TMI Blog2022 (1) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... te Limited (for short hereinafter referred to as 'MMT'/Applicant Company II/Resulting Company) under Section 230-232 of Companies Act. 2013 (the Act) and other applicable provisions of the Act read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (the Rules) in relation to the Scheme of Arrangement between the Applicant Companies. The said Scheme is attached as Annexure-A1 to the Application. The Applicant Companies have prayed for dispensing with the requirement of convening the meeting of the Equity Shareholders, Secured and Unsecured Creditors of Demerged Company and Resulting Company and of Preference Shareholders in Demerged Company. 2. The Applicant Company 1/Demerged Company and Applicant Company II/Resulting Company are presently engaged in the business to function as a travel agent for offering through online and off-line modes, to individuals, families, large groups, businesses and any other persons or group of persons, various travel, accommodation and tourism services. 3. The rationale of the Scheme is given below:- i. Streamlining business: In order to streamline the business both from operating and management perspective, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Company I has authorized Mr. Munish Monga, Mr. Vinod Rathore (Director), Mr. Mayank Verma (Company Secretary), Mr. Tajinder Singh (Official of the Company) and Applicant Company II has authorised Mr. Indresh Kumar Gupta, Mr. Vikas Saini (Director), Mr. Vikash Kumar Tiwari and Mr. Tajinder Singh (Officials of the Company), to do all acts and deeds and things in relation to the sanctioning of the Scheme and for the filing of present application/affidavits/documents with statutory authorities. The affidavit of Mr. Mayank Verma, Authorised Representative of Applicant Company I and Mr. Vikash Kumar Tiwari, Authorised Representative of Applicant Company II have been filed in support of contents of the application for seeking appropriate orders/directions. 5. The appointed date of the Scheme is 01.04.2020 as mentioned in the Clause 1.3 of Scheme of Amalgamation attached as Annexure-A1. 6. It is submitted that the registered office of the Demerged Company/Applicant Company I and Resulting Company/Applicant Company II is at Gurugram, which is situated in the State of Haryana and, therefore, the both applicant companies is under the territorial jurisdiction of this Bench. 7. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 10,43,33,15,772/- (90.2% of total value), gave their consents by way of affidavit and the same are part of Annexure B-7 of the application. 10. The Applicant Company I/Demerged Company i.e. Ibibo Group Private Limited CIN: U72900HR2012PTC090199 is a private limited company under the Companies Act, 1956 on 23.03.2012. The certificate of incorporation along with Memorandum and Articles of Association is attached as Annexure-A4 of the application. The Demerged Company has total Authorised Capital of ₹ 20,71,75,57,990/- comprising of 8,12,00,799 Equity Shares of ₹ 10/- each and 1,99,05,55,000 Preference Shares of ₹ 10/- each. The Issued, Subscribed and Paid-up Share Capital of Demerged Company is ₹ 13,24,34,42,180/- comprising of 3,25,58,829 Equity Shares of ₹ 10/- each and ₹ 1291785389 0.001% Non-cumulative Compulsory Convertible Preference Shares of ₹ 10/- each. 11. The Resulting Company i.e. MakeMyTrip (India) Private Limited CIN: U63040HR2000PTC090846 is a private limited company under the Companies Act, 1956 on April 13, 2000. The certificate of incorporation along with Memorandum and Articles of Association is attached as Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant Companies. By virtue of Clause 11.1, it is stated that upon the Scheme coming into effect, all the employees on the payroll of Demerged Company whether permanent or temporary engaged in or in relation to the Demerged Undertaking immediately prior to the Effective Date, shall become the employees of Resulting Company without any break or interruption of service and with the benefit of continuity of service on terms and conditions which are not less favourable than the terms and conditions as were applicable. 17. The Applicant Company I/Demerged Company and Applicant Company II/Resulting Company have deposed by way of affidavit that there are no sectoral regulators to which regulate the field of business of the applicant companies except:- (i) The Central Government, through Regional Director, Northern Region, Ministry of Corporate Affairs; (ii) (The Registrar of Companies, NCT of Delhi and Haryana; (iii) Official Liquidator; and (iv) The Jurisdictional Income Tax Authority The affidavit of the authorised signatories are annexed as Annexure C1 and Annexure C2 respectively of the application. 18. On the issue of dispensation of meeting of sharehol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts across the country have in many cases dispensed with the requirement of calling meetings of the shareholders of a company under the Companies Act, 1956. It has also been brought to our notice that even after the promulgation of the new Act, many High Courts have directed dispensation of equity shareholders' meetings in a proposed Scheme of Amalgamation. The decisions of the Hon'ble Delhi High Court in the case of Basera Realtech Private Ltd., Company Application (Main) No. 150/2015 decided on 02.11.2015 and the decisions of the Hon'ble Calcutta High Court in the cases of Traita Properties Private Limited, CA No. 46/KB/2018 TP No. 75/2017 in CP No. 763/2016, Decided on: 28.02.2018 and Dalmia Securities Private Ltd., TP No. 53/2017 in CA No. 1000/2016 decided on 01.03.2017, passed under Section 391(1) and 393 of the Companies Act, 1956 after the promulgation of Companies Act, 2013 have been cited as a few examples of such orders. 20. Before coming down to our own decision, we can survey the decisions given by the Coordinate Benches. In the three Member NCLT (Kolkata) Bench's order in the case of Re: Jupiter Alloys and Steel (India) Limited in TA No. 11 of 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eetings into sub-Section 230(1) that is conspicuously absent in the Section. iii. He also made a reference to sub-Section (9) of Section 230 wherein a specific mention has been made for dispensation of creditors meeting and observed that if such is the discretion contemplated in sub-Section 230 (1), the legislature would not have carved out a standalone provision for dispensation of creditors meeting under sub-Section 230(9) of the Act. 23. In his order, the Third Member has also referred to the report of the Parliament Standing Committee on the Companies Bill, 2011 wherein the Ministry had rejected a proposal for dispensing with the meeting of shareholders of closely held companies with the observation that meetings of members are considered to be essential for such important matters to ensure corporate democracy and principle of participation in important decision makings. On the basis of the above, he concluded that the spirit behind the provisions of Companies Act, 2013 is different from that of the old Act of 1956, and any interpretation of the provisions of the new Act should be in keeping this new spirit behind the legislation. 24. In the course of the present pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. This Tribunal is conscious of the decision of the Hon'ble Apex Court in the case of Collector of Central Excise, Kanpur Vs. Matador Foam and Ors. (2005) 2 SCC 59 decided on 05.01.2005, excerpts from para 16 whereof are reproduced, observed:- . These being judgments of coordinate benches were binding on the Tribunal. Judicial discipline required that the Tribunal follow those judgments. If the Tribunal felt that those judgments were not correct, it should have referred the case to a larger bench. The Hon'ble Supreme Court in the case of S.I. Rooplal another vs. Ltd. Governor others, reported in (2000) 1 SCC 644 dated 14.12.1999 has also held that: 12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the differen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
