AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 1750
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.... that there is extreme urgency in the matter. The urgency is this. If the Scheme of Arrangement is liable to be sanctioned but is sanctioned only after today i.e. 31.03.2017, the appellant would lose the benefit of the Double Taxation Avoidance Agreements with Singapore and Mauritius. In view of this contention, we circulated the matter yesterday for today provided that notice was given to the Regional Director. The Regional Director appeared today and addressed us. 3. We will refer to the details of the Scheme later after dealing with the impugned judgment. Suffice it to note, at this stage, that the Scheme involves the hiving off a mall owned by the first appellant, namely, Alpha Corp Development Private Limited and transferring the same to the second appellant- Euthoria Developers Private Limited. The Scheme also contemplates the transfer of shares held by the first appellant in Ruchi Malls Private Limited to the second appellant. The first appellant is, therefore, the transferor or the demerged company and the second appellant is the transferee or the resulting company. 4. The Regional Director raised a preliminary objection to the effect that the matter should now stand tran....
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....rate Affairs under section 434(1)(c) of the Companies' Act, 2013, the company matters mentioned therein, are required to be transferred to the National Company Law Tribunal. The present joint petition under Section 391-394 read with Section 100-103 of the Companies' Act, 1956 for demerger of the mall undertaking, could have also been transferred but perusal of the order sheets reflect that the matter was heard on 25.10.2016 and order was reserved. In view of said circumstances, the present petition would fall under the exceptions wherein it is provided that the proceedings relating to cases other than winding up that are reserved for orders for allowing or otherwise would be proceeded with by the High Courts. As the arguments were heard and matter was reserved by the Coordinate Bench, in the interest of justice, the matter be listed before the Hon'ble Mr. Justice R.K. Jain after obtaining orders of Hon'ble the Chief Justice on 27.03.2017 as the counsel for the petitioner has insisted that adjudication of the matter after 31.03.2017 may warrant financial complications." 5. It is important to note that in the above order the learned Judge held that the petition would fall under th....
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....(i) those proceedings relating to cases other than winding-up that are reserved for orders for allowing or otherwise and (ii) those winding up cases which would not be transferred to Tribunal and be proceeded with by High Courts on account of commencement of the corresponding provisions under the 2013 Act or under the Code; And, whereas, difficulties have also arisen regarding transfer of proceedings relating to cases other than winding-up where hearings have been completed and only pronouncement of order is pending or is reserved since their transfer to Tribunal may result into delay and rights of parties to the proceedings are likely to be affected prejudicially;" Clause 2 (i) reads as under:- "2. In the Companies Act, 2013, in Section 434, in sub-section (1), in clause (c), after the proviso, the following provisos shall be inserted, namely:- "Provided further that only such proceedings relating to cases other than winding-up, for which orders for allowing or otherwise of the proceedings are not reserved by the High Courts shall be transferred to the Tribunal: Provided further that- (i) all proceedings under the Companies Act, 1956 other than the cases relating to winding up....
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....all be transferred though orders regarding a part of the proceedings are reserved but orders regarding a part of the proceedings are not reserved. If the intention was to transfer all proceedings including composite petitions where orders as to a part are reserved, the language of the order would have been entirely different. In that event, the Central Government would have made it clear that even such proceedings shall stand transferred. The effort of the Central Government was, in fact, to remove difficulties which is obvious from the title of the Order, namely, The Companies (Removal of Difficulties) Fourth Order, 2016. From the facts that we have narrated, it is clear that on 25.10.2016, a judgment was reserved in respect of a part of this composite petition by which the appellants had sought directions dispensing with the meetings of shareholders and creditors, secured and unsecured and, in the alternative, a direction for holding such meetings. The proceedings for such scheme contemplate this stage as a separate stage in themselves without obtaining orders in this respect. Prior to this, the matter cannot proceed to the next stage, namely, presenting a petition for sanction o....
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....aking on behalf of the appellants that both the appellants shall be responsible for and liable in respect of the claims of that unsecured creditor jointly and/or severally. The undertaking is accepted and it is so ordered by us as well. The failure to make good the undertaking would, apart from anything else, also constitute contempt of this Court. 16. We are informed that a caveat has been filed by Alpha Pacific Engineers Private Limited, a contractor of the demerged company but by an order dated 24.10.2016 the learned Company Judge held the same to be contrary to the rules and therefore, dismissed the caveat application. We are informed that no appeal against that order has been filed. Nevertheless we intend safeguarding the interest of the caveator, if any, by accepting the undertaking on behalf of the appellants that both the appellants shall be jointly and/or severally responsible for the claims of the caveator, if any. 17. We further intend granting the caveator and the unsecured creditors of the demerged company, referred to earlier, liberty to move an application either for review/recall of this order and judgment or for securing the claims, if any, effectively. 18. All ....