TMI Blog2018 (3) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... n effect from the date of its notification as required to be issued under the law. The Scheme of Demerger stands approved with modification as quoted above. Both the appeals are allowed with aforesaid observations. However, in the facts and circumstances of the case, there shall be no order as to costs. - Company Appeal (AT) No.294 of 2017 And With Company Appeal (AT) No.313 of 2017 - - - Dated:- 28-2-2018 - Mr. S.J. Mukhopadhaya And Mr. Bansi Lal Bhat, JJ. For The Appellants : Mr. Tushar Mehta, ASG, Mr. Virender Ganda, Senior Advocate assisted by Shri Ramanuj Kumar, Shri Manpreet Lamba and Ms. Priyal Modi, Advocates Mr. Collin Gonasalves, Senior Advocate with Ms. Swati Sood, Advocate And Mr. Aman Varma Ms. Smriti Churiwal, Advocates And Mr. Anupredha Singh, Advocate For The Respondents : Mr. Aman Varma Ms. Smriti Churiwal for Respondent No.4. Mr. Anupredha Singh, Advocate Mr. Collin Gonasalves, Senior Advocate with Ms. Swati Sood, Advocate And Mr. Tushar Mehta, ASG, Mr. Virender Ganda, Senior Advocate assisted by Shri Ramanuj Kumar, Shri Manpreet Lamba and Ms. Priyal Modi, Advocates JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. In both the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was allowed by the Hon ble High Court of Delhi vide order dated 26th October, 2016. Consequent to the above directions given by the Hon ble High Court of Delhi dated 7th October, 2016 and 26th October, 2016, meetings were convened by the respective companies as is evident from the reports of the respective Chairmen filed before the Hon ble High Court of Delhi. From the reports of the respective Chairmen, the following picture emerges: Class of Meeting No. of shareholders /Creditors (present and voting) Percentage of Vote Value Equity Shareholders of Demerged Company 8 100% 38,20,27,24,150 Secured creditors of Demerged Company 14* 88.43% 91,86,02,97,366 Unsecured Creditors of Demerged Company 6** 100% 8,32,50,645 Equity Shareholders of Resulting Company 2 100% 1,00,000 * Dissented by power Finance Corporation Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged based on the respective Boards extending the time period through a date of resolution passed prior to 31.03.2017. 7. Learned Additional Solicitor General, appearing on behalf of the Appellant Companies submitted that after the orders were passed by the Hon ble High Court of Delhi, the Scheme was approved by all the: - i. Equity shareholders of both the Companies in Special General Meetings; ii. Secured creditors of both the Companies and; iii. Unsecured creditors of both the Companies. 8. It was submitted that the order refusing to sanction the Scheme by the Tribunal is not only legally but also factually unsustainable on different grounds, as discussed below. 9. The Tribunal held that modified Scheme cannot be sanctioned without complying with the Section 66 of the Companies Act, 2013, or at least without obtaining fresh consents from the shareholders and creditors of the Appellant Companies. 10. Learned Senior Counsel for the Appellant has rightly pointed out that the Tribunal failed to consider that Section 230 of the Companies Act, 2013 is a complete code in itself and the explanation to Section 230 of the Companies Act, 2013 expressly and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I Bank Limited, which is the lead Creditor, filed an application before the Tribunal, wherein it is specifically and categorically stated that initially M/s. Power Finance Corporation Limited had objected to the Scheme; however, the said objection was withdrawn subsequently. Relevant paragraph no.11 of the application of IDBI Bank Limited reads as follows: 11. It is submitted that the lenders have, at the statutory meeting held on December 03, 2016 pursuant to the directions of the Hon ble High Court of Delhi, approved the Scheme with the requisite majority. Further, Power Finance Corporation Ltd. (one of the Secured Lenders) who had initially declined to vote in favour of the Scheme has also granted its consent by way of a letter dated March 21, 2017 in order for the Scheme to be sanctioned. The Secured Lenders are therefore wholeheartedly supporting the Scheme and desire, subject to this Hon ble Tribunal s approval, that the Scheme be implemented at the earliest in the interest of all stakeholders. A copy of the letter issued by Power Finance Corporation Ltd. is annexed herewith and marked as Annexure A 3. In the aforementioned circumstances, the Secured Lenders through t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies. The aforesaid fact has not been disputed by the parties, nor by the Tribunal in its impugned order. In such circumstance, the aforesaid technical objection cannot come in the way of Appellant Companies for sanction of their Scheme. 19. Purushottam Mareshwar Vartak Anr, the Appellants in the connected appeal is the 1st Objector, who represent the employees of Ratnagiri Gas and Power Private Limited . According to the 1st Objector, the lands of 158 employees were taken over for construction of the factory. In a Writ Petition- WP 2735 of 1994, a Division Bench of the Bombay High Court, by its order dated 27th July, 1994 had ordered, and the Company agreed that one member from each family would be given employment. In another Writ Petition- WP 4625 of 1998, similar order was passed on 7th September, 1998, which have reached finality. Therefore, according to 1st Objector, until retirement as per Rules all the 158 workmen have a right to continue. In case any of the Company terminates employment of any such workmen, in such case their respective lands must be given back to them. 20. 1st Objector has claimed that all the 158 Workmen are permanent employees of Ratnagiri Gas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is a closure, or lay off, initiation of insolvency corporate process and inability to provide work except where workman to be removed after disciplinary proceedings or on attaining age of superannuation such employees should be accommodated in Konkan LNG Pvt. Ltd. and if so necessary by retrenching the other workmen engaged through contractors. [OR] 3. In other words, if for any reason one or other workmen of Ratnagiri Gas Power Pvt. Ltd. if thrown out of the service or retrenched on any ground, except disciplinary proceedings or superannuation, such employee will be accommodated in Konkan LNG Pvt. Ltd. by retrenching the workmen of same status, working through contractors 23. Learned counsel appearing on behalf of the Appellant Companies have objection with regard to the example as cited above. According to Appellant Companies, no example can be a part of a Scheme. The Scheme cannot show for example in the Scheme as mentioned in Para nos. 2 3 of the draft, handed over by learned Senior Counsel for the workmen/employees and quoted above. The Appellant Companies, without prejudice has submitted a draft amendment of Scheme in regard to the workmen, which r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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