JUDGMENT Sinha, J. - This is an application for an order that a scheme of composition sanctioned by this Court under sec. 153 of the Indian Companies Act on July 11, 1949, be amended. The scheme provided inter alia that the management of the company would remain under the control of a Board of Directors consisting of nine persons including the Chairman, and that four of such Directors should be elected from all the unsecured creditors whose names appeared in the books of the company and their assignee, if any, and four Directors would be elected from the share-holders. 2. Clause 11 of the scheme provided that necessary and consequential amendments to the Articles of Association should be made within six weeks. 3. Pursuant to the scheme a notice issued for an Extraordinary General Meeting of the company to be held on August 20, 1949, to pass with or without modification certain amendments of the Articles of Association of the company. One of the amendments is as follows:-- [Clause 96 (e)]. On a show of hand every unsecured creditor present in person shall have one vote and upon a poll every unsecured creditor present in person or by proxy shall be entitled to one vote. 4. The Petitioners who are creditors of the company state in paragraph 15 of the petition that the majority of the bona fide creditors of the company are creditors for heavy amounts and their total claim is Rs. 14 lacs. The said creditors about 275. As against the aforesaid creditors, the other creditors who were and or are mostly employees of the company have a total claim of about one lac. The number of such creditors is about 400. 5. It is alleged that if the said clause 96 (e) is passed the result will be that the employees of the company and other small creditors whose number is about 400 will out-number the big creditors and will control the administration of the company. The Petitioners submit that at the time the scheme was passed it was intended by all concerned that the creditors in electing their Directors would exercise their voting power according to the value of the debt due to each creditor. The Petitioners submit that at the time the scheme was passed it was intended by all concerned that the creditors in electing their Directors would exercise their voting power according to the value of the debt due to each creditor. Otherwise, the creditors who have very little stake in the company will be entitled to elect their nominees on the Board of Directors to the detriment of the big creditors, who have substantial interest in seeing that the management of the company is carried out in a proper and efficient manner. 6. My attention has been drawn to sec. 239 of the Indian Companies Act which gives power to the Court to direct meeting of the creditors and contributories to be called and held in order to ascertain their wishes. It is provided in sub-sec. (2) of that section that in the case of creditors, regard should be had to the value of each creditor's debt, and in the case of contributories regard should be had to the number of votes conferred on each contributor by the Articles. 7. I have very little doubt that the proper method of ascertaining the wishes of the creditors is to take into account the value of each creditor's debt. I have also no doubt that that was the intention of the parties to the scheme of composition when it was passed. Indeed it is difficult to appreciate why the company should insist on giving equal voting strength to each creditor irrespective of the value of the debt due to him. The Directors, elected by creditors on this footing cannot in my view represent the wishes of creditors. Indeed there is substance in this contention that the power is not being exercised by the members of the company bond fide and the spirit in which the parties agreed to the scheme is not being observed. 8. Mr. S. Choudhuri, appearing on behalf of the company, has taken a preliminary point and contends that the Court has no jurisdiction to modify or vary the scheme of composition after it has been passed and sanctioned according to the provisions of sec. 153 of the Indian Companies Act. 9. It is true that the Court has no jurisdiction to vary or modify a scheme after it has been confirmed by the Court and after it became binding upon the creditors and the share-holders of the company. 153 of the Indian Companies Act. 9. It is true that the Court has no jurisdiction to vary or modify a scheme after it has been confirmed by the Court and after it became binding upon the creditors and the share-holders of the company. Thereafter its terms can only be varied by an order of the Court after the variation has been approved of at the meeting of the creditors and of the share-holders. It is not possible for the company or its Directors or share-holders to vary the scheme, [see AIR 1938 284 (Privy Council) ]. 10. The scheme as it now stands does not make any provisions as to how the creditors are to exercise their voting strength in electing their Directors. Nor do the Articles of Association contemplate or provide for election of creditors, who are not members of the company on the Board of Directors. At the time of the passing of the scheme this point seems to have been overlooked and necessary provisions were not made regarding the exercise of the voting strength by the creditors for the purpose of election of their Directors. The omission should be rectified, otherwise, there may be a deadlock. It is true that the Articles of Association can only be altered by a special resolution of the company and only the members of the company can take part in passing the special resolution. It is necessary, that some provision should be inserted in the scheme regulating the mode of election by the creditors of their Directors. 11. In paragraph 24 of the petition a suggestion has been made as to how the scheme should be amended by incorporating therein a clause to the following effect:-- Provided that on a show of hand every creditor present in person shall have one vote and on a poll every creditor shall have one vote in respect of each unit of Rs. 100 held by him or any part thereof. Five Creditors present in person or by proxy or the Chairman of the meeting or any creditor or creditors holding not less than 1/10th of the total dues of the unsecured creditors which carries the voting right shall be entitled to demand a poll. 12. 100 held by him or any part thereof. Five Creditors present in person or by proxy or the Chairman of the meeting or any creditor or creditors holding not less than 1/10th of the total dues of the unsecured creditors which carries the voting right shall be entitled to demand a poll. 12. Having regard to the circumstances to which I have made reference, I think, I should give directions for convening a meeting of the creditors and also a meeting of the share-holders of the company for the purpose of considering and, if thought fit, passing a resolution amending the scheme already sanctioned in the manner suggested or in any other manner which may be agreeable to the creditors and the share-holders. 13. After the application was presented Mr. Justice Chatterjee granted an injunction restraining the holding of a meeting of the members pursuant to the notice dated July 25, 1949 for considering alterations of the Articles of Association. I am told that the meeting has been adjourned till Sunday next No objection has been raised to any other alteration of the Articles Of Association except that in clause 96 (e) to which I have referred. I do not think it necessary to hold up the meeting for making the necessary alterations to the Articles of Association but I think pending the consideration of the amendments to the scheme by a meeting of the creditors and the share-holders the proposed clause 96 (e) or any other clause affecting the mode of election by creditors of their Directors should not be considered by the members. I, therefore, dissolve the injunction except in so far as it relates to the consideration of clause 96 (e), or clause to that effect, by the members of the company pursuant to the notice dated July 25, 1949, for which the meeting may be adjourned till after the hearing of this application. 14. Notice to share-holders and creditors to be despatched by the 12th September. Advertisements to be published in the Amrita Bazar Patrika and Anandabazar Patrika by the 16th September. Meeting of shareholders and creditors to be held on the 26th September, meeting of creditors at 3 P. M. and meeting of share-holders at 5 p. M. 15. Mr. Ajoy Bose and failing him, Mr. Sudhamoy Bose will act as the Chairman of the meeting. Meeting of shareholders and creditors to be held on the 26th September, meeting of creditors at 3 P. M. and meeting of share-holders at 5 p. M. 15. Mr. Ajoy Bose and failing him, Mr. Sudhamoy Bose will act as the Chairman of the meeting. The report of the Chairman to be filed on the re-opening day of the office after the vacation. Liberty to apply. Application fixed for first Monday after vacation. 16. The present Board of Directors and the special officer will continue till the election of Directors in terms of the scheme. 17. The special officer will supply the applicants at their cost with the list of creditors and share-holders and their addresses. 18. The meeting in so far as it concerns 96 (e) may be adjourned till the second Monday after the vacation. The meeting to be held at the registered office of the company. Facilities for that purpose to be provided by the special officer. 19. Costs which would be incurred in holding the meeting would be borne by the applicant in the first instance subject to such directions as may be made in regard thereto at the hearing of the application. Costs of the application reserved.