TMI Blog2017 (7) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... Meeting of Equity Shareholders of Applicant Companies No. 1 to 3 (Transferor Companies), Unsecured Creditors of the Applicant Companies No. 1 to 3 (Transferor Companies), Equity Shareholders of the Applicant No. 4 Transferee Company, Secured Creditors of the Applicant No. 4 Transferee Company, Unsecured Creditors of the Applicant No. 4 Transferee Company is dispensed with. Applicant Transferee Company is required to provide facility of Postal Ballot and E-Voting by the shareholders. Accordingly, voting by equity shareholders of the Applicant Transferee Company to the Scheme shall be carried out through (i) Postal Ballot; (ii) e-Voting; and (iii) electronic voting system or ballot or polling paper at the venue of the meeting to be held on 09.06.2017. All the other rules and procedures related to notice, appointments and conduct of meetings, Voting by Proxy/Authorised Representative need to be adhered to. - C.A. (CAA) NO. 15/NCLT/AHM/2017 - - - Dated:- 7-4-2017 - MR. BIKKI RAVEENDRA BABU, J. For The Appellant : Mrs. Swati Soparkar FINAL ORDER 1. This Application is filed jointly by four Applicant Companies under Sections 230 to 232 of the Companies Act, 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal is not inclined to grant such dispensation, issue necessary directions either (i) to serve individual notice to each of the Equity Shareholder, Secured Creditor and Unsecured Creditor of the Applicant Transferee Company bringing to their notice the proposed scheme and invite objections, if any, from them within 30 days of the service of such notice or (ii) as regards convening, holding and conducting the meeting in terms of the prayers made hereinabove; (C) This Hon'ble Tribunal be pleased to grant dispensation of the meetings of the Equity Shareholders secured creditors and unsecured creditor of the Applicant Transferor Companies and alternatively, if the Hon'ble Tribunal is not inclined to grant such dispensation, issue necessary directions either (i) to serve individual notice to each of the Equity Shareholder, secured creditors and unsecured creditor of the Applicant Transferor Company bringing to their notice the proposed scheme and invite objections, if any, from them within 30 days of the service of such notice or (ii) as regards convening, holding and conducting the meeting in terms of the prayers made hereinabove; (D) This Hon'ble Tribunal be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P at Pages No. 176 to 179. The Certificate given by the Chartered Accountant shows that there are nine shareholders in Applicant Transferor Company No. 1 The Certificate issued by the Chartered Accountant shows that there are two equity shareholders in Applicant Transferor Companies No. 2 and 3. All the shareholders of Applicants No. 1 to 3 Transferor Companies gave Consent Letters for the proposed Scheme and waived their rights to call for meeting of equity shareholders/preference shareholders. The relevant resolutions of concerned companies authorising the person to give consents filed along with additional affidavit. 12. In view of the Consent Letters given by all the equity shareholders of the Applicant Transferor Companies No. 1 to 3, and as they are the Subsidiary Companies of the Transferee Company, the convening of meeting of equity shareholders of all the Applicant Transferor Companies No. 1 to 3 is dispensed with. 13. It is stated in the Application that there are no Secured Creditors of the Applicant Transferor Companies. In this connection, Applicants filed the Certificate issued by the Chartered Accountant vide Annexure S at Pages No. 204 to 206. 14. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents) (Amendment)] Regulations, 2015 shall apply to draft schemes which solely provide for merger of a wholly owned subsidiary with its holding company, provided that such draft schemes shall be filed with the stock exchanges for the purpose of disclosures'. In view of the said Circular dated 15th February, 2017 issued by the SEBI, Regulation 37 to the extent of obtaining prior approval is not applicable to the Applicant Companies. 18. It is pleaded by the Applicant No. 4 Transferee Company that since the Applicant Transferee Company shall not undergo any change and the rights of the existing shareholders of the Applicant Transferee Company are not affected in any manner, it is not required to take out separate proceedings for sanction of this Tribunal for the proposed Scheme of Arrangement of Amalgamation of its Wholly Owned Subsidiaries with itself. On this point, learned Counsel appearing for the Applicants cited the decisions reported in Sharat Hardware Industries (P.) Ltd., In re [1978] 48 Comp. Cas 23 (Delhi): and Mahaamba Investments Ltd. v. IDI Ltd. [2001] 33 SCL 383 (Bom.) . In those cases, it is held that the Scheme did not affect Members and creditors of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4 Transferee Company. The Consent Letters of shareholders of the Transferee Company are also not filed. Therefore, this Tribunal while considering the entire proposed Scheme, is of the considered view that the Applicant No. 4 Transferee Company shall hold Meetings of Equity shareholders, Secured Creditors and Unsecured Creditors for the purpose of considering, and if thought fit approving the proposed Scheme of Arrangement with or without modifications. 21. It is stated in the Application that there are no proceedings or investigations pending against the Applicant Companies. The Applicant Companies also filed copy of Audited Balance Sheets and Audit Committee Report. The Applicant Companies also filed the Certificate of the Auditor confirming the compliance with accounting standards vide Annexure M at Page 143. A perusal of the said Certificate shows that the Accounting Treatment contained in the Proposed Scheme is in compliance with SEBI Regulations, 2016 and Circulars issued there under and all the applicable Accounting Standards notified by the Central Government under the Companies Act, 2013 have been followed. 22. Having perused the entire material on record, this T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs, an advertisement about convening of such meetings indicating the day, date, place and time, as aforesaid, shall be published in English Daily, Indian Express , Ahmedabad Edition, and a 'Gujarati' translation thereof in Sandesh , Ahmedabad Edition. The publication shall indicate the time within which copies of the Scheme shall be made available to the concerned persons free of charge from the Registered Office of the Applicant Transferee Company. The publication shall also indicate that the statement required to be furnished pursuant to Section 102 of the Act read with Sections 230 to 232 of the Act and the prescribed Form of Proxy can be obtained free of charge from the Registered Office of the Applicant Transferee Company in accordance with Second Proviso to sub-section (3) of Section 230 and Rule 7 of the Companies (CAA) Rules, 2016; (ix) At least one month before 09.06.2017, i.e., the date of the aforesaid meeting of equity shareholders, a Notice in Form No. CAA.2 convening the said meeting indicating the day, date, place and time aforesaid, containing instructions with regard to postal ballot and e-Voting together with a copy of the Scheme, a copy of the Statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Chairperson, appointed for the aforesaid Meetings, shall issue the advertisements and send out the Notices of the Meetings referred to above. The Chairman/Chairperson is free to avail the services of the Applicant Transferee Company or any agency for carrying out the aforesaid directions. (xiv) The Chairman or Chairperson shall have all powers under the Articles of Association of the Applicant Transferee Company and also under the Rules in relation to the conduct of Meetings, including for deciding any procedural questions that may arise at the Meetings or adjournment(s) thereof proposed at the said Meetings, amendment(s) to the aforesaid Scheme or Resolutions, if any, proposed at the aforesaid Meetings by any person(s) and to ascertain the decision of the sense of the Meeting of Equity Shareholders by (i) Postal Ballot and e-Voting; and (ii) electronic voting system or ballot or polling paper at the venue of the Meeting of the Equity Shareholders, and for the Secured and Unsecured Creditors by Polling Paper/Ballot; (xv) The quorum for the Meetings of the Equity Shareholders of the Applicant Transferee Company shall be 10 (Ten) persons, each present in person. The quorum f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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