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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 ..... Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 ('Rules' in short) making prayers for dispensing on aspects mentioned and directions for convening of meetings of creditors of appellant no. 3. The NCLT vide order dated 01.06.2017 dispensed with meetings for which prayers had been made and issued directions for convening only 2 meetings with reference to (1) Secured Creditors and (2) Unsecured Creditors of the appellant no. 3. 3. It is the case of the appellants that as per directions of the NCLT the meetings were held and in the meeting of Unsecured Creditors of the appellants no. 3 company (i.e. Transferee Company), the Scheme for Amalgamation was approved by the requisite majority of the Unsecured Creditors and Chairperson of the meeting by report dated 01.08.2017 submitted the results accordingly. 4. However, with regard to Secured Creditors of the appellant no. 3 company it was reported that there was alleged failure to show proper authorization in relation to the representation either as proxy or in person. Out of total 18 Secured Creditors, 11 Secured Creditors were present either through proxies or in person being representatives of the Secured Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants and the learned Assistant Registrar of Companies. 9. Learned Counsel for the appellants submitted and has taken us through the various documents which were filed with CA no. 384/2017. It is the submission that these various documents were not considered by the learned NCLT while passing the impugned order dismissing the first motion. The learned NCLT simply relied on the report of Chairperson that all the proxy forms were incomplete whereas out of 11 Secured Creditors who were present in the meeting (via proxy forms and in person) one such creditor viz. HDFC Bank Ltd. was present in person by an authority letter supported with power of attorney but even that was rejected arbitrarily by the scrutinizer giving no good reasons. It is argued that the Unsecured Creditors had already given their approval as can be seen from the report of Chairperson of the meeting but NCLT wrongly observed that the scheme had not met "the approval of the creditors". According to the learned counsel the affidavits filed by the Secured Creditors were of the value of 98.49 per cent and this should have been considered. According to the Learned Counsel the observation of the learned NCLT that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned to go through the process again, and incur expenses which would be severe hardship and which is avoidable stress, in the set of facts of the present matter. The appellants would be put to avoidable severe costs and delay. 11. The learned counsel submitted that the order regarding calling of meeting of Secured Creditors may be dispensed with so that the matter could proceed to the stage of second motion, or this Appellate Tribunal may reconvene the meeting of Secured Creditors or in the alternative the learned NCLT may be directed to call for meeting. 12. The learned Assistant Registrar of Companies was also heard and she submitted that meeting may be reconvened. 13. The appellant no. 1 and appellant no. 2 are Transferor companies which are to be merged with the appellant no. 3 Transferee Company. The order dated 01.06.2017 of the learned NCLT has been filed which shows that with regard to appellants no. 1 and 2 necessary dispensing with orders were passed, and, as prayed by the appellants, with respect to Secured Creditors meetings of the Secured Creditors was directed to be held on 21.07.2017 at 10.00 A.M and the quorum was fixed as 18. It was further directed with regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, which was presented at the stage of First Motion has not met the approval of the Creditors as per the report of the Chairperson and scrutinizer. The meetings of Creditors were convened on the request made by the applicant in its application of first motion. There is no request in the application for amendment of pleading in the first motion application. The applicant appears to have further changed the Scheme as payment to certain Secured Creditors has now been made. It would, thus, require presentation of a new Scheme and the present Scheme has not been approved by the Secured Creditors and it would not qualify for an eventual approval of the Tribunal." The learned counsel for the appellant rightly submitted that the observation in the above order that the scheme has "not met the approval of the creditors" is not fully correct. Unsecured Creditors have admittedly given their consent. 17. It is further rightly submitted by the learned counsel for the appellant that the observation of the learned NCLT that there is no request to amend pleading in the first motion application was technical approach. The learned counsel submitted that if NCLT was of such a view opportunity shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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