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TMI Blog2018 (3) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... involved and have been preferred against common judgment dated 16th August, 2017 passed by the National Company Law Tribunal (hereinafter referred to as "Tribunal") Principal Bench, New Delhi in Company Petition No. 07 (ND)/2017, they were heard together and are being disposed of by this common judgment. 2. The brief facts of the case are as follows: A joint petition under Sections 230 to 232 of the Companies Act, 2013 read with the Companies (Compromise, Arrangement and Amalgamation) Rules, 2016, was filed by Appellants (1st Petitioner Company)- 'Ratnagiri Gas and Power Private Limited' and (2nd Petitioner Company/'Resulting Company')- 'Konkan LNG Private Limited' before the Hon'ble Delhi High Court for sanction of 'Scheme of Arrangement' (Demerger) as contemplated between the Petitioner Companies and their shareholders and creditors. 3. The Hon'ble High Court of Delhi in Company Application No. (M) 142/2016, vide order dated 7th October, 2016, directed convening of the following meetings in relation to the Petitioner Companies: Class of Meeting Date of Meeting Chairman appointed for the Meeting Equity Shareholders of Demerged Company 03.12.2016 Mr. S.P Singh Premi, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ek the approval of the shareholders and creditors with a view to comply with the provisions of Section 66 of the Companies Act, 2013 or at least for the modifications as sought for in the application in CA- 180 (PB) 2017 claimed to be an integral part of the Scheme as this Tribunal cannot supplant its wisdom as to that of its shareholders and creditors in the exercise of supervisory jurisdiction and with the above said observations we are constrained to close the petitioner sine die with liberty being granted to the Petitioner Companies to revive the Petition as and when compliances are effected. Further before parting it is also to be seen that under Clause 31 of the Scheme which reads as follows: - 31. In the event of this Scheme does not come into effect by March 31, 2017 or by such later date as may be agreed by the respective Board of Directors of the Resulting Company and the Demerged Company, this Scheme shall stand revoked, cancelled and be of no effect and become null and void and in that event no rights and liabilities whatsoever shall accrue to or be incurred inter se by the parties or their shareholders or creditors or employees or any other person. In such case each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the creditors or class of creditors, or of the members or class of members, as the case may be, to be called, held and conducted in such manner as the Tribunal directs. Explanation.-For the purposes of this sub-section, arrangement includes a reorganisation of the company's share capital by the consolidation of shares of different classes or by the division of shares into shares of different classes, or by both of those methods. xxx xxx xxx (12) An aggrieved party may make an application to the Tribunal in the event of any grievances with respect to the takeover offer of companies other than listed companies in such manner as may be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Scheme (Long stop date) was 31st March, 2017 and there is no record to suggest that the same has been extended. 15. Learned Senior counsel for the Appellant submitted that the aforesaid finding is contrary to the record. From the record placed before the Tribunal we find that the Long Stop Date of 31st March, 2017 was extended to 31st March 2018. Extract of 101st Meeting of the Board of Directors of 'Ratnagiri Gas and Power (P) Ltd.' held on 23rd March, 2017 and extract of Minutes of 9th Meeting of the Board of Directors of 'Konkan LNG Private Limited' held on 30th March, 2017 as submitted by the Company Secretary show that the Demerger Scheme was extended to 31st March, 2018, as extracted below: 16. So far as the standard of accounting is concerned, the Statutory Auditor of 1st Appellant Company, only had suggested a different method of accounting and it is not in dispute that the said method do not affect the financial position or the net worth of the Appellant Companies. The accounting method was also not objected to by any of the Appellant Company. The Appellant Companies, through their respective Board of Directors had approved the suggestions made by the Statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted; the establishment was never closed; the workmen are the successor-in-interest of the 'Dabhol Power Company' and that the workmen are the permanent employees of the Ratnagiri Gas and Power Private Limited. If that be so, they may continue with their status, if taken over in one or the other company. 21. Even if aforesaid submission is accepted, it is always open to the employers to pass appropriate order of termination of one or other workmen, following the procedure of law. For example, in a disciplinary proceeding, if misconduct is proved against one or other workmen or employees, it is always open to the employer to terminate the service and in such case question of return of land does not arise. 22. In view of aforesaid discussion during the course of hearing, learned counsel appearing on behalf of the workmen (Objectors), suggested to modify the part of the Scheme protecting the rights of employees and workmen, who have been granted reliefs by Court's order. On the suggestion of the parties, a draft note of part amendment of the Scheme was handed over to the parties, and on the basis of such draft amendment, learned Senior Counsel appearing on behalf of the 1st Objector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Industrial Tribunal, Kolhapur shall be accommodated in the Konkan LNG Private Limited or Ratnagiri Gas and Power Private Limited, as may be decided by the Board of Directors of Ratnagiri Gas and Power Private Limited. In case of lay-off due to closure, declaration of sickness, or initiation of insolvency resolution process against, either of the companies, aforesaid employees shall be accommodated in either of the existing company, if so necessary by retrenching those employees who are engaged on contract basis through a contractor and not having any order in their favour from any Tribunal or court of law. That means, the 158 employees represented by Objector no.1 will have priority of adjustment in the other company which continues to function normally, over the contract employees in whose favour there is no order or award passed by any Tribunal or court of law. The aforesaid arrangement shall be subject to the order, as may be, passed by the Hon'ble high Court or Hon'ble Supreme Court, in the cases pending before such court of law. The 158 persons will be governed by the requirements and conditions of service as stipulated in the Rules, Regulation, Instructions, Guidelines ..... 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