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TMI Blog2018 (8) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... mercial property given by Respondents and the buyers Agreement, we are not entering into those aspects as it appears that the Appellant has again claimed issues as mentioned in Para 8 supra, to be pending before the Hon’ble Arbitral Tribunal. They are not issues for us to settle. Here we find substance in the submissions of the learned counsel for Respondents that even if the claims as calculated by the Appellant are kept in view, and even if the Appellant was allowed to participate in the meeting of creditors, the value of his dues, considering the financial statements of the companies, was not such so as to tilt the outcome of the meetings of secured or unsecured creditors of the Companies. There is substance in the argument for the learned counsel for Respondents that in spite of public notice if the Appellant did not attend the meetings or raise the objections, subsequently, he could not be heard. The Appellant cannot have grievance as the project with which Appellant is concerned continues to remain with EMAAR even if some other projects have been merged with MGF. - For such reasons, we do not find any substance in this appeal. The same is rejected. - Decided against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the receipt of this order a certified copy of this order to the Registrar of Companies; and e. That any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary. 2. In the matter before NCLT, the Appellant was one of the objectors to the demerger. The learned NCLT dealt with the objections raised by the Appellant in Para 5 of the Impugned Judgement and rejected the objections raised. Thus the present Appeal. 3. In short, the Appellant is claiming that the Respondent Companies had jointly taken from the Appellant an area measuring 162,520 sq. ft. at Kolkata on 20.09.2016. It is claimed that the lease was for 12 years with an option to renew for another 9 years. Some disputes arose and the Appellant invoked arbitration clause. The Appellant filed a claim petition before the arbitrators in 2015. A settlement was arrived at between the Appellant and Respondent Companies which was reduced into writing on 12.05.2016. The Hon ble Arbitral Tribunal comprising of three Hon ble Retired Judged of Supreme Court of India, as arbitrators passed Award on the same date of 12.05.2016, which was in terms of the Settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant had not been informed about the proposed meeting of creditors of the companies. The Appellant raised objections to the Scheme in CA No. 4688/16 in CP No. 689/16 before the NCLT on 21.11.2016. According to the Appellant its claim of ₹ 30,83,68,554 is pending before Arbitral Tribunal. 6. According to the Appellant the NCLT erred in observing that the Arbitral Award dated 12.05.2016 had been duly satisfied when the Arbitral proceedings have been revived and are pending. The NCLT wrongly held that the Board of Directors of the Respondent Companies were oblivious of the Arbitral Award dated 12.05.2016 when one of the Directors Rakshit Jain was signatory to the settlement dated 12.05.2016 and had also signed the first Motion Petition. The grievance of the Appellant is that the Scheme approved by the learned NCLT does not provide for the dues of the Appellant and neither of the two resulting companies are taking over such liabilities. According to the Appellant, it would be left without entity from whom Appellant can recover its dues as neither of the resulting companies have assumed the liability towards the Appellant under the Award. 7. Counsel for Appellant has argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b. Whether EMGF by depositing ₹ 5,92,81,459/- as income tax deductable at source from the decretal dues failed to discharge their payment obligations in terms of the understanding reached between the parties and the consequent settlement agreement dated 12.05.2016? c. Whether EMGF are liable to pay ₹ 24,90,87,095/- in lieu of the value of commercial property given by EMGF to TSL on the express understanding that the property would be marketable and the sum realized within a period of four to five months failing which said sum would be payable in lieu of the said property in terms of the understanding reached between the parties and the consequent agreement dated 12.05.2016? It is claimed by the Appellant that it was entitled to notice as Judgement Creditor and as the notice was not issued to the Appellant, the Scheme suffered for suppressing material fact and thus the NCLT could not have passed the orders as it has been done. 9. It has been argued on behalf of the Respondents/Companies that it was correct that the Respondents had taken on lease portion of property from the Appellant in Kolkata and Agreement as stated had been executed. The dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al time basis. It has been argued that if the new provisions of the Companies Act, 2013 now enforced are seen under Section 230 read with Rule 9(b) of the Companies (Compromises, Arrangements Amalgamations) Rules, 2016, the Law as it now stands requires submitting list of secured and unsecured creditors, linked with financial statements should not be more than 6 months old at the time of filing the proceedings. It has been argued by the learned counsel for Respondents that when under the old Act, First Motion Application was filed the lists of secured and unsecured creditors were as on 29.02.2016 which was less than 6 months on the date of filing First Motion Application on 12.05.2016. The submission is that under the old Act it was not specified as to how old the list could be but in the new Act it can be said that it should not be more than 6 months old. If the objects of filing of the lists are kept in view, it has to be practical and it cannot be expected that till the date of filing of first Motion the list should be updated. 10. It has been further argued for the Respondents that in the Arbitral Award and the Settlement Agreement Respondents No. 1 Company had agreed to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint of non-receipt of notice. It is then further argued by the learned counsel for Respondents that when the law provides for holding of meeting of secured and unsecured creditors and there is provision of taking votes, the will of the majority prevails and this is recognized by the law as it can be now seen from the proviso below sub-Section 4 of Section 230 of the new Act which now lays down that objection to the Compromise or Arrangement can be made only by persons holding not less than 10 per cent of the shareholding or having outstanding debt amounting to not less than 5 per cent of the total outstanding debt, as per latest audited balance sheets. The Respondents argued that the debt of the Appellant even if accepted is less than 5 per cent of the total debt of the Respondent Company and on this count also the objection of the Appellant is unsustainable. The Respondents also rely on Section 230(9) of the new Act which provides that the NCLT has discretion to dispense with meetings of a class of creditors where creditors representing 90 per cent value agree and confirm to the Scheme. It has been argued that only because the Appellant may have objection does not mean that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 59 crores had been paid on 26.07.2016, 24.08.2016 and 02.09.2016. The whole awarded amount stands paid as has been rightly contended by learned counsel for the Appellant. The allegation of concealment of facts is also belied because the award was announced on 12.05.2016 by the arbitral tribunal and whereas the meetings of Board of Directors of Demerged and Resulting companies were also held on 11.05.2016 which approved the Scheme of Arrangement obviously without any idea of Award. In any case the objector could have filed objections in pursuance of notices published in the press at the time of first Motion i.e. on 24.08.2016 wherein objections to the scheme were invited. No such objections were ever filed. In view of the above we don t find any substance in the objection and arguments raised by objector Statesman Limited. NCLT then dealt with the approval accorded by the members and the creditors of the companies to the proposed Scheme and affidavits of Regional Director where no objections had been raised and held that there was no reservation to grant sanction to the Scheme. NCLT thus sanctioned the Scheme under Section 230 to 232 of the new Companies Act of 2013 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the High Court in the course of the day, merely because there is no reference to the Award passed on the same date (which may be in the evening), the Respondents cannot be branded to have suppressed material fact, or that they were with unclean hands. 16. The other argument of the Appellant that the Appellant was not included in the list of secured or unsecured creditors of the Respondent Companies and so the Petition of Respondent should have been rejected also deserves to be rejected. The record shows that the Respondents had moved the First Motion Application on 12.05.2016 on the basis of list of secured and unsecured creditors as on 29.02.2016 which lists were attached. Copies of audited financial statements were also filed. Admittedly, on that date of 29.02.2016, the dispute between the Appellant and Respondents had not crystallized into any Award. In fact the Appellant on its own showing has now again re-opened the dispute and the same is to be settled. The argument is that under the old Act there was no specific requirement to give any list but list of creditors for a date which was reasonably before filing of the first Motion Application was to be given. The argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents that even if the claims as calculated by the Appellant are kept in view, and even if the Appellant was allowed to participate in the meeting of creditors, the value of his dues, considering the financial statements of the companies, was not such so as to tilt the outcome of the meetings of secured or unsecured creditors of the Companies. 19. There is substance in the argument for the learned counsel for Respondents that in spite of public notice if the Appellant did not attend the meetings or raise the objections, subsequently, he could not be heard. We reject the arguments of the counsel of the Appellant that the Appellant was not expected to go on watching the newspapers. The very object of giving public notice is to give opportunity to come forward and participate or raise objections. The NCLT was right when it observed that the Appellant could have filed objections in pursuance to the notice published in the press at the time of First Motion when objections to the Scheme were invited. 20. There is substance in the argument of the learned counsel for Respondents that the Appellant cannot have grievance as the project with which Appellant is concerned continues to re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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