TaxTMI 
TaxTMI 
2026 (1) TMI 1237
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....r dated 28.11.2025 passed by the Ld. National Company Law Tribunal, Mumbai Bench, in C.P. (C.A.A)/104 (MB) 2025. The Appellants are aggrieved by the NCLT's approval of the Scheme of Arrangement ("Scheme") proposed by the Respondent viz National Spot Exchange Limited ("NSEL"), as the said Scheme is legally unsustainable and constitutes a calculated attempt to bypass statutory attachments under the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 ("MPID Act") and override solemn undertakings given to the Hon'ble Bombay High Court and the Hon'ble Supreme Court. 2. It was argued the Ld. NCLT ignored the fact the Respondent had suppressed material facts in the Scheme, specifically the binding nature of the Hon'ble Supreme Court's judgment dated 22.04.2022 which upheld the attachment of assets of NSEL's promoter viz 63 Moons Technologies Ltd., under the MPID Act. The Impugned Order dated 28.11.2025 erroneously approves a Scheme that purports to deal with and release assets that are already custodia legis of the Designated Court under the MPID Act. 3. It was argued the Respondent and its promoters are Financial Establishmen....
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....st the company, on the basis of a compromise under Section 230 of the Companies Act, 2013. 8. We have heard the learned senior counsel for the appellant as also the learned senior counsel for the Respondent. It is evident to mention the scheme is backed by 91.35% votes in value and above 90% votes in numbers and more than 75% total number of creditors have accepted the scheme. The appellant constitutes mere 0.26% of voting rights and as such has no locus to challenge the scheme. We have already held in Manu Rishi Guptha Vs ICICI Securities Ltd and Another, 2025 SCC Online NCLAT 502, a person who does not meet the threshold under Section 230(4) of the Companies Act, 2013, he cannot maintain an appeal as an aggrieved person. Para 13 of the said judgement is as follows: - 13. Lastly we may note, the Appellant does not meet the 10% threshold under Section 230(4) of the Companies Act, 2013 (Act) to object to the Scheme. As of 20 March 2024, Manu Rishi Gupta, the appellant, RG held 0.002% of ICICI Securities' shares. Section 230(4) is a mandatory provision, introduced pursuant to the recommendations contained in the 2005 Expert Report on Company Law to prevent frivolous objec....
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....any other Act(s). The scheme is only for the class of creditors by virtue of which their entitlement is limited to a particular extent. The scheme does not exercise the powers of criminal or civil court to pass orders on the FIR(s) or criminal cases and it leaves it to the discretion of the concerned court/authorities under the Act(s) to deal with the matters before it. If one read the impugned order, more specifically the following paras, one would find the Ld. NCLT has not exceeded its jurisdiction and has never directed the quashing of the criminal cases pending against the company; as is evident from the following paras: 35. As regards discharge from the criminal liability of specified persons contemplated in the proposed scheme, we find that the proposed scheme obligates the Petitioner to approach and obtain appropriate directions from each concerned Court or Tribunal or Authority in respect of orders passed by various courts and they are required to approach and obtain appropriate directions from each concerned Court or Tribunal or Authority in respect of attached properties. 36. It is pertinent to refer to Clause 24.6 of the proposed scheme which provides t....
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....ause 24.8 of the proposed scheme obligates the specified creditors not to oppose, whether in their capacity as victims or otherwise, such quashing / compounding / discharge/ dismissal of criminal proceedings. Clause 24.14 of the proposed Scheme authorises Mr. Harpreet Kaur Dang and Mr. Anand Ladsariya irrevocably on behalf of specified creditors to act or perform task in relation to any obligations, actions, or duties cast upon the Specified Creditors under this Scheme. 41. These clauses only take away right of the specified creditors in relation to criminal action against the specified creditors in relation to payment default. It is pertinent to note that, consequent upon occurrence of payment default, various government authorities have filed proceedings before various forums which entail criminal actions against specified persons, but these clauses do not, in any manner, take away the right of State to prosecute criminal proceedings against such specified persons in case such forum does not quash or discharge such specified persons from criminal liability in such proceedings. These clauses only obligate specified creditors not to pursue any civil or criminal action agai....
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....ified persons from criminal action. As regards discharge of specified persons from criminal action, we have already noted in the preceding para that the approval of proposed scheme does not result into automatic discharge or release of specified persons from the criminal actions, which may lie against them, and such discharge or release is dependent on the Order(s), the courts or authorities may pass on an application to be filed in accordance with the Scheme. Accordingly, it is for the courts or relevant authorities, where such criminal proceedings against specified persons are pending, to examine whether the specified persons, including the petitioner and 63 moons can be relieved of criminal consequences arising from the events that led to payment default. It is relevant to note the decisions in case of K. Bharthi Devi & Anr. v. State of Telangana & Anr., SLP (Criminal) No. 4353 of 2018; Gian Singh v. State of Punjab & Anr., (2012) 10 SCC 303) wherein the Hon'ble Supreme Court held that the High Courts in exercise of their power under Section 482 of Cr.PC can compound or quash the non-compoundable offences to prevent abuse of the process of any court or otherwise to secure the en....
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....eme but we have gone through the judgement and we find the said scheme contained positive directions/additional obligations upon the financial institution and it could have an effect of amending the terms of their agreement(s) and only in these circumstances the scheme was modified. Thus the judgement cited is not applicable to the facts of this case. 14. Rather in Sequent Scientific Ltd in Re (2009) 151 Comp Cas 1 the Bombay High Court has held as under: - 20. Similarly, the apex court in the case of J.K. (Bombay) P. Ltd. v. New Kaiser-I-Hind Spinning and Weaving Co. Ltd. reported in [1970] 40 Comp Cas 689: AIR 1970 SC 1041 in paragraph 29 has observed that a scheme sanctioned by the court does not operate as a mere agreement between the parties; it becomes binding on the company, the creditors and the shareholders and has statutory force. It went on to observe that by virtue of section 391 of the Act, a scheme is statutorily binding even on the creditors and shareholders who dissented from or are opposed to its being sanctioned. It has statutory force and cannot be affected except with the sanction of the court. 15. Further in Criminal Writ Petition No.2187/2015 ti....
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....ny Court, Tribunal or Authority and that, the same shall happen in accordance with orders that may be passed by such Court, Tribunal or Authority on an application filed in terms of the Scheme. 8. We find that this application is one such application filed in pursuance of the Scheme of Arrangement that appears to have been approved by the NCLT, taking into consideration the interest of all the stakeholders. 9. We further find that allowing this application would facilitate the Scheme of Arrangement being taken to its logical end, which consequentially, would satisfy the grievance of the creditors / investors to a large extent. 10. Having perused the Scheme of Arrangement and the order dated 28.11.2025 passed by the NCLT approving the same, we find that allowing this application would be in the interest of justice and in furtherance of settlement of the outstanding claims of the creditors / investors. 11. In view of the above, Interim Application (St.) No.24405 of 2025 is allowed in terms of prayer clause (a), which reads as follows:- a) Dispose of the present Writ Petition No.2187 of 2015 by quashing and setting aside the Impugned Notice....