TaxTMI 
TaxTMI 
2023 (6) TMI 196
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....the 'impugned order' dated 08.12.2021 in C.A. (CAA)- 116/ND/2021 passed by the 'Tribunal' (National Company Law Tribunal, New Delhi, Principal Bench). 2. Heard the Counsel for Parties and perused the records made available. 3. Learned Counsel for the Parties stated that the TCR Trading Pvt. Ltd./ Transferor Company No. 1 is being proposed to merge along with another transferor company, namely, Tridev Advisory Services Pvt. Ltd./ Transferor Company No. 2 into Triage Industries Pvt. Ltd./ Transferee Company (all three companies are related closely held family companies). 4. Learned Counsel for the Parties stated that in order to reduce the expenses, bring efficient cash management and for consolidation of business, the three companie....
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....led before this 'Appellate Tribunal', which are required to be corrected by the 'Tribunal'. 8. In order to examine the prayers made to this 'Appellate Tribunal', it would be desirable to look into relevant portion of the 'impugned order' along with the relevant laws and regulations. 9. This 'Appellate Tribunal' has perused the 'impugned order' dated 08.12.2021 and notes the following relevant portions :- "Under consideration is the Application No. C.A.(CAA) 116/ND/2021 filed under Sections 230 to 232 of the Companies Act, 2013. The prayer made is tọ dispense with the meeting of Shareholders and Creditors in relation to the Transferor Companies, dispensing with the meeting of Shareholders of the Transferee Company and co....
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....Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. (4) On the receipt of an appeal under sub-section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Appe....
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....ere such creditors or class of creditors, having at least ninety per cent. value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement." Rule 9, 10 & 13 of the Companies (Compromise, Arrangements and Amalgamations) Rules, 2013 "9. Voting.-The person who receives the notice may within one month from the date of receipt of the notice vote in the meeting either in person or through proxy or through postal ballot or through electronic means to the adoption of the scheme of compromise and arrangement. Explanation. For the purposes of voting by persons who receive the notice as shareholder or creditor under this rule- (a) "shareholding" shall mean the shareholding of the members of....
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.... member or creditor has attached his signature or mark thereto in the presence of a witness who shall add to his signature his description and address : provided that all insertions in the proxy are in the handwriting of the witness and such witness shall have certified at the foot of the proxy that all such insertions have been made by him at the request and in the presence of the member or creditor before he attached his signature or mark. (5) The proxy of a member or creditor who does not know English may be accepted if it is executed in the manner prescribed in the preceding sub-rule and the witness certifies that it was explained to the member or creditor in the language known to him, and gives the member's or creditor's n....
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.... of the 'Appellant'. 11. It is noted that Transferee company did not obtain the NoC/consent from its secured and unsecured creditors. Therefore, the directions were sought by Transferee Company from the 'Tribunal' to convene the meetings of its secured and unsecured creditors. The Tribunal in para 13 of the 'impugned order' gave the directions to convene the meeting, dispatch the notices of meeting along with the form of proxy but in Para 13 (viii) of the Impugned Order allowed the voting on the proposed scheme by voting in person but voting through proxy was not allowed. In this connection it is noted that voting by proxy is allowed by Section 230(4) & (6) of the Companies Act, 2013 and Rule 9, 10 & 13 of the Companies (Compromise, Arra....