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TMI Blog2013 (7) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... in which that were prior to the sanctioning of the Scheme cannot, therefore, be refused. As decided in Topworth Steels & Powers Pvt. Ltd. [2013 (7) TMI 48 - BOMBAY HIGH COURT] if the Scheme approved by the Company Court, has for valid reasons, not been able to be given effect to, then the Company Court can again be approached under Section 392 (1) read with Section 392 (2) for passing appropriate orders to recall the order sanctioning Scheme. The plea of the RD that the right of the Applicant companies to file applications in the Court for approval of a Scheme of amalgamation or arrangement be restricted for a period of two years, cannot be countenanced for the simple reason that a statutory right of the parties to seek judicial remedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vents specified under Clause 17 of Part III of this Scheme was to be obtained. Under Clause 17, the Scheme was made conditional upon and subject to the requisite consent, approval or permission of the Department of Telecommunications ( DoT ), Government of India, any authority or department thereof, or any other statutory or regulatory authority including the Reserve Bank of India, which may by law be necessary for the implementation of this Scheme. 3. On 30th March 2011, the Transferor company made an application in the DoT for permission to transfer the NLD/ILD licences held by it to the Transferee company. On 9th May 2012, the DoT wrote to the Transferor company communicating its rejection of the request for transfer of the NLD/ILD l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt; (b) The right of the Applicant companies to file applications in the Court seeking approval of a Scheme of Arrangement or Amalgamation be restricted for at least two years, and (c) Appropriate costs may be awarded to the Central Government. 5. Mr. Rajiv Nayyar, learned Senior counsel appearing for the Applicant companies points out that as far as the views of the ITD are concerned, the Scheme as approved by the Court has not come into effect and no demerger of the NLD and ILD businesses from the Transferor company into the Transferee company has taken place. As a result, there is no change in the situation that existed prior to the sanction of the Scheme. Therefore, there was no tax angle to the reversal of the above transactions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen that the entire Scheme was made conditional upon the approvals being granted by the DoT for the transfer of the NLD and ILD licences from the Transferor company to the Transferee company. If that was not possible for reason of change in the eligibility criteria brought about after the sanction of the Scheme by the Court, then obviously the Scheme cannot be given effect to. The request by the Applicants that they should be permitted to revert to the position in which that were prior to the sanctioning of the Scheme cannot, therefore, be refused. As pointed out by the Bombay High Court in Topworth Steels Powers Pvt. Ltd., the Court is not denuded of its inherent powers to restore the parties to the situation in which they were placed p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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