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2016 (3) TMI 553

Scheme of amalgamation - whether the non-receipt of communication issued to seek consent/ no-objection to the then proposed scheme of amalgamation would effect the said scheme as ultimately, sanctioned? - Held that:- The applicant, if anything else, would be deemed to have knowledge of the proceedings pending in this court for obtaining sanction of the then proposed scheme of amalgamation. Undoubtedly, an affidavit was filed at the relevant stage by the petitioners before this court that they ha .....

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plicant, the scheme could not be set aside on this ground alone.

The other argument of Mr Mehta that share valuation is faulty, is not supported by any cogent material. These are bald submissions, which are not backed by any cogent material. The mere fact that the shareholding of the applicant in the transferee company has got reduced to 2.97% (from 4.50% and 21%, as held in transferor company no. 9 and 10, respectively), will not, to my mind, help the cause of the applicant. Therefor .....

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ant was allotted, prior to the amalgamation, 103200 shares of a face value of ₹ 10 each at a premium of ₹ 490 per share in transferor company no. 9. Thus, the applicant, paid an issue price of ₹ 500 per share, and thereupon, expended a total amount of ₹ 5.16 crores. Similarly, the applicant bought 22590 shares, of a face value of ₹ 100 each, at a premium of ₹ 4900 per share of transferor company no. 10. The applicant thus paid an issue price of ₹ 5000 pe .....

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is though, no dispute about the fact that in so far as the transferor company no. 9 and 10 were concerned, the share exchange ratio was 1:1 and 1: 12 respectively. 2.4 Clearly, on the aforementioned share exchange ratio, the applicant in its capacity as the shareholder of transferor company no. 9 and 10, is entitled to the following shares: In respect of shares held in transferor company no. 9, the applicant is entitled to issuance of 1,03,200 shares, whereas, in respect of shares held in trans .....

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siderably scaled down, it could not have been in the best interest of the applicant and in any event was contrary to public interest. 4. On the other hand, Mr Batra, learned senior counsel for BDR made the following submissions: (i) That notices were dispatched to the shareholders of the various transferor companies, including the applicant, to seek their consent/ no-objection to the then scheme of amalgamation. Consents of the shareholders and creditors of more than 3/4th (in value) had been ob .....

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connotations, unless, a fraud is shown to have been played or, the decision taken is shown to impinge upon the public interest. For this purpose, learned counsel relied upon the judgement of the Supreme Court in the case of Miheer H. Mafatlal vs Mafatlal Industries Ltd. AIR 1997 SC 506. (v) Furthermore, it was submitted that at the second motion stage, as directed by this court, notice of hearing was published in two newspapers i.e. Statesman [English (Delhi Edition)] and Veer Arjun [Hindi (Del .....

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upport of this submission, it was also contended that criminal proceedings initiated, were pending before concerned forums. 5. Having heard the learned counsel for the parties, what is primarily to be decided in the present proceedings is: as to whether the non-receipt of communication issued to seek consent/ no-objection to the then proposed scheme of amalgamation, in the facts and circumstances of this case, would set at naught the order dated 20.02.2013, whereby, the said scheme was, ultimate .....

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from the point of view of the issue at hand, are the averments made in paragraph 8 of the reply filed by BDR. In paragraph 8 of its reply, BDR has denied the suggestion that communication seeking consent/ no-objection to the proposed scheme of amalgamation was not sent to the applicant. 6.3 As a matter of fact, with the additional affidavit, filed on behalf of BDR, formats of the communication seeking consent/ no-objection of the shareholders of various companies, which included the transferor c .....

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o.9 which amounted to 95.5% in value, whereas in numbers, 27 out of the 28 shareholders, in transferor company no.9, had given their consents. 6.7 Similarly, in so far as transferor company no.10 was concerned, 79% in value, had given their consents. In terms of numbers, 11 out of the 12 shareholders of transferor company no.10, had given their consents. 6.8 Quite clearly, a majority comprising of more than 3/4th in value of the shareholders in both, transferor company no.9 and 10, had given the .....

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d the meetings and was hence not bound by the compromise. 3. We have heard counsel at length and have come to the conclusion that there is no force in either of the points raised. Section 153 does not make it obligatory either upon the Court or the Company to serve a notice of the creditors meeting on each and every creditor of the Company and we have not been referred to any law which would invalidate a decision arrived at by the creditors and the Company in the absence of any individual credit .....

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e before us, it is not urged that the majority required by sub-section (2) was not present or had not been notified and, in these circumstances, the objection raised by Mr. Bhagat Ram cannot prevail… (emphasis is mine) 7.1 There is another aspect of the matter, which is that, the facts and circumstances, as obtaining in this case, would demonstrate that the applicant had knowledge of the pendency of proceedings, in this court, at the second motion stage. 7.2 I have come to this conclusion .....

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the difficulties of the applicant is its failure to respond or move the court even after it received the communication dated 08.03.2013, calling upon it to surrender original share certificates pertaining to transferor company no. 9 and 10. BDR in order to support its contention that communication dated 08.03.2013 was sent to the applicant, seeks to place reliance upon the speed post receipts as also the tracking report. These documents clearly show that the applicant was delivered the two lette .....

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