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2016 (7) TMI 344 - GUJARAT HIGH COURT

2016 (7) TMI 344 - GUJARAT HIGH COURT - TMI - Composite Scheme of Arrangement is in the interest of its shareholders and creditors as well as in the public interest and the same deserves to be sanctioned. The Scheme is hereby sanctioned. The Restructure of Share Capital including Utilisation of Securities Premium Account as well as Reduction of Issued, Subscribed and Paid up Capital of the Petitioner Companies as envisaged vide Clauses- 25, 26.3, 39.3, 52.3 and 78 of the proposed Scheme are here .....

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N NO. 190, 191, 192 of 2016, COMPANY PETITION NO. 232, 234 of 2016 In COMPANY APPLICATION NO. 193, 189 of 2016 - Dated:- 1-7-2016 - MR. R.M.CHHAYA, J. FOR THE PETITIONER : MRS SWATI SOPARKAR, ADVOCATE, MR KUNAL J VYAS, WITH MR. SAURABH SOPARKAR, FOR NANAVATI ASSOCIATES, ADVOCATE FOR THE RESPONDENT : MR DEVANG VYAS, ADVOCATE COMMON ORAL JUDGMENT 1. These are the petitions filed for the purpose of obtaining the sanction of this court to a Composite Scheme of Arrangement involving (i) De-merger and .....

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ng the tankage business division of EPL, including strategic investment, directly and indirectly in: (a) VOTL; and (b) VPTL to Essar Power and Minerals Limited (EPML), (iv) De-merger and Transfer of Demerged Undertaking 3 or Identified Business Undertaking 3 viz. the business undertaking comprising of floating crane named Nand Shakti, a flat bottom crane barge of EPL, including EPL s strategic investment in Essar Bulk Terminal (Salaya) Limited to Hazira Coke Limited, (HCL), (v) De-merger and Tra .....

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d (viii) Amalgamation of Essar Power and Minerals Limited (EPML) with Vadinar Oil Terminals Limited (VOTL), the Transferee Company; proposed under section 391 to 394 read with Sections 78, 100 to 103 of the Companies Act, 1956 and Section 52 of the Companies Act, 2013 of the Companies Act, 1956. 2. At the outset, Leave to amend is sought with regard to Company Petition No. 234 of 2016 for adding a paragraph providing Minute Under Sec. 103 (1) of the Companies Act, and adding specific prayers wit .....

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usiness of storage and dispatch of crude oil and petroleum products, developing and operating ports and terminals and providing services for liquid, dry bulk, break bulk and general cargo, owning port and terminal facilities to handle the receipt, storage and dispatch of crude oil and petroleum products and also serves the oil refineries and traders, business of dealing in all minerals including coal, coke and other chemicals etc. The present Composite Scheme of Arrangement between the group com .....

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efits envisaged due to the proposed Composite Scheme. 4. It has been submitted that vide orders dated 26th April 2016 passed in Co. Applications No. 190, 191 and 192 of 2016, filed by Essar Power and Minerals Limited, Hazira Coke Limited and Yash Hotels Private Limited the meetings of the Equity Shareholders and Unsecured Creditors of the three Resulting Companies were dispensed with in view of the written consent letters from all of them, approving the proposed scheme, being placed on record. T .....

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r Ports and Terminal Limited, the meeting of Equity Shareholders was dispensed with in view of the consent letters from the shareholders approving the proposed scheme, being placed on record. However, separate meetings of Secured and Unsecured Creditors of the Company were directed to be convened for seeking their approval to the Proposed Scheme. Pursuant to the directions issued vide the said order, with regard to the conduct of the meetings, after the due service of individual notices to all t .....

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ers and Unsecured Creditors of the Company were directed to be convened for seeking their approval to the Proposed Scheme, there being no Secured Creditors of this Company. Pursuant to the directions issued vide the said order, with regard to the conduct of the meetings, after the due service of individual notices to all the Equity Shareholders and Unsecured creditors of the Company as well as the public notice, the said meetings were duly convened on 25th May 2016 and the proposed Scheme was un .....

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s the procedure prescribed under rule 48 to 65 of the Companies (Court) Rules 1959. 7. It has been further submitted that vide order dated 26th April 2016 passed in Co. Application No. 193 of 2016, filed by Vadinar Oil Terminal Limited, the meetings of Equity Shareholders was dispensed with in view of the consent letters from all of them, approving the proposed scheme, being placed on record. The meeting of the Unsecured Creditors of the Transferee Company was dispensed with accepting the conten .....

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th May 2016 and the proposed Scheme was unanimously approved at the meeting. The result of the said meeting has been placed on record in form of Chairman s report dated 26th May 2016. 8. The substantive petitions for the sanction of the scheme filed by Essar Power and Minerals Limited, Hazira Coke Limited and Yash Hotels Private Limited were admitted on 3rd May 2016. Whereas substantive petitions for the sanction of the scheme filed by Vadinar Oil Terminal Limited, Vadinar Ports & Terminals .....

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ons to the said petitions even after the publication and the same has been further confirmed by the common additional affidavit dated 29th June 2016. 9. Notice of the petitions has been served upon the Office of the Official Liquidator for two Amalgamating companies viz. Vadinar Ports & Terminals Limited and Essar Power and Minerals Limited. The reports dated 29th June 2016 have been filed by the Official Liquidator after taking into account the respective reports of the Chartered Accountant .....

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of accounts, papers and records and not to dispose of the same without prior permission of the Central Govt. as per the provisions of Section 396 (A) of the Companies Act, 1956. Accordingly, the Amalgamated Company/ Transferee Company is hereby directed to preserve the books of accounts, papers and records of both the amalgamating companies and not to dispose of the same without prior permission of the Central Govt. It is hereby further directed that even after the scheme is sanctioned, the amal .....

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workings justifying the exchange ratio proposed under the Scheme indicating that no shares are required to be issued to the shareholders of the said petitioner company. In this regard, it has been clarified/pointed out by Mr. Saurabh Soparkar, learned Senior Counsel appearing with Smt. Swati Soparkar as well as Nanavati Associates, learned advocates appearing for the Petitioner Companies that the entire share capital of Vadinar Ports & Terminal Limited is held by two companies, viz. Essar P .....

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the Scheme and hence no shares are required to be issued by VOTL. The said clarification/explanation is found to be satisfactory and no further directions are required to be issued in this regard. 11. Notice of the petitions have been served upon the Central Govt. and Mr. Kshitij Amin, learned Central Government Standing Counsel has appeared for Mr. Devang Vyas, learned additional solicitor general. An affidavit dt. 24th June 2016 has been filed by Mr. Shambhu Kumar Agarwal, the Regional Direct .....

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r as well as Nanavati Associates, learned advocates appearing for the Petitioner Companies, as follows: (i) It has been submitted that observations made vide para 2(a), (b) and (c) are factual statements and do not require any response. (ii) The observation made vide para 2 (d) pertains to the shareholding in M/s Essar Ports Limited, the Petitioner Resulting Company No.-1 and Demerged Company No. 2, by Foreign Body Corporate, Foreign Institutional Investors, Foreign Banks as well as Non Resident .....

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ve. In view of the same, it is not necessary to issue any further directions to the Petitioners Companies. (iii) The observation made vide para 2 (e) pertains to non disclosure of the complete list of the assets and liabilities which are proposed to be demerged and transferred to the Resulting Companies. In this regard, it has been pointed out that the two petitioner Demerged Companies viz. Vadinar Ports and Terminal Limited and Essar Ports Limited have placed on record the Divisional Financial .....

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lly transferred on the date of the sanction of the scheme shall be submitted with the final order for certification as well as adjudication of the applicable stamp duty. In view of this no further directions are necessary for such details of assets and liabilities of the De-merged Undertakings. (iv) The observation made vide Para 2(f) pertains to obtaining requisite licenses, approvals and other permissions from regulatory authorities for carrying on the activities of handling of oil, petroleum .....

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ror Companies and the business activities shall be undertaken by the Resulting Companies and/or Transferee Company in compliance with the respective regulatory laws. (v) The observation of the Regional Director made vide para 2(g) pertains to Change of Name of two Petitioner Resulting Companies, as envisaged under Clauses 37.3 and 50.4 of the Scheme. In this regard, it has been submitted that as envisaged under respective clauses 37.4 and 50.5 of the Scheme, it will not be necessary for these Co .....

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The next observation of the Regional Director vide para 2(h) pertains to the letters dated 18th May 2016 and 8th June 2016 sent to the Income Tax Dept. to invite their objections, if any. Since no reply is received from the said department within the statutory period prescribed, it can be assumed that they have no objection to the proposed scheme of Amalgamation. However, the Petitioner Companies shall comply with all applicable provisions of Income Tax Act and Rules. (vii) There are no complai .....

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inistry of Corporate Affairs, have been addressed satisfactorily and hence do not survive. I have come to the conclusion that the present Composite Scheme of Arrangement is in the interest of its shareholders and creditors as well as in the public interest and the same deserves to be sanctioned. The Scheme is hereby sanctioned. The Restructure of Share Capital including Utilisation of Securities Premium Account as well as Reduction of Issued, Subscribed and Paid up Capital of the Petitioner Comp .....

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