Holding

The modified scheme was not a scheme for revival; the alterations required fresh approval by a general meeting under Section 391, and the Division Bench’s sanction was set aside.

Summary

The Supreme Court examined a scheme proposed under Section 391 of the Companies Act, 1956 for Shreeniwas Cotton Mills Ltd., a company already under liquidation since 1984. The scheme, as modified, involved the sale of the mill’s land to Lodha Builders Private Ltd. (LBPL) and did not constitute a genuine revival of the business but rather a disposal of assets. The Court held that such modifications, especially those introduced by a non‑member sponsor, required fresh approval by a general meeting of creditors and members as mandated by Section 391, and could not be effected merely by the court under Section 392. The appellants, including Rangnath Somani and LBPL, were found to have locus standi to challenge the Division Bench’s order. Consequently, the decisions of the Division Bench and the Company Court were set aside and the matter remitted to the Company Court for a fresh meeting and proper consideration of the scheme.

Issues considered

The applicability of Section 391 to a company already under liquidation and whether a scheme must be for genuine revival.
Whether modifications to an approved scheme, introduced via affidavits of a non‑member sponsor, require a fresh general‑meeting approval.
The scope of Section 392’s power to modify a scheme and whether it permits substantial changes without a new meeting.
The locus standi of Rangnath Somani, LBPL and other interveners to challenge the Division Bench’s order.
The necessity of satisfying public interest and commercial morality under Section 466 before staying winding‑up.

Legislation cited

Companies Act, 1956s. 39, s. 390, s. 391, s. 392, s. 393, s. 394A, s. 433, s. 466, s. 481, s. 529, s. 529A

Subjects

Companies Act 1956Section 391Section 392winding upscheme of arrangementrevival of companylocus standiliquidationpublic interestcommercial morality

Judgment

A MIS MEGHAL HOMES PVT. LTD.
v.
SHREE NIW AS GIRNI K.K. SAMITI AND ORS.

AUGUST 24, 2007

B [G.P.MATHURANDP.K.BALASUBRAMANYAN,JJ.)

Companies Act, 1956-Sections 39/-394A and 466-Power to make
compromise or arrangements with creditors and members-Winding up of
C Company-Framing of scheme for revival of company under liquidation-
Scheme approved by general meeting but not accepted by Division Bench of
High Court-Compromise or arrangement between promoters of Company
and sponsor of arrangement-Amended Scheme approved-Non-acceptance
by company court on the ground that Scheme not for revival-Official
Liquidator inviting offers for disposal ofassets ofco,mpany-lnterested persons
D including sponsors placed proposals-Scheme modified on basis of affidavits
of sponsors-Division Bench set aside order of company court and sanctioned
Scheme as modified-Challenge to, by promoters and others, who presented
their proposals-On appeal, Held: Modified scheme was not for revival of
Company in liquidation-Scheme was neither modified by general meeting
E of members of Company in terms with s. 391 nor requisite majority was
obtained and was also objected by shareholders-Also sponsors were non-
member of the Company-Promoters and others, who presented their scheme
had sufficient locus standi to challenge the d~cision of Division Bench--
Thus, order of Division Bench as also Company Court set aside-Proceedings
remitted back to Company Court.
F
SCML-textile mill ran into difficulties. The Bangurs, Somanis, and LIC
were its main shareholders and 20% were the sundry shareholders. State
Bank of India and Punjab and Sind Bank were the secured creditors. On
25.7.1984, Company Court ordered win~ing up of SCML. The Official
liquidator took charge of the affairs of SCML. On 1.9.1994, the Company
G Court directed the Official Liquidator to issue public notice inviting offers
for the revival of the mills, absorption of workmen and to purchase the assets
of the Company. Advertisement was issued. In pursuance thereof, three parties
submitted their offers. Ranganath Somani-contributory, filed Company
Application seeking directions of the Company Court for convening meeting

H 330
MEGHAL HOMES PVT.LTD. v. SHREE NIWAS GIRNI K.K. SAMm 33 l

of the creditors, contributories and other interested persons to consider a A
scheme proposed for the revival of the Company. The directions were given.
However, the Workers' Union and the three parties challenged the order of
Company Court. During pendency, meeting was held and the creditors,
contributories and workers approved the scheme. On 4.4.1995, the Division
Bench of the High Court set aside the direction for convening a meeting to B
consider the scheme proposed holding that the scheme proposed was not based
on any of the viability report regarding the revival of the company; that there
was a failure to disclose the latest financial position of the Company; that as
per Ranganath Somani the value of the land belonging to SCML was Rs. 200
crores; and that the intention was to acquire the huge lands and other real
estate belonging to SCML at a throw away price. The Division Bench directed C
the Company Judge to obtain viability report. Special Leave Petition was filed
challenging the decision of Division Bench and SLP was dismissed. State
Bank of India Capital Markets Limited prepared a viability report that only a
part of the spinning industry could be retained and revived by disposing of
the machinery related to the other activities carried on by SCML and by sale D
ofa portion of the immovable property of the company.

On 29.6.2003, Somani Group and LBPL executed a Memorandum of
Understanding. Under MOU, LBPL was to get the right to develop and deal
with the lands of SCML on payment of Rs. 78 crores and 70,000 square ft. of
built up area or on paying Rs. 97.50 crores to SCML. Thereafter, on E
application filed by Somanis, Company Court directed the meeting to be
convened to consider the amended scheme. At the meeting, the amended
scheme was approved. Thereafter, Company Petition was filed seeking sanction
of the amended scheme. On 23. 7.2004, the Company Court rejected the
amended scheme holding that the scheme presented was not a scheme for
revival but for disposal of the Company's assets which then vested in the F
Official Liquidator; that it was only a mode of disposal of the Company's assets;
and that the amount of Rs. 97.50 crores offered by LBPL was very less than
the amount of Rs. 200 crores. The Company Court directed the issue of
advertisements inviting offers for the assets of SCML. Official Liquidator
issued advertisements inviting offers. G
LBPL, Somanis and Workers' Union challenged the order dated
23. 7.2004. The Division Bench of High Court passed an order directing the
Somanis, LBPL and the various interveners who had made offers~ to place
their proposals for rehabilitation on record; to file affidavits for down payment
for release to the workers; and Somanis to state whether they would be willing H
332 SUPREME COURT REPORTS [2007] 9 S.C.R.

A to accept any such better scheme. Some affidavits were filed. LBPL stated in
its affidavit that in addition to the payment of Rs. 45 crores to the workers, it
..
would set up a spinning unit at the cost of Rs. 40 crores on the 7,50,000 sq
ft coming to them under the Scheme; it would construct 30,000 square ft unit,
housing a sch.ool and other accommodation at a cost of Rs. 15-20 crores.
B Rangnath Somani tiled affidavit that the Somanis would be willing to consider
any better scheme in the interests of SCML. However, Ramesh Somani-co-
propounders of the scheme filed affidavit that he fully supported the scheme
of LBPL. The court received the affidavits filed on behalf of the LBPL but
refused to receive the two affidavits, Rangnath Somani wanted to file. By order
dated 21.3.2005, the Division Bench of High Court allowed the appeals and
c set aside the judgment of the Company Court and sanctioned the scheme as
modified and as further modified by two affidavits of the Directors of LBPL.
Hence, the present appeals by Rangnath Somani and interveners-persons who
made offers pursuant to the direction of the court.

D Appellants contended that once a company was under liquidation, the
Chapter dealing with winding up applied and the only provision or substantive
provision conferring power of stopping the winding up was conferred on the
court hy Section 466 of the Act, and unless the court is satisfied that the
Company is being taken out of liquidation by way of revival and that it will
sub-serve public interest and will conform to commercial morality, the court
E cannot accept a scheme proposed under Section 391 of the Act; that the
appellant in Civii Appeal Nos. 3171-3181 was associated with the original
Scheme for which approval was sought from the Company Court; that the
appellant had in fact deposited a certain sum as per the direction of the court;
that in the instant case ~odification of the earlier Scheme was sought in which
F the appellant was involved; and that there was a specific direction by the
Division Bench to the appellant and others to p_resent their Schemes/Proposals
before the court and they had filed affidavits in that behalf thus the appellants
had sufficient locus standi.

Respondents contended that it was clear that a Company Court could
G approve, independently of section 466 of the Act, a scheme ~nd could take the
company out_ofliquidation and even pass an order of stay in terms of Section
391 read with Section 392 of the Act; and that the appellants in Civil Appeal
Nos. 3179-3181 of2005 aod Civil Appeal Nos. 3182-3184 of20Q5 have no
locus standi either to object in the Company Court or to challenge the decision
of the Division Bench of the High Court in appeal before this Court since
H neither of them were creditors, contributories or debenture holders and were
MEGHAL HOMES PVT.LTD. 1•. SHREE NIWAS GIRNI K.K. SAMITI 333
total strangers to SCML, having nothing to do with the proposal and acceptance A
of Scheme under section 391 of the Act.

Allowing Civil Appeal Nos. 3179-3181of2005,3182-3184 of2005 and
4377 of 2006, and dismissing Civil Appeal Nos. 3569-3571 as withdrawn, the
Court
B
HELD: 1.1. Once an order of liquidation had been passed on an
application under Section 433 of tht> Companies Act, 1956 the winding up
has to be either stayed altogether or for a limited time, on such terms and
conditions as the court thinks fit in terms of section 466 of the Act. If no
such stay is granted, the proceedings have to go on and the court has to finally C
pass an order under section 481 of the Act dissolving the Company. In other
words, when the affairs of the Company had been completely wound up or the
court finds that the Official Liquidator cannot proceed with the winding up of
the Company for want of funds or for any other reason, the court can make
an order dissolving the Company from the date of that order. This puts an end
to the winding up process. [Para I 6) (348-A-C) D
1.2. SCML was ordered to be wound up on 25.7.1984. When the Scheme
was originally presented on 3.10.1994, at a time the winding up order was
already in existence. It cannot be said that section 391 would not apply to a
Company, which has already been ordered to be wound up in view of the
language of section 391(1) of the Act, which speaks ofa Company· which is E
being wound up. If the definition in section 390(a) of the Act is substituted,
this would mean a Company liable to be wound up and which is being wound
up. It also does not appear to be necessary to restrict the scope of that provision

... considering the purpose for which it is enacted, namely, the revival of a
company including a Company that is liable to be wound up or is being wound
F
up and normally, the attempt must be to ensure that rather than dissolving a
company it is allowed to revive. Moreover, section 39J(l)(b) gives a right to
the liquidator in the case of a company which is being wound up, to propose a
compromise or arrangement with creditors and members indicating that the
provision would apply even in a case where an order of winding up has been
made and a liquidator had been appointed. (Para 16] (348-D-G) G
1.3. When a Company is ordered to be wound up, the assets of it are put
in possession of the Official Liquidator. The assets become custodia legis.
The follow up, in the absence ofa revival of the Company, is the realization of
the assets of the company by the Official Liquidator and distribution of the
proceeds to the creditors, workers, and contributories of the company H
334 SUPREME COURT REPORTS [2007] 9 S.C.R.

ultimately resulting in the death of the company by an order under Section
A 481 of the Act, being passed. But, nothing stands in the way of the Company
Court, before the ultimate step is taken or before the assets are disposed of,
to accept a scheme orproposal for revival of the Company. In that context, the
Court has necessarily to see whether-the Scheme.contemplates revival of the
business of the company, makes provisions for paying off creditors or for
B satisfying their claims as agreed to by them and for meeting the liability of
the workers in terms of Section 529 and Section 529A of the Act. The Court
has to see to the bonajides of the scheme and to ensure that what is put forward
is not a ruse to dispose of the assets of the Company in liquidation. In fact, it
was on this basis that the Division Bench of the High Court proceeded when
it passed the order dated 4.4.1995. Apart from-the fact that"the correct
C principle was adopted, the directions therein are binding on the Company Court
and the Division Bench of the High Court of coequal jurisdiction when the
proposal for amendment of the earlier scheme came up. It was not a fresh
scheme that was being mooted, but it was a proposal for an amendment of the
scheme· already considered by the Division Bench when it passed the order
D dated 4.4.1995. It was the plain duty of the Division Bench on the latter
occasion to keep in focus the suggestions earlier made.
(Paras 22 and.231 (355-C-H; 356-A)

1.4: Sections 391 to 394A are not·to be-read in isolation but with
reference to the other relevant provisions <>fthe Act. The need is to satisfy
E the requirements of both sections 391 to 394A and section 466 of the Act
while dealing with a Company which has been ordered ' to be wound up. In other
words, there is no incongruity in looking into aspects of public interest,
commercial morality and the bona fide intention to revive a company while
considering whether a compromise or arrangementput forward in terms of
F Section 391 of the should be accepted or not. There is no conflict in applying
both the provisions and in harmoniously construing them and in finding that
while the court would not sit in appeal over the commercial wisdom of the
shareholders of a company, it would certainly consider whether there is a
genuine attempt to revive the company that has gone into liquidation and
G whether such revival is in public interest and conforms to commercial
morality. Therefore, the Company Court was bound to consider whether the
liquidation was liable to be stayed for a period or permanently while adverting
to the question whether the scheme is one for revival of the company or that
part of the business of the company which it is permissible to revive under
the relevant laws or whether it is a ruse to dispose of the assets of the company
H by a private arrangement. If it comes to the latter conclusion, then it is the
MEGHAL HOMES PVT.LTD. v. SHREE NIWAS GIRNI K.K. SAMm 335
duty of the court in which the properties are vested on liquidation, to dispose A
of the properties, realize the assets and distribute the same in accordance
with law. !Para 251 [356-G; 357-A-D)

Miheer H. Mafatlal v. Mafatlal Industries Ltd, 11997) 1 S.C.C. 579,
referred to.
B
Principles of Statutory Interpretation by Justice G.P. Singh, referred
to.

1.5. Section 392 of the Act only gives power to the Court to make such
modifications in the compromise or arrangement as it may consider
necessary for the proper working of the compromise or arrangement It cannot C
be understood as a power to make substantial modifications in the scheme
approved by the members in a meeting called in terms of Section 391 of the
Act A modification in the arrangement that may be considered necessary for
the proper working of the compromise or arrangement cannot be taken as
the same as a modification in the compromise or arrangement itself and any D
such modification in the scheme or arrangement or an essential term thereof
must go back to the general meeting in terms of Section 391 of the Act and
a fresh approval obtained therefor. The fact that no member or creditor opposed
it in court cannot be considered as a substitute for following the requirements
of Section 391 of the Act for approval of the compromise or arrangement as
now modified or proposed to be modified. It cannot be said that the scheme E
now as modified by the decision of the Division Bench need not go back to the
general meeting of the members in terms of Section 391 of the Act. Also
there is serious objection to the modifications by one of the Soman is who are
the promoters of the Company in liquidation and the sponsors of the
arrangement and that objection cannot be brushed aside.
F
tpara 27) (357-H; 358-A-F)

1.6. What has now been accepted by the Division Bench, is not the
scheme as modified by the general meeting as contemplated by Section 391
of the Act At least two of the modifications having ramifications are based on
undertakings or statements made on behalf of LBPL which is not one of the G
entities contemplated by section 391 and there appears to be difference of
opinion on that modification even among the Somanis. There is also the
question whether the proposals ofa person who is not one of those recognized
by Section 391 of the Act, could be accepted by the Company Court while
approving a scheme. The scheme with the modifications as now proposed or
accepted, has to go back to the General Meeting of the members of the H
336 SUPREME COURT REPORTS [2007] 9 S.C.R.

A Company, called in accordance with Section 391 of the Act and the requisite
majority obtained. [Para 26) [357-E-F)

1. 7. The deletion of clause 1.5 indicated in the original proposal and
the replaced clause 1.5 in the modified scheme, indicated that the object was
not the revival of SCML. Similarly, the amendment by way of an affidavit on
B behalf of the LBPL contemplated the starting of an industry in the Mill land
by LBPL and not by the company in liquidation. Thus, the company in
liquidation, did not intend taking up any revival activity in the properties
belonging to SCML other than retaining the office building it had and the
godown it had away from the mill lands. It is difficult to conceive of this as a
C revival of SCML, a company in liquidation. This is more in the realm of
disposal of the assets of the company in liquidation, no doubt, with a view to
pay off all the creditors, debenture holders and workers from the funds
generated out of the sale of the lands in favour of LBPL. Going by the test
laid down by the Division Bench in its order dated 4.4.1995, which has become
final inter parties and the object of section 391, it is difficult to say that it is
D a scheme for revival of the company, the clear statutory intention behind
entertaining a proposal under section 391 of the Act.
[Para 20) .(352-H; 353-A-D)

1.8. The modifications proposed altered the position of the shareholders
vis-a-vis the Company. Instead of the company retaining and reviving the part
E of the spinning unit as recommended by the State Bank of India C&pital
Markets Limited, by disposing of the machinery related to the other activities
carried on by SCML and by sale of a portion of the immovable property of the
company, as adopted in the General Meeting, now the Company would have
nothing to do with the mill lands and the whole of the mill lands would pass
F on to LBPL on LBPL paying a value of Rs. 97.50 crores to SCML and LBPL
would start an industry of its own in that property. This cannot be considered
to be a modification in the scheme necessary for the proper working of the
compromise or arrangement This is a modmcation of the scheme itself. Same
is the position regarding the provision of replacing the resolution passed that
if any surplus amounts are available, SCML would start a viable industry in
G any part of the State of Maharashtra, by a commitment that SCML would
establish an industry in any part of the State of Maharashtra on an investment
of Rs. 20 crores. This again is an obligation cast on the members of SCML
and cannot be taken to be a modification which the Court can bring about on
its own under Section 392 of the Act on the pretext that it is a modification
H necessary for the proper working of the compromise or arrangement In any

,J
MEGHAL HOMES PVT.LID. v. SHREE NIWAS GIRNI K.K. SAMITI 337
event, the Division Bench of the High Court ought to have directed a A
reconvening of the meeting of the members of the Company in terms of Section
391 of the Act to consider the modifications and ensured that the approval
thereof by the requisite majority existed. Thus, the decision of the Division
Bench as also of the Company Court is set aside and the proceedings are
remanded back to the Company Court.
(Paras 19, 28 and 291 (358-F; 350-F; 358-F-H; 359-A-Dl B
1.9. Workers' Union submitted that interference by this Court would
further delay the benefits that would accrue to the workers under the
arrangement now approved by the Division Bench and considering the long
lapse of time, that would be unjust and also highlighted the additional benefits C
that would accrue to the workers under the present scheme. Though, this
aspect of the matter cannot be appreciated having taken the view that the
arrangement has to go back to the meeting of members, creditors, etc. of the
company in terms of Section 391 of the Act and once it is adopted or adopted
with modifications with the requisite majority at the meeting, the arrangement
would require a fresh scrutiny by the Company Court thereafter, interfering D
with the deci'iion of the Division Bench on the ground put forward by Workers'
Union of benefit to the workers cannot be avoided. (Para 30) (359-E-F)

2.1. In the ligh.t of the facts of the case and the orders of the Division
Bench dated 4.4.1995 and 15.12.2004, it cannot be said that the appellants in
the two sets of appeals have no locus standi to maintain their appeals in this E
Court. They have been allowed to intervene by the Division Bench of the High
Court on earlier occasions and it is too late to raise a contention that they
have no role to play in the approval of a Scheme under Section 391 of the
Companies Act and their appeals should be rejected on that ground. The case
of the appellant in Civil Appeal Nos. 3171-3181 of2005 involves a further F
fact that it was sought to be involved in the Scheme originally presented by
the Somanis which ultimately was rejected by the court, but during the course
of the proceedings the appellant was directed to deposit certain amounts and
furnish security for certain other amounts and this could only be on the basis
that as a participant in the original Scheme proposed, the appellant had some
locus standi. LBPL, which is now sought to be associated in the modified G
Scheme also stands on the same footing as the appellant in Civil Appeal Nos.
3179-3181 of2005. Considering the aspects involved, in the context of the
order for liquidation of the company and the attempt to sponsor a scheme for
acceptance by the Company Court, the two sets of appeals could not be
H
338 SUPREME COURT REPORTS [2007] 9 S.C.R.

A dismissed as appeals by persons who have no locus standi to maintain them.
(Para 13) (346-8-E]

2.2. With regard to the locus standi of Rangnath Somani to maintain_
the appeal, it was submitted that Rangnath Somani was a co-sponsor of the
Scheme which was accepted and approved by Division Bench and Rangnath
B Somani had even received possession of the assets of SCML from the Official
Liquidator pursuant to his discharge on the basis of the decision of the
Division Bench and as such is estopped from questioning the order of the
Division Bench in an appeal. Rangnath Somani submitted that the Scheme as
approved by the general meeting of the concerned, was not accepted by the
C Division Bench and certain modifications were brought in on the basis of
11ffidavits filed on behalf of LBPL and made part of Scheme of the Division
Bench and objection of Rangnath Somani was not dealt with and he always
had a right to object to such modifications or to contend that such
modifications must go back to the general meeting for consideration and
approval. There is substance in the submission of Rangnath Somani and it
D cannot be said that Rangnath Somani is estopped from filing an appeal against
the decision of the Division Bench ..
!Paras 14 and '15) (346-G-H; 347.:.A, 8-C]

CIVIL APPELLATE JURISDCTION: Civil Appeal Nos. 3179-3181 of
2005.'
E
From the final Judgment and Order dated 21.3.2005 of the High Court
of Judicature at Bombay in Appeal Nos. 512, 527& 534 of2004.

WITH

F C.A. Nos. 3182-3184 and 3569-3571 of2005 and 4377of2006.

R. Mohan, ASG., C.A. Sundaram, C.S. Vaidyanathan, Shyam Diwan,
Aspi Chinoy, Iqbal Chagla, Dr. Abhishek M. Singhvi, Anil B. Diwan, R.F.
Nariman, Indu Malhotra and Rakesh Dwivedi, Mukul Taly, Rohini Musa; Jatin
G Zaveri, Haripriya Padmanabham, Senthil Jagadeesan, E.C. Agrawala, Mahesh
Agrawal, Rishi Agrawala, Gaurav Goel, Amit Sharma, Neha Aggrawal, Purnima
Bhat, P.H. Parekh, Pallav Shishodia, Sameer Parekh, Sumit Goel, Nitin Thukral,
Kush Chaturvedi, Yash Kapadia, Ravi Gandhi, Dhoyal Vussonji (for P.H.
Parekh & Co.) Amit Bhandari, Nandini Gore, Debmalya Banerjee, Sonia Nigam,
Manik Karnajawala, S.M. Dharap, Aniruddha Joshi, Vinay Navare, Naresh
H Kumar, C. Mukund, Pankaj Jain, Ashok Kr. Jain, Shashank Sharma, Amit
MEGHALHOMESPVT.LID. •. SHREENIWASGIRNIK.K.SAMITI[BALASUBRAMANYAN,J.) 339

Kasera, Bijoy Kumar Jain, Indra Sawhney, Indu Sharma, Bina Gupta, Shweta A
Verma, Gaurav Singh, Pratap Venugopal (for K.J. John & Co.), Sheela Goel.
Shantanu Krishna, Mukti Chowdhary, Ramesh Kumar Singh, Ramesh Babu
M.R., A.V. Rangam, Buddy A. Ranganadhana and Rajiv Nanda (for Official
Liquidator Ravindra Kumar) for the appearing parties.

The Judgment of the Court was delivered by B
P.K. BALASUBRAMANY AN, J. 1. These appeals arise out of
proceedings in the Company Court in the matter of Mis Shreeniwas Cotton
Mills Limited (SCML). The Company was incorporated on 5.2.1935. It
established and ran a textile mill in a land measuring 70,490 square meters in C
Lower Pare! in the then City of Bombay.

2. Just like various other textile mills located in that city, SCML also ran
into difficulties. A creditor of the Company made an application C.P. No. 642
of 1983 under Section 433 of the Companies Act, for the winding up of the
Company. By order dated 25.7:1984, SCML was ordered to be wound up by D
the Company Court. The Official Liquidator took charge of the affairs of the
Company.

3. Nothing significant seems to have happened for a decade. Then, on
a report of the Official Liquidator, the Company Court passed an order dated
l. 9.1994 directing the Official Liquidator to issue a public notice inviting offers E
for the revival of the textile mills and absorption of the workmen and to
purchase the assets of the Company. At that stage, Rangnath Somani, a
contributory, filed Company Application No. 339 of 1994 seeking directions
of the Company Court for holding a meeting of the creditors, contributories
and other interested persons to consider a scheme proposed allegedly for the
revival of the Company. The application was opposed. The Company Court F
directed the convening of the requisite meeting to consider the proposed
scheme. Pending consideration thereof, the Company Court also withheld the
proceedings pursuant to the public notice inviting offers. The order of the
Company Court directing the convening of a meeting for the purpose of
considering the scheme propounded was challenged in appeal by the workers' G
union and three of the parties who had submitted their offers in response to
the advertisement issued by the Official Liquidator pursuant to the direction
of the Company Court dated 1.9.1994. Notwithstanding the pendency of the
appeals, a meeting as directed by the Company Court was held and a scheme
was approved by the creditors, contributories and workers. An application for
H
340 SUPREME COURT REPORTS [2007] 9 S.C.R.

A sanctioning the scheme was also filed. But, meanwhile, on 4.4.1995, the
Division Bench of the High Court allowed the appeal against the order dated
l.9.1994 and set aside the direction for convening a meeting to consider the
scheme proposed. The Company Application filed in that behalf was thus
dismissed. In the view of the Division Bench, the scheme proposed was not
B a bona fide one since it was not on the basis of any viability report regarding
the revival of the company and there was a failure to disclose the latest
financial position of the Company. The court also found that even on the
showing of Rangnath Somani, the value of the land belonging to SCML
would be approximately Rs. 200 crores if unencumbered and that itself was
a very conservative valuation. The court was of the view that the intention
C behind presentation of the Scheme appeared to be to acquire the huge lands
and other real estate belonging to SCML at a throw away price ostensibly in
the guise of reviving the mills but with no real intention of reviving it. After
the obtaining of a viability report, the Division Bench wanted the Company
Judge to consider certain suggestions. They were:

D "(l) Whether it is possible and viable to reopen the mills and/or any
portion of it and run it profitably and without disposing of
immovable assets of the Company;
(2) In case the mills cannot be re-started then whether any department
or process of the mills could be started as viable;
E (3) In case any party who comes forward with an offer to pay off all
the creditors, take the company out of winding up and revive and
restart the mills happens to be a shareholder of the Company,
such party should surrender the shareholding in the capital of
the Company at the value to be deterrninied by the Court;
F (4) In case above courses are not workable then whether the mills
can be restarted by disposing of part of its assets to generate
finance after payment to all the creditors;
(5) In case even the course under clause (4) above is not possible,
then the Official Liquidator may sell the assets by public auction
G in which even the s_hareholders of the Company will be at liberty
to bid."

4. Thereafter, the Division Bench emphasized what was the main object'
to be kept in mind by the Company Court. In that behalf, it was stated:

H "It is open for the learned Company Judge to give any other suitable
MEGHALHOMESPVT.LID. ''· SHREEN!WASGIRNIK.K.SAMITI[BALASUBRAMANYAN,J.] 34 J

directions in the matter keeping in mind that the whole anxiety is to A
revive the Company and to restart the mills which is in the interest
not only of the workers and creditors ef the Company but also in the
general interest of public. Needless to say that the revival of the
Company and restarting of the mills will generate more employment
and will be for healthy economy of the country."
B
(emphasis supplied)

5. A Petition for Special Leave to Appeal filed in this Court challenging
..."" the decision of the Division Bench as Special Leave Petition (Civil) No. 13305
of 1995 was dismissed on 10.7.1995.
c
6. The State Bank of India Capital Markets Limited was assigned the
task of preparing a viability report. That Body made its recommendations after
a due study of the situation. On the first aspect posed by the Division Bench,
it answered:

"It is not possible to reopen the mills or any portion of it without D
disposing of the immovable assets of the Company. In our opinion,
it would be unviable to revive the weaving and the processing sections
of the above mill on account of the reasons summarized below."

For the moment, we are not concerned with those reasons and therefore we E
are not adverting to them at this stage. In answer to the second query posed,
the answer was:

"It is not possible to restart the entire mill. Only a section of the
spinning division with 21420 spindles can be restarted and operated
as viable, details of which are given below."
F
The details are not relevant for the moment. In answer to the third query
regarding the surrender of shareholding ifthe offer comes from a shareholder,
the report stated that the said matter rested with the court and its discretion.
Regarding query No. 4, it was reported that since revival plan envisaged the
functioning of the spinning section alone, the machinery in the weaving and G
processing sections and part of the machinery in the spinning section had
to be sold or scrapped. A sale of such machinery was estimated to fetch a
price of approximately Rs.550.99 Iakhs. It was further reported that saleable
extent of 44593 square meters of mill land, being a part of the total holding,
if sold may fetch the required sum to settle all the past liabilities of the
Company. But, it was suggested that it may be appropriate if the interested H
342 SUPREME COURT REPORTS [2007] 9 S.C.R.

A party brought in Rs. I 2367.4 I lakhs in the form of loans initially and once the
weaving and processing machinery and non-viable spinning machinery are
sold, then, the question of sale of part of the land could be taken up. In
answer to the fifth query, it was reported that since a partial revival of the
mills was possible, sale by the Official Liquidator of the assets by pu~lk
auction may not arise. It was also suggested that delay in implementing the
B revival package will escalate the liability and would lead to further_~~~ei:ioration
in the condition of the spindleage proposed to be revived.

7. On 7. I 1.1998, a new Industrial Location Policy of the Government of
Maharashtra became operative. That applied to all industries in the Mumbai
C Metropolitan Region excluding the cotton textile industries. Since cotton
textile industry was excluded from its purview, it appears that there was no
restriction on restarting of the manufacturing activities of SCML.

8. We may notice at this stage that the main shareholders of SCML were
Bangurs, Soman is, and the Life Insurance Corporation of India and the sundry
D shareholders held about 10% of the shares. Two of the secured creditors were
the State Bank of India and the Punjab and Sind Bank.

9. The matters lingered on. On 29.6.2003, it is seen that a Memorandum
of Understanding was executed between the shareholders, the Somani Group,
who meanwhile had acquired the shares of the Bangur Group (there is
E controversy whether the acquisition was by Rangnath Somani in his own
right or it was an acquisition by the Somanis Group, a controversy that we
are not called upon to decide here) and Lodha Builders Private Limited
(LRPL ). Under that Memorandum, LBPL agreed in consideration of getting the
right to develop the properties of SCML, to pay a sum of Rs. 78 crores to
F SCML and 70,000 square feet of built up area or 19.50 crores in the alternative
at the option of SCML. In other words, LBPL was to pay Rs. 97.50 crores to
SCML or Rs. 78 crores and 70000 square ft. of built up area. lt·was also
provided that if any additional funds were required for settling the affairs of
the Company, the additional funds would h!lve to be brought in by SCML.
In other words, on payment of Rs. 78.crores and handing over a built up area
G of70000 square feet or on paying Rs. 97.50 crores in all, LBPL was to get the
right to develop and deal with the lands of SCML. Based on this Memorandum
of Understanding, the three Somani cousins filed Company Application No.
4 of 2004 propounding a scheme and seeking directions from the Company
Court for convening a meeting to consider the amended scheme. The
amendment to the earlier scheme presented, included the replacement of
H
MEGHAL HOMES PVT.LID. v. SHREE NIWASGIRNI K.K. SAMITI [BALASUBRAMANYAN,J.) 343

paragraph 1.5 of the original scheme which had indicated that sale of the A
a~sets or properties of SCML was not envisag~d and the scheme was for
revival of the textile mill unit of SCML by a provision that the scheme
envisaged development and transfer of SCML's propertiesd by LBPL for
revival of SCML. Another amendment was to clause 5.1. This was by deleting
the salient features for scheme for revival of the mills and providing in its
place that the aim was that after discharging the liabilities of all creditors as B
per the scheme, if extra funds are available with SCML, then SCML will start
a viable industry in any part of Maharashtra and employment would be
generated. It was further stated in the proposed amendment that LBPL was
to bring in funds of Rs. 78 crores for the payment of liabilities of SCML. In
the event of any further finance being required than the amount agre¢d to be C
brought in by LBPL, the Company Applicants, the Somani cousins, would be
permitted to dispose of a part of the assets of SCML and the proceeds of the
sale will be utilized to pay off the workers and the creditors if required.

IO. On 12.12.2003, the Company Court directed the meeting to be
convened to consider the amended scheme. On 21.2.2004, the amended scheme D
was approved at the meeting. Company Petition No. 315 of 2004 was filed on
7.4.2004 seeking sanction of the amended scheme. The Regional Director on
behalf of the Central Government pointed out that the propounders of the
scheme were required to file an affidavit regarding the latest financial position
of the Company but that they had not filed such an affidavit. On 23.7.2004, E
the Company Court rejected the amended scheme and dismissed the Company
Petition No. 315 of 2004. The court held that the scheme presented was not
a scheme for revival but it was in substance a disposal of the Company's
assets which then vested in the Official Liquidator. The court found that it
was only a mode of disposal of the Company's assets and hence it would be
proper for the Company Court holding the assets to dispose of the assets F
after inviting offers. That would fetch a better price and such a course would
be in the interest of the Company's minority shareholders, workmen and
secured and unsecured creditors. The court was also of the view that the
amount of Rs. 97.50 crores offered by LBPL was considerably less than the
amount of Rs. 200 crores, which the Division Bench had noticed about ten G
years back, would be the minimum price that could be fetched if the properties
were to be auctioned. The Company Court directed the issue of advertisements
inviting offers for the assets of SCML showing a reserve price of Rs. 150
crores. The Official Liquidator issued advertisements inviting offers.

11. The order of the Company Court dated 23.7.2004 was challenged in H
344 SUPREME COURT REPORTS [2007] 9 S.C.R.
A appeal by LBPL, by the Somanis and by the workers' union. Though various
offers had been received pursuant to the advertisement issued at the direction
of the Company Court, they were not considered since in appeal, the auction
process was stayed. The Division Bench, on 15.12.2004, passed an order
directing the Somanis, LBPL and the various interveners who had made
offers, to place their proposals for rehabilitation on record. It was also directed
B that those interested in purchase of the property should file affidavits placing
on record whether they were prepared to make a down payment of a specified
sum for release to the workers. The court also directed the Somanis holding
the major shares (again we are not con,cered with their inter se dispute here)
......:.
to state whether they would be willing to accept any such better scheme.
C Some affidavits were filed and in its affidavit, LBPL stated that in addition to
the payment of Rs. 45 crores to the workers, LBPL would set up a spinning
unit and a garment unit at the cost of.Rs. 40 crores on the 7,50,000 square
feet coming to them under the Scheme, and would construct and transfer to
a Workers Trust a 30,000 square feet unit, housing a school and other ·
accommodation at a cost of Rs. 15-20 crores. Rangnath Somani, the eldest of
D the cousins filed an affidavit showing that the Somanis would be willing to
consider and evaluate any better scheme in the interests of SCML. But, on
the same day, Ramesh Somani, who was one of the co-propounders of the
scheme, filed an affidavit stating that he fully supported the scheme of LBPL
and did not want any change in the sponsors. He also filed another affidavit
E stating that the propounders of the scheme would set up a textile unit for
rehabilitation of the workers of SCML at Sholapurat a cost of Rs. 35.02 crores.
It is said on behalf of the appellants, that at the last moment just before the
delivery of the judgment began, affidavits filed on behalf of the LBPL were
received by the court, even while refusing to receive two affidavits, Rangnath
Somani wanted to file. The Division Bench allowed the appeals, set aside the
F judgment of the Company Court and sanctioned the scheme as modified and
as further modified by two affidavits of the Directors of LBPL, by its judgment
·dated 21.3.2005. It is this decision of the Division Bench that is in challenge
before us in these appeals. Three of the appeals are by persons, who had
made offers pursuant to the direction of the court and have been described
G for convenience, as the interveners and one of them by Rangnath Somani.
Even at this stage, we may mention that Civil Appeal Nos. 3569-3571 of2005
filed by one of the interveners is sought to be withdrawn. We see no reason
why the prayer for withdrawal of those appeals shall not be granted. So, Civil
Appeal Nos. 3569-3571 of2005 would stand dismissed as withdrawn. We ai:e
only considering the other appeals on merits.
H
MEGHALHOMESPVT.LTD. v. SHREENIWASGIRNIK.K. SAMITI [BALASUBRAMANYAN,J.J 345

12. Before we proceed to consider the merits of the appeals, an objection A
taken to the maintainability of the appeals requires to be considered. According
to the respondents, the appellants in Civil Appeal Nos. 3179-3181 of 2005 and
Civil Appeal Nos. 3182-3184 of 2005 have no locus standi either to object in
the Company Court or to challenge the decision of the Division Bench of the
High Court in appeal before this Court. It is submitted that neither of those B
appellants are creditors, contributories or debenture holders and are /total
strangers to SCML and they have nothing to do with the proposal and
acceptance of the Scheme under Section 391 of the Companies Act read with
Sections 392 and 393 of that Act. This contention is sought to be met by the
appellants in these appeals by pointing out that the appellant in Civil Appeal
Nos. 3171-3181 was associated with the original Scheme for which approval C
was sought from the Company Court and that the appellant therein had in fact
deposited a sum of Rs. 18 crores as per the direction of the court and had
also furnished a bank guarantee for Rs. I 0 crores and had allegedly discharged
certain creditors of the Company and what was sought in the present case
was a modification of the earlier Scheme in which the appellant was involved
and in this situation the locus standi of the appellant could not be denied. D
It was also pointed out that there was a specific direction by the Division
Bench to the appellant and others to present their Schemes/Proposals before
the court and they had filed affidavits in that behalf. The Company Court was
bound to consider their proposals in the light of the directions of the Division
Bench. The Division Bench in the present round also could not go back on E
what had been ordered by earlier Division Bench. This gave the appellants
sufficient locus standi. The appellants in both these sets of appeals had also
submitted proposals pursuant to the directions of the court and had also
responded to the tenders issued as per the directions of the Company Couit.
If the proceedings had continued in the Company Court, one of those persons
could have benefited. The benefit that was thus to accrue to one of the F
interveners was deprived of by the Division Bench by its present order and
in that situation, the appellants are persons who are aggrieved by the decision
of the Division Bench and entitled to challenge the said decision in this Court.
It is also submitted that the framing of a Scheme for revival of a Company
under liquidation had .overtones of public interest and commercial morality G
and in the context of what had transpired in this case and the involvement
of the interveners at every stage, it was not open to the respondent now to
raise a contention that the appellants have no locus standi. In fact, the
Division Bench of the High Court was totally in error in excluding their
objections on the ground that they had no locus standi and as persons
aggrieved by that finding, it is open to them to file these appeals. It is also H
346 SUPREME COURT REPORTS [2007] 9 S.C.R.

A submitted that LBPL was also in the same boat as the appellant in Civil
Appeal Nos. 3179-3181 of 2005 and if it had locus standi to appeal to the
Division Bench of the High Court against the order of the Company Court,
the appellant has the locus standi to appeal to this Court.

13. In the light of what had transpired in this case and the orders of the
B Division Bench dated 4.4.1995 and 15.12.2004, it is not possible to accept the
argument on behalf of the respondents that the appellants in the two sets of
appeals have no locus standi to maintain their appeals in this Court. They
have been allowed to intervene by the Division Bench of the High Court on
earlier occasions and it is too late in the day now to raise a contention that
C they have no role to play in the approval of a Scheme under Section 391 of
the Act and their appeals should be rejected on that ground. The case of the
appellant in Civil Appeal Nos. 3171-3181 of 2005 involves a further fact that
it was sought to be involved in the Scheme originally presented by the
Somanis which ultimately was rejected by the court, but during the course of
the proceedings the appellant therein was directed to deposit certain amounts
D and furnish security for certain other amounts and this could only be on the
basis that as a participant in the original Scheme proposed, the appellant had
some locus standi. In a sense, LBPL, which is now sought to be associated
in the modified Scheme also stands on the same footing as the appellant in
Civil Appeal Nos. 3179-3181 of2005 and we are not invited to hold that LBPL
E has no locus standi in this proceeding as no such argument was raised before
us. Considering the aspects involved, in the context of the order for liquidation
of the company and the attempt to sponsor a scheme for acceptance by the
Company Court, we are of the view that the two sets of appeals could not
be dismissed as appeals by persons who have no locus standi to maintaini
them. Surely, to the extent the Division Bench has held that their objections
F are irrelevant, they can certainly appeal to this Court in an attempt to show
that their objections are indeed relevant. Whether their claim is meritorious,
is another matter.

14. The right of Rangnath Somani to maintain his appeal being Civil
Appeal No. 4377 of 2006, is challenged on the ground that he was a co-
G sponsor of the Scheme which has been accepted and approved by the
Division Bench and therefore he cannot claim to be a person aggrieved by
the decision of the Division Bench entitled to challenge the decision of the
Division Bench. The argument on behalf of Rangnath Somani is that the
Scheme as approved by the general meeting of the concerned, has not been
H accepted by the Division Bench and certain modifications were brought in on
MEGHALHOMESPVT.LTD.1•. SHREENIWASGIRNIK.K. SAMITI (BALASUBRAMANYAN,J.] 347

_, . the basis of affidavits filed on behalf of LBPL and he has always a right to A
object to such modifications or to contend that such modifications must go
back to the general meeting for consideration and approval. On this part of
the objection, we find substance in the stand adopted on behalf of Rangnath
Somani and on that basis we cannot say that he is not entitled to file an
appeal against the decision of the Division Bench.
B
15. But more seriously it is contended that Rangnath Somani had
accepted the decision of the Division Bench of the High Court and had even
received possession of the assets of SCML from the Official Liquidator
pursuant to his discharge on the basis of the decision of the Division Bench
and having done so, he is estopped from questioning the order of the C
Division Bench in an appeal which he has filed subsequently. This argument
is sought to be met on behalf of Rangnath Somani by pointing out that the
receiving of possession pursuant to the order of the Division Bench from the
Official Liquidator cannot estop him from filing an appeal before this Court
and from pointing out that the decision suffers from a vital defect of being
one in excess of the authority of the Division Bench of the High Court and D
not in consonance with the terms of the Companies Act. It is seen that some
objection was sought to be raised by Rangnath Somani regarding the
proposals contained in the affidavits filed on behalf of LBPL, which proposals
were accepted and made part of the Scheme of the Division Bench and the
objection of Rangnath Somani was not dealt with as such. Moreover, from the E
fact that, subsequent to the decision of the Division Bench, Rangnath Somani
received possession of the assets of SCML along with his cousins, the other
two Somanis, it cannot be said that thereby he has lost his right to appeal
to this Court questioning the modifications in the Scheme sought to be
propounded by him and approved at the General Meeting. We are not inclined F
to go into the charges and counter charges as to which of the Somanis has
been got at and by whom, since we consider those allegations to be irrelevant
for our purpose. Suffice it to say that, we are not inclined to accept the
argument on behalf of the respondents that Rangnath Somani is estopped
from filing an appeal against the decision of the Division Bench. Anyway,
since we have held that the appeals by the other two appellants are G
maintainable, the question that arises will have to be examined by this Court
and in that context, we find it not proper to tum away Rangnath Somani from
the portals of this Court on the ground of estoppel. Thus, we overrule the
objections to the maintainability of these appeals.

16. Now to recapitulate, the Company was ordered to be wound up on H
348 SUPREME COURT REPORTS [2007] 9 S.C.R.

A 25. 7.1984 and the Official Liquidator was directed to take possession of the
assets of the Company._ Once an order of liquidation had been passed on an
application under Section 433 of the Companies Act, the winding up has to
be either stayed altogether or for a limited time, on such terms and conditions
as the court thinks fit in terms of Section 466 of the Act. If no such stay is
B granted, the proceedings have to go on and the court has to finally pass an
order under Section 481 of the Act dissolving the Company. In other words,
when the affairs of the Company had been completely wound up or the court
finds that the Official Liquidator cannot proceed with the winding up of the
....
Company for want of funds or for any other reason, the court can make an ..J.

order dissolving the Company from the date of that order. This puts an end
C to the winding up process. Winding up is dealt with in Part VII of the
Companies Act and Sections 433 to 483 occur in Chapter II of that Part. Part
VI deals with management and administration of a Company and Chapter V
thereof deals with Arbitrations, Compromises, Arrangements and
Reconstructions. In that Chapter occurs Sections 390 to 396A of the Act with
D which we are concerned. While defining a Company for the purpose of
Sections 391 and 393, Section 390 clarifies that Company means any Company
liable to be wound up under the Companies Act. SCML was a company that
was ordered to be wound up on 25. 7.1984. Therefore, when the Scheme was
originally presented on 3.10.1994, it was at a time when the winding up order
was already in existence. The argument that Section 391 would not apply to
E a Company, which has already been ordered to be wound up cannot be
accepted in view of the language of Section 3 91 (I) of the Act, which speaks
of a Company which is being wound up. If we substitute the definition in
Section 390(a) of the Act, this would mean a Company liable to be wound up
and which is being wound up. It also does not appear to be necessary to
F restrict the scope of that provision considering the purpose for which it is
enacted, namely, the revival of a company including a Company that is liable
to be wound up or is being wound up and normally, the attempt must be to
ensure that rather than dissolving a company it is allowed to revive. Moreover,
Section 391 (I )(b) gives a right to the liquidator in the case of a company
which is being wound up, to propose a compromise or arrangement with
G creditors and members indicating that the provision would apply even in a
case where an order of winding up has been made and a liquidator had been
appointed. Equally, it does not appear to be necessary to go elaborately into
the question whether in the case of a company in liquidation, only the Official
Liquidator could propose a compromise or arrangement with the creditors and
H members as contemplated by Section 391 of the A~t or any of the contributories
or creditors also can come forward with such an application. By and large,
MEGHALHOMES PVT.LID. v. SHREE NIWAS GIRNI K.K. SAMITI [BALASUBRAMANY AN, J.] J 49

the High Courts are seen to have taken the view that the right of the Official A
Liquidator to make an application under Section 391 of the Act was in
addition to the right inhering in the creditors, the contributories or members
and the power need not be restricted to a motion only by the liquidator. For
the purpose of this case, we do not think that it is necessary to examine this
question also in depth. We are inclined to proceed on the basis that the B
Somanis, as contributories or the members of the Company, are entitled to
make an application to the Company Court in terms of Section 391 of the Act
for the purpose of acceptan~e of a compromise or arrangement with the
creditors and members.

17. The question in this case really is whether the compromise put C
forward under Section 391 of the Companies Act could be accepted by the
court without reference to the fact that it is a company in liquidation and
without considering whether the compromise proposed as intending to take
the company out of liquidation, contemplates the revival of the company and
whether it puts forward a proposal for revival and whether such a proposal
also satisfies the element of public interest and commercial morality, the D
elements required to be satisfied for the court to stop the winding up proceeding
in terms of Section 466 of the Act. In the present case, the Company Court
was of the view that the compromise or arrangement that is put forward by
the Somanis in conjunction with LBPL was not a scheme or proposal for
revival of the company or the Mills, but it is one for disposal of the assets E
of the company and in that situation, it would be proper that the assets are
disposed of by the Official Liquidator by inviting offers from the public in that
behalf and maintaining transparency. But, the Division Bench accepted the
contention that it was not mandatory in law that a compromise or arrangement
has to be for revival of the very activity in which the company was engaged
in at the time of winding up and the anxiety of the court while sanctioning F
the scheme which is approved by all classes should be to see that the
company is permitted to continue its corporate existence. The Division Bench
also took the view that the judgment of the earlier Division Bench dated
4.4.1995 did not stand in the way of accepting the present scheme, and that
since the Company Court had no jurisdiction to sit in appeal over the decision G
of the creditors, members and contributories of the company, the proposal put
forward was liable to be accepted especially in the context of its finding that
the interveners have no locus standi to oppose the proceedings.

18. Learned counsel argued before us whether in the case of a company
H
350 SUPREME COURT REPORTS [2007] 9 S.C.R.

A which had been ordered to be wound up, a compromise or arrangement made
under Section 391 of the Act could be accepted on the basis that the said
arrangement has been approved by the relevant meeting of the creditors,
members and so on and whether the court was concerned with anything more
than such a decision taken by the concerned members and creditors of the
B company. In the case of a company ordered to be wound up, a compromise
or arrangement that could normally be accepted by the Company Court could
be either paying off all dues by liquidation of assets or an arrangement for
revival of the company and its business. That is the rationale of the order
dated 4.4.1995 by which the Division Bench directed consideration of the ...
-1.
various aspects pointed out therein. The Division Bench had emphasized that
C what the court was concerned with while sanctioning a Schem~ under Section
391 of the Act in the case of a company that .js ordered to be wound up, .is
the revival of the company. Strictly speaking, in the light of that order of a
Division Bench, which was binding on the subsequent Division Bench, no
question arises in this case especially when we notice that the decision of
the earlier Division Bench dated 4.4.1995 was sought to be challenged in this
'D Court by way of a Petition for Special Leave to Appeal and that challenge
was repulsed and the Petition was dismissed. Therefore, as far as this case
is concerned, the contours of the enquiry to be made by the Company Court
was drawn by the decision of the Division Bench dated 4.4.1995. Hence, what
is relevant for the court to consider was whether the proposal or the modified
E compromise or arrangement put forward was for revival of the company.

19. In that context, it is clear that the State Bank of India Capital Markets
Limited had pointed out that it was not possible to revive the entire business
of the SCML and that a part of the spinning industry .could be retained and
F revived by disposing of the machinery related to the other activities carried
on by SCML and by sale of a portion of the immovable property of the
company. Therefore, the main aim of any scheme or modified compromise or
arrangement in terms of Section 391 of the Act, would be a revival only of
the spinning section of the company at the premises of the Mill and the
facilitating of that revival by the sale of parts of tbe assets of the company.
G The Scheme as it was, originally proposed, contained the following clause in
the preamble:

"1.5. The Scheme does not envisage sale of any of the assets or
properties of Shreeniwas Cotton Mills Limited (now in liquidation) and
is for the revival of the textile Mill unit ofSree Niwas Cotton Mills Ltd.
H (now in liquidation)"
MEGHALHOMESPVT.LTD. "· SHREENIWASGIRNIK.K.SAMITI[BALASUBRAMANYAN,J.) 35 J

It provided for payment and discharge of liabilities and it contained what were A
described as salient features of the Scheme for revival of the Mills. The
amendments proposed to that Scheme by the Somanis were the deletion of
paragraph 1.5. quoted above and replacement of it with the following:

"The Scheme envisages development and transfer of SCML's said
property by LBPL for revival of SCML (now in liquidation)." B
After dealing with the modified proposal for settlement of liabilities to creditors
.... and others, it was provided in clause 5 that on the sanctioning of the Scheme,
... a development agreement will be entered into between SCML and LBPL for
developing SCML's property, liquidity will be generated and all creditors paid
off and the company will come out of liquidation. Then it was stated: C
"Secondly, after discharging all creditors as per the scheme, if extra
funds are available with SNCML, then SNCML will start a viable
industry in any part of Maharashtra and employment will be generated."

It also explained that the entire dues of the workers will be paid and all the D
creditors will be satisfied. The following clause was also to be inserted:

"If the Scheme is allowed, SCML will enter into an agreement with the
LBPL for development and transfer of SCML's said property. LBPL
shall bring in and provide for funds to discharge the creditors of
SCML. LBPL will bring in funds of Rs. 78.00 crores for payment of E
liabilities of SCML. Finance for the purpose of the Scheme is being
provided by LBPL and all the creditors and workers will be paid. In
the event, if any further finance is required than the amount agreed
to be brought in by LBPL, the Applicants be permitted to dispose off
the part of.the assets of SNCML and proceeds from the sale will be F
utilized to pay off the workers and the creditors if required."

It was stated that:

"In the event, if after paying all creditors ofSNCML funds are available
with SNCML, then SNCML will start such viable industry in any part G
of Maharashtra."

According to the contesting respondents, the Scheme as sought to be modified
is a Scheme that takes care of all the liabilities of SCML and also contemplates
the setting up of some viable industry in any part of Maharashtra by the
company. This was enough to recognize a scheme under Section 391 of the H
352 SUPREME COURT REPORTS [2007] 9 S.C.R.

A Companies Act. It was not feasible to revive the mills as a whole as was clear
from the materials and in that context what was possible was to save the
godown and the office building of SCML, discharge all liabilities and if any
excess fund is left, to start an industry in any part of Maharashtra and there
was nothing wrong with the acceptance of such a scheme. It was during the
course of the hearing before the Division Bench that two alternatives were
B proposed in an affidavit filed on behalf of the LBPL, not a member or creditor
of the Company, but which was associated with the proposal put forward by
way of a compromise or arrangement, that LBPL will, in addition to the liability
of Rs. 97.50 crores undertaken, would put up a school/industrial unitof30000
square feet for the benefit of the workers or pay a sum of Rs. 15 lakhs in lieu
C thereof to the workers; that LBPL will set up a spinning/garment unit in an
area of 1,00,000 square feet in the Mill premises at a cost of Rs. 40 crores and
SCML would set up a unit in rural Maharashtra at a total outlay of Rs. 20
crores. Yet another affidavit was filed on behalf of LBPL in which willingness
was expressed by it to pay the higher amounts claimed by the two secured
D creditors, the State Bank of India and the Punjab and Sind Bank subject to
LBPL being entitled to create a charge on the mill property even before
discharging the liability to the two banks and on condition of delivery of the
original documents relating to SCML to LBPL and not to SCML, on full
payment of the amounts agreed to be paid to the two creditor banks. It was
to these modifications proposed by a non member of the company, but which
E was associated with the working of the compromise or arrangement, that
Rangnath Somani tried to raise some objections one of which was that SCML
was not agreeable to set up an industrial unit anywhere in Maharashtra at a
cost of Rs. 20 crores. Ramesh Somani supported LBPL. The Division Bench
of the High Court accepted the affidavits filed on behalf of LBPL and sanctioned
the scheme as amended and as further modified by the two affidavits of
F Abhishek Lodha, Director of the Company dated 21.3.2005. Obviously, the
Division Bench must have been conscious that Abhishek Lodha was only a
Director of LBPL and that he was not a Director of the Company in liquidation,
though there is some ambiguity in the concerned sentence in the judgment.
He was also not a propounder of the Scheme, but he was only a participant
G in the proposed arrangement come to between the company and its creditors,
shareholders, debenture holders, workers, etc.

20. How far the scheme could be modified on the suggestion of LBPL r
which is not one of the entities contemplated by Section 391 of the Act, is
a moot question. Even otherwise, the deletion of clause 1.5 indicated in the
H
MEGHALHOMES PVT. LTD. 1•. SHREE NIWAS GIRNIK.K. SAMITI [BALASUBRAMANYAN,J.) 353

original proposal and the replaced clause 1.5 in the modified scheme, indicated A
that the object was not the revival of SCML. The vague stipulation that
SCML would put up some viable industry in some part of the State of
Maharashtra, if funds are available, was sought to be replaced by a commitment
to start an industry in rural Maharashtra that also at the cost of Rs. 20 crores.
Though, one of the Somani cousins agreed to these proposals, another B
cousin attempted to object to that proposal and is objecting to it before us.
Similarly, the amendment by way of an affidavit on behalf of the LBPL
contemplated the starting of an industry in the Mill land by LBPL and not
by the company in liquidation. Thus, the company in liquidation, did not
intend taking up any revival activity in the properties belonging to SCML
other than retaining the office building it had and the godown it had away C
from the mill fands. It is difficult to conceive of this as a revival of SCML,
a company in liquidation. This is more in the realm of disposal of the assets
of the company in liquidation, no doubt, with a view to pay off all the
creditors, debenture holders and workers from the funds generated out of the
sale of the lands in favour of LBPL. Going by the test laid down by the
Division Bench in its order dated 4.4.1995, which has become final inter D
parties and the object of Section 391 of the Act, it is difficult to say that it
is a scheme for revival of the company, the clear statutory intention behind
entertaining a proposal under Section 391 of the Act.

21. Considerable arguments were raised on the role of the Court when E
a Scheme· under Section 391 of the Act was propounded for its consideration.
The decision in Miheer H Mafatlal v. Mafatlal Industries Ltd, [1997] 1 S.C.C.
579 was relied on. That was a case of merger or amalgamation of two companies.
Neither of the companies was in liquidation. This Court held that compromise
or arrangement included amalgamation of one company with another. This
Court also defined the broad contours of the jurisdiction of the Company F
Court in granting sanction to a scheme in terms of Section 391 and Section
393 of the Act. This Court laid down the following parameters:

"l. 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 39l(I)(a) have G
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 Sub-Section (2).

3. That the concerned meetings of the creditors or members or any H
354 SUPREME COURT REPORTS (2007] 9 S.C.R.

A class of them·had the relevant material to enable the voters to arrive
at an infonned decision for approving the scheme in question. That
the majority de.cision 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.

B 4. That all necessary material indicated by Section 393(l)(a) is placed
before the voters at the concerned meetings as contemplated by
Section 391 ·sub-section (I).

5. That all the requisite material contemplated by the proviso of Sub-
..
J.

section (2) of-Section 391 of the Act is placed before the Court by the
c concerned applicant 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
D 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
E 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 of 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
F a 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
G 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
''r'
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
H otherwise amount to the Court exercising appellate jurisdiction over
MEGHALHOMESPVT.LID.v.SHREENIWASGIRNIK.K.SAMITI[BALASUBRAMANYAN,J.) 355

the scheme rather than its supervisory jurisdiction." A
We may straightaway notice that this Court did not have occasion to consider
whether any additional tests have to be satisfied when the Company concerned
is in liquidation and a compromise or arrangement in respect of it is proposed.
Therefore, it cannot be said that this would be the final word on any Scheme
put forward under Section 391 of the Act, whatever be the position of the B
concerned company. Even then, this decision lays down the need to conform
to the statut~ formalities, the power of the Court to ascertain the real
I# purpose underlying the Scheme, the bona fides of the Scheme, the good faith
l..
in propounding it and that as a whole, it is just, fair and reasonable, at the
same time emphasizing that it is not for the Court to examine the Scheme as
if it were an appellate authority over the commercial wisdom of the majority.
c
22. When a Company is ordered to be wound up, the assets of it, are
put in possession of the Official Liquidator. The assets become custodia legis.
The follow up, in the absence of a revival of the Company, is the realization
of the assets of the company by the Official Liquidator and distribution of D
the proceeds to the creditors, workers, and contributories of the company
ultimately resulting in the death of the company by an order under Section ~

481 of the Act, being passed. But, nothing stands in the way of the Company
Court, before the ultimate step is taken or before the assets are disposed of,
to accept a scheme or proposal for revival of the Company. In that context,
the Court has necessarily to see whether the Scheme contemplates revival of
E
the business of the company, makes provisions for paying off creditors or for
satisfying their claims as agreed to by them and for meeting the liability of
the workers in terms of Section 529 and Section 529A of the Act. Of course,
the Court has to see to the bona fides of the scheme and to ensure that what
is put forward is not a ruse to dispose of the assets of the Company in F
liquidation.

23. In fact, it was on this basis that the Division Bench of the High
Court proceeded when it passed the order dated 4.4.1995. Apart from the fact
that the correct principle was adopted, the directions therein are binding on
the Company Court and the Division Bench of the High Court of coequal G
jurisdiction when the proposal for amendment of the earlier scheme came up.
It has to be noted that it was not a fresh scheme that was being mooted, but
it was a proposal for an amendment of the scheme already considered by the
Division Bench when it passed the order dated 4.4.1995. It was the plain duty
of the Division Bench on the latter occasion to keep in focus the suggestions H
356 SUPREME COURT REPORTS [2007] 9 S.C.R.

A earlier made.
24. It was argued before us on behalf of the appellant that Sections 391
to 394A were procedural provisions and when once a company was under
liquidation, the Chapter dealing with winding up applied and the only provision
or substantive provision conferring power of stopping the winding tip was
B conferred on the court by Section 466 of the Act, and unless the court is
satisfied that the Company is being taken out of liquidation by way of revival
and that it will sub-serve public interest and will conform to commercial
morality, the court cannot accept a scheme proposed under Section 391 of the
Act. The argument on the side of the respondents is that Section 39-1 is a self-
C contained code and read with Section 392 of the Act, which was peculiar to
our Act, it was clear that a Company Court could approve, independently of
Section 466 of the Act, a scheme and could take the company out of liquidation
and even pass an order of stay in terms of Section 391 read with Section 392
of the Act. Section 466 of the Act was not attracted when' a scheme approved
D _by the shareholders, creditors, members of the Company and so on was·put
forward before the Company Court.

• 25. It is a well settled rule of interpretation that provisions in an
enactment must be read as a whole before ascertaining the scope of any
a
particular provision. This Court has held that it is rule now firmly established
E that the intention of the legislature must be found by reading the statute as
a whole. In Principles of Statutory Interpretation by Justice G.P. Singh, iris
stated:

"The rule is referred to as an "elementary rule" by VISCOUNT
SIMONDS; a "compelling rule" by LORD SOMERVELL OF HARROW;
F and a "settled rule" by B.K. MUKHERJEE, J."

(See pages 31 and 32 of the Tenth Edition)

When we accept this principle, what we have to do is to read Sections 391
to 394A not in isolation as canvassed for by learned counsel for the
G respondents, but with reference to the other relevant provisions of the Act.
We see no difficulty in reconciling the need to satisfy the requirements of
both Sections 391 to 394A and Section 466 of the Companies Act while
dealing with a Company which has been ordered to be wound up. In other
words, we find no incongruity in looking into aspects of public interest,
H commercial morality and the bona fide intention to revive a company-~hile
MEGHAL HOMES PVT. LTD. v. SHREE NIWAS GIRNI K.K. SAMITI [BALASUBRAMANYAN, J.) 357

considering whether a compromise or arrangement put forward in tenns of A
Section 391 of the Companies Act should be accepted or not. We see no
conflict in applying both the provisions and in hannoniously construing them
and in finding that while the court will not sit in appeal over the commercial
wisdom of the shareholders of a company, it will certainly consider whether
there is a genuine attempt to revive the company that has gone into liquidation B
and whether such revival is in public interest and conforms to commercial
morality. We cannot understand the decision in Miheer H. Mafatlal v. Mafatlal
Industries Ltd (supra) as standing in the way of understanding the scope of
the provisions of the Act in the above manner. We are therefore satisfied that
the Company Court was bound to consider whether the liquidation was liable
to be stayed for a period or pennanently while adverting to the question C
whether the scheme is one for revival of the company or that part of the
business of the company which it is pennissible to revive under the relevant
laws or whether it is a ruse to dispose of the assets of the company by a
private arrangement. If it comes to the latter conclusion, then it is the duty
of the court in which the properties are vested on liquidation, to dispose of
the properties, realize the assets and distribute the same in accordance with D
law.

26. But before that, we think that another step has to be taken in this
case. What has now been accepted by the Division Bench, is not the scheme
as modified by the general me~ting as contemplated by Section 391 of the E
Act. At least two of the modifications having ramifications are based on
undertakings or statements made on behalf of LBPL and there appears to be
difference of opinion on that modification even among the Somanis. There is
also the question whether the proposals of a person who is not one of those
recognized by Section 391 of the Act, could be accepted by the Company
Court while approving a scheme. We are of the view that the scheme with the f
modifications as now proposed or accepted, has to go back to the General
Meeting of the members of the Company, called in accordance with Section
391 of the Act and the requisite majority obtained.

27. It was ·argued on behalf of the respondents that under Section 392
of the Act, the Court has the power to make modifications in the compromise G
or arrangement as it may consider necessary and this power would include
the power to approve what has been put forward by LBPL who has come
forward to discharge the liabilities of the Company on the rights in the
properties of the Company. other than in the office building and in the
godown, being given to it for development and sale. As we read Section 392 H
358 SUPREME COURT REPORTS [2007] 9 S.C.R.

A of the Act, it only gives power to the Court to make such modifications in
the compromise or arrangement as it may consider necessary for the proper
working of the compromise or arrangement. This is only a power that enables
the court to provide for proper working of compromise or arrangement, it
cannot be understood as a power to make substantial modifications in the
B scheme approved by the members in a meeting called in terms of Section 391
of the Act. A modification in the arrangement that may be considered necessary
for the proper working of the compromise or arrangement cannot be taken as
the same as a modification in the compromise or arrangement itself and any
such modification in the scheme or arrangement or an essential term thereof
must go back to the general meeting in terms of Section 391 of the Act and
C a fresh approval obtained therefor. The fact that no member or creditor
opposed it in court cannot be considered as a substitute for following the
requirements of Section 391 of the Companies Act for approval of the
compromise or arrangement as now modified or proposed to be modified. In
Miheer H Mafatlal v. Mafatlal Industries Ltd (supra), this Court had insisted
that the procedural requirements of Section 391 must be satisfied before the
D court can consider the acceptability of a scheme even in respect of a Company
not in liquidation. Therefore, we are not in a position to accept the argument
on behalf of the respondents that the scheme now as modified by the decision
of the Division Bench need not go back to the general meeting of the
members in terms of Section 391 of the Act. We must also remember that at
E least before us there is serious objection to the modifications by one of the
Somanis who are the promoters of the Company in liquidation and the sponsors
of the arrangement and that objection cannot be brushed aside.

28. We find that the modifications proposed alters the position of the
shareholders vis-a-vis the Company. Instead of the company reviving the
F spinning unit as recommended by the State Bank of India Capital Markets
Limited, as adopted in the General Meeting, now the Company will have
nothing to do with the mill lands and the whole of the mill lands will pass
on to LBPL on LBPL paying a value of Rs. 97 .50 crores to SCML and LBPL
will start an industry of its own in that property. This cannot be considered
G to be a modification in the scheme necessary for the proper working of the
compromise or arrangement. This is a modification of the scheme itself. Same
is the position regarding the provision of replacing the resolution passed that
if any surplus amounts are available, SCML would start a viable industry in
any part of the State of Maharashtra, by a commitment that SCML would
establish an fndustry in any part of the State of Maharashtra on an investment
H of Rs. 20 crores. This again is an obligation cast on the members of SCML
MEGHALHOMES PVT.LTD. v. SHREENIWASGIRNIK.K. SAMITI [BALASUBRAMANYAN,J.J 359

_. _ and we are of the view that this cannot also be taken to be a modification A
which the Court can bring about on its own under Section 392 of the Act on
the pretext that it is a modification necessary for the proper working of the
compromise or arrangement. We have no hesitation in holding that in any
event, the Division Bench of the High Court ought to have directed a
reconvening of the meeting of the members of the Company in terms of
Section 391 of the Act to consider the modifications and ensured that the
B
approval thereof by the requisite majority existed .
.~
29. In the view we have thus taken, we are satisfied that it is a fit case
where we should set aside the decision of the Division Bench as also of the
Company Court and remand the proceedings to the Company Court. The c
Company Court first will direct the sponsors of the scheme to call a meeting
of the concerned in terms of Section 391 of the Act and seek an approval for
the modifications now suggested by the Division Bench or that may be put
forward at the meeting. If the requisite majority approves the modifications
and the matter comes back to the Company Court, the Company Court will
consider whether the compromise or arrangement put forward is one that D
deserves to be accepted in respect of a company which has been ordered to
be wound up in the light of what we have indicated above and what the
Division Bench had earlier indicated in its order dated 4.4.1995.

30. In addition to expanding and supporting the submission that in
E
terms of Sections 391 to 393 of the Act, the court had the power to accept
the compromise or arrangement even in respect of a company ordered to be
wound up, independent of Section 466 of the Act and in that process the
power to stay a winding up, learned Senior Counsel appearing for the Workers'
Union argued on behalf of the workmen that interference by this Court would
further delay the benefits that would accrue to the workers under the F
arrangement now approved by the Division Bench and considering the Jong
lapse of time, that would be unjust. Learned counsel highlighted the additional
benefits that would accrue to the workers under the present scheme. Though,
we do appreciate this aspect of the matter, having taken the view that the
arrangement has to go back to the meeting of members, creditors, etc. of the
G
company in terms of Section 391 of the Act and once it is adopted or adopted
with modifications with the requisite majority at the meeting, the arrangement
"""!' would require a fresh scrutiny by the Company Court thereafter, we cannot
avoid interfering with the decision of the Division Bench on the ground put
forward by learned Senior Counsel of benefit to the workers.
H
360 SUPREME COURT REPORTS [2007] 9 S.C.R.

A 31. We thus allow Civil Appeal Nos. 3179-3181 of 2005, Civil Appeal
Nos. 3182-3184 of 2005 and Civil Appeal No. 4377 9f 2006, set aside the
judgment of the Division Bench and that of the Company Court, and remit
the matter to the Company Cou~ for a fresh consideration in accordance with
law and in the light of the directions contained in the judgment. Civil Appeal
B Nos. 3569-3571 of 2005 is dismissed as withdrawn. The parties are directed
to suffer their respective costs. The parties will appear before the Company
Court for further directions on 12. l l.2007.

N.J. Civil Appeal Nos. 3179-3181, 3182-3184
of2005 and 4377 of2006 allowed.
Civil Appeal Nos. 3569-3571
of 2005 dismissed.