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TMI Blog2017 (5) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows :- "(a) The management of the Demerged Company and the Resulting Company has evaluated the plan and strategy for both the Companies and demerging the Ports Business of the Demerged Company will bring about synergies of operation and increase in operational efficiency. (b) The demerger would effect internal economies of scale, organisational efficiencies, reduction in overheads, and other expenses, optimum utilisation of resources, development of business and maximization of profitability. (c) Demerging the business of the Companies will lead to greater and optimal utilisation of available recourse. (d) Demerger is in the interest of public including the interest of stakeholders. The financial strength will also enable it to exert leverage and raise resources at very competitive rates, thereby contributing to better profits. (e) Demerger of the Ports Business of the demerged Company in to the Resulting Company would ensure that the businesses of the Demerged Company is streamlined and demarcated under different entities, have separate Boards to address their strategies thus, providing a significant opportunity to introduce new investors and raise funds, consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved the Scheme by duly swearing in consent affidavits. It is also pertinent to mention herein that the unsecured creditors holding around 96.4% of the total value of the equity of M/s. L&T Shipbuilding Ltd. and M/s. Larson & Toubro Ltd., have also accorded their approval by duly swearing in consent affidavits dated 28.12.2016 to this effect. It is also placed on record that the transferor company's shareholders [M/s. Larson & Toubro Ltd.] are holding 81,86,79,994 equity shares of Rs. 10/- each, along with TN Industrial Development Corporation Ltd., holding 253,20,000 equity shares of Rs. 10/- each, being the transferor herein, and six nominees shareholders holding one equity share of Rs. 10/- each jointly with M/s. Larson & Toubro Ltd., have accorded their unconditional consent and approval to the Scheme. The secured creditors and the unsecured creditors as well, who are having more than 90% value, did agree and confirm by way of Affidavits, the said Scheme. 4. Now, the Company Petition No. 17 of 2017, filed in connection with C.A.No.10 of 2017 that provides the salient features of the Scheme, indicates that the reduction in the share capital of the resulting company shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved, the meeting contemplated in Section 391 is analogous to an extraordinary general meeting of the members of the company, inasmuch as a three-fourth majority is required to pass the required resolution. The normal rule is that the consent of the shareholders, whether it is unanimous or by a three-fourth majority, must be obtained in a meeting summoned on the orders of the Court under Section 391. This is in accordance with the general principle that members must act in a general meeting. In roads have, however, been made on this formal doctrine. Firstly, the consent of all or virtually all the shareholders given even outside a meeting is sufficient to comply with the requirement of a meeting. Secondly, written resolutions instead of those passed in meetings are not capable of being registered, e.g., Section 192 of the Company Act. Thirdly, the doctrine of lifting the veil of incorporation and looking at the reality of the action of the members enables the Court to hold that the consent of the overwhelming majority of the shareholders outside a meeting is sufficient to show that the resolution was supported by virtually all the members of the company. In these three ways substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Demerged Company. Finally Part-V deals with the process of demerger, applying to the Hon'ble Tribunal with liberty to modify and amend the Scheme, conditions to which the Scheme is subjected to and all expenditure connected with the Scheme." 7. The key rationale of this Scheme is to achieve better management and to have clear focus on business operations, therefore, the management of demerged company has decided to demerge its ports business, thereby transferring and vesting the operations relating to its ports business into a separate company i.e. M/s. Marine Infrastructure Pvt. Ltd., the resulting company. It has further been averred that the demerger of the ports business of M/s. L&T Shipbuilding Limited, the Demerged Company into the Resulting Company would ensure that the business of the demerged company are streamlined and demarcated under different entities, have separate boards to address their own strategies, thus, providing a significant opportunity to introduce new investors and raise funds, considering financial performance and funding requirements of the respective businesses, and to facilitate the reorganisation of the business and to enable the vesting of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny shall on and from the Effective Date, record the assets and liabilities of the Demerged Undertaking of the Demerged Company transferred to and vested in it pursuant to the Scheme at their respective fair values as on the Appointed Date and such recording of assets and liabilities shall take effect from the Appointed Date. (ii) Surplus arising out of the excess of net assets value of the Ports Business assigned from the Demerged Company and recorded by the Resulting Company over the amount credited as share capital and other consideration paid or payable by the Resulting Company shall be credited to the reserve account, or deficit, if any, shall be debited to goodwill account of the Resulting Company. (iii) Any deposit (whether in the nature of a security deposit or otherwise) received by the Demerged Company at any time after the Appointed Date but before the Effective Date in connection with the proposed induction of M/s. Adani Ports and Special Economic Zone Ltd. (or its subsidiary) as strategic partner into the Resulting Company will be recorded by the Resulting Company and shall be paid over to Larsen & Toubro Ltd. towards discharge of the liability specified i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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