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TMI Blog2018 (8) TMI 1481X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the appellants/ original applicants will be put to grave inconvenience and costs as well as delays, which is avoidable in the present set of facts. Pass the following order: (i) The impugned order is quashed and set aside. The matter is remitted back to the learned NCLT. CA no. 384(PB)/ 2017 and CA(CAA)50(PB)/2017 are restored to the file of NCLT, New Delhi. (ii) The learned NCLT should give opportunity to the appellants/ applicants to include pleadings and alternative prayer in the first motion application CA(CAA) no. 50 (PB)/ 2017 requesting for dispensing with calling of meeting of Secured Creditors. (iii) The learned NCLT should give opportunity to the appellants/applicants to include pleadings and alternative prayer in CA no. 384 (PB)/2017 to request for reconvening of meeting of Secured Creditors. (iv) After the appellants/applicants are allowed to amend their pleadings, the learned NCLT should give the appellants/original applicants another opportunity of hearing and may then pass any suitable orders deemed fit. - Company Appeal (AT) No. 390 of 2017 - - - Dated:- 19-3-2018 - Mr. A.I.S. Cheema, Member (Judicial) And Mr. Balvinder Singh, Member (Technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requested them to give their respective consents to the Scheme of Amalgamation. The appellants then moved the learned NCLT with application CA no. 384(PB)/2017 requesting to wave convening of the meeting of the Secured Creditors. Consent affidavits of Secured Creditors having more than 90 per cent value of debts were filed. The appellant no. 3 is ongoing business concern and as part of day to day business there are transactions with bankers securing payments of letter of credit, etc. As part of the regular business activity letters of credit came to be discharged as on 31.07.2017. Syndicate Bank which had issued letters of credits confirmed by way of satisfaction letter/ certificates dated 29.08.2017 that all the letters of credit as on 31.07.2017 had been duly paid and nothing was outstanding on behalf of the appellant no. 3 company. 6. The appellants filed joint application CA no. 384(PB)/2017 in the Company Application seeking modification of the order dated 01.06.2017 requesting for dispensing with convening , holding and conducting of meeting of Secured Creditors of appellant no. 3. It is claimed that the NCLT however without considering the facts that appeared from respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf it cannot be said that the proposed Scheme of Amalgamation has changed. According to the learned counsel if the appellant no. 3 satisfied claims of some of the Secured Creditors and secured concerned affidavits of the other Secured Creditors to the extent of 98.49 per cent, the learned NCLT should have allowed the application which would be in the interest of justice. The learned counsel submitted that the appellants have filed affidavit in appeal and it is their submission also that merely because some of the Secured Creditors have been satisfied there is no amendment in the Scheme of Amalgamation. It is stated that letters of credits issued at the behest of appellant no. 3 in relation to ongoing business got discharged qua the Syndicate Bank i.e. the letter of credit issuing bank. The said documents were filed before NCLT and copies have been filed in this appeal. 10. It has been argued by the learned counsel for appellant that the appellants do not want to enter into the legal aspects whether or not the rejection of authority letter supported by power of attorney by Secured Creditors HDFC Bank Ltd., at the time of the meeting of Secured Creditors was right or wrong. But h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out the report with reference to Unsecured Creditors as Annexure A4 to submit that the report shows that Unsecured Creditors had unanimously voted in favour of the Scheme of Arrangement for Amalgamation of Transferor Companies with Transferee Company. 15. The learned counsel for the appellant pointed out Annexure A5 with the appeal as the report of Hon ble Chairperson with regard to the meeting held of Secured Creditors. The learned counsel submitted that although there are legal grounds available to submit that the Secured Creditor HDFC Bank could not have been disallowed from voting only because it had come with authority letter as the record showed that the person had come alongwith authority letter and power of attorney and so should have been treated as present in person, still it is stated that the appellants now do not want to go into those technicalities in view of the further developments. The learned counsel referred to the list of Secured Creditors (at page no.151 of the paper book) to point out that the letters of credits referred with reference to parties at serial nos. 1 to 13 had been paid off and the Syndicate Bank which had issued the letters of credits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to agree that merely because some of the Secured Creditors of appellant no.3, an ongoing concern have later on been paid, the Scheme as such gets changed. The learned counsel for the appellant submitted that in another matter of Landmark Infonet Pvt. Ltd. CA(CAA)-114/ND/2017 another Bench of the NCLT had in similar set of facts rightly invoked inherent powers to observe that no prejudice would be cost to the parties if the meeting is directed to be reconvened and had reconvened the meeting of Secured Creditors. 19. We find that if the learned NCLT was of the view that there is no request in the application for amendment of pleading in the first motion application, it should have in the interest of Justice given opportunity to the applicants to amend the first motion application instead of rejecting the CA. No. 384/2017 on such technical grounds. The impugned order does not show that the various documents filed by the applicants/ appellants were considered. If the impugned order is maintained, the appellants/ original applicants will be put to grave inconvenience and costs as well as delays, which is avoidable in the present set of facts. 20. We thus pass the following orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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