2011 (7) TMI 1004 - HC - Companies Law

Amalgamation - merger - demerger - telecommunication companies - permission of DOT - conduct of misdirect and mislead the Court - held that - Consequently, to bring the sanctioned scheme, in the present case, in conformity with the Licence and Merger Guidelines, 2008 as well as in view of the fact that simultaneous demerger scheme has been withdrawn, it is directed that notwithstanding anything stated in the sanctioned scheme (in particular pares 5.2 as well as 10.2) and/or in the order dated 5-2-2010, the six overlapping licences of the Transferor Company/Spice would not stand transferred or vested with Transferee Company/Idea till prior permission of DOT is obtained. In fact, till permission of DOT is granted, the overlapping licences of Spice shall forthwith stand transferred/vested with the Licensor, i.e., DOT. The spectrum allocated for such overlapping licences shall also forthwith revert back to DOT. In the event DOT refuses or grants conditional approval to transfer of licences, Idea would be entitled to challenge the same before TDSAT who would decide the same in accordance with law after hearing both the parties. Since the Transferee Company has used the overlapping licences without any prior permission of DOT from 5-2-2010 till date in contravention of the Licence and Merger Guidelines, it is directed that it shall be open to DOT to pass any order for such breach. Needless to say, any order passed by DOT can be challenged by Idea before any competent Court or Tribunal. To avoid inconvenience to public at large, DOT is directed to ensure that cell phone customers of the two overlapping licence areas namely, Punjab and Karnataka are provided regular and uninterrupted services like in the past. Moreover, as simultaneous demerger scheme has been withdrawn, paragraphs 2.4, 2.13, 2.14, 2.19, 17.3 as well as the last two sentences in para 1.7 of the sanctioned scheme are deleted.

Issues Involved:
1. Recall and Stay of Court's Order dated 5-2-2010.
2. Suppression and Non-disclosure of Material Facts.
3. Jurisdiction and Authority of DOT in Merger of Companies.
4. Compliance with License Conditions and Merger Guidelines.
5. Consequences of Fraud and Suppression on Court Orders.
6. Locus Standi of DOT to File Applications.
7. Delay in Filing Applications for Recall.
8. Modification of the Sanctioned Scheme.

Detailed Analysis:

1. Recall and Stay of Court's Order dated 5-2-2010:
Company Applications No. 578-579/2011 were filed by the Department of Telecommunication (DOT) under Rules 6 and 9 of the Companies (Court) Rules, 1959, seeking recall and stay of the Court's order dated 5-2-2010, which allowed the amalgamation of Spice Communication Limited (Spice) with Idea Cellular Limited (Idea).

2. Suppression and Non-disclosure of Material Facts:
The Court noted that DOT's letters dated 7-1-2010 and 18-1-2010, which rejected the amalgamation, were not brought to the Court's notice. The Court found that the non-filing of these letters, along with Licenses and Merger Guidelines, 2008, was deliberate and intended to mislead the Court. The Supreme Court's principles in S.P. Chengalvaraya Naidu v. Jagannath were cited, emphasizing that fraud vitiates all judicial acts.

3. Jurisdiction and Authority of DOT in Merger of Companies:
The Court held that sections 391 to 394 of the Companies Act provide exclusive jurisdiction to the Court for the arrangement of companies. However, it clarified that statutory and contractual permissions required under other laws must still be obtained. The Court found that prior permission from DOT was necessary under clauses 6.1 and 6.2 of the License for the transfer of licenses, which are integral to the merger of companies.

4. Compliance with License Conditions and Merger Guidelines:
The Court emphasized that the merger of companies does not automatically result in the merger of licenses. It noted that Idea's understanding, as reflected in its letters, was that prior permission from DOT was necessary for the transfer of overlapping licenses. The Court found that the petitioner-companies had not adhered to license conditions and merger guidelines, particularly clause 17 of the Merger Guidelines, 2008, which prohibits the merger of licenses less than three years old.

5. Consequences of Fraud and Suppression on Court Orders:
The Court reiterated that suppression of material facts or documents amounts to fraud on the Court. It cited various Supreme Court judgments, including Hamza Haji v. State of Kerala and Meghmala v. G. Narasimha Reddy, to underline that fraud unravels all judicial acts. The Court concluded that the petitioner-companies had suppressed material documents, thereby committing fraud.

6. Locus Standi of DOT to File Applications:
The Court rejected the petitioner-companies' challenge to DOT's locus standi, affirming that DOT, as a Licensor and Regulator, is an interested and necessary party. The Court highlighted that objections from the public, including DOT, are invited at the second motion stage of any scheme of arrangement.

7. Delay in Filing Applications for Recall:
The Court acknowledged the delay of thirteen months in filing the recall applications but noted that the delay was due to the proverbial slowness of government decisions. Despite the delay, the Court found that the suppression of material facts warranted intervention.

8. Modification of the Sanctioned Scheme:
The Court, exercising its power under section 392 of the Companies Act, modified the sanctioned scheme to bring it in conformity with the License and Merger Guidelines, 2008. It directed that the six overlapping licenses of Spice would not stand transferred to Idea until DOT's prior permission is obtained. The spectrum allocated for these licenses would revert to DOT. The Court imposed costs of Rupees One Crore on Idea for suppression of material documents and directed the Ministry of Corporate Affairs to study and suggest measures to prevent such suppression in future cases.

Conclusion:
The applications were disposed of with directions to ensure compliance with statutory requirements and to address the suppression of material facts. The Court emphasized the importance of transparency and adherence to legal and regulatory frameworks in corporate mergers and arrangements.

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