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2021 (6) TMI 599 - Tri - Companies LawDispensation with shareholder' meeting - section 230 of the Companies Act, 2013 - whether or not shareholders' meetings could be dispensed with in the first motion of the Scheme Application? - HELD THAT:- It has been mentioned in subsection 9 of Section 230, the Tribunal is given discretion to dispense with calling of a creditors meeting or class of creditors meetings, where such creditors or class of creditors having at least 90% value agree and confirm by way of affidavit to the scheme of compromise or arrangement. But this grant of dispensation has not been extended to the shareholders either in subsection 9 or any other subsection of Section 230 of the Companies Act, 2013. The discretion given to NCLT to dispense with meetings is only limited to creditors meetings but not to shareholders meetings when mandate is such, I don't know how NCLT will get discretion to dispense with holding shareholders meetings. If at all shareholder's meeting is not held, it is quite obvious notice will not go to various regulating authorities to the proposal given by the company. Because of this, the Regulating Authorities will not get a chance to raise their objections before a decision is taken by the company (shareholders) to pass a resolution to the scheme proposed by the Board of Directors - If the shareholder's meeting is not held as stated under Section 230(3) whole process envisaged under Section 230(3)(4)(5)(6) will become redundant, the proposal of dispensation of shareholders meeting is in violation of the procedure laid under Section 230 of the Companies Act, 2013. Whether the concept of two judges and three judges is applicable to NCLT? - HELD THAT:- NCLT is only a fact finding Tribunal constituted under Companies Act 2013, wherein it is categorically mentioned that NCLT shall be constituted with one judicial member and one technical member. When such is the case, is there any scope to constitute three member bench by NCLT on its own? It has to act according to the jurisdiction given to it. It is not a constitutional court and not even a court having jurisdiction under section 9 of CPC to temper its powers beyond the scope and ambit of the Companies Act. The Act 2013 even envisages how to go about when difference of opinion comes in between judicial member and technical member. Of course in Service Tribunal cases, there is a ratio that orders should not be variant on one circular or memorandum given by any Government. Normally Service Tribunals pass orders saying covered case if facts are on the same circular or memorandum. It cannot be so with NCLT because facts in each case are different. It is understandable if any Bench passes an order dealing with an aspect that is not present in the statute, then it could be said that NCLT coordinate Bench order will have persuading effect. Thus, NCLT cannot dispense with holding meetings under section 230(1) of the Companies Act 2013 - application disposed off.
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