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TMI Blog2021 (6) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme of merger/amalgamation, as such due to want of such written consent by way of affidavit from the side of share- holders/creditors, the prayer for dispensation of the meeting cannot be allowed - applicant-companies shall take steps as per section 230(5) of the Companies Act, by issuing notice to the Central Government through Regional Director (North-Western Region), Ministry of Corporate Affairs, the Income-tax Authorities, Registrar of Companies, Gujarat, RBI, and respective stock exchanges where the company is listed and other Sectoral Regulators. The dispensation of the meeting of the equity shareholders and creditors of the company as prayed for in the application is not allowed. - Company Application (CAA) No. 50 of 2020. - - - Dated:- 10-12-2020 - Ms. Manorama Kumari (Judicial Member) And Chockalingam Thirunavukkarasu (Technical Member) For the Applicant Companies : Hemant Sethi , Ms. Dharmishta N. Raval with Yuvraj Thakore ORDER MS. MANORAMA KUMARI (JUDICIAL MEMBER). - 1. The instant application is filed by the applicant-company namely Ambuja Cements Ltd., under sections 230-232 of the Companies Act, 2013 (hereinafter referred to as the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of operations and optimisation of logistics, resulting in more productive utilisation of said resources, savings in cost and operational efficiencies ; and (e) Strengthening financial position and increased leverage capacity of the merged entity. 6. The board of directors of the transferor company and the applicant- company in its respective board meetings held on October 11, 2019 and October 18, 2019 passed a resolution approving the proposed Scheme as placed before the board. Copy of the board resolution is annexed with the application as annexures H and I, respectively. The applicant-company has filed its audited balance-sheet as on March 31, 2019 and same are annexed with the application. The applicant-company has filed its unaudited financial statement as on September 30, 2019 and same are annexed with the application. The applicant-company has also annexed certificate issued by their respective statutory auditors as annexure K certifying compliance with section 133 of the Companies Act, 2013. 7. The applicant-company has submitted that no investigation or proceedings against the applicant-company under sections 210 to 226 of the Companies Act, 2013 as well as sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the applicant-company, the rights of the said equity shareholders of the applicant-company are not affected by the present Scheme and therefore no meeting of the equity shareholders of the transferee company is required to be convened. 13. It is submitted by the applicant-company that there are no secured creditors in applicant-company and to that effect chartered accountant's certificate is annexed as annexure M with the application. 14. The applicant-company has stated that there are unsecured creditors in the applicant transferee company to the tune of ₹ 1,108 crores. The chartered accountant has certified the amount of unsecured creditors by way of a certificate which is produced at annexure N with the application. 15. It is submitted that under the scheme no compromise is offered to any of the creditors under the scheme of the applicant-company nor any liability of the creditors under the scheme are being reduced or extinguished. It was further submitted that the post amalgamation, the net worth of the applicant-company will be ₹ 22,714.77 crores. It is therefore submitted by the applicant-company that the meeting of the unsecured creditors is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olders and creditors of the company, if Bench is satisfied in all respects. In the instant case both the applicant-companies have a few shareholders and all of them have given their written consents/affidavits and post- merger there, there shall be positive net worth and the creditors are not compromised. 18. The applicant has relied another judgment, viz., Housing Development Finance Corporation Ltd. (C. S. A. No. 243 of 2017 of the National Company Law Tribunal, Mumbai Bench), wherein it is observed in paragraph No. 28, which read as under : 28. On reading the citations supra and hearing of senior counsel, I understand that this ruling of exempting holding company from holding meetings with either members or creditors when 100 per cent. subsidiaries of it subsume into their holding company is popularly known in Mumbai as Mahamba Ruling (Mahaamba Investments Ltd. v. IDI Ltd. [2001] 105 Comp Cas 16 (Bom)). One fact should not get lost sight of is under the new Companies Act, 2013, dispensation of a shareholders meeting has been done away, which was frequently allowed under the 1956 Act regime. This Bench has elaborately dealt with this point in between L T Electricals and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizance of the fact of the National Company Law Tribunal, Kolkata Full Bench decision, wherein, there are/were consent affidavits of the share holders as well as creditors, and by taking the said precedent into notice, have remanded the matter to the National Company Law Tribunal, Chandigarh Bench, for re-hearing. 21. Before proceeding further, it is pertinent to mention herein that, the company while passing the resolution (page No. 383 (Volume II) of the application has resolved as under : Resolved that : (a) Pursuant to the provisions of sections 230 and 232, and other applicable provisions, if any of the Companies Act, 2013 ('the Act'), Listing Regulations, the provisions of the memorandum and articles of association of the company and subject to the requisite approvals, sanctions, consents, observations, no objection from the shareholders and the creditors of the company, stock exchanges where the shares of the company are listed, the Securities and Exchange Board of India (SEBI) the relevant National Company Law Tribunal or such other competent authority as may be applicable, unanimous approval of the board of directors be and is hereby accorded for amalga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he chartered accountant, it only reflects the total number of shareholders ; annexed as annexure L at page No. 411 of the application, however, no descriptive details have been annexed. Further, CA certificate annexed as annexure M at page No. 412 of the application only shows the value of the creditors not the number of creditors, consequent upon which the share- holders are not identified from which consent affidavit ought to be obtained for dispensation of the meeting as sought for. 24. Before proceeding further, the position under the Companies Act, section 230(9) of the Act read with rule 5 of the Rules, inter alia, provides that the National Company Law Tribunal while hearing the application under section 230(1) of the National Company Law Tribunal can dispense the meeting of the creditors as provided under section 230(9) of the Act, i. e., in case where such creditors or class of creditors having at least ninety per cent. value, agree and confirm by way of an affidavit, to the scheme of compromise and arrangement. However, neither the provision contained in the Act nor the Rules specifically provide for any procedure or power to the National Company Law Tribunal for dispe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard resolution is also reflected in preceding paragraph No. 21 of this order, hereinabove, for ready reference. In view of the above situation, we are of the opinion that the meeting of the shareholders and the creditors of the company cannot be dispensed with, due to want of consent affidavit of shareholders as well as creditors. Therefore, the parties are hereby directed to convene the meeting of the shareholders and creditors on the date as per their own convenience. Appointing Mr. Kiran Shah (FCA), as chairman and Mr. M. C. Gupta (PCS) as scrutiniser of the said meeting. The parties are directed to fix venue, time and date as per the convenience of the chairman and scrutiniser. 26. The applicant-companies shall take steps as per section 230(5) of the Companies Act, by issuing notice to the Central Government through Regional Director (North-Western Region), Ministry of Corporate Affairs, the Income-tax Authorities, Registrar of Companies, Gujarat, RBI, and respective stock exchanges where the company is listed and other Sectoral Regulators as the case may be, along with copy of required documents and disclosures required under the provisions of the Companies Act, 2013 read w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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