9911796707
TMI Blog2016 (5) TMI 1561X X X X Extracts X X X X X X X X Extracts X X X X ..... E & P Operators in India and overseas. It is stated to have over ten years of drilling experience across the industry and claims to be India's leading and fastest growing drilling company. 3. The Petitioner is a wholly owned subsidiary of SREI Infrastructure Finance Limited, which owns 99.90% of the shares. The share-holding pattern of the Petitioner, as on the date of the filing of the petition, was as under:- Name of the Shareholder No. of shares Share capital Share Holding in % SREI 29,968,000 299,680,000 99.90 Mr Hemant Kanoria (Beneficial Holder for SREI) 500 5,000/- 0.00 Mr Sandeep Lakhotia (Beneficial Holder for SREI) 500 5,000/- 0.00 Mr S.B. Tiwari (Beneficial Holder for SREI) 500 5,000/- 0.00 Mr Rupesh Kumar (Beneficial Holder for SREI) 400 4,000/- 0.00 Mr Sanjeev Sancheti (Beneficial Holder for SREI) 100 1,000/- 0.00 Mr Sandeep Bedi 30,000 300,000/- 0.10 TOTAL 30,000,000 300,000,000 100.00 4. It is contended that SREI is in full and complete control of the Petitioner Company and has full control on the operations and affairs of the Company of the Petitioner. 5. It is contended that the Respondent No.1/Oil and Natural Gas Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been relaxed in respect of any Indian Company, as under Indian Law, 100% subsidiary is permissible. It is contended that several anomalies or difficulties can be caused by even a single shareholder, reference is made as per Section 241 read with 244 and Section 188 of the Companies Act, 2013. It is contended that 0.10% shareholding can affect/hamper the tender process of the Respondent No.1 to a great extent. 8. It may be noted, that during pendency of the present petition, the holding Company of the Petitioner i.e. the Respondent No. 2 has acquired even the said 0.10% shareholding and now holds 100% share in the subsidiary company, i.e. the Petitioner. 9. To settle the controversy that arises in the present writ petitions, we need to examine as to whether the impugned condition is an essential condition of eligibility or is merely ancillary or subsidiary to the main object to be achieved by the condition. 10. The Supreme Court of India in Poddar Steel Corpn. v. Ganesh Engineering Works, (1991) 3 SCC 273 has held as under: "6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause 6 of the tender notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bidder : Positive (as per latest audited annual accounts) Note: ***** ***** ***** iv). In case the bidder is a newly formed company (i.e. one which has been incorporated in the last 5 years from the date of un-priced bid opening of the tender) who does not meet financial criteria (i.e. Turnover for 30% annualized bid value) by itself and submits his bid based on the financial strength of his promoter company, then following documents need to be submitted; i. Turnover of the promoter company/ Joint venture partner should be more than 30% of the annualized bid value. ii. Net worth of the promoter / Joint venture partner company should be positive. iii. Corporate Guarantee on promoter / Joint venture partner company's company letter head signed by an authorized official undertaking that they would financially support the newly formed company for executing the project/job in case the same is awarded to them, and iv. The bidder is a newly formed company i.e. one which has been incorporated in the last 5 years from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rength of its promoter company. In case such a bidder wishes to take advantage of the financial strength of its promoter company, then the promoter company/joint venture partner should have a turnover of at least 30% of annualized bid value, its net worth must be positive and the bidder should submit a Corporate Guarantee on promoter company/joint venture partner company's letter head signed by an authorized official undertaking that they would financially support the newly formed company for executing the project/job in case the same is awarded to them. 14. In the case of a newly formed company, there is no requirement that the promoter company should have a 100% shareholding in the bidder. All that is required is that the promoter company should give a corporate guarantee/undertaking that it would financially support the newly formed company for executing the project/job in case the same is awarded to them. The pleas in the counter affidavit seeking to justify the requirement of a 100% shareholding by a parent company, on the ground that several anomalies or difficulties can be caused by even a single shareholder who can affect/hamper the tender process of the Respondent No.1 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rantee/undertaking of the parent/ultimate parent/holding company? The ratio of the decision of the Supreme Court in Poddar Steel Corpn (Supra) is thus squarely applicable in the facts of the present case. 17. Further we may note that Respondent No. 1 has itself not considered the said condition as an essential condition of eligibility and has admittedly not applied the principal of holding 100% shareholding of the bidder subsidiary company in the case of the consortium Russian Company M/s Bumi Armada Offshore Contractor Limited (BAOCL), Marshall Island and M/s Afcons Infrastructure Limited, Mumbai on the ground that as per legal advice received, under Russian Law a 100% subsidiary company cannot hold 100% shares of its subsidiary company. When the Respondent No. 1 has itself not treated the impugned condition as an essential condition of eligibility in the case of the Russian Company, then how can it be permitted to contend that in the case of the Petitioner, it is an essential condition of eligibility and not ancillary or subsidiary to the main condition. 18. The Judgment of the Supreme Court of India in the case of Michigan Rubber (India) Limited v. State of Karnataka and Other ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
