TaxTMI 
TaxTMI 
2021 (12) TMI 1241
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....pplication. The Applicant Companies has prayed for dispensing with the meetings of the shareholders of all the applicant companies and that of the unsecured creditor of the Applicant No.1/Transferor Company and Applicant No.3/Resulting Company. They have also prayed for calling for the meeting of the Secured creditors of the Applicant No.1/Transferor Company and Applicant No.2/Transferee Company, and also the unsecured creditor of the Applicant No.2/Transferee Company. 2. The Applicant No.1/Transferor Company, Applicant No.2 /Transferee Company and Applicant No.3/Resulting Company are presently engaged in the business to manufacture, fabricate, process and to purchase, sell, import-export or otherwise deal in all types of component parts, accessories, spares and fittings of all kinds of or automotive, general engineering, petrochemicals, miscellaneous industries in allied fields of all types and description. 3. The rationale of the Scheme is given below:- i. Both the Transferor and Transferee Companies are family-owned closely held un-listed Group Companies under common shareholding, management and control. The proposed amalgamation of the Transferor Company with the....
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....cant No.3 are at Annexures A-1/4, A-2/4 and A-3/4 respectively of the application. The Applicant Companies have authorized Mr. Jagdish Singh, Ms. Amardeep Kaur, Mr. Chandar Shekhar Shingari and Ms. Malti Ohri, to do all acts and deeds and things in relations to the Scheme. The affidavit of Mr. Chandar Shekhar Shingari, authorised signatory of the Applicant Companies has been filed in support of contents of the application for seeking appropriate orders/directions. 5. In the Scheme, there is a mention of two appointed dates i.e. Appointed Date-1 and Appointed Date-2. The "Appointed Date-1" is relevant for the purpose of amalgamation of Applicant No.1 with Applicant No.2 in terms of this Scheme, and "Appointed Date-2" is relevant for the purpose of the demerger of Real Estate and Ancillary Business of Applicant No.2 into Applicant No.3 in terms of this Scheme. 6. It is submitted that the registered office of the Applicant No.1/Transferor Company, Applicant No.2/Transferee Company and Applicant No.3/Resulting Company is situated in the State of Punjab and, therefore, the jurisdiction of all the applicant companies is under the territorial jurisdiction of this Bench. 7. The Ap....
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.... Applicant No.1/Transferor Company is Rs.5,00,00,000/- divided into 50,00,000 Equity Shares of Rs.10/- each. The present Issued, Subscribed and Paid-up Capital of the Company is Rs.65,87,800/- divided into 6,58,780 Equity Shares of Rs.10/- each. 12. The Applicant No.2/Transferee Company i.e. Guru Nanak Auto Enterprises Ltd CIN: U50404PB1974PLC003420 is a company as a public limited company under the Companies Act, 1956 on 5th March, 1981. The Master Data of the Company along with Memorandum and Articles of Association is attached as Annexure A-2/1 of the application. The Authorised Share Capital of the Applicant No.2/Transferee Company is Rs.40,00,00,000/- divided into 3,50,00,000 Equity Shares of Rs.10/- each and 50,00,000 Preference Shares of Rs.10/- each. The present Issued, Subscribed and Paid-up Capital of the Company is Rs.23,12,16,450/- divided into 2,31,21,645 Equity Shares of Rs.10/- each. 13. The Applicant No.3/Resulting Company i.e. ASKK Estates Pvt. Ltd. CIN: U70109PB2021PTC054162 is a company as a private limited company under the Companies Act, 2013 on 4th September, 2021. The Master Data of the Company along with Memorandum and Articles of Association is attach....
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....- ASKK Estates Pvt. Ltd. will issue 1 (one) Equity Share of Rs. 10 each, credited as fully paidup, to the shareholders of the Transferee Company for every 10 (ten) Equity Shares of Rs. 10 each held I the Transferee Company - Guru Nanak Auto Enterprises Ltd. It is clarified that, for the purpose of Demerger, the Resulting Company will issue shares to such shareholders of the Transferee Company after giving effect to allotment of shares pursuant to amalgamation of the Transferor Company with the Transferee Company. C. Re-organisation/Reduction of Capital of Resulting Company: The Resulting Company will issue 1 (one) 9% Compulsorily Redeemable Preference Shares of Rs. 10 each, credited as fully paid-up, for every 1 (one) Equity Share of Rs. 10 each held in the Resulting Company and the pre-Scheme issued and paid-up share capital of the Resulting Company consisting of 10,000 Equity Shares of Rs. 10 each aggregating Rs. 1,00,000 will be cancelled." 19. It is submitted by the learned counsel that the Scheme (Annexure A-5) also takes care of the interests of the staff/workers and employees of the Applicant Companies. It is stated in Clause 3.7 of the Scheme that upon ....
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....a company and its members or any class of them; the Court may, on the application of the company or of any creditor or member of the company, or, in the case of a company, which is being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members or class of members, as the case may be, to be called, held and conducted in such manner as the Court directs." 21. In the course of the present proceedings, it is argued that a perusal of the above two extracts shows that Section 230 of the new Act is pari materia with Section 391 of the old Act. It is further submitted that the Hon'ble High Courts across the country have in many cases dispensed with the requirement of calling meetings of the shareholders of a company under the Companies Act, 1956. It has also been brought to our notice that even after the promulgation of the new Act, many High Courts have directed dispensation of equity shareholders' meetings in a proposed Scheme of Amalgamation. The decisions of the Hon'ble Delhi High Court in the case of Basera Realtech Private Ltd., Company Application (Main) No. 150/2015 decided on 02.11.2015 and the decisions of the Hon'ble Calcutta High....
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....st motion of the Scheme application. In his order, he has made the following observations:- i. The powers conferred on the Tribunal is much more restricted than the wide powers conferred upon Courts under Section 9 of CPC and therefore, the Tribunals cannot go beyond the scope of a given Section continuing in some veil; ii. The Section 230(1) is, may... order meeting, meaning thereby the court may order or may not order meeting, but not to dispense with meeting. Discretion is either to order or not to order for calling meetings, not otherwise. The Tribunal cannot read dispensation of calling and holding shareholders' meetings into sub-Section 230(1) that is conspicuously absent in the Section. iii. He also made a reference to sub-Section (9) of Section 230 wherein a specific mention has been made for dispensation of creditors meeting and observed that if such is the discretion contemplated in sub-Section 230 (1), the legislature would not have carved out a standalone provision for dispensation of creditors meeting under sub- Section 230(9) of the Act. 25. In his order, the Third Member has also referred to the report of the Parliament Standing Comm....
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....so come across the decision of Hon'ble NCLAT in the matter of Ambee Conbuild Private Limited, Company Appeal (AT) 253 of 2018 vide order dated 29.08.2018 has held as follows: "....First Motion Application itself makes alternative prayers of dispensing or alternatively calling the meetings and the NCLT has granted the alternative prayer, reading the First Motion as a whole, to call Meeting of preferential shareholders, fault cannot be found. Even if the Affidavits are taken, it would still be discretion of NCLT looking to the nature of the litigation to take a decision and it am stilt direct calling for meeting to be held of a particular class of shareholders" 29. This Tribunal is conscious of the decision of the Hon'ble Apex Court in the case of Collector of Central Excise, Kanpur Vs. Matador Foam and Ors. (2005) 2 SCC 59 decided on 05.01.2005, excerpts from para 16 whereof are reproduced, observed:- ".... These being judgments of coordinate benches were binding on the Tribunal. Judicial discipline required that the Tribunal follow those judgments. If the Tribunal felt that those judgments were not correct, it should have referred the case to a larger bench." ....
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....ecured creditors shall be 2 in number personally present or 40% in value of the unsecured creditors; iii. The Meeting of the unsecured creditors is dispensed with as the consent by way of affidavits of all the unsecured creditors, 100% in value has been received; B. In relation to Applicant No.2/Transferee Company i. The meetings of the Equity Shareholders is dispensed with keeping in view the shareholding and ownership pattern of the company and the fact that the consent by way of affidavits has been received; ii. The meeting of the Secured Creditors is to be convened as prayed for on 05.03.2022 at 12.00 PM through Video Conferencing with facility of remote e-voting, subject to notice of meeting being issued. The quorum of the meeting of the secured creditors shall be 4 in number personally present or 40% in value of the secured creditors; iii. The meeting of the Unsecured Creditors is to be convened as prayed for on 05.03.2022 at 2.00 PM through Video Conferencing with facility of remote e-voting, subject to notice of meeting being issued. The quorum of the meeting of the unsecured creditors shall be 196 in number personally present or 40% i....
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.... of the Scheme, copy of explanatory statement with Valuation Report as discussed in paras 3 and 18 of this order required to be sent under the Companies Act, 2013 and the applicable Rules and any other documents as may be prescribed under the Act shall also be duly sent with the notice. J. It is further directed that along with the notices, Applicant No.1/Transferor Company and Applicant No.2/Transferee Company shall also send, statements explaining the effect of the scheme on the creditors, key managerial personnel, promoters and non-promoter members etc. along with effect of the arrangement for amalgamation on any material interests of the Directors of the Company or the debenture trustees, if any, as provided under sub-section 3 of Section 230 of the Act. K. It is also directed that the provisional accounting statement of Applicant Company No.1/Transferor Company and Applicant Company No.2/Transferee Company as on 30.09.2021 or as on a subsequent date be also circulated for the aforesaid meeting in terms of Section 232 (2) (e) of the Act. L. That the Applicant No.1/Transferor Company and Applicant No.2/Transferee Company shall publish advertisement with a gap of at leas....