In Re: Callidora Merchantiles P. Ltd. and Another

I.P. Mukerji, J.—Applicant No. 1 submits that the holding of the meeting of its equity shareholders may be dispensed with as there are only two shareholders who have signified their consent, which is appended to the petition. I have considered Section 391, which empowers the court to convene a meeting in such manner as the court thinks fit. Thereafter, Sub-section (2) provides for a procedure to hold such a meeting. I have also considered Rule 6 of the Companies (Court) Rules, 1959, which recognises the practice or procedure followed by the court or by the Code of Civil Procedure, 1908. Rule 9 retains the inherent power to the court to prevent an abuse of process. Chapter XL, Rule 3 of the Original Side Rules of our court says that the practice followed by the court, which is not provided by or contrary to the Rules be continued. Our court on its original side does follow the practice of dispensing with the formalities in appropriate cases, when the facts of the case so demand or when justice so requires. We often dispense with the formalities in getting an appeal ready for hearing. In winding up applications, we ask the parties to serve a copy of the petition upon the company, thus dispensing with service by the court; we dispense with drawing up and service of Writ Rules, and so on. Therefore, on a reading of Section 391 with the aforesaid provisions the court has the power in appropriate cases to dispense with some formalities prescribed in the Rules. However, the court does not have the power to dispense with the mandate of the statute. The meeting cannot be dispensed with as it is a statutory requirement. A meeting has to be held, even if informal u/s 391 for the purpose of adopting the scheme.

I am inclined to dispense with all formalities regarding convening, e.g., notice and advertisements, in this case, as there are only two shareholders. Such dispensation is necessary in the interests of justice and to avoid unnecessary costs, delay and hardship. Therefore, as far as applicant No. 1 is concerned Mr. Subimal Mukherjee, advocate, c/o. Fox Mondal Advocates is appointed a special officer to hold a meeting of the shareholders of the company to ascertain their consent to the scheme and file a report in this Court within three weeks from date. He will be paid a remuneration of 500 GMs by applicant No. 1.

A meeting of the equity shareholders of Pragal Investments P. Ltd., being applicant No. 2 herein shall be convened and held at 5 and 6 Fancy Lane, Kolkata-700 001, on Saturday, August 7, 2010, at 11.00 a.m., for the purpose of considering, and if thought fit, approving, with or without modification, the proposed scheme of arrangement for amalgamation between applicant-company Nos. 1 and 2 and their respective shareholders.

A meeting of the preference shareholders of Pragal Investments P. Ltd., being applicant No. 2 herein shall be convened and held at 5 and 6 Fancy Lane, Kolkata-700 001, on Saturday the August 7, 2010, at 12 noon for the purpose of considering and if thought fit, approving, with or without modification, the proposed scheme of arrangement for amalgamation between applicant-company Nos. 1, 2 and their respective shareholders.

At least 21 (twenty one) clear days before the date of the said meetings an advertisement convening the same and stating that the copies of the said scheme of arrangement for amalgamation, and of the statement required to be furnished pursuant to Section 393 of the Companies Act, 1956 and a form of proxy can be obtained free of charge at the registered office of the applicant-companies or at the office of their advocates B. D. Associates 6, Old Post Office Street, Top Floor, Kolkata-700 001 be inserted once each in The Pratidin Bengali newspaper and in The Business Standard English newspaper. The publication in the Calcutta Gazette is dispensed with.

In addition, at least 21 (twenty one) clear days before the meetings to be held as aforesaid, a notice convening the said meetings at the place and time as aforesaid together with a copy of the said scheme, a copy of the statement required to be sent u/s 393 of the Companies Act, 1956 and the prescribed form of proxy by prepaid post under certificate of posting or by hand through personal messenger addressed to each of the equity shareholders and preference shareholders in applicant-company No. 2 at their respective or last known addresses.

Advocate-on-record for the applicant-companies do within 3 days (after obtaining an authenticated copy of this order) file in court the form of the notices and the statement to accompany the notice and the same shall be settled by the Assistant Registrar (company) of this Court.

Mr. Chinmoy Kumar Maity, Advocate, Bar Association Room No. 10 failing which Mrs. Shiksha Roy Chowdhury, Advocate, Bar Association Room No. 9 shall be the chairperson for the said meeting of the equity shareholders of applicant No. 2 to be held as aforesaid at a remuneration of 500 G.M.

Mrs. Shiksha Roy Chowdhury, Advocate, Bar Association Room No. 9 failing which Mr. Chinmoy Kumar Maity, Advocate, Bar Association Room No. 10 shall be the chairperson for the said meeting of the preference shareholders of applicant No. 2 to be held as aforesaid at a remuneration of 500 G.M.

Any one of the chairpersons appointed for the said meetings or any person authorised by them to issue and send out the notice of the said meetings referred to above.

The quorum for the meeting of the equity shareholders of applicant-company No. 2 may be fixed at 2 (two) persons each present either in person or in proxy and quorum for the respective meetings of the preference shareholders of applicant-company No. 2 may be fixed at 2 (two) persons each present either in person or in proxy.

Voting by proxy be permitted, provided that a proxy in the prescribed form duly signed by the person(s) entitled to attend and vote at the meeting, is filed with applicant-company No. 2 at their registered office not later than forty eight hours before the meetings. Any one of the chairpersons shall have the power to adjourn the meeting, if necessary.

The value of each member shall be in accordance with the respective books of the concerned applicant-company No. 2 and where entries in the books are disputed, the chairperson concerned shall determine the value for the purpose of the meeting.

The chairpersons do report to this Court the results of the said meetings within three weeks from the date of the conclusion of the respective meetings and their respective report shall be verified by their respective affidavits.

Summons be signed as of date C. A. No. 459 of 2010 disposed of.

All parties concerned to act on a signed copy of this order on the usual undertaking.