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TMI Blog2016 (3) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... rned, 79% in value, had given their consents. In terms of numbers, 11 out of the 12 shareholders of transferor company no.10, had given their consents.Quite clearly, a majority comprising of more than 3/4th in value of the shareholders in both, transferor company no.9 and 10, had given their consents. Therefore, even if, it is assumed that notice was not issued to the applicant, the scheme could not be set aside on this ground alone. The other argument of Mr Mehta that share valuation is faulty, is not supported by any cogent material. These are bald submissions, which are not backed by any cogent material. The mere fact that the shareholding of the applicant in the transferee company has got reduced to 2.97% (from 4.50% and 21%, as held in transferor company no. 9 and 10, respectively), will not, to my mind, help the cause of the applicant. Therefore, find no merit in the application. It is, accordingly, dismissed. - CO. PET. 287/2012 - - - Dated:- 15-3-2016 - Rajiv Shakdher, J. For the Applicant : Mr. Sudhanshu Batra,Sr.Advocate with Mr. Ashish Aggarwal and Mr. Ashish Virmani, Advocates Mr. Jayant K. Mehta and Mr. Rishi Sood, Advocate ORDER Rajiv Shakdher, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned share exchange ratio, the applicant in its capacity as the shareholder of transferor company no. 9 and 10, is entitled to the following shares: In respect of shares held in transferor company no. 9, the applicant is entitled to issuance of 1,03,200 shares, whereas, in respect of shares held in transferor company no. 10, the applicant is entitled to issuance of 2,71,080 shares. 3. In this context, the applicant raises the following grievances, as articulated by its counsel. Submissions on behalf of the applicant were made by Mr Jayant Mehta, Advocate, while, on behalf of BDR, arguments were advanced by Mr Sudhanshu Batra, learned senior counsel. 3.1 Mr Mehta, learned counsel for the applicant, submitted that the order dated 20.02.2013 needed to be recalled, for the following reasons: (i) That the order dated 28.05.2012, which came to be passed by this court, whereby, the meetings of the shareholders was dispensed with, inter alia, with respect to transferor company no. 9 and 10, was pivoted on falsehood, in as much as, the communication, purportedly, sent to the shareholders of the said transferor companies to obtain their consent/ no-objection, to the proposed scheme, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage. (vi) In view of the above, Mr Batra also adverted to the fact that on 08.03.2013, two separate communications were sent to the applicant seeking surrender of the original share certificates held by it in transferor company no. 9 and 10, to which, no reply was received. According to the learned counsel, the applicant, admittedly, filed the captioned application rather late in the day, which is, on or around 31.01.2014. (vii) It was also the submission of Mr Batra that the instant application was motivated, in as much as, the promoter/ director of the applicant, one, Mr Sanjay Gambir, is also holding shares in a company by the name of Renaissance Buildcon Private Limited, which was, inveigled in disputes with BDR. In support of this submission, it was also contended that criminal proceedings initiated, were pending before concerned forums. 5. Having heard the learned counsel for the parties, what is primarily to be decided in the present proceedings is: as to whether the non-receipt of communication issued to seek consent/ no-objection to the then proposed scheme of amalgamation, in the facts and circumstances of this case, would set at naught the order dated 20.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in transferor company no.10, the applicant held 21% of the equity stake. At the first motion stage, consents were obtained from shareholders of transferor company no.9 which amounted to 95.5% in value, whereas in numbers, 27 out of the 28 shareholders, in transferor company no.9, had given their consents. 6.7 Similarly, in so far as transferor company no.10 was concerned, 79% in value, had given their consents. In terms of numbers, 11 out of the 12 shareholders of transferor company no.10, had given their consents. 6.8 Quite clearly, a majority comprising of more than 3/4th in value of the shareholders in both, transferor company no.9 and 10, had given their consents. Therefore, even if, it is assumed that notice was not issued to the applicant, the scheme could not be set aside on this ground alone. 6.9 It is only when, the court, is satisfied that a large number of creditors and / or shareholders have, with malafide intention, not been issued notice, and that, such, non-issuance of notice, has seriously affected their interest, the sanction granted to the scheme can be set aside. 7. In this behalf, the observations made in the case of : Bhagat Ram Kohli V. Angel s Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pendency of proceedings, in this court, at the second motion stage. 7.2 I have come to this conclusion in view of the fact that the BDR has asserted, quite clearly, that notice of hearing was published on 09.07.2012, in Statesman [English (Delhi edition)] and Veer Arjun [Hindi (Delhi edition)]. 7.3 This aspect has not been refuted by the counsel for the applicant. It is, however, contended by Mr Mehta that it is quite possible that the applicant did not notice the publication carried in the two newspapers referred to above. 7.4 To my mind, this answer of Mr Mehta is not tenable in law. The applicant, if anything else, would be deemed to have knowledge of the proceedings pending in this court for obtaining sanction of the then proposed scheme of amalgamation. Undoubtedly, an affidavit was filed at the relevant stage by the petitioners before this court that they had not received any objections to the scheme from any of its shareholders and/or creditors. 7.5 Clearly even at the second motion stage, opportunity was available to the applicant to intercede in the matter. 7.6 What compounds the difficulties of the applicant is its failure to respond or move the court eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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