2024 (8) TMI 1284
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....h the name 'Azim Premji Custodial Services Private Limited'. Later, the Petitioner Company was converted to a public limited company with effect from 28.03.2013 and further the name of the Petitioner Company was changed to 'Wipro Enterprises Limited' with effect from 19.04.2013. The Petitioner Company was again reconverted into a private company with effect from 22.05.2015 bearing CIN No. U15141KA2010PTC054808. The registered office of the Petitioner Company is situated at Wipro House, No.8, 7th Main, 80 Feet Road, Koramangala 1st Block, Bengaluru- 560034. 3. A copy of Memorandum of Association and Articles of Association has been placed on record as Annexure-A to the Petition. The main objects of the Petitioner Company inter alia are as under: (a) 'To carry on the business of extracting, manufacturing, processing, buying, selling, importing, exporting and dealing in fatty acids, edible and nonedible oil of every description (including its by-products) used for domestic, industrial or any other purpose using any oil bearing substances that may be in existence or that may come into existence in future. 4. It is stated that Article No. 68 of Articles of Associ....
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....oters of the Company requesting them to purchase their entire shareholding in the company by way of secondary sale. Pursuant to the requests from a majority of the non-promoter shareholders (Selling Shareholders) the promoters of the Company have purchased the entire shareholding of the Selling Shareholders through one of the promoters entities (which is also a part of the promoter group of the Petitioner company) being Azim Premji Trust (APT) at the share per share price at which the Company has proposed to undertake the capital reduction. 9. Pursuant to the completion of the Share Transfers, the non-promoters shareholding of the Petitioner Company aggregating to approximately 1.55% of the paid-up share capital of the company has been transferred to APT being a part of the promoter group of the Company. As a result of such transfer as of the date of this petition the public non-promoter shareholding in the Petitioner Company aggregates to 4,044 Equity shares held by 9 non-promoter shareholders which represents approximately 0.00083% of the paid-up equity share capital of the Company. Further, the resolution passed by the shareholders of the Petitioner company in the Annual Genera....
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....uishing the paid-up equity share capital of Rs. 40,440/- (Rupees Forty Thousand Four Hundred and Forty Only) divided into 4,044 (Four Thousand Forty-Four) equity shares of Rs. 10/- each held by the non-promoter shareholders of the Petitioner Company representing in aggregate approximately 0.00083% (zero point zero zero zero eight three percent) of the total issued, subscribed and paid-up equity share capital of the Company from the non - promoter equity shareholders being the Remaining Identified Shareholders more particularly set out hereinbelow, for an aggregate consideration of Rs. 66,88,776/- (Rupees Sixty-Six Lakhs, Eighty Eight Thousand Seven Hundred and Seventy Six Only) being determined for 4,044 (Four Thousand Forty Four) equity shares at 1,654/-(Rupees One Thousand Six Hundred and Fifty-Four Only) per Equity share to be paid out of the free reserves of the Company as per the latest audited financial statements. The details of the non-promoter shareholders whose all and entire shareholding in the Company aggregating to 4,044 (Four Thousand Forty-Four) equity shares that will be so reduced ("Remaining Identified Shareholders") are detailed below: S.No SHAREHOLDER SECOND ....
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....f Rs. 40,440/- (Rupees Forty Thousand Four Hundred and Forty Only) divided into 4,044 (Four Thousand Forty-Four) equity shares of Rs. 10/- each held by the non- promoter shareholders of the Petitioner Company representing in aggregate approximately 0.00083% of the total issued, subscribed and paid-up equity share capital of the Petitioner Company. 12. It is submitted that there are Nil Secured Creditors and 2,789 (Two Thousand Seven Hundred Eighty-Nine only) Unsecured Creditors of the Petitioner Company cumulatively Rs.24,84,87,91,028/- of the Petitioner Company, as on 31.10.2023. The certificate confirming the list of Secured and Unsecured Creditors by Managing Director of the Petitioner Company is furnished as ANNEXURE-L of the Petition and certificate by the Statutory Auditors regarding the correctness of the list of Creditors as on 31.10.2023 is furnished as ANNEXURE- M of the Petition. 13. The Petitioner Company has not obtained any deposit as defined under Section 73 of the Act read with the rules thereunder and therefore the requirement under Rule 2 (2) (c) of the National Company law Tribunal (Procedure for Reduction of Share Capital of the company) Rules, 2016 is not app....
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....rmitted to collect the notice and serve it on the unsecured creditors having an outstanding debt above Rs.10,00,000/-, ROC & RD through e-mail as well as by speed post and is directed to file a proof of service duly enclosing the corresponding tracking report in the Registry within one week. The Petitioner is also permitted to carry out paper publication in 'The Hindu', English Daily, Bengaluru Edition and 'Udayavani' in Kannada Daily, Bengaluru Edition. 4. Upon receiving the notice, period of one month is granted to ROC, RD and three months to the aforesaid Creditors for filing their reply, and two week's thereafter is granted to the Petitioner for filing rejoinder, if any, thereto. 5. List the case on 14.03.2024." 18. In compliance to the said order, the Petitioner Company has filed the Compliance Affidavit vide Diary No. 78 dated 03.01.2024. The Petitioner Company also issued Notice to its Unsecured Creditors whose unsecured Debt is above Rs. 10,00,000/- on 22.12.2023 and 23.12.2023 by post. Along with the Affidavit, the Petitioner Company has also attached the postal receipts of notices sent to the Regional Director, Hyderabad, Registrar of Companies, B....
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....romoter shareholders of the Petitioner Company representing in aggregate upto 1.55% (one point five five percent) of the total issued, subscribed and paid-up equity share capital of the Petitioner Company. The shareholders resolution stated in the petition is stated as under: "RESOLVED FURTHER THAT if any of the identified Shareholders transfer/ sell (including any transmission of the equity shares to the legal heirs) their equity shares to any person (including the legal heirs but excluding the promoter group) prior to completion of the share capital reduction/ "Record Date", then the capital Reduction shall apply to the new shareholder (excluding the promoter group) as well, who may have bought/acquired equity shares from the Identified Shareholders, and the equity shares held by such transferees (for avoidance of doubt, excluding the promoter group) of the Identified Shareholders shall also be reduced as a part of the capital reduction and the list of Identified Shareholders set out above shall stand updated to that extent to include such transferees (for avoidance of doubt, excluding the promoter group) reckoned based on the shareholding as is verifiable from the records of t....
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....on 10.08.2023. The resolution for the present capital reduction was filed by the Petitioner Company in Form No. MGT-14 vide SRN: AA4372036 filed dated 29-08-2023 and the said form was approved by this office. (i) Para 10: That as per clause 2.5 of the petition, the Board of Directors of the Company by way of a circular resolution dated November 08, 2023 approved the updated list of the non-promoter shareholders consequent to the Share Transfers, for the purpose of capital reduction. (j) Para 11: That the petitioner company has submitted Certificate from the Directors dated 08/06/2023 certifying that the Statement of Creditors as on 31/10/2023, a sum of Rs.24,84,87,91,028/- is payable towards Unsecured Creditors. However, Consent/NoC may be required from individual unsecured creditors subject to the requirements of section 66(3) of Companies Act, 2013 read with rule 3 (6) of National Company Law Tribunal (Procedure for reduction of share capital of the company) rules, 2016. Further, the petitioner company may also furnish an undertaking with regard to settling of dues to the unsecured creditors before the Hon'ble NCLT since the amount of debt involved in the present petition....
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....housand Six Hundred and Fifty-Four Only) per equity share, which includes a premium of 4.55% over and above the fair value of the equity shares of the Petitioner Company. (q) Para 18: The reduction of share capital involves return of the paid-up share capital represented by the equity shares held by the Identified Shareholders, by the Petitioner Company, at a price which is 4.55% over and above the fair value of the equity shares of the Petitioner Company. In this regard, the Petitioner Company may be directed give justification for making. (r) Para 19: That, the copy of advertisement for Reduction of Capital as per NCLT Rules has not been attached along with the application submitted by the Petitioner Company. It is not known whether Petitioner has advertised as per the requirements. The Hon'ble tribunal may kindly seek clarification from the petitioner on the same before passing the orders on merits. (s) Para 20: The company has related party transaction during the last two years. Hence, the petitioner company may be directed to show the compliance of the provisions of section 188 of the CA. 2013. (t) Para 21: The reduction of capital in the scheme involve pay-out of ....
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.... is submitted that observations are matter of record and is not required to be traversed. 6. Regarding the observations at Para 15 of the Report: it is submitted that the Pay- out pursuant to Reduction of Share Capital shall be from the Bank balance (cash and cash equivalents schedule) as appeared in the Asset side of the Balance Sheet. As per the audited financials as at 31.03.2023, the Company is having Rs.1,324 crores as cash and cash equivalents and the pay-out pursuant to reduction of capital is Rs. 66,88,776 only. Certificate from the auditor of the Company confirming that the Accounting Treatment for the Reduction of share capital is in compliance with the applicable accounting standards prescribed under Section 133 of the Companies Act, 2013 read with the rules made thereunder and other generally accepted accounting principles in India, as applicable. The Company will comply with all the Accounting Policies and Accounting Standards as applicable in relation to the accounting for reduction of capital. 7. Regarding the observations at Para 16 & 17 of the Report: it is submitted that observation is a matter of record and not required to be traversed. 8. Regarding the obs....
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....2024 passed by the Sole Arbitrator vide diary no.2499 dated 25.04.2024 and the same is taken on record. 22. On 21.05.2024, Ld. Counsel for Zenith Metaplast Pvt Ltd/Creditor appeared and mentioned the matter before this Tribunal and requested to take Vakalatnama and the Statement of Objections on record as the same was duly e-filed by them on time. 23. Zenith Metaplast Private Limited, the creditor of the Petitioner Company has filed the statement of objections vide Dy.No.2859 dated 21.05.2024 contending as under: (a) The instant petition is not maintainable and suffers from concealment and manipulation of material facts. It is submitted that the Respondent Company has supplied goods to the Petitioner Company for which the Petitioner Company only made partial payments from time to time, leaving behind the balance payments to be paid by the Petitioner Company for the invoices and orders generated by the Respondent Company. (b) To recover the amounts the Respondent Company sought to institute commercial suit at Nashik, Maharashtra and the matter went the Hon'ble High Court of Judicature, Bombay. Subsequently, the Hon'ble High Court of Bombay in order to amicably settle t....
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.... extant provisions of the Companies Act, 2013 and the Rules made thereunder. The matter regarding the counterclaim of the creditor is pending before the Arbitrator and the interest of the creditor is in no way affected by the proposed reduction of capital. 26. The Petitioner Company avails the option of reduction of paid-up share capital which is in consonance with Section 66 of the Companies Act, 2013. Following are the provisions: "66. Reduction of Share capital (1) Subject to confirmation by the Tribunal on an application by the company, a company limited by shares or limited by guarantee and having a share capital may, by a special resolution, reduce the share capital in any manner and in, particular, may- (a) extinguish or reduce the liability on any of its shares in respect of the share capital not paid-up; or (b) either with or without extinguishing or reducing liability on any of its shares, (i) cancel any paid-up share capital which is lost or is unrepresented by available assets; or (ii) pay off any paid-up share capital which is in excess of the wants of the company,alter its memorandum by reducing the amount of its share capital and of its shares accordingl....
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....he transaction of reduction of share capital which should not deem to be inequitable or unfair transaction. (c) In the decision of Precious Energy Limited v. Regional Director in Company Appeal (AT) NO. 17/2021 passed by Hon'ble NCLAT wherein it is held that "It is seen from the record that the reduction of the Share Capital was approved by the Shareholders of the appellant Company unanimously by way of special resolution with the objective of reducing the overall weighted average cost of Capital and improving the earning per share. In Reckitt Benckiser (India) Limited (supra), the Hon'ble Delhi High Court has upheld the view that "the domestic concern i.e., it is the decision of the majority which prevails. If majority by special reduction decides to reduce the share capital of the Company, which also has the right to decide as to how this reduction should be carried into effect....". In the instant case, admittedly, the reduction of this Share capital was approved unanimously by the Shareholders by way of a special resolution." "It is seen from the record that the company has complied with all the statutory requirements as per the directions of the Tribunal and has a....
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....ders being the Remaining Identified Shareholders more particularly set out herein below, for an aggregate consideration of Rs. 66,88,776/- (Rupees Sixty-Six Lakhs, Eighty-Eight Thousand Seven Hundred and Seventy-Six Only) being determined for 4,044 (Four Thousand Forty-Four) equity shares at 1,654/-(Rupees One Thousand Six Hundred and Fifty-Four Only) per Equity share to be paid out of the free reserves of the Petitioner Company as per the latest audited financial statements. The details of the non-promoter shareholders whose all and entire shareholding in the Petitioner Company aggregating to 4,044 (Four Thousand Forty-Four) equity shares that will be so reduced ("Remaining Identified Shareholders") are detailed below: S. No. SHAREEHOLDER SECOND HOLDER THIRD HOLDER TOTAL SHARES 1 Satyaki Banerjee 663 2 Hemanshu Lalitbhai Kapadia Neelima Hemanshu Kapadia 5 3 Aravind VS 300 4 Devendra Amarnath Sharma 166 5 Sanjay Bhoite Mayuri Bhoite 8 6 Shamkara Narayan Panigrahi 66 7 Janak Mathuradas Meena Janak 4 8 Punam Shashikant Suryavanshi 2 9 Pushpa Fulcha....