M/S INTEGRATED FINANCE CO.LTD. Vs RESERVE BANK OF INDIA ETC.ETC.
Bench: SURINDER SINGH NIJJAR,PINAKI CHANDRA GHOSE
Case number: C.A. No.-005505-005508 / 2013
Diary number: 13825 / 2008
Advocates: E. C. AGRAWALA Vs
S. R. SETIA
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5505-5508 OF 2013 [Arising out of SLP (C) NO.12737-12740 OF 2008]
M/s. Integrated Finance Co. Ltd. ...Appellant
VERSUS
Reserve Bank of India Etc. Etc. ...Respondents
J U D G M E N T
SURINDER SINGH NIJJAR,J.
1. Leave granted.
2. I.A. filed by Mr. B. Ramanna Kumar for substitution in place of
Late Mr. N. Mani is allowed.
3. These appeals, arising out of S.L.P. (Civil) Nos. 12737-12740
of 2008, are directed against the common order and judgment
dated 30th April 2008 passed by the Division Bench of the High
Court of Judicature at Madras. Vide the aforesaid order, the
order/judgment of the learned single judge dated 19th August
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2006 passed in Company Petition No. 160 of 2005 was set
aside.
4. The Company Petition No. 160 of 2005 was filed by the
appellant company herein under Section 391 of the Companies
Act, 1956 (hereinafter referred to as “the Companies Act”),
seeking approval for the scheme of arrangement/compromise
dated 10th August, 2005. The said agreement was entered into
between the appellant company herein and its class of
creditors, namely its deposit holders and bond holders. The
learned Single Judge, vide order dated 19th August, 2006, was
pleased to sanction the said scheme, albeit with some
conditions. This order was challenged in the High Court by way
of four original side appeals, which were allowed by the Division
Bench vide the order dated 30th April, 2008 which has been
challenged in this Court.
Summary of Facts:
5. The relevant facts giving rise to filing of the present appeals as
narrated by the parties are as under:
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6. The appellant herein was incorporated as a Non-Banking
Finance Company (hereinafter referred to as a “NBFC”) under
the Companies Act in 1983, and was engaged inter alia in the
business of hire-purchase and leasing. Over the years the
appellant company has become one of the leading financial
companies. It has 32 branches with over several hundred
employees. The shares of the company are listed in two stock
exchanges in India. It has 20,000 shareholders. Until 1995-
1996, the appellant company was a profit making company and
declared dividends to its shareholders continuously.
7. That the Reserve Bank of India (hereinafter referred to “RBI”
or/and the “respondent no.1”), during 1997-2003, issued a
series of circulars for regulating various activities of the Non
Banking Financial Companies. The RBI also imposed certain
conditions on these companies. The companies that did not
comply with the aforesaid conditions were directed to stop
accepting deposits from the investors and also to repay the
deposits immediately.
8. In exercise of its powers under Section 45N of the Reserve
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Bank of India Act 1934 (hereinafter “1934 Act”), the RBI
inspected the books of accounts of the appellant company in
2005. The inspection report of the RBI disclosed the following
violations of the provisions of the 1934 Act:
(i) On 31st March 2004, the Net Owned Fund (NOF) of the
appellant company herein stood at negative (-)
Rs.10666.06 lakh, which was in excess of the reported
NOF at Rs.2194.00 lakh;
(ii) The credit exposure of the appellant company, as on
31st March 2004, to some of the companies was found
to be in excess of 15% of its reported owned fund of
Rs.2877.00 lakh as on September 30, 2003. Thus, it
violated the provisions of Para 12 of the NBFC
Prudential Norms (Reserve Bank) Directions, 1998
(hereinafter referred to as the Prudential Norms
Directions).
(iii) The appellant company did not classify its assets in
accordance with the asset classification norms
stipulated by RBI and thereby, violated the provisions
of Paragraph 7 of the Prudential Norms directions.
(iv) The Gross Non-Performing Assets of the appellant
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company, assessed at Rs.15603.16 lakh, stood at a
very high level and constituted 69.31% of the total
credit exposures of the appellant company.
(v) The appellant company was found to have not made
adequate provision in respect of its Non-Performing
Assets. Resultantly, there was short provisioning to the
extent of Rs.12575.33 lakhs. The aforesaid omission
on part of the appellant violated the provisions of
Paragraph 8 of the Prudential Norms Directions.
(vi) The appellant company was also found to be in
violation of the provisions of Paragraph 10 of the
Prudential Norms Directions because the NOF of the
appellant company was negative and it did not
maintain the minimum capital adequacy ratio.
9. Subsequently on 20th January, 2005, the RBI, in exercise of its
powers under Section 45MB(1) of the Reserve Bank of India
Act, 1934 issued a circular to the appellant company,
prohibiting it from “accepting deposits from any person, in any
form whether by way of fresh deposits or renewal of the
existing deposits or otherwise, until further orders.” Further, the
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appellant company was directed not to sell, transfer, create
charge or mortgage, or deal in any manner with its properties,
assets, without prior permission of the RBI. The said notice was
also advertised in the Indian Express dated 20th January, 2005.
10. Thereafter, the appellant company started facing
problems in running its operations because of the drop in its
profitability. In order to overcome these problems, the appellant
company proposed a Scheme of Compromise with its creditors,
viz. the depositors and bond holders, which was approved by
the Board of Directors of the appellant company on 19 th May,
2005. The relevant part of the aforesaid scheme is as under:
“4 PAYMENTS TO FIXED DEPSOIT HOLDERS/BOND HOLDERS
4.1 The Company would settle all the deposit holders up to maturity value of Rs.20,000/- as and when it falls due.
4.2 The scheme would provide for the following.
(a) Conversion of all the deposit holders and bond holders into secured convertible debentures carrying on interest of 6% p.a. convertible into equity before the expiry of 1 year from the date of allotment with an option to the company to prepay the value of debentures before the due date of conversion. The conversion price will be determined taking into account the valuation laid down by SEBI guidelines.
(b) The debentures will be issued with periodical interest payment option to the deposit/ bond holders who are holding regular interest payment option presently and for those deposit/ bond holders holding payment of interest under cumulative option, interest will be added to the value of the debenture for conversion at the time of maturity.
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(c) By virtue of this scheme, all the deposit holders and bond holders would become secured creditors in the books of IFCL at the first year. The Trustees for the Bonds would be the Debenture Trustees in the post scheme scenario and a Debenture Trust Deed charging the assets of Rs.125 crores of receivables, accrued interest, investments, assets and available stock on hire would also be made so as to comply with all the norms for the purpose of fully convertible debentures.
4.3. By virtue of the conversion, the outflow of the company would be a quarterly payment of interest depending upon the type of deposit/ bond held by the creditors. At the end of the tenure the debentures would either be redeemed or converted as equity shares at the given appropriate exit route as the Company is a listed company and a fairly large tradable market capitalization being available for the liquidation of these converted shares. The conversion of deposit holders/ bond holders into secured convertible debentures and thereafter into equity shares of the company will ensure their benefits since the company established new lines of business such as financial BPO and is in the process of expanding the same.”
x x x
“4.6 The scheme is not offered to the Banks since the stock on hire pledged / hypothecated is about Rs.80 crores as against their dues of Rs.62 crores. Since none of the banks interest is prejudiced nor any of the assets charged to them, this scheme is not being offered to them and it is only the deposit holders and bond holders whose rights are being dealt with in the Scheme of Arrangement and compromise. Thus there is no direct or indirect interest of the Banks being prejudiced or affected.
5. Since this scheme does not envisage cash outflow at the first instance and does seek to convert the depositors and bond over a period of time into shareholders there is no requirement of fresh infusion of cash.
6. IMPLEMENTATION OF SCHEME
6.1 The Scheme if approved by the deposit holders and bond holders with such modifications, as may be assented by the Company, shall be submitted to this Hon'ble Court for confirmation and if confirmed, shall become binding with all deposit holders, bond holders and the Company. 6.2 On completion of the scheme, the Company shall have discharged all the liability to fixed deposit / bond holders.
7. EFFECT OF THE SCHEME
7.1 In view of the above Scheme being offered, all the parties agree
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that:
a) with the terms of the Scheme all liabilities of the Deposit Holders and Bond holders shall be deemed as fully discharged.
b) No claims shall be raised by any deposit holders or bond holder to whom this Scheme is offered and
c) No claim can be made against any group companies of IFCL their associates or any other person, promoters, directors, past and present, in respect of matters relating to IFCL.
d) This scheme if approved and ordered by this Hon'ble Court shall be binding on the Company and all parties to the scheme.”
11. The aforesaid scheme of compromise was presented
under Section 391 of the Companies Act to the High Court.
On 1st July 2005, the appellant company was permitted by the
Ld. Single Judge, in Company Application Nos. 854 and 855 of
2005 in C.P.No.160 of 2005, to convene a meeting of its
deposit holders at Chennai on 10th August 2005 at 2.30 p.m. for
the purpose of considering the said scheme of compromise
and, if thought fit, approving the same with or without
modifications. Also, Mr. B. Ravi, a Practising Company
Secretary, was directed to preside over the meeting. In the
contingency of the failure of Mr. B. Ravi to preside over the
meeting, Mr. George Kuruvilla, Managing Director of the
appellant company was directed to step into the shoes of the
former. The learned Single Judge also gave some other
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directions in the aforesaid order to ensure that the relevant
provisions of the Companies Act are complied with while
conducting the said meeting.
12. However, before the meeting could be held on 10 th
August, 2008; Company Applications Nos. 1105 to 1110 of
2005 in C.P. No.160 of 2005 came to be preferred before the
High Court. In the aforesaid Company Applications, some
depositors of the appellant company inter alia sought the
appointment of an “independent chairman,” in place of the
chairman appointed vide order dated 1st July 2005. The said
applicants also made a prayer that police protection should be
granted to them during the said meeting. The learned Single
Judge while disposing of the aforesaid company applications,
vide order dated 5th August, 2005, did not make any change
pertaining to the Chairmanship of the originally appointed Mr.
B. Ravi. However, Mr. R. Guruswamy, retired District Judge,
was appointed as the observer for the said meeting. This
appears to have been done for ensuring fair and free
participation of all deposit holders/bond holders in the said
meeting.
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13. The scheduled meeting was conducted on 10 th August,
2005, as per the orders of the learned Single Judge dated 1st
July 2005 and 5th August, 2005. The report of the meeting was
published in various newspapers indicating that the Scheme
had been approved by majority of the bond holders and deposit
holders. A report concerning the said meeting was filed before
the learned Single Judge along with the Observer's report.
Thereafter, a petition was preferred before the High Court
under Section 391(2) of the Companies Act, seeking sanction
for the said scheme of compromise. In the aforesaid
proceedings, the Integrated Finance Company Depositors
Association - an Association representing the depositors of the
appellant company and several other depositors-filed their
objections and raised several contentions regarding the validity
of the said Scheme. The RBI also filed its objections. At the
same time, certain other associations, representing the deposit
holders, debenture holders also intervened in the aforesaid
proceedings and supported the validity of the said scheme.
Similarly, an association of the employees of the appellant
company also intervened in the support of the Scheme. It is
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also relevant to note here that the appellant company, during
the pendency of the Company Petition No.160 of 2005, filed
Company Applications Nos. 1409 & 1410 of 2005, inter alia to
restrain the respondent Nos. 1 to 6 in such applications from
initiating any proceeding either civil or criminal in nature against
the Directors of the appellant company.
14. The learned Single Judge vide order dated 19th August,
2006 overruled all the objections put forward against or in
objection to the said scheme and accorded approval to the
same. While granting sanction the learned Single Judge made
it clear that sanction of the said scheme “will not exonerate or
protect the Directors and those in charge of the affairs of the
Company from any proceeding that may be contemplated
either under the provisions of the Companies Act or under any
other Act for any statutory violation.”
15. The aforesaid order, as noticed earlier, was challenged
before the Division Bench of the High Court by way of the
following appeals:
O.S.A. No. 308 of 2006 was filed by the Reserve Bank of India;
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O.S.A. No. 309 of 2006 was filed by the Integrated Finance Company
Depositors Association; O.S.A. No. 312 of 2006 was filed by one M/s.
Popular Kuries Limited; and O.S.A. No.91 of 2007 was filed by one
Mrs. Elizabeth Antony.
While allowing the aforesaid appeals, the Division Bench set
aside the judgment of the Learned single Judge vide common
judgment/order dated 30th April, 2008. This judgment is under
challenge before us.
Submissions:
16. We have heard the learned counsel on behalf of the
parties.
17. Mr. Arvind P. Datar, learned senior counsel, appeared for
the appellant company and assailed the validity of the
impugned order. Mr. Iqbal Chagla, learned senior counsel,
appeared for intervenors in I.A. Nos. 29-32 of 2009 in S.L.P. (C)
Nos. 12737-12740 of 2008. Mr. Shyam Divan, learned senior
counsel, appeared for the intervenors in I.A. Nos. 33-36 of 2009
in the aforesaid proceedings. Whereas Mr. Parag P. Tripathi,
learned senior counsel, appeared for the Respondent/RBI and
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Mr. V. Parkash, learned senior counsel appeared for
respondent no.1/Integrated Finance Depositors Association in
S.L.P.(C) No. 12738 of 2008.
18. Mr. Datar, learned senior counsel, submitted that the
scheme of compromise of the appellant company has been
approved by 1708 out of 2177 (79%) deposit holders and 5628
out of 7143 bond holders (77.73%), present and voting; which
shows that it was approved by an enormous majority.
According to him, the appellant company has complied with all
the statutory requirements relating to the said scheme. This, he
submits, is evident from the fact that neither the Single Judge
nor the Division Bench of the High Court found any procedural
irregularity in the arrangement of the said scheme. Thus
according to Mr. Datar, the only issues that now require
consideration are:
(i) “Whether the non-obstante clause in Section 45Q of
the RBI Act, 1934 prohibits the High Court from
sanctioning any scheme for the deposit holders of an
NBFC?
(ii) Whether the petitioner had failed to disclose the RBI
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letter dated 18th January, 2005 before the learned
Company Judge as per the provisions of
Section 391(1) of the Companies Act, 1956?”
19. According to Mr. Chagla, the crucial issue which arises
for the consideration of this court is as to whether Section 391
of the Companies Act does not apply to NBFCs in view of
Section 45QA of the RBI Act. He also supplemented the
second issue, as framed by Mr. Datar, by submitting that this
Court has to determine that; whether non-disclosure of the
letter dated 18th January, 2005 violates the provisions of
Section 391(2) and/or Section 393 of the Companies Act.
These submissions are reiterated by Mr. Shyam Divan, learned
senior counsel.
20. Mr. Datar has further submitted that a scheme under
Sections 391 to 394 is an exception to the rule that a contract
can be novated only with the consent of the individual parties.
The resolution passed by the requisite majority sanctioning the
scheme in question, which gets sanction from the Court will be
binding equally on the dissenting minority. In this context, the
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learned counsel relied upon J.K. (Bombay) Private Ltd. Vs.
New Kaiser-i-hind Spinning and Weaving Co. Ltd. & Ors.
Etc. 1 and Administrator of the Specified Undertaking of the
Unit Trust of India & Anr. Vs. Garware Polyester Ltd.2 Mr.
Shyam Divan, while explaining the scope of Sections 391-394
of the Companies Act, has drawn our attention to the principle
of novation, which allows the parties to a contract to rework or
re-agree the terms of the contract. He submits that this
principle is recognised in Section 62 of the Contract Act, 1872.
Further, Code of Civil Procedure, 1908 allows compromise
during the pendency of the proceedings, (See Order 23, CPC);
and also by adjustment of a decree (Order 21 Rule 2, CPC).
Relying on the provisions contained in Section 22 of the Sick
Industrial Companies Act, 1982 and Section 402 of the
Companies Act, Mr. Divan has submitted that Chapter V of the
Companies Act provides another statutory method of varying
contracts. The Chapter V allows even solemn contractual
obligations to be varied by a particular class of similarly placed
members/creditors, provided there is requisite majority. The
learned senior counsel argued that a Scheme under Sections
391-394 of the Companies Act is not merely a commercial 1 (1969) 2 SCR 866, AIR 1970 SC 1041 2 (2005) 10 SCC 682
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agreement, but it is statutorily binding on all members and
creditors of a company.
21. Mr. Datar, Mr. Chagla and Mr. Divan have unanimously
submitted that Section 45QA of the RBI Act is not a bar to
Scheme under Sections 391-394 of Companies Act. The
learned senior counsel advanced the following reasons for
substantiating the said submission:
First, the RBI Act and the Companies Act must be read in their own
spheres since both operate in different fields, altogether. Second,
Section 45QA of RBI Act and Sections 391-394 of the Companies Act
can be read harmoniously and there is no inconsistency between the
said provisions. Third, the legislature did not intend to exclude the
application of Sections 391-394 of the Companies Act in relation to
the NBFCs.
22. Elaborating these propositions, it was submitted that the
RBI Act and the Companies Act operate in distinct and different
fields, altogether. Mr. Chagla argued that the RBI Act is
regulatory in nature and is enacted to regulate the operation of
the Banking Companies and NBFCs. The RBI Act is merely
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supplementary to the Companies Act and does not supplant it.
To support the said submission, Mr. Datar relied upon Bennion,
Interpretation of Statues, s. 288 on “Textual Conflicts.” Reliance
is also placed on Haridas Exports Vs. All India Float Glass
Manufacturers' Assn. & Ors.3 Mr. Datar further pointed out
that the special provisions relating to a scheme under the
Companies Act will prevail over a special statue, if the special
statute has no provisions to deal with the said matter. He relied
upon the principle of law laid down in ICICI Bank Ltd. Vs.
SIDCO Leathers Ltd. & Ors.4 In this context, Mr. Chagla relied
upon the judgments of this court reported in Aswini Kumar
Ghose & Anr. Vs. Arabinda Ghose & Anr. 5 and Madhav Rao
Jivaji Rao Scindia Vs. Union of India & Anr. 6 Further, the
RBI Act, according to Mr. Chagla, is not a complete code by
itself.
23. Mr. Datar also pointed out that the RBI Act will apply for
the regulation of collection of deposits, for minimum net owned
funds, terms of deposits, etc. but will not apply to cases of
scheme under the Companies Act which are not barred by the
3 (2002) 6 SCC 600 4 (2006) 10 SCC 452 5 AIR 1952 SC 369 6 (1971) 1 SCC 85
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former. The latter will continue to apply in the circumstances
where matters relating to running of a company are concerned,
like the provisions relating to schemes and arrangements of the
company. Thus, it was submitted that RBI Act has no
application in matters covered by the Sections 391-394 of the
Companies Act and therefore, Section 45QA of the RBI Act is
not a bar to scheme under Sections 391-394 of Companies Act.
24. Secondly, it was submitted that since there is no inconsistency
between Section 45QA of the RBI Act and Sections 391-394 of
the Companies Act, it will not be applicable in the present case
because of the non-obstante clause contained in Part IIIB of the
RBI Act. Mr. Divan has submitted that the ambit of Sections
391-394 of Companies Act is very wide. In fact, arrangements
with debenture holders involving (i) extension of time of
payment; (ii) accepting cash payment of lesser face value; and
(iii) exchanging debentures for shares have been accepted
since the late 1800’s (See Charlesworth’s Company Law,
18th Edition, Pg. 772). On the other hand, Chapter IIIB of the
RBI Act contains whole set of detailed provisions pertaining to
regulation of NBFCs. Mr. Chagla added that the object of the
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1997 amendment to the RBI Act which added section 45Q
indicates that a remedy was to be granted to deposit holders for
approaching the Company Law Board for repayment of
deposits held by a NBFC when the same are not repaid in
accordance with the terms and conditions of the deposit.
However, the jurisdiction of the Company Law Board is not
exclusive and the jurisdiction of a civil court or, for that matter,
of a company court is not ousted. Reliance was placed upon
the law laid down in Dhulabhai Etc. Vs. State of Madhya
Pradesh & Anr. 7
25. Further, learned senior counsel relied heavily on the
principles laid down by this court in relation to the interpretation
of a non-obstante clause to argue that the Section 45QA is
neither applicable in the facts and circumstances of the case
nor is it a bar to a Scheme under Sections 391-394 of the
Companies Act. Mr. Datar relied upon the case of JIK
Industries Limited & Ors. Vs. Amarlal V. Jumani & Anr,8
wherein it was held that “under the scheme of the modern
legislation, non-obstante clause has a contextual and limited
application.” Reliance was also placed upon the case of R.S. 7 AIR 1969 SC 78 8 (2012) 3 SCC 255
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Raghunath Vs. State of Karnataka & Anr.9 wherein it was
held that “there should be a clear inconsistency between the
two enactments before giving an overriding effect to the non-
obstante clause. But the non-obstante clause need not
necessarily and always be co-extensive with the operative part
so as to have the effect of cutting down the clear terms of an
enactment and if the words of the enactment are clear and are
capable of a clear interpretation on a plain and grammatical
construction of the words the non-obstante clause cannot cut
down the construction and restrict the scope of its operation.”
It was also submitted that the Court must try to find out the extent to
which the legislature had intended to give one provision overriding
effect over another. Such intention of the legislature is to be gathered
from the enacting part of the section. The counsel relied upon A.G.
Vardarajulu & Anr. Vs. State of T.N. & Ors. 10
26. It was further argued by Mr. Chagla that Part IIIB was
introduced in the RBI Act by Amendment Act of 1963. The
Statement of Objects and Reasons of the said Amendment Act
indicates that it was not intended to override the provisions of 9 (1992) 1 SCC 335 10 (1998) 4 SCC 231
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the Companies Act. Since the legislative intention behind such
insertion was to regulate the functioning of NBFCs in general
and to prohibit multiple partnership firms from taking deposits
from the general public, in particular; it cannot be interpreted in
the manner so as to exclude the application of
Sections 391-394 of the Companies Act. According to
Mr. Chagla, Section 45QA simply states in general terms that
every loan shall be repaid in accordance with the terms and
conditions of such loan. This provision does not prohibit a
depositor from agreeing to accept the full amount of principal
without interest or an amount less than the full amount of
principal or to accept in kind rather than in cash. In other words,
novation of the contract entered into between the company and
the depositor is not prohibited.
27. Further, it was submitted that the provision of Section
45QA is pari materia if not identical with Section 58A of the
Companies Act. Schemes under Section 391 of the Companies
Act are presented and approved by the Company Court in
respect of deposits under Section 58A of the Companies Act.
Premising on the aforesaid submission, Mr. Datar argued that if
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a scheme of arrangement is not prohibited under the latter
section it cannot be prohibited under the former, i.e., section
45QA of the RBI Act. This submission has also been reiterated
and elaborated by Mr. Chagla.
28. It was further submitted that wherever the applicability of
Section 391 of the Companies Act was excluded by the
legislature, it was done so expressly. To illustrate, Learned
Senior counsel relied upon Section 38 of the Banking
Regulation Act, 1949 which provides that Section 391 of the
companies Act will not be applicable in winding up of a banking
company by High Court. It was further submitted that the
legislative intent cannot be interpreted in the manner which will
discriminate against the depositors of NBFCs as against the
depositors of public limited companies and depositors of
banking companies. Section 391 of the Companies Act can be
availed of in case a NBFC is going into liquidation but if the
interpretation given in the impugned order is accepted, the
same provision would not be available for revival of the same
company. This, it was argued, would lead to an anomalous
situation. In the light of the aforesaid, it was collectively argued
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by the learned senior counsel that the non-obstante clause in
Section 45Q of the RBI Act, 1934 does not prohibit the High
Court from sanctioning any scheme for the deposit holders of
an NBFC. Therefore, the Division Bench of the High Court
committed a serious jurisdictional error in setting aside the
order of the learned Single Judge.
29. The second issue framed by the learned senior counsel for the
appellant company and intervenors is that whether non-
disclosure of the letter/notice dated 18th January, 2005 issued
by the RBI to the appellant is violative of the provisions of
Section 391(2) and/or Section 393 of the Companies Act?
Mr. Datar has submitted that the said letter dated 18 th January,
2005 was widely advertised by the RBI in various newspapers,
including the Indian Express dated 20th January 2005. And,
therefore, the contents of this letter were in the public domain. It
was also argued that facts that are inconsequential for the
approval of the scheme need not be disclosed. The counsel
relied upon Bharti Mobinet Limited, Bharti Telenet Limited
and Bharti Cellular Limited Vs. DSS Enterprises Pvt. Ltd. 11
11 111(2004) DLT 554
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30. The learned counsel further submitted that even otherwise the
disclosure under the proviso to Section 391(2) of the
Companies Act is to be made only before the Court that
sanctions the scheme and not to the creditors or the
shareholders with whom the scheme is entered into. The
counsel relied upon Hindustan Lever Employees’ Union Vs.
Hindustan Lever Ltd. & Ors. 12 and In re: HCL Infosystems
Limited, HCL Infinet Limited and HCL Technologies
Limited. 13
31. Mr. Chagla was at pains to emphasise that Section 391(2)
of the Companies Act requires a company to disclose to the
Court all material facts relating to the company “such as the
latest financial position of the company, the latest Auditor’s
Report on the accounts of the company, the pendency of any
investigation proceedings in relation to the company under the
Sections 235 to 251, and the like” (emphasis supplied by the
learned senior counsel). He argued that the order of the RBI
dated 18th January, 2005 is not akin to the provisions of
Sections 235 to 251 of the Companies Act. Thus, it was argued
that the Division Bench erroneously held that the appellant 12 1995 Supp (1) SCC 499 13 (2004)121CompCas861(Delhi)
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company should have disclosed the letter/order issued by the
RBI before the creditors.
Respondents’ Submissions
32. Mr. Tirpathi, learned senior counsel, appearing for the
RBI submits that the Division Bench of the High Court has
correctly interpreted the provisions of Chapter IIIB of the RBI
Act. He emphasised that an amendment was required to
strengthen the regulatory mechanism in relation to the NBFCs.
The said Chapter IIIB has evolved an elaborate scheme of
regulations, enabling the RBI even to seek winding up of a
NBFC in appropriate circumstances. Section 45Q of the RBI
Act provides that Chapter IIIB thereof shall override any other
law inconsistent therewith. Section 45QA gives a statutory right
which cannot be waived by anyone. Under this provision, every
deposit accepted by NBFC has to be renewed and repaid in
accordance with the terms and conditions of such deposit.
No subsequent agreement can permit the conditions to be
waived of or varied. Section 45QA(2) enables NBFCs to seek
extension in time for repayment before the Company Law
Board. There is no other provision in Chapter IIIB which can
dilute the effect of Section 45QA. The High Court, according to
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Mr. Tirpathi, has rightly held that the scheme in question of the
appellant company is not in compliance with Chapter IIIB and,
therefore, cannot be approved.
33. Countering the submissions of the appellants with regard
to the interpretation of non-obstante clause contained in
Section 45QA, Mr. Tirpathi submitted that the provisions
contained in Chapter IIIB have to prevail over the provisions of
the Companies Act. He relies on the judgment of this Court in
Tata Motors Limited Vs. Pharmaceutical Products of India
Limited & Anr. 14
34. Mr. V. Prakash, learned senior counsel, appearing on
behalf of the respondent No.1 / Integrated Finance Depositors
Association in S.L.P. (C) No. 12738 of 2008, submitted that the
provisions contained in Section 45QA(1) of the RBI Act are
mandatory and cannot be diluted. Elaborating on the factual
circumstances, learned senior counsel submitted that the
appellant company lead a very aggressive advertising
campaign which was aimed to make the general populace
believe that it was supported by leading companies such as
14 (2008) 7 SCC 619
26
Page 27
MRF Ltd., Malayala Manorama, etc for soliciting deposits from
public in Kerala. And then suddenly to the shock of the public,
the order dated 18th January, 2005 was published in the
newspapers, which prohibited the appellant from accepting or
renewing any further deposits but the appellant continued to
accept deposits even after said notice. The learned senior
counsel further submitted that the scheme of arrangement
presented before the Company Law Board was not bonafide; it
failed to disclose various directions issued by the RBI restricting
the functioning of the appellant as a NBFC. The High Court
has correctly held that the scheme proposed by the appellant is
not bonafide and is in fact contrary to public policy.
35. We have considered the submissions made by the
learned counsel for the parties. We may here briefly notice the
conclusions that have been arrived by the High Court:
Findings of the High Court
36. Whilst examining the scope of Sections 391 to 393 of the
Companies Act, the High Court relied on the analysis of the
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Page 28
aforesaid sections as rendered by this Court in the case of
Miheer H. Mafatlal Vs. Mafatlal Industries Ltd. 15 The analysis
given in the aforesaid judgment are as under:-
“28-A. 1. The sanctioning court has to see to it that all the requisite statutory procedure for supporting such a scheme has been complied with and that the requisite meetings as contemplated by Section 391(1)(a) have been held.
2. That the scheme put up for sanction of the Court is backed up by the requisite majority vote as required by Section 391(2).
3. That the concerned meetings of the creditors or members or any class of them had the relevant material to enable the voters to arrive at an informed decision for approving the scheme in question. That the majority decision of the concerned class of voters is just and fair to the class as a whole so as to legitimately bind even the dissenting members of that class.
4. That all necessary material indicated by Section 393(1)(a) is placed before the voters at the meetings concerned as contemplated by Section 391 sub-section (1).
5. That all the requisite material contemplated by the proviso of sub- section (2) of Section 391 of the Act is placed before the Court by the applicant concerned seeking sanction for such a scheme and the Court gets satisfied about the same.
6. That the proposed scheme of compromise and arrangement is not found to be violative of any provision of law and is not contrary to public policy. For ascertaining the real purpose underlying the scheme with a view to be satisfied on this aspect, the Court, if necessary, can pierce the veil of apparent corporate purpose underlying the scheme and can judiciously X-ray the same.
7. That the Company Court has also to satisfy itself that members or class of members or creditors or class of creditors, as the case may be, were acting bona fide and in good faith and were not coercing the minority in order to promote any interest adverse to that of the latter comprising the same class whom they purported to represent.
8. That the scheme as a whole is also found to be just, fair and reasonable from the point of view of prudent men of business taking a 15 (1997) 1 SCC 579
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Page 29
commercial decision beneficial to the class represented by them for whom the scheme is meant.
9. Once the aforesaid broad parameters about the requirements of a scheme for getting sanction of the Court are found to have been met, the Court will have no further jurisdiction to sit in appeal over the commercial wisdom of the majority of the class of persons who with their open eyes have given their approval to the scheme even if in the view of the Court there would be a better scheme for the company and its members or creditors for whom the scheme is framed. The Court cannot refuse to sanction such a scheme on that ground as it would otherwise amount to the Court exercising appellate jurisdiction over the scheme rather than its supervisory jurisdiction.”
37. The High Court notices the well settled legal positions that
whilst examining the scheme under Sections 391-393 of the
Companies Act neither the Company Court nor the Appellate
Court ought not to go into the nitty-gritty of the various
suggestions in the scheme. The High Court recognised that it
is difficult for the Company Court or the Appellate Court to
consider the financial wisdom of a particular proposal. This is
so as the Courts do not have the necessary expertise to
examine the commercial wisdom of the scheme of
arrangements, especially when it is approved by an
overwhelming majority of the bond holders and depositors. The
Court is not expected to substitute its own wisdom for that of
the stakeholders, who give consent to a particular scheme.
The High Court also holds that, by or otherwise, a scheme is
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Page 30
ordinarily beyond the jurisdiction of the Company Court and the
Appellate Court except in those rare cases where one can see
that the scheme itself is on the face of it so unreasonable that
no man of ordinary prudence can accept it. The High Court
concludes that “in the facts of the present case, we do not think
that we can characterise the Scheme as so outrageously
improper as to invite the wrath of the Court.” The High Court
rejected the submission of some of the deposit holders that
meetings for approving the scheme should have been held
within the State of Kerala.
38. Upon examination of the question as to whether the
company should have disclosed the aspects arising out of the
order dated 18th January, 2005 to enable the depositors and the
bond holders to take an informed decision. The High Court has
concluded that the company is guilty of such non-disclosure.
39. On the interpretation of the provisions of Section 45 of the
RBI Act, the Division Bench has concluded that by virtue of
non-obstante clause in Section 45Q of the RBI Act, Chapter IIIB
of the RBI Act will prevail over Sections 391-393 of the
Companies Act. It is held that the provision contained in
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Page 31
Section 45QA which is intended to protect the depositors must
have primacy over any other law inconsistent with such
provision. It is further held that the scheme of arrangement of
compromise even if presented by a NBFC would have to
conform to the provisions contained in the Chapter IIIB of the
RBI Act. The Division Bench also concluded that not only the
scheme is contrary to the specific provisions contained in
Chapter IIIB of the RBI Act; it is also against public policy. With
these observations the Division Bench had declined to approve
the scheme and set aside the order passed by the Company
Court.
40. In our opinion, the aforesaid conclusions of the High
Court do not require any interference. Even according to the
appellant since its incorporation in 1983, the appellant had
grown into a gigantic NBFC; it had 20,000 shareholders. Its
shares were listed in two Stock Exchanges in India. Till 1995-
1996, it was a profit making company and declared dividends to
its shareholders continuously.
41. The RBI issued a series of circulars during 1997-2003
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Page 32
regulating the activities of NBFCs, strict restrictions were placed
on the NBFCs for accepting deposits. The Companies which
did not comply with the aforesaid directions were directed to
stop accepting deposits and to repay the same immediately. It
is also an accepted case of the company that the RBI, in
exercise of its power under Section 45N, inspected the Books
of Accounts of the appellant company in 2005. The inspection
report disclosed the violations of the RBI Act, 1934, committed
by the company which we have noticed in the earlier part of the
judgment. It is also accepted that on 18th January, 2005, RBI in
exercise of its powers under Section 45MB(1) of the RBI Act,
issued a circular to the appellant company prohibiting it from
“accepting deposits from any person, in any form whether by
way of fresh deposits or renewal of the existing deposits or
otherwise until further orders.” The appellant company was
also directed not to sell, transfer, create charge of mortgage or
deal in any manner with its properties, assets, without prior
permission of the RBI. It is also accepted that the aforesaid
notice was advertised in the Indian Express on 20 th January,
2005. The Notice highlights the purpose of the notice as
“Integrated Finance Company Limited, Chennai prohibition
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for accepting of deposits and alienation of assets”. The
appellant claimed that NBFC started facing problems in running
its operations as a direct consequence of the restrictions and
the publicity generated by the notice dated 18th/20th January,
2005. Since the company was facing severe problems in
running its operations because of the drop in its profitability, it
proposed a scheme of compromise with its creditors, viz. the
depositors and bond holders. This scheme was approved by
the Board of Directors of the appellant company on 19 th May,
2005. We have reproduced earlier the salient features of the
scheme, which was presented to the Company Court under
Section 391 of the Companies Act in the High Court of Madras.
Our Conclusions:
42. The primary issue that arises before us is as to whether
such a scheme of arrangements could have been presented in
view of the provisions contained in Chapter IIIB of the RBI Act.
Even if it could be presented, could it be sanctioned without
complying with the provisions contained in Section 45QA of the
RBI Act? The learned counsel for the appellant submitted that
the High Court has in terms concluded that the scheme cannot
be characterised “as so outrageously improper as to invite the
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Page 34
wrath of the Court.” The High Court also rightly concluded that
the Company Court is not expected to substitute its own
wisdom for that of the stakeholders. The High Court has also
found that all the procedural requirements for sanctioning a
scheme under Sections 391-394 have been complied with. The
High Court also accepts that an overwhelming majority of the
deposit holders have approved this scheme, yet the relief was
not been granted to the appellant on the grounds that the
scheme does not comply with the provisions contained in
Chapter IIIB of the RBI Act.
43. We are unable to accept the submission of the learned
counsel that Section 45QA of the RBI Act is not a bar to a
scheme under Sections 391-394 of the Companies Act. Under
Section 391 of the Companies Act, whilst approving the
scheme, the Company Court does not act as a rubber stamp.
The Companies Act has to be satisfied that the concerned
meetings of the creditors have been duly held. It has to be
satisfied that in the concerned meetings, the creditors or
members of any class have been provided with relevant
material to enable them to take an informed decision as to
whether the scheme is just and fair. The Court is also required
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Page 35
to conclude that the proposed scheme of compromise or
arrangement is not violative of any provision of law and is not
contrary to public policy. Furthermore, the Court has to be
satisfied that members or class of members or creditors who
may be in majority are acting bonafide and have not coerced
the minority into agreement. Above all, the Court has to be
satisfied that the scheme is fair and reasonable from the point
of view of a prudent man of business taking commercial
decisions, which are beneficial to the class represented by
them. [See Miheer H. Mafatlal (supra)] It is true that whilst
sanctioning the scheme, the Company Court is not required to
act as a Super-Auditor. No doubt whilst considering the
proposal for approval, the Company Judge is not required to
examine the scheme in the way of a carping critic, a hair-
splitting expert, a meticulous accountant or a fastidious
Counsel. However at the same time, the Court is not bound to
superficially add its seal of approval to the scheme merely
because it received the approval of the requisite majority at the
meeting held for that purpose. The Court is required to see that
all legal requirements have been complied with. At the same
time, the Court has to ensure that the scheme of arrangement
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Page 36
is not a camouflage for a purpose other than the ostensible
reasons. [See Administrator of the Specified Undertaking of
the Unit Trust of India (supra), Para 32]. If any of the
aforesaid requirements appear to be found wanting in the
scheme, the Court can pierce the veil of apparent corporate
purpose underlying the scheme and can judiciously X-ray the
same. (See Miheer H. Mafatlal (supra)]
44. In view of the aforesaid, it needs to be considered as to
whether a scheme which does not comply with the provisions of
Section 45QA of the RBI Act can be sanctioned. The High
Court on a careful consideration of the entire matter has
concluded that the scheme must fail as it does not comply with
the provisions contained in Section 45QA(1) of the RBI Act. To
get over this difficulty, the learned counsel for the appellant has
submitted that Chapter IIIB of the RBI Act is not a complete
code. This apart, the RBI Act and the Companies Act must be
read in their own sphere since both operate in different fields,
altogether. We are unable to agree with the aforesaid
submission of the learned senior counsel for the parties.
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45. Chapter IIIB of the RBI has been incorporated through
RBI (Amendment) Ordinance 1997, subsequently replaced by
the RBI (Amendment) Act, 1997. The Statement of Objects and
Reasons make it abundantly clear that before the amendment,
the unincorporated bodies circumvented the statutory
restrictions by floating different partnership firms as and when a
firm reached the level of 250 depositors. It was also reiterated
that several unincorporated bodies were advertising
aggressively through various media, soliciting deposits from
public by offering high rates of interest and other incentives.
The Amendment Act provides several safeguards for NBFCs so
as to ensure their viability. This includes compulsory
registration of NBFCs with RBI, stipulation of minimum need in
the funds requirements, creation of reserved funds and transfer
of certain percentage of profits every year to the fund; and
prescription of liquidity requirements. The RBI has also been
vested with powers to issue guidelines intended to ensure
sound and healthy operations and the quality of assets of these
companies. The RBI was also empowered to issue directions
to Auditors of NBFCs to order special Audits in NBFCs,
prohibited acceptance of deposits by NBFCs and make
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Page 38
applications for winding up of NBFCs. It is specifically noticed
that earlier the only recourse available to the depositors was to
approach the Court of Law for redressal of grievances.
However by the Amendment, powers have been vested with
the Company Law Board for directing the defaulter NBFCs to
make repayment for the deposit interest with a view to protect
the interest of depositors. The NBFCs have been totally
prohibited from accepting deposits for the purpose other than
for personal use, if unincorporated. They have been permitted
to continue to take deposit after incorporating themselves within
the regulatory framework. The unincorporated bodies have
also been specifically prohibited for issuing any advertisements
in any form. The real intent is set out in Paragraph 6, which is
as under:-
“6. There are reports of several finance companies and incorporated bodies having failed to repay the deposits collected from unsuspecting depositors who have been tempted by the attractive returns and incentives offered. Concern has been expressed in several quarters on the need to take urgent steps to regulate the activities of such companies and unincorporated bodies.”
46.Keeping in view the aforesaid objects and reasons, it becomes
evident that Chapter IIIB of the RBI Act is a self contained code.
It is not possible for us to accept the submissions of the learned
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Page 39
counsel for the appellants that the RBI Act and the Companies
Act operate in distinct and different fields. We are unable to
accept the submission of the learned counsel for the appellants
that the provision contained in the RBI Act being regulatory in
nature will not apply to cases of schemes submitted for
approval under the Companies Act. We may also notice here
that the learned senior counsel for the appellant relied on
Haridas Exports (supra) in this context. In the aforesaid case,
this Court upon a comprehensive analysis of the Monopolies
and Restrictive Trade Practices Act, 1969 and Customs Tariff
Act, 1975 concluded that the said two Acts substantially
operate in different fields and, therefore, the provisions of
Section 9-A of Customs Tariff Act cannot be implied to repeal
the provisions of Section 33(1)(j) of the MRTP Act, 1969. Since
the main issue involved in the matter before us is different from
the case of Haridas Exports (supra), the said case is of no
assistance to the appellant company.
47. We are also not able to accept the submission of the
learned senior counsel for the appellant and the intervenors in
support of the appellant that the non-obstante clause in
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Page 40
Section 45QA will not have an overriding effect over the
provisions contained in the Companies Act in the Sections
391-394. We are also not able to accept the additional
submission of Mr. Chagla that if overriding effect is given to
Section 45QA, the provisions contained in Section 391 would
be rendered nugatory so far as NBFCs are concerned. We are
not persuaded to accept the submissions of the learned senior
counsel for the appellant that the non-obstante clause
contained in Section 45A ought to be given a limited
application. Even applying the ratio of the judgments cited by
the learned senior counsel, there is no justification for lessening
the scope of the applicability of the non-obstante clause in
Section 45Q of the RBI Act. It states in categoric terms that
provisions of Chapter IIIB shall have effect notwithstanding
anything inconsistent therewith contained in any other law. The
overriding effect extends not only to any other law for the time
being in force but also to any instrument having effect by virtue
of having such law. The reasons for giving such categoric
overriding effect are evident from the objects and reasons given
in the Amendment Act. The magnitude of the exploitation of the
poor sections of the society, leading to utter destruction of
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Page 41
innumerable families was the underlying impetus to bring the
NBFCs under strict control. Therefore, we have no hesitation in
concluding that Chapter IIIB of the RBI Act is a complete code
in itself. The Companies Act is a prior enactment as the same
was enacted in the year 1956, whereas, Chapter IIIB was
inserted in the RBI Act (55 of 1963) w.e.f. 1964. Section 45QA
was inserted by the Act No. 23 of 1997 w.e.f. 9 th January, 1997.
Thus, provisions of the RBI Act would prevail over the
Companies Act, it being a later enactment. It is a settled
proposition of law that a later enactment will override the earlier
enactment. We may usefully make a reference here to the
relevant paragraphs of Tata Motors Limited (supra),which are
as under:-
“21. It was conceded by Mr Sundaram SICA being a special law vis-à-vis the 1956 Act, it shall prevail over the latter. The learned counsel, however, qualifies his submission by contending that SICA only excludes the provisions of the Companies Act when they are inconsistent with each other.
22. The provisions of a special Act will override the provisions of a general Act. The latter of it (sic Act) will override an earlier Act. The 1956 Act is a general Act. It consolidates and restates the law relating to companies and certain other associations. It is prior in point of time to SICA. 23. Wherever any inconstancy (sic inconsistency) is seen in the provisions of the two Acts, SICA would prevail. SICA furthermore is a complete code. It contains a non obstante clause in Section 32.
24. SICA is a special statute. It is a self-contained code. The jurisdiction of the Company Judge in a case where reference had been made to BIFR would be subject to the provisions of SICA.”
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48. In our opinion, Chapter IIIB has been given an overriding
effect over all other laws including Companies Act by
incorporating Section 45Q with a clear intention to ensure that
in a case of NBFC, a scheme under Section 391 of the
Companies Act cannot be entertained unless it is in conformity
with the provisions of Section 45QA of the RBI Act.
49. We may briefly notice here the judgments relied by the
learned counsel for the appellant in support of the submission
that the non-obstante clause in Section 45Q of the RBI Act will
not have an overriding effect over the Sections 391-394 of the
Companies Act. Reliance was placed on Aswini Kumar Ghose
(supra); Madhav Rao Jivaji Rao Scindia (supra); A.G.
Vardarajulu (supra); ICICI Bank Ltd. (supra); R.S.
Raghunath and JIK Industries Limited (supra). The said
cases undoubtedly reiterate the settled law on the manner in
which a particular non-obstante clause ought to be interpreted.
In Aswini Kumar Ghose (supra), this court held that “a non-
obstante clause must be construed strictly and the Court must
try to find the extent to which the legislature had intended to
give one provision overriding effect over another provision.”
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Page 43
Similar observations were reiterated by this Court in the other
cases relied by the appellant. Since it has been already noticed
by us that the Parliament clearly intended to give an overriding
effect to Chapter IIIB of the RBI Act over Sections 391-394 of
the Companies Act, the aforesaid observations will not be of
any help to the appellants in support of their submission that
Section 45Q and/or Section 45QA of the RBI Act will not
override Sections 391-394 of the Companies Act.
50. We, therefore, endorse the opinion expressed by the High
Court that the scheme has been introduced only with a view to
avoid repayment to the small depositors as it contemplates that
instead of repaying of amount in accordance with the terms and
conditions of the deposit, such amount shall be considered as
convertible debentures with interest @ 6%, which would be
converted into equity shares within a period of one year. Such
a provision is clearly contrary to the mandatory requirements
under Section 45QA(1) which requires that “every deposit
accepted by a NBFC, unless renewed, shall be repaid in
accordance with the terms and conditions of such deposit”.
This ingenious effort by the appellants in fact justifies the
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insertion of the amendment, which has been obviously
incorporated with a view to protect the depositors and to avoid
exploitation of these hapless and poor depositors from
exploitation by Non Banking Financial Institutions, such as the
appellant. It is for this reason that Chapter IIIB clearly provides
that the provisions contained therein shall override all other
laws, which are inconsistent with the same. This will also be
applicable to Sections 391-394 of the Companies Act.
51. The Companies Act as well as the RBI Act are Central
Acts. Chapter IIIB, which was inserted by Act No. 55 of 1963
w.e.f. 1st December, 1964 being a later enactment clearly has to
prevail. We are unable to agree with the submissions of the
learned counsel for the appellant that if such an interpretation is
given to Section 45QA, it would render Sections 391-394
nugatory.
52. Faced with this situation, Mr. Shyam Divan learned
counsel for the appellant had submitted that in fact there is no
inconsistency between Section 45QA of the RBI Act and
Sections 391-394 of the Companies Act. It is submitted that
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scheme of arrangements under Sections 391 to 394 is a form of
novation of a contract. Under the Contract Act, each individual
party is entitled to vary the terms and conditions of the
Contract. Therefore, debenture holders accepting cash
payment of lesser face value or exchanging debentures for
shares would only be continuance of a practice which has been
vogue since late 1800s. He makes this submission relying on
Charlesworth’s Company Law 18th Ed. 771-72, which are as
follows:
“The word “arrangement” has a very wide meaning, and is wider than the word “compromise”. An arrangement may involve debenture holders giving an extension of time for payment accepting a cash payment less than the face value of their debentures, giving up their security in whole or in part, exchanging their debentures for shares in the company, or in a new company, or having the rights attached to their debentures varied in some other respect. Creditors may take cash in part payment of their claims and the balance in shares or debentures in the company. Preference shareholders may give up their rights to arrears of dividends, agree to accept a reduced rate of dividend in the future, or have their class rights otherwise varied.”
In our opinion, these observations would be of no avail to the
appellants in view of our conclusions recorded earlier that the present
arrangement is not bona fide.
53. We are further of the opinion that there can be no
question of novation in the face of the categoric provisions
contained in Section 45Q, which has an overriding effect over
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Page 46
all other laws, which would necessarily negate the principle of
novation contained in the Contract Act also. Since we have
already negated the submission of the learned counsel for the
appellant that it was open to each individual depositor to vary
the contract, i.e., novate the contract, it would not be possible to
accept the subsequent submission of the learned counsel that
since the scheme has been approved by the requisite majority
and sanctioned by the Court, it is binding on the minority as
well. In support of this submission, learned counsel has relied
on the observations made by this Court in J.K. (Bombay)
Private Ltd. (supra) and Administrator of the Specified
Undertaking of the Unit Trust of India (supra). On the basis
of the aforesaid, it is submitted that if the parties could have
novated the terms and conditions individually, there is no bar on
such novation through a scheme. The observations relied upon
are as follows:-
“28. ……………………….The principle is that a scheme sanctioned by the court does not operate as a mere agreement between the parties: it becomes binding on the Company, the creditors and the shareholders and the statutory force, and therefore, the joint-debtor could not invoke the principle of accord and satisfaction. By virtue of the provisions of Section 391 of the Act, a scheme is statutorily binding even on creditors and shareholders who dismanted from or opposed to its being sanctioned. It has statutory force in that sense and therefore cannot be altered except with the sanction of the Court even if the shareholders and the creditors acquiesce in such alteration, (cf. Premila Devi v. Peoples Bank). The effect of the scheme is “to supply by recourse to the procedure thereby
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prescribed the absence of that individual agreement by every member of the class to be bound by the scheme which would otherwise be necessary to give it validity”. (Palmer's Company Law, 20th Edn. 664) Sub-Section (2) of Section 391 of the Act allows the decision of the majority prescribed therein to bind the minority of creditors and shareholders and it is for that reason that a scheme is said to have statutory operation cannot be varied by the shareholders or the creditors unless such variation is sanctioned by the court.”
54. We are unable to accept the aforesaid submission. The
aforesaid observations reiterate the settled position of law that
a scheme duly sanctioned after fulfilling all the legal formalities
would be binding on all the shareholders. In the present case,
the scheme is in the teeth of Section 45Q and it has rightly not
been approved by the High Court. This apart, the scheme has
been rightly held to be lacking bona fide, as well being contrary
to public policy. It has been proposed with the oblique purpose
of avoiding the mandate of Section 45QA(1) of RBI Act.
55. We are also not inclined to accept the submission of the
appellant that Section 45QA of RBI Act is pari materia if not
identical with Section 58A of the Companies Act. It was further
argued that if a scheme of arrangement is not prohibited under
the latter section; it cannot be prohibited under the former, i.e.,
Section 45QA of the RBI Act. The issue concerning
Section 45QA being para materia with Section 58A of the
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Companies Act does not arise since, in our considered opinion,
the provisions of the RBI Act will override the provisions of the
Companies Act. Thus, this submission is also rejected.
56. In view of the aforesaid, we reject the submission of the
learned counsel for the appellant that the scheme of
arrangement could be approved even though there is a non-
compliance with the provisions of Chapter IIIB of the RBI Act in
particular Section 45QA(1). We may notice here that the
appellants had an opportunity to approach the Company Court
under Section 45QA(1) to seek further time for making
payment. It appears that no such application was made and,
therefore, there is a complete infringement of Section 45QA(1).
This would lead to an inevitable conclusion that the scheme of
arrangements could not be approved.
The Effect of Non-disclosure of the Notice dated 18 th January, 2005
57. The aforesaid notice has been sent to the Company
under Section 45MB(1). Such notice is only sent if any NBFC
violates the provisions of any section or fails to comply with any
direction or order given by the RBI under any of the provisions
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of Chapter IIIB. Under these provisions, the RBI has the power
to prohibit the NBFC from accepting any deposit. Under
Section 45MB(2), in order to protect the interest of the
depositors, RBI is also empowered to direct the Non-Banking
Financial Company not to sell, transfer, create charge or
mortgage or deal in any manner with its property and assets
without prior permission of the bank. It is an accepted fact that
the orders directing the company not to accept deposits have
been duly published in the Indian Express on 20 th January,
2005. Learned counsel for the appellant has submitted that it is
an accepted fact that on inspection of the books of accounts of
the appellant company under Section 45N of the RBI Act, 1934,
numerous violations were disclosed. The details of the
violations have been extracted in the earlier part of this
judgment. Whilst the investigation was being conducted into all
the irregularities that have been committed by the company, the
scheme of arrangement was presented to the Company Court
on or about 19th May, 2005. It is an accepted fact that the
notice dated 18th January, 2005 was not disclosed to the
shareholders, who were present in the meetings which had
been convened on the directions of the Company Court.
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Page 50
According to the learned counsel for the appellants, such a
non-disclosure was not required under the provisions of the
proviso to Section 391(2) of the Companies Act. In any event,
according to the learned counsel, the notice dated 18 th January,
2005 had been widely advertised by the RBI in various
newspapers. Therefore, the whole information was in public
domain. Consequently, the requirements of proviso to
Section 391(2) would be deemed to be complied with.
Furthermore, according to Mr. Datar, proviso to Section 391(2)
only requires disclosure to the Court sanctioning to the scheme
and not to the creditors or the shareholders with whom the
scheme is made. The disclosure requirement to the
shareholders or the creditors is specified under Section 393(1)
and is much narrower. Learned senior counsel has placed
reliance on the judgement of this Court in Hindustan Lever
Employees’ Union Vs. Hindustan Lever Ltd. & Ors. (supra)
in support of this submission. This case is, however,
distinguishable from the present case and circumstances. It
was held therein that:
“In the facts of this case, considering the overwhelming manner in which the shareholders, the creditors, the debenture holders, the financial institutions, who had 41% shares in TOMCO, have supported the Scheme and have not complained about any lack of notice or lack of understanding of what the Scheme was about, we are of the view, it will not be right to
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hold that the explanatory statement was not proper or was lacking in material particulars.”
The preceding excerpt makes it clear that the scheme therein
was not objected to by any of the interested persons. Thus, the
reliance on the said case is misconceived.
58. In our opinion, the High Court has correctly concluded
that even if no investigation was pending under Section 235-
251 of the Companies Act, it was incumbent on the company to
disclose the violations pointed out by the RBI on inspection of
its books under Section 47N, which led to the issuance of the
notice dated 18th January, 2005. This, in our opinion, would
clearly reflect on the lack of bonafide of the company in
proposing scheme of arrangement. In our considered opinion,
non-disclosure of the action taken and initiated by the RBI as
apparent from the letter dated 18th January, 2005, amounted to
non-disclosure of material facts which are required to be
disclosed under Section 391(1) read with Section 393(1) of the
Companies Act. The Company Court whilst examining the
fairness and the bonafide of a scheme of arrangement does not
act as a rubber stamp. It cannot shut its eyes to blatant non-
disclosure of material information, which could have a major
influence/impact on the decision as to whether the scheme has
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to be approved or not. In our opinion, the High Court has not
committed any error of jurisdiction in rejecting the submission of
the appellant that the non-disclosure of the letter dated 18 th
January, 2005 was not material.
59. For the aforesaid reasons, we find no justification to
interfere with the judgment and order passed by the High Court.
The appeals are accordingly dismissed.
…..…….…………………J. [Surinder Singh Nijjar]
…..……………………….J. [Pinaki Chandra Ghose] New Delhi; July 16, 2013.
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