TaxTMI 
TaxTMI 
2021 (6) TMI 688
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....from the appointed date on the agreed terms and conditions as set out in the Scheme annexed at annexure-I, in accordance with sections 230 to 232 of the Companies Act, 2013 and other applicable provisions of the Act. 2. The registered office of the applicant-company is situated in the State of Gujarat and are under the jurisdiction of the National Company Law Tribunal, Bench at Ahmedabad. The registered office of M/s. Drik India P. Ltd., the transferor company is situated in the State of Maharashtra. 3. The applicant-company is a public limited company and its shares are listed on Bombay Stock Exchange Ltd., National Stock Exchange of India Ltd., and Luxembourg Stock Exchange. 4. The applicant-company is engaged in the business of manufacturing and marketing of cement and cement related products for domestic and export markets. The transferor company is an unlisted wholly owned subsidiary of the applicant-company and the applicant/transferee company will acquire the transferor company in order to meet its growing infrastructure requirement. 5. The management proposes to merge transferor company with applicant/ transferee company in view of the following benefits : (a) The nat....
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....be issued to any non-resident. Further, the shares held by the applicant-company in the transferor company shall get cancelled. 10. It is submitted that in compliance with the SEBI, being Circular No. CFD/DIL3/CIR/2017/21 dated March 10, 2017, the applicant-company by their letters dated December 18, 2019 forwarded copies of scheme with BSE Ltd., National Stock Exchange of India Ltd. Copies of letters sent to the stock exchange are annexed at annexure K. 11. Counsel for the applicant submits that the merger is of Dirk India P. Ltd., which is wholly owned subsidiary of Ambuja Cements Ltd., the applicant-company. It is submitted that when a wholly owned subsidiary gets merged with its holding company as in the present case, there is no requirement in law to convene meetings of the shareholders and creditors of the applicant-company/(holding company). The applicant-company has relied upon the decision of the National Company Law Tribunal, Mumbai Bench in the case of C. S. A. No. 1019 of 2017 Godrej Real Estate P. Ltd. and Tech Mahindra Ltd. in C. A. No. 1081 of 2017 also of Mumbai Bench, and in case of Berkeley Design Automation India P. Ltd. in C. A. No. 29(PB) 2017 (Special Bench,....
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....17. In support of the prayer for dispensation of the meeting of the share- holders and creditors without consent by way of an affidavit, the applicant cited/relied upon various judgment passed by the hon'ble National Company Law Appellate Tribunal, Full Bench judgment of the National Company Law Tribunal, Kolkata Bench and Mumbai Bench : * The applicant relied upon Full Bench judgment of the National Company Law Tribunal, Kolkata Bench passed in T. A. No. 11 of 2017 connected with C. A. No. 896 of 2016 wherein the meetings were dispensed with. * While going through the said judgment of the Full Bench of the National Company Law Tribunal, Kolkata, it is found that, the meetings of the shareholder and creditors were dispensed with, on the basis of consent affidavits filed by the shareholders and the creditors of both the applicant- company, which is not available in this case. For the sake of convenience, the relevant paragraph of Full Bench judgment of the National Company Law Tribunal, Kolkata Bench is reproduced hereinbelow : "Each and every shareholder of both the applicant-companies have given their consent for the scheme which are annexed at 'annexures I-1 to I-5 ....
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....lied upon the judgment so passed by the National Company Law Tribunal, Mumbai (C. S. A. No. 1019 of 2017), in the said judgment the hon'ble Bench of the National Company Law Tribunal, Mumbai, has given certain direction to be complied with by the applicant. However, is silent with regard to the dispensation of calling of/convening of the meeting of shareholders or creditors. The same is the situation in C. S. A. No. 1081 of 2017 of the National Company Law Tribunal, Mumbai Bench. 20. The applicant has also relied upon the judgment/order of the hon'ble National Company Law Appellate Tribunal relating to DLF numbered as Company Appeal (AT) No. 180 of 2019. âEURc The hon'ble National Company Law Appellate Tribunal while passing the order in the DLF has also referred the Full Bench judgment of the National Company Law Tribunal, Kolkata, passed in T. A. No. 11 of 2017 connected with C. A. No. 896 of 2016, wherein, the calling of the meetings were dispensed with, in view of filing of the written consent of the share- holders and creditors of both the applicant-companies. * It is to be mention herein that while going through the judgment of DLF, as also relied upon b....
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....ound that the member of the board, resolved that amalgamation is subject to the requisite approvals, sanction, consent, observation, no objection from the shareholders and the creditors of the company, stock exchanges where the shares of the company are listed, which said resolution was passed unanimously by the board, and admittedly the same is not complied with. * Under such circumstances when the Board/themselves agreed for and passed certain resolution for performance of act, in a specific manner then it is expected/duty of the company to comply the conditions of the board resolution. 22. On perusal of the record it is found that there are as many as 1,90,535 numbers of equity shareholders in the applicant-company/transferee company as on June 30, 2020 as per the Bombay Stock Exchange. The said certificate is issued on July 27, 2020 by one Mr. Bhupendra R. Kochar chartered accountant annexed as annexure L at page No. 411 of the application, which read as under : "As on June 30, 2020 as per BSE Stock Exchange there are 1,90,535 equity shareholders in the applicant-Ambuja Cements Ltd. transferee company." * Further, on perusal of record another CA certificate, is found to ....
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...., in the recent past, allowed the dispensation of calling of meeting of shareholder, where all the shareholders have given their consent by way of an affidavit to the scheme of arrangement, keeping them- selves in the safer side and same is the position as the creditors. The position can be seen in the order of Full Bench of the National Company Law Tribunal, Kolkata, wherein the calling of meeting is dispensed with in view of consent affidavit by shareholders and creditors, which is also taken into cognizance by the hon'ble National Company Law Appellate Tribunal, while passing the order in the matter of DLF. 25. Under the facts and circumstances as discussed hereinabove and the law laid down by the hon'ble National Company Law Appellate Tribunal and the decision of the various Benches, it is clear that while dealing with the DLF matter the hon'ble National Company Law Appellate Tribunal has taken the cognizance of decision of the (Full Bench) of the National Company Law Tribunal, Kolkata and has reflected the ratio so made by the National Company Law Tribunal, Kolkata (Full Bench) wherein the dispensation of the calling of meeting was granted on the basis of consent ....