The present petitions have been preferred seeking an order of sanction of the Scheme of Arrangement and Demerger between Gujarat Narmada Valley Fertilizers Company Limited (Demerged Company) and ING Satcom Limited (Resulting Company). The former has filed Company Petition No.137 of 2011 in Company Application No.362 of 2011 and the latter has filed Company Petition NO.138 of 2011 in Company Application No.378 of 2011.
Gujarat Narmada Valley Fertilizers Company Limited filed Company Application No.362 of 2011 before this Court seeking an order of convening meetings of Shareholders, Secured Creditors and Unsecured Creditors. By order dated 11.07.2011, this Court directed holding of the meetings of Shareholders, Secured Creditors and Unsecured Creditors on 31.08.2011. The petitioner-Gujarat Narmada Valley Fertilizers Company Limited (Demerged Company) filed Chairman Report on 14.09.2011 in respect of all three meetings. A perusal of the Report reveals that the Equity Shareholders, Secured Creditors and Unsecured Creditors have unanimously approved the Scheme.
ING Satcom Limited (Resulting Company) filed Company Application No.378 of 2011 before this Court seeking an order of dispensation of the meeting of Equity Shareholders and Unsecured Creditors on the ground that all the Equity Shareholders and Unsecured Creditors have given their consent in writing in approval of the Scheme of Arrangement and Demerger. It was stated on behalf of the petitioner-Company that there are no Secured Creditors in the said Company. By order dated 11.07.2011, this Court allowed the application and ordered dispensation of the meeting of the Equity Shareholders and Unsecured Creditors.
Company Petition No.137 of 2011 (by the Demerged Company) came to be admitted by order dated 23.09.2011. Notice of the petition was ordered to be advertised in the Newspapers "Indian Express (Ahmedabad Edition, English) and "Sandesh" (vernacular Vadodara Edition). Company Petition No.138 of 2011 (by the Resulting Company) came to be admitted by order dated 28.09.2011. Notice of the petition was ordered to be advertised in the Newspapers "Indian Express (English) and Gujarati Newspaper "Lok Satta - Jan Satta" (both Ahmedabad Editions). Notice was also issued to the Office of the Regional Director, Department of Corporate Affairs, Ahmedabad.
Both the petitioners have filed affidavits of their authorized officers affirming that the petitioners have published the Notices of the petitions in the local daily newspapers, as directed by this Court.
It has been stated by Mr.Naveen Pahwa, learned advocate for M/s.Thakkar Associates for the Resulting Company and Mr.Nandish Chudgar with Mr.Bhavesh Choksi for M/s.Nanavati Associates for the Demerged Company that no objections have been received from any person pursuant to the publication of Notices of the petitions.
In response to the Notice to the Office of the Regional Director, Mr.P.S.Champaneri, learned Assistant Solicitor General of India, has appeared and has filed affidavit of Mr.Kashmir Lal Kamboj, the Regional Director, on 16.01.2012. Certain observations have been made in the said affidavit. The first observation is that the Demerged Company has already received part-payment of rupees three crores out of the total consideration of rupees six crores from the Resulting Company towards consideration, without waiting for the sanction of the Scheme by this Court. The second observation is that the transfer of licences under the Scheme would require prior approval of the concerned authority. It is stated that the Regional Director is not aware whether, for transfer of licences obtained by the Demerged Company, prior approval of the respective authority shall be required by the Resulting Company and that this aspect should be clarified by the petitioners before this Court. The third observation made in the Report of the Regional Director is with regard to the appointed date, which has been fixed as 01.04.2010. It is stated that as the balance-sheets for the year ended on 31.03.2011 have been filed by the petitioner-Companies, which were audited in the month of May / June, 2011, the appointed date should have been 01.04.2011. The fourth observation is to the effect that Schedule II of the Scheme which contains details of the assets of the Demerged Company does not contain the respective values thereof.
In response to the affidavit filed by the Regional Director, an affidavit dated 27.04.2012 has been filed by the Resulting Company in Company Petition No.138 of 2011. Regarding the first observation to the effect that part payment of rupees three crores has already been received from the Resulting Company towards the total consideration of rupees six crores, it has been stated that the part payment has been made subject to the approval of the transfer of licences by the Competent Authority and subject to the sanction of the Scheme by this Court. Regarding the second observation relating to prior approval of the concerned authority for transfer of licences, reliance has been placed on Clause-10 of the Licence Agreement dated 18.06.2002 that has been produced as Annexure-R1 to the said affidavit. It is stipulated in Clause-10 of the said Agreement that the Competent Authority would grant consent permitting transfer or assignment, whenever the Scheme is approved by this Court. Regarding the third observation with respect to the appointed date, it is stated that the fixation of the appointed date is within the domain of the Company as per the settled legal position and the Company can choose its appointed date. In this regard, Mr.Naveen Pahwa, learned advocate for the Resulting Company has placed reliance upon a judgment of the Division Bench of this Court rendered in OJ Appeal No.65 of 2009 and OJ Appeal No.66 of 2009 on 23.09.2009, wherein it has been observed that there is no legal bar to the selection of the appointed date and that in a Scheme of Arrangement, the Companies are free to choose the appointed date depending upon their commercial needs and exigencies. Lastly, with regard to the observation relating to the details of the valuation of the assets of the Demerged Company not having been mentioned in Schedule-II of the Scheme, it has been stated in the affidavit that the valuation of all the assets has already been reflected in the Account Books of the Company.
Mr.Naveen Pahwa, learned advocate for the Resulting Company, states that as mentioned in Clause-4.2(c) of the Scheme, the Resulting Company shall make applications to, and obtain relevant approvals from, the concerned Governmental authorities, as may be necessary.
There is no material on record to indicate that the affairs of the petitioner-Companies have been conducted in a manner prejudicial to the interests of its members or to the public interest, or that the proposed Scheme of Arrangement and Demerger would harm the interest of the said Companies.
Having heard Mr.Naveen Pahwa, learned advocate for the Resulting Company, Mr.Nandish Chudgar with Mr.Bhavesh Choksi, learned advocates for the Demerged Company, and Mr.P.S.Champaneri, learned Assistant Solicitor General of India for the Regional Director, and having heard considered the Scheme of Arrangement and the relevant documents on record, and as the concerns raised by the Regional Director have been, in the view of the Court, successfully redressed by the affidavit filed by the Resulting Company, it would be appropriate to grant sanction to the present Scheme of Arrangement and Demerger.
In view of the above, the Scheme of Arrangement and Demerger is thus sanctioned.
The cost of the petition is determined at Rs.7,500/- per petition, which shall be paid by both the petitioners respectively, by drawing a Pay Order in favour of Mr.P.S.Champaneri, learned Assistant Solicitor General of India.
Accordingly, both the petitions are disposed of.
(Smt.
Abhilasha Kumari, J.) (sunil) Top