation. THE consent letters of all the equity shareholders of the applicant-company (transferor-company) giving their consent for the proposed scheme of amalgamation of the applicant-company with Opus Software Solutions P. Ltd., have also been filed. THEy have also expressed their consent for dispensing with the holding of a meeting of the shareholders of the applicant-company. Learned counsel appearing for the applicant submitted that in the case of the transferee-company, viz., Opus Software Solutions P. Ltd., the High Court of Bombay in C.A. No. 663 of 2000, by order dated November 22, 2000, has dispensed with the meeting of the equity shareholders in view of the consent given by all the shareholders of the transferee-company. Learned counsel referred to the order of this court in C.A. Nos. 2225 and 2226 of 1997, dated August 30, 1997 and also the order of this court in C.P. Nos. 44 and 46 of 1993 dated August 27, 1993. Learned counsel also referred to the decision of a Division Bench of the Delhi High Court in Mazda THEatres Pvt. Ltd. v. New Bank of India Ltd. 1975 1 ILR Delhi 1 and submitted that where the consent of shareholders is given, it is not necessary to direct the holding of a meeting of the shareholders. Learned counsel submitted that in view of the fact that there are only six shareholders and since all of them have given consent for the proposed scheme of amalgamation and the Bombay High Court has already dispensed with the holding of the meeting of shareholders of the transferee-company, the holding of a meeting of the equity shareholders of the applicant-company to consider the scheme of amalgamation has become an empty formality and, therefore, the meeting of the equity shareholders should be dispensed with.I have carefully considered the submissions of learned counsel appearing for the applicant-company. Section 391 of the Companies Act, 1956, provides that where a compromise or arrangement is proposed between a company and its creditors, the court may, on the application of the company, order a meeting of the creditors or class of creditors or the members or class of members to be called, held and conducted in such manner as the court may direct. Though section 391 of the Companies Act employs the expression, "may", the expression has to be construed in the sense that the court has the full discretion to call for the meeting of the shareholders or refuse to call for a meeting and it is only in that sense the expression "may" in section 391 of the Act has been employed.