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TMI Blog2022 (10) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... eme of arrangement will not result in any dilution in the shareholding of the shareholders of the Transferee Company. The rights of the shareholders of the Transferee Company are not affected as the proposed scheme does not involve any reorganisation in either the shareholding or debt position of the Transferee Company. This Tribunal considering the submissions of the Appellant that the Appellant Company is a holding company and no new shares are being issued, the rights of the shareholders of the Appellant Company are not affected, the scheme does not involve reorganisation of the share capital and the net-worth of the Appellant Company post amalgamation would remain highly positive - this Tribunal is of the view that the NCLT erred in not considering the decisions of this Tribunal which forms judicial precedents. We are of the view that rejecting the prayer of the of the Appellant is non-est and without application of mind. Appeal allowed. - Company Appeal (AT) No. 147 of 2022 - - - Dated:- 18-10-2022 - [ Justice Rakesh Kumar ] Member ( Judicial ) And [ Kanthi Narahari ] Member ( Technical ) For the Appellant : Mr. GP Madan, Mr. Suman Kr. Jha and Mr. S. Shiva , Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paper Book: Here in the case in hand, since out of six (06) only five (05) shareholders have given their consent, therefore, in our considered view that the prayer of the petitioner to dispense with the calling of the meeting of the shareholders of Transferee Company is not liable to be accepted. Accordingly, the meeting of Shareholders of the Transferee Company is directed to be held through Video Conferencing / Other Audio Visuals Means within 60 days of this order. The Quorum of the meeting shall be 75% in value. The Chairman shall fix the date, time and venue of the meeting. 6. The Learned Counsel for the Appellant submitted that since the Transferor Companies are wholly owned subsidiaries of the Transferee Company and the 100% of the share capital of both the Transferor Companies are held by the Transferee Company, therefore, under the scheme of arrangement, no shares are required to be issued or allotted as consideration from the proposed amalgamation. It is further submitted that the proposed scheme of arrangement will not result in any dilution in the shareholding of the shareholders of the Transferee Company. Further, the rights of the shareholders of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the holding company, and whether the meeting of the shareholders / creditors of the holding company or Transferee Company can be dispensed with, since in case there is no dilution in the shareholding of the shareholders of the Transferee Company and even post amalgamation the net-worth of the Transferee Company remain highly positive? 13. In answer to the above point, the facts are recapitulated as under. 14. It is an admitted fact that the Appellant is a Transferee Company and the Transferor Companies are wholly-owned subsidiary of the Appellant Company. The total shareholding i.e. (100% shares) of Transferor Companies are held by the Transferee Company. In the affidavit, the Appellant categorically mentioned that post amalgamation the net-worth of the Transferee Company will remain highly positive and the proposed scheme of arrangement will not result in any dilution in the shareholding of the shareholders of the Transferee Company. The rights of the shareholders of the Transferee Company are not affected as the proposed scheme does not involve any reorganisation in either the shareholding or debt position of the Transferee Company. 15. In sum and substance, the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraphs 13 and 14 of the affidavit in support of the company application, the financial position of the transferor and transferee companies has been set out and which would show that in so far as the transferor company is concerned, it has an excess of assets over liabilities to the extent of Rs.508 lakhs whereas in the case of the transferee company, there is an excess of assets over liabilities to the extent of Rs.6,900 lakhs. 6. In the circumstances, the office objection is accordingly disposed of with the clarification that filing of a separate petition by the transferee company is not necessary, in the facts and circumstances of the present case 20. In the above decision, the Hon ble High Court of Bombay held that filing of separate petition by the Transferee Company is not necessary. However, in the present case, the Appellant being a Transferee Company filed joint application along with the Transferor Companies. 21. The Hon ble High Court of Delhi in the matter of MASTERJI METALLOYS PVT. LTD. with GOODLUCK STEEL TUBES LTD. Company Appeal (M) No. 9/2016 dated 18.01.2016 at para 10.1 held as under 10.1 Accordingly, given the fact that the Transferor Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same Tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the coordinate Bench of the same Tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A coordinate Bench of a court cannot pronounce judgment contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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