1 . The application to the Court under s.391 may be made in
the case of a company in liquidation, not only by the liquidator but also by a
creditor or member. This right of the creditor or member is not taken away by
reason of the company being wound up [Rajendra
Prasad Agarwal v. Official Liquidator (1978)48 Comp.Cas.476].
2. Section 391
contemplates a scheme between a company and its creditors or any class of them
or between the company and its members or any class of them. Where a scheme was
entered into between the company and its ordinary shareholders only, without
interfering with the rights of the preference shareholders, the scheme was held
to be valid even though a meeting of the preference shareholders was no called
to ascertain their views [Mcleod and Co.
v. S. K. Ganguly (1975)45 Comp. Cas.563].
3. There is no
provision of law which enables compulsory transfer of the employees of an
undertaking along with the assets, machinery, licenses, permits, rights, etc.,
of the undertaking. The employees must be given the option to join or not to
join the transferee company [John Wyeth
(India) Ltd., In re, (1988) 63 Comp. Cas. 233].
4. Section 372
operates in a different field and in different circumstances from s.391. It is
confined to transactions where shares are purchased by the investing company
out of its funds, the consideration being money or money’s worth. Compliance
with s.372 is, therefore, not necessary where shares of one company are
exchanged for those of another under a scheme of compromise or arrangement
[Navijivan Mills Ltd. Kalol, In re,
(1972) 42 Comp. Cas. 265].
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