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TMI Blog2022 (1) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 is proposed to consolidate similar businesses into a single entity creating a niche dedicated and focused business segment without any risk and overlap of one business over the other. Accordingly, the Demerged Undertaking of IGPL will be transferred to MMT. The remaining Business (more particularly defined hereinafter) would be carried out by IGPL itself. ii. Resource: The Scheme will improve organizational capability arising from the pooling of resources, which would result in maximizing overall shareholder value and will improve the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 Applicant Companies have furnished the details of the Shareholders. Secured Creditors and Unsecured Creditors as follow: 8. It is submitted that the consents of all (100%) Equity Shareholders of the Demerged Company to the proposed Scheme has been received by way of affidavit and the same are part of Annexure A-6 of the application. The consent of sole preference shareholder of Demerged Company has been received by way of affidavit and the same is part of Annexure A-7 of the application. It is submitted that as per Certificate dated 19.01.2021 issued by the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,99,05,55,000 Preference Shares of Rs. 10/- each. The Issued, Subscribed and Paid-up Share Capital of Demerged Company is Rs. 13,24,34,42,180/- comprising of 3,25,58,829 Equity Shares of Rs. 10/- each and Rs. 1291785389 0.001% Non-cumulative Compulsory Convertible Preference Shares of Rs. 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 Annexure B3 of the application. Resulting Company/Applicant Company II has Authorised Capital of Rs. 2,80,00,00,000/- comprising 28,00,00,000 Equity Shares of Rs. 10/- each. The Issued, Subscribed and Paid-up Share Capital is Rs. 2,78,77,52,010/- comprising 27,87,75,201 Equity Shares of Rs. 10/- each. 12. It is stated that the Demerged Company/Applicant Company I and Resulting Company/Applicant Company II have filed the audited financial statements as on 31.03.2020 at Annexure-A10 and B9, respectively of the applications. The Demerged Company/Applicant Company I and Resulting Company/Applicant Company II have also filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shareholders, secured and unsecured creditors, this Bench has come across two diametrically opposite decisions by Three Members Coordinate Benches on the same issue. In view of the frequent references to the provisions relating to the Merger and Amalgamation of Companies in both Companies Act, 2013 and Companies Act, 1956, the relevant parts of the Sections, i.e., Section 230 of The Companies Act, 2013 and Section 391 of The Companies Act, 1956e are reproduced here as under:- "230. POWER TO COMPROMISE OR MAKE ARRANGEMENTS WITH CREDITORS AND MEMBERS. (1) Where a compromise or arrangement is proposed- (a) between a company and its creditors or any class of them; or ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lmia 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 Connected with CA No 896 of 2016 dated 17.05.2017, the Third Member held that the Tribunal has the power to grant dispensation of the shareholders meeting regarding the proposed Scheme of Amalgamation depending on the facts of a case. In her order, the Third Member has examined "Section 230 and 232 of Companies Act, 2013 and Rules made thereunder including the NCLT Rules, 2016 in the context of the objectives of the new Act and legislative history behind this subject". She has also observed that the language used under the old Act and the new Act are pari materia to each other and both the Acts use the words "may" before "order meeting" Section 232(1) of the Companies Act, 2013 also uses the word "may" i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eetings 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 proceedings, it may be noted that the Hon'ble National Company Law Appellate Tribunal, New Delhi has ordered dispensation of meetings of shareholders and creditors depending on the facts of the case in the following decisions:- i. DLF Phase-IV Commercial Developers Limited and others with DLF Limited, (Company Appeal (AT) No. 180 of 2019) dated 19.08.2019 ii. Alovera Tradelink Pvt. Limited and others vs. Ostwal Physchem (India) Limited in Company Appeal (AT) No. 178/2019 decided on 06.08.2019, iii. Mohit Agro Commodities Processing Pvt. Ltd. with Gujrat Ambuja Exports Ltd. (Company Appeal (AT) No. 59 of 2021 order dated 28.06.2021), iv. Ambuja Cements Limited (Company Appeal (AT) No. 19 of 2021 order dated 06.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 difference of opinion between the two coordinate Benches on the same point could have been avoided." 28. Keeping in view the submissions made and the judicial decisions on the subject, this Bench holds that depending on the facts and circumstances of each case, the NCLT has the powers to dispense with the meetings of shareholders and others by using judicial discretion. 29. Accordingly, the directions of this Bench in the present case are as under:- I. In relation to the Applicant Company I/Demerged Company: a) The meetings of the Equity Shareholders and Preference Shareholders are dispensed with keeping in view the shareholding pattern, financial structure of the company and the fact that the consent by way of affidavit has been received stating that they have no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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