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TMI Blog2021 (12) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-232 of Companies Act, 2013 (the Act) and other applicable provisions of the Act read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (the Rules) in relation to the Scheme of Arrangement between the Applicant Companies. The said Scheme is also attached as Annexure A-1/1 of the Application. The Applicant Companies has prayed for dispensing with the meetings of the shareholders of all the applicant companies and that of the unsecured creditor of the Applicant No.1/Transferor Company and Applicant No.3/Resulting Company. They have also prayed for calling for the meeting of the Secured creditors of the Applicant No.1/Transferor Company and Applicant No.2/Transferee Company, and also the unsecured creditor of the Applicant No.2/Transferee Company. 2. The Applicant No.1/Transferor Company, Applicant No.2 /Transferee Company and Applicant No.3/Resulting Company are presently engaged in the business to manufacture, fabricate, process and to purchase, sell, import-export or otherwise deal in all types of component parts, accessories, spares and fittings of all kinds of or automotive, general engineering, petrochemicals, miscellaneous industries in allied fields ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and Transferee company in their meetings held on 23.09.2021 have considered and unanimously approved the Scheme of Arrangement subject to sanctioning of the same by this Tribunal. The copy of the Board Resolutions of the Applicant No.1, Applicant No.2 and Applicant No.3 are at Annexures A-1/4, A-2/4 and A-3/4 respectively of the application. The Applicant Companies have authorized Mr. Jagdish Singh, Ms. Amardeep Kaur, Mr. Chandar Shekhar Shingari and Ms. Malti Ohri, to do all acts and deeds and things in relations to the Scheme. The affidavit of Mr. Chandar Shekhar Shingari, authorised signatory of the Applicant Companies has been filed in support of contents of the application for seeking appropriate orders/directions. 5. In the Scheme, there is a mention of two appointed dates i.e. Appointed Date-1 and Appointed Date-2. The Appointed Date-1 is relevant for the purpose of amalgamation of Applicant No.1 with Applicant No.2 in terms of this Scheme, and Appointed Date-2 is relevant for the purpose of the demerger of Real Estate and Ancillary Business of Applicant No.2 into Applicant No.3 in terms of this Scheme. 6. It is submitted that the registered office of the Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Annexure A-3/5 of the application. The list of Secured and Unsecured Creditors of Applicant No.3/Resulting Company duly certified by the Statutory Auditor are attached as Annexure A-3/6 and A-3/7 respectively of the application. As per the list of statutory auditors of the Applicant No.3/Resulting Company, there are NIL secured and NIL unsecured creditors. 11. The Applicant No.1/Transferor Company i.e. G.N.A. Transmissions Pvt. Ltd. CIN: U50404PB1974PLC003420 is a company as a public limited company under the Companies Act, 1956 on 1st December, 1986.The Master Data of the Company along with Memorandum and Articles of Association is attached as Annexure A-1/1 of the application. The Authorised Share Capital of the Applicant No.1/Transferor Company is ₹5,00,00,000/- divided into 50,00,000 Equity Shares of ₹10/- each. The present Issued, Subscribed and Paid-up Capital of the Company is ₹65,87,800/- divided into 6,58,780 Equity Shares of ₹10/- each. 12. The Applicant No.2/Transferee Company i.e. Guru Nanak Auto Enterprises Ltd CIN: U50404PB1974PLC003420 is a company as a public limited company under the Companies Act, 1956 on 5th March, 1981. The Master D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for applicant companies that as per Valuation Report dated 21.09.2021 issued by Mr. Sandeep Kumar Agrawal, Chartered Accountant and the IBBI Registered Valuer bearing registration No.IBBI/RV/06/2019/10705 (Annexure A-4) the Share Swap Ratio is given below:- A. Amalgamation: The Transferee Company Guru Nanak Auto Enterprises Ltd. will issue 16,522 (Sixteen Thousand Five Hundred and Twenty-Two) Equity Shares of ₹ 10 each, credited as fully paid up, for every 1,000 (one thousand) Equity Shares of ₹ 10 each held in the Transferor Company GNA Transmissions Pvt. Ltd. Any fraction of share arising out of the aforesaid share exchange process, if any, may be rounded off to the nearest whole number. B. Demerger: The Resulting Company ASKK Estates Pvt. Ltd. will issue 1 (one) Equity Share of ₹ 10 each, credited as fully paidup, to the shareholders of the Transferee Company for every 10 (ten) Equity Shares of ₹ 10 each held I the Transferee Company Guru Nanak Auto Enterprises Ltd. It is clarified that, for the purpose of Demerger, the Resulting Company will issue shares to such shareholders of the Transferee Company after giving ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be, ] order a meeting of 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. xx xx xx (9) The Tribunal may dispense with calling of a meeting of creditor or class of creditors where such creditors or class of creditors, having at least ninety per cent. Value, agree and confirm, by way of affidavit, to the scheme or compromise or arrangement. Xxxx Section 391 in The Companies Act, 1956 391. Power to compromise or make arrangements with creditors and members. (1) Where a compromise or arrangement is proposed- (a) between a company and its creditors or any class of them; or (b) between a company and its members or any class of them; the Court may, on the application of the company or of any creditor or member of the company, or, in the case of a company, which is being wound up, of the liquidator, order a meeting of 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 Court directs. 21. In the course of the present pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted so that in the interest of justice the same can be exercised in appropriate situations. 23. Having observed as above, she considered the specific facts of the case, i.e., the size of the company, availability of consents of all shareholders in writing, positive net worth of the company post effectiveness of the Scheme, lack of compromise with the creditors etc., before issuing directions to dispense with the meeting of the members and creditors of both the applicant applicant companies. 24. In the second Three Member Judgment of NCLT, New Delhi in Quickcalls Pvt. Ltd. others, in CA (CAA)-75(ND)/2020 dated 31.05.2021, the Third Member reconsidered the issue of whether or not shareholders; meetings could be dispensed with in the first motion of the Scheme application. In his order, he has made the following observations:- i. The powers conferred on the Tribunal is much more restricted than the wide powers conferred upon Courts under Section 9 of CPC and therefore, the Tribunals cannot go beyond the scope of a given Section continuing in some veil; ii. The Section 230(1) is, may order meeting, meaning thereby the court may order or may not order meeting, but no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench itself has passed several orders dispensing with the shareholders meeting based on consents obtained from the shareholders. i. Skylark Industries Private Limited, CA No. CA (CAA)-78 (PB) 2021,dated 18.11.2021 ii. Alovera Tradelink Pvt. Limited and others vs. Ostwal Physchem (India) Limited, Company Appeal (AT) No. 178 of 2019, decided on 06.08.2019 iii. Fortum Amrit Energy Pvt. Ltd. With Fortum Finnsurya Energy Pvt. Ltd., CA (CAA)-91(PB) 2021, dated 18.11.2021 iv. Vadehra Builders Private Limited, Company Application CA (CAA)- 102(PB)2021, dated 18.11.2021 v. Bhaktideep Sales Private Limited, Company Application (CAA)- 106(PB)/2021 dated 18.11.2021 28. We have also come across the decision of Hon ble NCLAT in the matter of Ambee Conbuild Private Limited, Company Appeal (AT) 253 of 2018 vide order dated 29.08.2018 has held as follows: ....First Motion Application itself makes alternative prayers of dispensing or alternatively calling the meetings and the NCLT has granted the alternative prayer, reading the First Motion as a whole, to call Meeting of preferential shareholders, fault cannot be found. Even if the Affidavits are taken, it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary directions are issued in the subsequent paragraph. Accordingly. CA No.189/2021 stands disposed of. 32. Accordingly, the directions of this Bench in the present case are as under:- A. In relation to Applicant No.1/Transferor Company: i. The meetings of the Equity Shareholders is dispensed with keeping in view the shareholding and ownership pattern of the company and the fact that the consents by way of affidavits have been received; ii. The meetings of the Secured Creditors be convened as prayed for on 05.03.2022 at 10.00 AM through Video Conferencing with facility of remote e-voting, subject to notice of meeting being issued. The quorum of the meeting of the unsecured creditors shall be 2 in number personally present or 40% in value of the unsecured creditors; iii. The Meeting of the unsecured creditors is dispensed with as the consent by way of affidavits of all the unsecured creditors, 100% in value has been received; B. In relation to Applicant No.2/Transferee Company i. The meetings of the Equity Shareholders is dispensed with keeping in view the shareholding and ownership pattern of the company and the fact that the consent by way of affidavits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/- (Rupees One Lakh Only) be paid to him for his services as the Scrutinizer. H. The fee of the Chairperson, Alternate Chairperson and Scrutinizer and other out of pocket expenses for them shall be borne jointly by the Applicant No.1/Transferor Company and Applicant No.2/Transferee Company. I. It is further directed that individual notices of the said meetings shall be sent by Applicant No.1/Transferor Company and Applicant No.2/Transferee Company through registered post or speed post or through courier or e-mail, 30 days in advance before the schedule date of meeting, indicating the day, date, the place and time as aforesaid, together with a copy of the Scheme, copy of explanatory statement with Valuation Report as discussed in paras 3 and 18 of this order required to be sent under the Companies Act, 2013 and the applicable Rules and any other documents as may be prescribed under the Act shall also be duly sent with the notice. J. It is further directed that along with the notices, Applicant No.1/Transferor Company and Applicant No.2/Transferee Company shall also send, statements explaining the effect of the scheme on the creditors, key managerial personnel, promoter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance of sub-section (5) of Section 230 of the Act and Rule 8 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 send notices in Form No. CAA-3 along with copy of the Scheme, Explanatory Statement and the disclosures mentioned in Rule 6 of the Rules to (i) Central Government through the Regional Director (Northern Region), Ministry of Corporate Affairs, New Delhi (ii) Registrar of Companies, NCT of Delhi Haryana (iii) Official Liquidator; (iv) Income Tax Department through the Nodal Officer Principal Commissioner of Income Tax, NWR, Aayakar Bhawan, Sector 17-E, Chandigarh by mentioning the PAN number of the Applicant Companies; and such other Sectoral Regulator(s) governing the business of the Transferee Companies, if any, stating that representation, if any, to be made by them shall be sent to the Tribunal within a period of 30 days from the date of receipt of such notice and copy of such representation shall be simultaneously sent to the concerned companies, failing which it shall be presumed that they have no objection to the proposed Scheme. Q. The Applicant No.1/Transferor Company and Applicant No.2/Transferee Company shall furnish a copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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