TaxTMI 
TaxTMI 
2017 (8) TMI 673
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....from the date of receipt of the request for the transfer of Preference Shares. 3) Be it stated that on the basis of submissions made by the learned counsels for the appellant as well as respondent No. 1, this Court by an order dated 27.07.2016, has recorded that the other respondents may not be necessary for the purpose of the disposal of the appeal. Hence, no notices were issued on respondent Nos. 2, 3 and 4 and the appeal has been listed for hearing. Both the learned counsels for the appearing parties have reconfirmed that the matter may be heard without notice to the other respondents. Hence, it is deemed fit to strike out the names of Respondents No.2, 3 and 4 at the risk of the appellant. 4) In t he form of three paper -books, the appellant has submitted the copies of (1) CP No. 89/ 2011, (2) Affidavit- in-reply dated 14.06.2011, (3) the rejoinder affidavit dated 11.08.2011, (4) Sur-rejoinder affidavit dated 10.08.2012 (5) Sur-sur rejoinder affidavit dated 13.02.2013 (6) Additional rejoinder dated 09.04.2013 (7) Additional affidavit dated 05.09.2013, (8) IA 1084/14, (9) Affidavit dated 25.12.2014 of Respondent No.1 in reply to IA 1084/14, (10) Rejoinder affidavit dated 1....
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....artered Bank by virtue of an agreement dated 16.12.2005 and a notice of assignment was issued by the Standard Chartered Bank on 31.03.2006. 9) Thereafter, the terms of CDR settlement were modified and the lenders had agreed to accept 25% of the amount by cash and remaining 75% by way of 8% Optionally Convertible Cumulative Debentures (OCCD). The same was conveyed by a letter dated 25.11.2008 issued by the IDBI, the consortium leader. In this regard the Standard Chartered Bank also issued their letter dated 23.04.2009. 10 ) To make the long story short, the appellant after entering into the said CDR agreement, paid the agreed dues. However, the 30,00,000 (thirty lakh) preference shares, referred earlier, which were retained by the ICICI was sold to the respondent No. 1 and on refusal of the Appellant to register the share transfer, the appellant had filed CP No. 89/2011 under section 111A of the Companies Act, 1956 before the learned CLB , Kolkata Bench. 11 ) The parties are at l oggerhead after since the point of time when the said preference shares (RCCP and CCP) were sold by the ICICI to the respondent No.1. The further sequence of events would unravel with the submissio....
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.... permitted advertisement of CP No. 7 of 2011 and the same was published in the newspaper on 27.01.2012. In terms of the said notice, the 14 (fourteen) days notice period expired on 09.02.2012 and till then no one including the ICICI or the respondent No. 1 filed any objection to the said petition. However, in April 2012, the respondent No. 1 had filed an application to intervene in CP No. 7 of 2011. The said petition was dismissed by order dated 17.08.2012, inter -alia, observing that the name of respondent No. 1 was not appearing in the list of share holders of the appellant company and the right of respondent No. 1 has yet to be crystallized, as such, the respondent No. 1 cannot be i mpleaded. The said order was assailed before the Hon'ble Apex Court by filing SLP No. 28115 of 2012. h. In the meanwhile by order dated 18.12.2012, this Court allowed CP No. 7 of 2011, permitting the cancellation of all 81,46,250 preference shares, inclusive of 3000000 Preference Shares in issue. The said order was implemented and the Registrar of Companies confirmed the cancellation of shares. Challenging the said order dated 18.12.2012 the respondent No. 1 filed a second SLP before the....
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..... b. There was no transfer or delivery of preference shares held by ICICI together with the assignment of loan by ICICI to Standard Chartered Bank. c. It is submitted shares, by the nature of the instrument is transferable by mere delivery. Hence, in the absence of any clause which curtailed the right of transfer of those preference shares, there cannot be a clog on the right of the Respondent No.1 to purchase the same from ICICI. d. It is submitted that both Subscription Agreements were dated 08. 04.1996 and, as such, the 20,58,000 RCCP shares were issued in lieu of accrued interest, as crystallized on 08.04.1996 and it was not the interest from 08.04.1996 to 31.01.2004, which was waived. Thus, the waiver of interest as on 31.01.2004 did not include the interest for which 20,58,000 RCCP shares were issued. It is further submitted that there is no reference to the 30,00,000 (thirty lakh preference shares) in the letters dated 21.07.2004, 18.12.2004, 21.12.2004, 01.03.2005, exchanged between the appellant and the banks and financial institutions. e. In course of hearing on 25.04.2017, the learned counsel for the respondent No.1 had submitted a com....
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....he applicant Company (i.e. appellant herein) holding that the right of the applicant over the shares in question was yet to be crystallized during the pendency of the proceeding before the Company Law Board and at that stage it was difficult to recognize the applicant company as either share holder or the creditor of the petitioner company ." With the said observation , the respondent No.1 herein was not allowed to intervene in the said Co.P. 7/2011. 19 ) Having perused the materials on record, it is observed that the appellant's side could not show from the records that the assignment deed, which contained a list of securities, contained those RCCP and CCP (i.e. preference shares). The learned CLB has also arrived at the same finding. 20 ) The appellant's side has also not been able to successfully demonstrate that the said 30,00,000 (thirty lakh shares) were pledged as security for the loan availed from the ICICI. Unless it is satisfactorily shown that the said shares formed a part of security, only then the plea of the appellant that the said shares was a part of 'corporate debt restructuring' i.e. CDR can be entertained, and not otherwise. 21 ) There is no infirmity....