9911796707
TMI Blog2023 (7) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... The Appellant is aggrieved by the Impugned Order in that it directs 'the Appellant Company to obtain consent affidavits of at least ninety percent of value of total Secured Creditors as per section 230(9) of the Companies Act, 2013 or to hold meeting of Secured Creditors as per section 230(6) of the Companies Act, 2013 before the final hearing in view of huge credit exposure. Further this Bench directs to the Applicant Company to serve notice to all their respective creditors by Registered Post-AD/Speed Post, and email-ids, if available with the Applicant Companies and in case the email-ids are not available by way of registered post acknowledge due enclosing a copy of Scheme, with instructions that they may submit their representations, if any, to the Tribunal within a period of 30 days from the date of receipt of such notice and copy of such representations shall simultaneously be served upon the Applicant Companies.' The NCLT, by Impugned Order also directed the Applicant Company (Appellant) 'to obtain consent affidavits of at least ninety percent of value of total Equity Shareholders or to hold meeting virtually/physically of the Equity Shareholders as per section 230(1) of Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be affected after implementation of the Scheme. Moreover, the Appellant Company as well as the Demerged Company have a positive net worth and the assets of the Appellant Company are more than sufficient to discharge its liabilities in ordinary course of business and also because the Scheme does not contemplate any compromise on the part of any creditor or shareholder of the Appellant Company. Therefore, in view of pronouncements of various Hon'ble High Courts and this Tribunal for dispensing with such meetings in respect of similarly situated companies proposing schemes of arrangement, there was no valid ground on which the NCLT could have declined to grant the prayer for dispensing with the convening and holding meetings of equity shareholders, secured creditors and unsecured creditors as required under section 230 of the Companies Act. 6. When the appeal was presented before this Bench, it was thought appropriate to ask the Appellant to implead the relevant Registrar of Companies (in short ROC") in whose jurisdiction the Scheme of Arrangement was to take place. Hence, by order dated 4.7.2023 of this Bench, the Appellant was directed to implead the ROC as respondent, and the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensing with calling of meeting of creditors where at least ninety percent of creditors in value should agree and confirm, by way of affidavit, to the scheme of arrangement, as is required under section 230(9) of the Companies Act, has been sought in view of the specific conditions that obtain in respect of the Parent Company RIL and the Demerged Company RPPMSL, which is based on the decisions of the certain Hon'ble High Courts and this Tribunal. He has cited the judgments in the following cases in support of his argument/contention:- (i) Judgment of Hon'ble Bombay High Court in the matter of Mahaamba Investments Limited vs. IDI Limited vs. IDI Limited, (2001 SCC Online Bom 1174). (ii) Judgment of Hon'ble Andhra Pradesh High Court in Nebula Motors Ltd., Re (2003 SCC OnLine AP 451). (iii) Judgment dated 22 December 2001 of Hon'ble NCLAT in Re, Patel Hydro Power Private Limited in Company Appeal (AT) No. 137 of 20221 (2021 SCC OnLine NCLAT 420). (iv) Judgment dated 6 April, 2021 of Hon'ble NCLAT Re, Ambuja Cements Limited in Company Appeal (AT) No. 19 of 2021. 12. The Learned Senior Counsel for Appellant has clarified that in the judgment in the matter of Mahaamba Investment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the Transferor and Transferee Companies are in excess of their liabilities, hence This judgment also notes the pronouncement in the matter of Ambuja Cements Limited, 2021 SCC OnLine NCLAT 117, wherein the meeting of Equity Shareholders, Secured and Unsecured Creditors of the Appellant Company was dispensed when similar conditions were obtaining in respect of transferee and transferor companies. 14. In the light of the pronouncements of Hon'ble High Courts and this Tribunal as noted earlier in this judgment, wherein it is held that if the Scheme does not involve issue of new shares by the Transferee Company and that the Demerged Company and the Transferee Company are solvent companies with assets far exceeding their liabilities, the holding of meetings of equity shareholders and secured and unsecured creditors, including obtaining their consent affidavits, have been dispensed with. 15. The Learned Senior Counsel for Appellant has brought to our attention the directions contained in paragraphs 9 and 12 of the Impugned Order, wherein after noting that the proposed Scheme does not adversely affect the rights and interests of equity shareholders and the creditors of the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y percent of value of total Equity Shareholders or to hold meeting virtually/physically of the Equity Shareholders as per section 230(1) of The Companies Act, 2013 before the final hearing." 18. We also note that in para 12 of the Impugned Order, the Learned NCLT has directed as follows:- "12. The Learned Senior Counsel for the Applicant Company submits that, the Scheme does not adversely affect the rights and interests of the creditors of the Applicant Company. Pursuant to the Scheme, all the assets and liabilities of the Demerged Company pertaining to the Demerged Undertaking would be transferred to the Applicant Company in the manner provided in the Scheme. As on the Appointed Date, the assets of the Demerged Undertaking exceed its liabilities and will be sufficient to meet its liabilities. Further, as on date, the assets of the Applicant Company exceed its liabilities and would be sufficient to discharge the said liabilities, in the ordinary course of business. However, this Bench hereby directs the Applicant Company to obtain consent affidavits of at least ninety percent of value of total Secured Creditors as per Section 230(9) of the Companies Act, 2013 or to hold meeting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy of any investigation or proceedings against the company; (b) reduction of share capital of the company, if any, included in the compromise or arrangement; (c) any scheme of corporate debt restructuring consented to by not less than seventy-five per cent of the secured creditors in value, including- (i) a creditor's responsibility statement in the prescribed from; (ii) safeguards for the protection of other secured and unsecured creditors; (iii) report by the auditor that the fund requirements of the company after the corporate debt restructuring as approved shall conform to the liquidity test based upon the estimates provided to them by the Board; (iv) where the company proposes to adopt the corporate debt restructuring guidelines specified by the Reserve Bank of India, a statement to that effect; and (v) a valuation report in respect of the shares and the property and all assets, tangible and intangible, movable and immovable, of the company by a registered valuer. (3) Where a meeting is proposed to be called in pursuance of an order of the Tribunal under subsection (1), a notice of such meeting shall be sent to all the creditors or class of creditors and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall require that representations, if any, to be made by them shall be made within a period of thirty days from the date of receipt of such notice, failing which, it shall be presumed that they have no representations to make on the proposals. (6) Where, at a meeting held in pursuance of subsection (1), majority of persons representing three-fourths in value of the creditors, or class of creditors or members or class of members, as the case may be, voting in person or by proxy or by postal ballot, agree to any compromise or arrangement and if such compromise or arrangement is sanctioned by the tribunal by an order, the same shall be binding on the company, all the creditor, or class of creditors or members or class of members, as the case may be, or, in case of a company being wound up, on the liquidator [appointed under this Act or under the Insolvency and Bankruptcy Code, 2016, as the case may be,] and the contributories of the company. (7) An order made by the Tribunal under sub-section (6) shall provide for all or any of the following matters, namely:- (a) where the compromise or arrangement provides for conversion of preference shares into equity shares, such preference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the provision whereby no new shares are sought to be issued to the members of the transferor company by the transferee company, the scheme will not affect the members of the transferee company. The creditors of the transferee company are not likely to be affected by the scheme in view of the financial position of the transferee company. In paragraphs 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." 22. Also, in the matter of Eurokids India Pvt. Ltd. (C.S.D.No. 911 of 2014), the Hon'ble High Court of Bombay has observed as follows:- "The Applicant Company is Wholly Owned Subsidiar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
