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TMI Blog2017 (7) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... ted (hereinafter referred to as Applicant Company 2Æransferee Company) with a view to achieve the following objectives as averred by both the applicants before this Tribunal in the joint application filed by them, namely:- (i) consolidate the telecom business of the Applicant Company 1 with the Applicant Company 2; (ii) further expansion of the Applicant Company 2's business into the growing markets of India; (iii) availability Of increased resources and assets for the Applicant Company 2 which can be utilized for strengthening customer base and servicing existing as well as new customers innovatively and efficiently; (iv) building a strong infrastructural capability to effectively meet future challenges in the ever-evolving telecom business and a strategic fit for serving existing market; and (v) leading to increased competitive strength and efficiencies for the Applicant Company-2. 2) In pursuance of the above objectives and consequent to the decisions of the respective Boards of the applicant companies as detailed above, both the Transferor and Transferee Companies have filed the instant joint application under sections 230-232 of Companies Act, 2013(h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the secured creditors of the Transferor Company, to consider and, if thought fit, approve, with or without modification, the Scheme, in view of the Transferor Company having no secured creditors as on April, 30, 2017. iii. This Hon'ble Tribunal may be pleased to pass appropriate orders/directions for holding and convening the meeting of the unsecured creditors of the Transferor Company, to consider and, if thought fit, approve, with or without modification, the Scheme, at such time, date and venue as this Hon'ble Tribunal may deem fit; and direct the appointment of a Chairperson, an Alternate Chairperson and a Scrutinizer (if required) for conducting such meeting of the unsecured creditors of the Transferor Company to be held on such terms as this Hon'ble Tribunal may deem fit and who shall report the result thereof to this Hon'ble Tribunal, and direct that individual notices of the meeting may be sent by the Transferor Company to the unsecured creditors of the Transferor Company through registered post or speed post or through courier or through e-mail in accordance with applicable law and in such other manner as this Hon'ble Tribunal may deem fit; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Tribunal may deem fit and who shall report the result thereof to this Hon'ble Tribunal, and direct that individual noHces of the meeting may be sent by the Transferee Company to the secured creditors Of the Transferor Company through registered post or speed post or through courier or through e-mail in accordance with applicable law and in such other manner as this Hon'ble Tribunal may deem fit; and direct the publication Of the notices in relation of the said meeting in the newspapers, namely "Indian Express" (English, Delhi Edition) and "Jansatta" (Hindi, Delhi Edition), by way of a joint advertisement, if required. vii. This Hon'ble Tribunal may be pleased to pass appropriate orders/directions for holding and convening the meeting of the secured creditors of the Transferee Company, to consider and, if thought fit, approve, with or without modification, the Scheme, at such time, date and venue as this Hon'ble Tribunal may deem fit; and direct the appointment of a Chairperson, an Alternate Chairperson and a Scrutinizer (if required) for conducting such meeting of the secured creditors of the Transferee Company to be held on such terms as this Hon'ble T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Exchange Board of India as well as The National Stock Exchange of India Limited and the BSE Limited, the stock exchanges on which the equity shares of the Transferee Company are listed in view of the observations of the National Stock Exchange of India Limited and the BSE Limited stating that " It is to be noticed that the petitions are filed by the Company before NCLT after processing and communication of comments/observation on draft scheme by SEBI/stock exchange. Hence, the Company is not required to send notice for representation as mandated under Section 230(5) of the Companies Act, 2013 to SEBI again for its comments/observations/representations. " xi. This Hon'ble Tribunal may be pleased to further dispense with the service Of notice under Section 230(3) read with Section 230(5) of the Companies Act, 2013 to the Department of Telecommunications, Government of India ("DoT") in view of the Applicant Companies notifying the DOT Of the amalgamation between the Applicant Companies as envisaged under the Scheme pursuant to Clause 3(a) of die "Guidelines for transfer/ merger of various categories of telecommunication service/licenses/authorization under unified license on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company in the Scheme marked as Annexure-"A-I", Learned Senior Counsel represents that the company is having 198,347 Equity Shareholders. It is further represented by the Learned Senior counsel for Applicants that the Applicant Company-2 / Transferee Company as on 30thApril, 2017 has only one secured creditor and 18,179 Unsecured Creditors in numbers. In relation to Secured creditors of the Applicant Company-2/Transferee Company, dispensation is sought for from convening the meeting of secured creditors for the purpose of obtaining their approval to the proposed Scheme of Amalgamation in view of consent affidavit having been obtained and placed on record. 6. Learned Counsel for the Applicants also represents that the provisions of Section 233 of 2013 Act will not apply to the instant scheme. The registered office of both the applicant Companies are situated within New Delhi and thereby subject to the jurisdiction of Registrar of Companies, NCT, New Delhi and hence are amenable to the territorial jurisdiction Of this Tribunal. 7. We have perused the joint application and the connected documents / papers filed therewith including the Scheme of Amalgamation contemplated between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellular phones, satellite phones etc. telecom switching equipments of all kinds telecom transmission equipments Of all kinds, test equipments, instruments, apparatus, appliances and accessories and equipment and machinery for the manufacturer thereof and to provide technical services in respect thereof or relating thereto. (iii) To undertake and execute works, projects or enterprises in the telecom industry whether of a private or public character or any joint venture with any government or other authority in India or elsewhere. (iv) To apply for and procure licenses and approvals from or enter into agreements with any government, judicial, quasi judicial or Other authority, body or institution for carrying out any or all of the above objects, and comply with all the applicable provisions of such license(s)and approvals, and the appropriate laws, guidelines, rules and regulations (including any statutory modification(s) or re- enactment thereof for the time being in force), and any violation of which shall automatically lead to the Company being unable to carry on its business in this regard. 12. From the certificate of incorporation filed, it is evident that the Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instruments whether corded, cordless, mobile or of any other kind; tele- terminals, fax machines, telegraphs, recording instruments and devices, telephone message/answering machines and devices; dialing machines, trunk dialing barring devices, wireless sets and other wireless communication devices like radio pagers, cellular phone, satellite phones etc. telecom switching equipments of all kinds; telecom transmission equipments of all kinds, test equipments, instruments, apparatus, appliances and accessories and equipment and machinery for the manufacture thereof and to provide technical services thereof or relating thereto. 4. To buy, sell, manufacture, assemble, repair, design, alter, research and improve, develop, exchange, ware-house, let on hire, import, export, and deal in all sorts of Electronic, non-Electronic, Computerized and Electrical items and equipment including Computer and Data Processing Equipment, Peripherals, Printers, Disc-drives, Intelligent Terminals, Modems, Software, Hardware, Personal Computers. 'CAD'CAM' Computer, Graphic Systems, Office Automation Equipments, Word Processors, Photopesetting, Text Editing and Electronic Printing and/or Typi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced on record. 18. Both the applicant companies have also stated that there has been no change in the authorized, issued, subscribed and paid up share capital of the Transferor Company and the Transferee Company other than what has been stated in the joint application. 19. Both the companies have submitted that no investigation proceedings are pending against them under Sections 210 or any other applicable provisions of the Companies Act, 2013 nor the applicant companies are subject to any winding up proceedings. 20. Learned Senior Counsel represents that in view of the observations made by Security and Exchange Board of India, National Stock Exchange and Bombay Stock Exchange, the Exchanges in which the shares of the Applicant Company 2/Transferee Company are listed, notice under Section 230(3) read with Section 230(5) may be dispensed with as prayed for in paragraph 53(h) of the joint application. A similar plea with respect to notice to Department of Telecommunications, Government of India being the sectoral regulator is also sought for by virtue of prayer contained in paragraph 53(i) of the joint application. Learned Senior Counsel also brings to the attention of this Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hes on the powers of this Tribunal which is totally unwarranted and the applicant companies are directed to ignore the said observations made by the respective exchanges and to strictly act in consonance with the directions given hereunder. Absolute discretion is vested with this Tribunal in relation to ordering Of notices are concerned, of course other than to whom notices under provisions of Section 230(5) of the Act are required to be mandatorily given. Thus the discretion of those authorities to whom notices are directed to be sent lies only in whether they choose to respond to the said notices and file their observations, if any, within the statutory period provided thereunder in relation to the Scheme coming up for sanction before this Tribunal or not and nothing more. To sum up, the power to circumscribe the issue Of notices under Section 230(5) of the Companies Act, 2013 to itself is outside the domain of the said authorities which at the cost of repetition, it must strongly eschew. Similarly it is also not within the rights of the parties to seek for dispensation of notices under Section 230(5) of the Act to certain authorities and thereby trying to impose fetters on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e later of: (a) the date on which the certified copy of the NCLT's order sanctioning this Scheme is filed by the Companies with the concerned Registrar of Companies; or (b) the fulfillment of the last of the conditions precedent as set out in the Implementation Agreement and delivery of the CP Completion Notice, as stated there under." 23. Since reference to the pertinent clauses in the Scheme as well as the paragraph reproduced above clearly demonstrates that the Scheme is hedged on the Implementation Agreement and the same had not been filed along with the typed set of documents by the applicant companies during the course of hearing, the Learned Senior Counsel for applicant companies was directed to produce the same before this Tribunal to which it was represented by the Learned Senior Counsel that the Implementation Agreement is not for public consumption, but undertook to produce the same before this Tribunal in a sealed cover. We fail to understand the veil of secrecy which is sought to be placed on a document which has a material and significant bearing on the Scheme of Amalgamation as contemplated between the applicant companies, its shareholders and creditors. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue the following directions with respect to calling, convening and holding of the meetings of the shareholders, secured and Unsecured Creditors, or dispensing with the same as well as issue of notices including by way of paper publication as follows:- A) In relation to the Applicant Company-I/Transferor Company: (i) With respect to Equity shareholders: Since it is represented by the Applicant Company-1/Transferor Company that there are only 2 (Two) Equity shareholders in the Company whose consents by way of affidavit have been Obtained and are placed on record, the necessity of convening and holding a meeting to consider and it thought fit, the approval of the scheme is dispensed with. (ii) With respect to Secured Creditors: Since it is represented by the Applicant Company-I/Transferor Company that there is no Secured Creditor in the Company, the necessity of convening a meeting does not arise. (iii) With respect to Unsecured Creditors: Meeting of the Unsecured Creditors Of the Applicant Company 1/Transferor Company is directed to be held at 3:00 P.M at Sri Sai Sathya Auditorium, Lodhi Road, Bishpitama Marg, New Delhi - 110 003 on Monday the 18th September, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very endeavour should be made by the applicant companies to attain at least the quorum fixed, if not more in relation to approval of the Scheme. E) Mr.S.BaIasubramanian, former Chairman, Company Law Board( Cell No. 9818243413) is appointed as the Chairperson and Mr.Virender Ganda, Senior Advocate (Cell No. 9810099873) is appointed as the Altemate Chairperson for the meeting of Equity Shareholders and Unsecured Creditors as may have been directed to be convened by this Tribunal as above Of the Applicant Companies. F) The fee of the Chairperson for the aforesaid meetings shall be Rs. 3,00,000/- and the fee Of the Alternate Chairperson shall be Rs. 1,50,000/- in addition to meeting their incidental expenses. Mr. Sanjay Grover, Company Secretary (Cell No.9810144530) is appointed as a Scrutinizer and would be entitled to fee of Rs. 1,50,000/- for his services in addition to meeting his incidental expenses. The Chairpersons will file their reports within two weeks from the date of holding of the above said meetings. G) That individual notices of the said meetings shall be sent by the Applicant Companies through registered post or speed post or through courier or through e-mail , ..... X X X X Extracts X X X X X X X X Extracts X X X X
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