AI Drafter 
TaxTMI 
TaxTMI 
2022 (10) TMI 744
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....mpanies Act, 2013 was filed before the NCLT by the Transferor Companies viz. Adgyde Solutions Pvt. Ltd. as Applicant No.1 and Momagic Incubation Pvt. Ltd. as Applicant No. 2 and Green Wood Crops Pvt. Ltd. as Transferee Company in relation to the scheme of arrangement (in short 'the Scheme") proposed between the Transferor Companies and Transferee Company praying the Tribunal for issuance of directions for dispensation of the meeting of the Shareholders of Transferor Companies and Transferee Company and also issue direction for dispensation of meeting of Secured and Unsecured Creditors of Transferor Companies and Transferee Company. 3. Both the Transferor Companies are wholly owned subsidiaries of the Appellant / Transferee Company and 100% of the share capital of the Transferor Companies are held by the Appellant / Transferee Company. Observation of NCLT with respect to Transferor Companies 4. The NCLT while adjudicating upon the matter dispensed with the convening of meeting of shareholders of Transferor Companies. Further, with respect to secured creditors of the Transferor Companies, it is observed that since there are NIL secured creditors the requirement of convening ....
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....d scheme of amalgamation on the shareholders of the Transferee Company. 8. The Learned Counsel submitted that all the facts have been placed before the NCLT and relied upon the decision of this Tribunal in the matter of Ericsson India Pvt. Ltd. CA (AT) No. 148 of 2021 dated 18.01.2022 and In re-Ambuja Cements Ltd. CA (AT) No.19 of 2021 dated 06.04.2021 and requested the NCLT seeking dispensation of the meetings of the equity shareholders secured and unsecured creditors of the Transferor Companies and Transferee Company. Analysis / Appraisal 9. Heard the Learned Counsel for the Appellant perused the records and citations relied upon by him in support of his case. 10. The Adjudicating Authority while considering dispensation of convening, meetings of the shareholders of the Transferor Companies on the ground that consent affidavits of the shareholders have been obtained and placed on record, therefore, it was observed that there is no necessity for convening and holding meetings of the shareholders, accordingly the meetings are dispensed with. 11. While so, the meeting of the shareholders of the Transferee Company is concerned the NCLT directed the Transferee Company t....
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....of the creditors / shareholders can be dispensed with as held in re-Ambuja Cements Ltd in CA (AT) No. 19 of 2021 dated 06.04.2021. In Ambuja Cements the similar facts fell for consideration and this Tribunal after discussing various judgments passed by this Tribunal and the Hon'ble High Courts with regard to the dispensation of meetings of equity shareholders, secured and unsecured creditors, dispensed with the meetings of equity shareholders, secured and unsecured creditors of the Appellant Company i.e Ambuja Cements Ltd. 17. However, the Adjudicating Authority failed to consider the said facts and also failed to take into account the aforesaid decision of this Tribunal with regard to the issue that arise for consideration in the present case regarding dispensation of the meeting of the shareholders and creditors. 18. This Tribunal also in the matter of Mohit Agro Commodities Processing Pvt. Ltd. in Company Appeal (AT) No. 59 of 2021 dated 28.06.2021 while dealing with similar issue, allowed the Appeal by dispensing with the convening of the meetings of the equity shareholders, secured and unsecured creditors. 19. Further, the Hon'ble High Court of Bombay in the matter of....
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...., secured and unsecured creditors of the transferee company to approve with or without modification, the proposed scheme is dispensed with." 23. This Tribunal is of view that the NCLT ought to have considered the precedents of this Tribunal decided in identical cases in various judgments, however, the NCLT erred in not considering those judicial precedents. In this regard, the Hon'ble Supreme Court in the matter of Gammon India Ltd. Vs. Commissioner of Customs Mumbai reported in (2011) 12 SCC 499 at para 35 & 36, held that the precedent law must be followed by all concerned, deviation from the same should be only on a procedure known to law. Hon'ble Supreme Court held as under: "35. It needs to be emphasised that if a Bench of a tribunal, in an identical fact situation, is permitted to come to a conclusion directly opposed to the conclusion reached by another Bench of the tribunal on an earlier occasion, that will be destructive of the institutional integrity itself. What is important is the tribunal as an institution and not the personality of the members constituting it. If a Bench of the Tribunal wishes to take a view different from the one taken by the earlier Bench....