230. Power to compromise or make arrangements with creditors and members
(1) Where a compromise or arrangement is proposed—
(a) between a company and its creditors or any class of them; or
(b) between a company and its members or any class of them,
the Tribunal may, on the application of the company or of any creditor or member of the
company, or in the case of a company which is being wound up, of the liquidator, order a
meeting of the creditors or class of creditors, or of the members or class of members, as the
case may be, to be called, held and conducted in such manner as the Tribunal directs.
Explanation.—For the purposes of this sub-section, arrangement includes a
reorganisation of the company’s share capital by the consolidation of shares of different
classes or by the division of shares into shares of different classes, or by both of those
methods.
(2) The company or any other person, by whom an application is made under subsection
(1), shall disclose to the Tribunal by affidavit—
(a) 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 and the
pendency of any investigation or proceedings against the company;
(b) reduction of share capital of the company, if any, included in the compromise
or arrangement;
(c) any scheme of corporate debt restructuring consented to by not less than
seventy-five per cent. of the secured creditors in value, including—
(i) a creditor’s responsibility statement in the prescribed form;
(ii) safeguards for the protection of other secured and unsecured creditors;
(iii) report by the auditor that the fund requirements of the company after
the corporate debt restructuring as approved shall conform to the liquidity test
based upon the estimates provided to them by the Board;
(iv) where the company proposes to adopt the corporate debt restructuring
guidelines specified by the Reserve Bank of India, a statement to that effect; and
(v) a valuation report in respect of the shares and the property and all assets,
tangible and intangible, movable and immovable, of the company by a registered
valuer.
(3) Where a meeting is proposed to be called in pursuance of an order of the Tribunal
under sub-section (1), a notice of such meeting shall be sent to all the creditors or class of
creditors and to all the members or class of members and the debenture-holders of the
company, individually at the address registered with the company which shall be
accompanied by a statement disclosing the details of the compromise or arrangement, a
copy of the valuation report, if any, and explaining their effect on creditors, key managerial
personnel, promoters and non-promoter members, and the debenture-holders and the
effect of the compromise or arrangement on any material interests of the directors of the
company or the debenture trustees, and such other matters as may be prescribed:
Provided that such notice and other documents shall also be placed on the website of the
company, if any, and in case of a listed company, these documents shall be sent to the Securities
and Exchange Board and stock exchange where the securities of the companies are listed, for
placing on their website and shall also be published in newspapers in such manner as may be
prescribed:
Provided further that where the notice for the meeting is also issued by way of an
advertisement, it shall indicate the time within which copies of the compromise or arrangement
shall be made available to the concerned persons free of charge from the registered office of the
company.
(4) A notice under sub-section (3) shall provide that the persons to whom the notice is sent
may vote in the meeting either themselves or through proxies or by postal ballot to the adoption
of the compromise or arrangement within one month from the date of receipt of such notice:
Provided that any objection to the compromise or arrangement shall be made only by
persons holding not less than ten per cent. of the shareholding or having outstanding debt
amounting to not less than five per cent. of the total outstanding debt as per the latest audited
financial statement.
(5) A notice under sub-section (3) along with all the documents in such form as may be
prescribed shall also be sent to the Central Government, the income-tax authorities, the Reserve
Bank of India, the Securities and Exchange Board, the Registrar, the respective stock exchanges,
the Official Liquidator, the Competition Commission of India established under sub-section (1) of
section 7 of the Competition Act, 2002, if necessary, and such other sectoral regulators or authorities
which are likely to be affected by the compromise or arrangement and shall require that
representations, if any, to be made by them shall be made within a period of thirty days from the
date of receipt of such notice, failing which, it shall be presumed that they have no representations
to make on the proposals.
(6) Where, at a meeting held in pursuance of sub-section (1), majority of persons representing
three-fourths in value of the creditors, or class of creditors or members or class of members, as the
case may be, voting in person or by proxy or by postal ballot, agree to any compromise or
arrangement and if such compromise or arrangement is sanctioned by the Tribunal by an order,
the same shall be binding on the company, all the creditors, or class of creditors or members or
class of members, as the case may be, or, in case of a company being wound up, on the liquidator
and the contributories of the company.
(7) An order made by the Tribunal under sub-section (6) shall provide for all or any of the
following matters, namely:—
(a) where the compromise or arrangement provides for conversion of
preference shares into equity shares, such preference shareholders shall be given
an option to either obtain arrears of dividend in cash or accept equity shares
equal to the value of the dividend payable;
(b) the protection of any class of creditors;
(c) if the compromise or arrangement results in the variation of the shareholders’
rights, it shall be given effect to under the provisions of section 48;
(d) if the compromise or arrangement is agreed to by the creditors under
sub-section (6), any proceedings pending before the Board for Industrial and Financial
Reconstruction established under section 4 of the Sick Industrial Companies (Special
Provisions) Act, 1985 shall abate;
(e) such other matters including exit offer to dissenting shareholders, if any, as
are in the opinion of the Tribunal necessary to effectively implement the terms of the
compromise or arrangement:
Provided that no compromise or arrangement shall be sanctioned by the Tribunal
unless a certificate by the company’s auditor has been filed with the Tribunal to the effect
that the accounting treatment, if any, proposed in the scheme of compromise or arrangement
is in conformity with the accounting standards prescribed under section 133.
(8) The order of the Tribunal shall be filed with the Registrar by the company within
a period of thirty days of the receipt of the order.
(9) The Tribunal may dispense with calling of a meeting of creditor or class of
creditors where such creditors or class of creditors, having at least ninety per cent. value,
agree and confirm, by way of affidavit, to the scheme of compromise or arrangement.
(10) No compromise or arrangement in respect of any buy-back of securities under
this section shall be sanctioned by the Tribunal unless such buy-back is in accordance
with the provisions of section 68.
(11) Any compromise or arrangement may include takeover offer made in such manner
as may be prescribed:
Provided that in case of listed companies, takeover offer shall be as per the regulations
framed by the Securities and Exchange Board.
(12) An aggrieved party may make an application to the Tribunal in the event of any
grievances with respect to the takeover offer of companies other than listed companies in
such manner as may be prescribed and the Tribunal may, on application, pass such order
as it may deem fit.
Explanation.—For the removal of doubts, it is hereby declared that the provisions
of section 66 shall not apply to the reduction of share capital effected in pursuance of the
order of the Tribunal under this section.