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TMI Blog2021 (9) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... ot taken consent of the Creditors (having at least 90 percent value) by way of Affidavit on the proposed Scheme in terms of the provision under Section 230(9) of Companies Act, 2013 and have still sought dispensation of calling their meeting on the ground that there will be no sacrifice made towards the unsecured creditors and the scheme is, in no manner, prejudicial to the interests of the unsecured creditors - the Unsecured Creditors of both the Applicant Companies cannot be kept in dark. If without their consent Affidavits, the meeting of the unsecured creditors is dispensed with, they will be deprived of an opportunity of being heard or oppose the Scheme. The Affidavits filed under Section 230(2)(a) of Companies Act, 2013 are incomplete and defective - the meeting of Unsecured Creditors of any of the Applicant Companies, cannot be dispensed with, in light of the facts of the case and in the absence of their consent Affidavits in terms of Section 230(9) of the Companies Act, 2013 - application dismissed. - C.A.(CAA)-84/ND/2021 - - - Dated:- 23-9-2021 - ABNI RANJAN KUMAR SINHA, MEMBER (J) AND L.N. GUPTA, MEMBER (T) For the Appellant : Hemant Sethi and Varun Lamba, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l management leading to an efficient organization capable of responding swiftly to volatile and rapidly changing market scenarios. c) Duplication of administrative functions and multiple record-keeping will be eliminated, thereby eliminating duplication of effort and also resulting in reduced expenditure.... 8. That the Applicants have annexed their Affidavits, stated to be filed in compliance of Section 230(2) of the Companies Act, 2013 which are at page no. 441 to 450 of the paper book. However, on perusal on those Affidavits there was no specific averments with respect to details of any investigation or proceedings pending against the Applicant Companies. 9. That vide Order dated 09.08.2021, this Bench had directed the Applicant Companies to file their Affidavit in compliance of Section 230(2)(a) of Companies Act, 2013. That the Applicant Companies in response to the same have filed their Affidavits on 09.08.2021 stating that there is no investigation or any proceeding pending against the Applicant Companies. 10. That the Applicant Companies have also placed on record the Certificate from the Statutory Auditors confirming that their Accounting Standards are in confo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assets to meet the respective liabilities of the Applicant Company 1 and the Applicant Company 2 In view of the same, the post amalgamation net-worth of the Applicant Company 2 will be sufficient and positive which will enable the Applicant Company 2 to meet the aggregate liabilities of each of the Applicant Companies. A certificate issued by a Chartered Accountant, certifying the net-worth of the Applicant Company 1 us on January 31, 2021 as well as a certificate issued by a Chartered Accountant, certifying the pre amalgamation and post-amalgamation, net-worth of the Applicant Company 2 as on January 31, 2021 are annexed herewith as ANNEXURE-A10 and ANNEXURE-All respectively. (v) The present Scheme is an arrangement between the Applicant Companies as contemplated under Section 230(1)(b) of the Act, as there is no compromise or arrangement with any of the unsecured creditors as no sacrifice is called for. 29. Alternatively, in the event this Hon'ble Tribunal holds that the meeting of the unsecured creditors of the Applicant Company 1 cannot be dispensed with, this Hon'ble Tribunal may be pleased to pass directions for convening meeting of the unsecured creditors of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigations against the Applicant Company 1 that are considered as a material fact relating to the Applicant Company 1. The Applicant Company 1 submits that there are no such investigations pending against the Applicant Company 1 including under Sections 235 to 251 of the Companies Act, 1956 or corresponding notified Sections of Companies Act., 2013, i.e., under Sections 210-217, 219, 220, 223, 224, 225, 226 and 227 of the Companies Act., 2013. Further, it goes on to state that the provisions of Section 230(2)(a) of the Act have been complied with and the necessary disclosures as stated therein have been made in the Joint Application and the contents thereof shall be read as part and parcel of the present Affidavit and the same are not being repeated. 19. It may be mentioned that the similar averments have been made by the Transferee Company in the Additional Affidavit filed by them. 20. In the light of the aforesaid averments made by the Transferor Company and Transferee Company, we now consider it necessary to visit the disclosures so made by them in the Joint Application. Accordingly, we refer to the page-271 of the paper book, where the Applicant Companies have jointly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of hearing and the present status of the case etc. 24. Further, while going through the Application and the averments made therein, we observe that the Applicant Companies have not taken consent of the Creditors (having at least 90 percent value) by way of Affidavit on the proposed Scheme in terms of the provision under Section 230(9) of Companies Act, 2013 and have still sought dispensation of calling their meeting on the ground that there will be no sacrifice made towards the unsecured creditors and the scheme is, in no manner, prejudicial to the interests of the unsecured creditors. 25. That we further notice that there are 473 Unsecured Creditors representing a total outstanding unsecured debt of ₹ 24,640.21 million as on 30.06.2021 against the Transferor Company. Similarly, there are 177 Unsecured Creditors representing a total outstanding unsecured debt of ₹ 1.262.71 million against the Transferee Company. 26. That in terms of Accounting Reporting, the Creditors are the liabilities of the Company. That on approval of the Scheme, the liability worth ₹ 24,640.21 million will be shifted to the Transferee' Company, which is already having an exi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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