Gujarat High Court
Suzlon Energy Limited vs Respondent(S) on 6 April, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
O/COMA/435/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 435 of 2016
[On note for speaking to minutes of order dated 29/09/2016 in
O/COMA/435/2016 ]
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SUZLON ENERGY LIMITED....Applicant(s)
Versus
.....Respondent(s)
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Appearance:
MRS SWATI SOPARKAR, ADVOCATE for the Applicant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 06/04/2017
ORDER BELOW THE NOTE FOR SPEAKING TO MINUTES
1. The learned advocate for the petitioner has filed a
note for speaking to minutes with a prayer to add the
following Paragraph after Paragraph 7 in the order dated
29.9.2016, which reads as under:
"In view of the said undertaking, the approval
obtained from the said consortium in form of
the consent letters shall be placed on record
in the further proceedings being the petition
filed by one of the Transferor Companies."
2. Rest of the order remains the same. Registry is
directed to issue a fresh copy of the order dated
29.9.2016 containing abovementioned corrections.
3. Accordingly, the note for speaking to minutes is
disposed of.
(R.M.CHHAYA, J.)
mrp
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O/COMA/435/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 435 of 2016
==========================================================
SUZLON ENERGY LIMITED....Applicant(s)
Versus
.....Respondent(s)
==========================================================
Appearance:
MR SAURABH N SOPARKAR, SENIOR ADVOCATE with MRS SWATI
SOPARKAR, ADVOCATE for the Applicant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 29/09/2016
ORAL ORDER
1. A Composite Scheme of Arrangement involving amalgamation of three Transferor companies and de merger and transfer of undertaking from one more company of the same group, all being wholly owned subsidiaries of Suzlon Energy Limited with the parent Transferee Company viz. Suzlon Energy Limited is proposed under Sec. 391 to 394 of the Companies Act, 1956. In this regard, the present application is filed by Suzlon Energy Limited, the Applicant Transferee Company. In the Judges' summons taken out, dated 26th September 2016, it has prayed for dispensation of the further proceedings by the Applicant Company. Heard Mr. Bandish Soparkar, Advocate appearing for Mrs. Swati Soparkar, learned Page 1 of 5 HC-NIC Page 2 of 6 Created On Tue Aug 15 18:00:12 IST 2017 2 of 6 O/COMA/435/2016 ORDER advocate for the Applicant Company.
2. It has been submitted that all the three Transferor companies and the Demerged Company are the wholly owned subsidiaries of the Transferee Company. The Applicant Transferee Company is the sole Holding company. As a result, pursuant to Clause 11.2 and 11.5 of the Scheme, the Equity as well as the Preference Shares of the Transferor Companies which are held by the Transferee Company shall stand automatically cancelled and in lieu thereof no new shares shall be issued by the Transferee Company. Considering the fact that the Capital Structure of the Transferee Company shall not undergo any change, the rights and interests of the existing shareholders of the Transferee Company are not affected in any manner and hence the separate proceedings for the said Transferee Company is not necessary.
3. It is further submitted that the aforesaid submission is based on the settled legal position supported by judgments of various High Courts. It is submitted that this view is consistently taken vide the series of judgments inter alia including Sharat Hardware Industries P. Ltd., 48 Company Cases 23 (Del.) and Mahaamba Investments Limited v. IDI Limited, 105 Company Cases 16 (Bom.), and has been consistently followed by various orders of our High Court.
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O/COMA/435/2016 ORDER
4. Considering the submissions and in light of the settled legal position confirmed by various judgments referred to in the said affidavit in support of the Judges' summons, holding that separate proceedings are not necessary for the Transferee Company being the holding company, it is held in the present case also that separate proceedings are not required to be filed for the present Transferee Company.
5. Attention of the court is drawn to the submissions made vide Para 9 of the Affidavit in support of the Judges Summons. It has been submitted that the Applicant Transferee Company is a listed public limited company. The company has placed on record the requisite approval from the concerned stock exchanges pursuant to the approval of the scheme by SEBI at Exhibit'E'. Perusal of the same indicates that the SEBI has directed the Applicant Company to draw the attention of this court as well as intimate all the shareholders about one of the directors of the Applicant Company who has been declared the willful defaulter. Vide para 9 of the said Affidavit in support of Judges' summons, the Applicant Company has provided explanation in this regard. Further a copy of the intimation sent to each of the shareholder of the Applicant Company either by a letter or by an e mail has been placed on record alongwith the proof of dispatch Page 3 of 5 HC-NIC Page 4 of 6 Created On Tue Aug 15 18:00:12 IST 2017 4 of 6 O/COMA/435/2016 ORDER collectively as Exhibit'F'. In view of the same, this Court does not see any need to give any further directions.
6. It is further submitted that since no shares are proposed to be issued under the present scheme, the Applicant Company had submitted the requisite Undertaking and the Statutory Auditor's certificate to the SEBI in relation to nonapplicability of requirements prescribed in Clause 9(a) of Paragraph I (A) of Annexure I of SEBI Circular No. ClR/CFD/CMD/16/2015 dated November 30, 2015. A copy of which has been placed on record as Exhibit'G' for immediate reference. In light of the facts and circumstances, the Applicant Company shall not be required to undertake the procedure of postal ballot and e voting for seeking approval from the Public shareholders.
7. It has been submitted vide para 13 of the Affidavit in support of Judges' summons that the the rights and interests of the creditors of the Applicant Company shall not be prejudicially affected as a result of the said scheme of Arrangement. The Net Worth Certificate issued by a Chartered Accountant has been placed on record as Exhibit'G'. The said certificate indicates that the Net Worth of the Transferee Company in Prescheme scenario is Rs. 633 Crores and the same is unaffected even in the Post scheme scenario. It has Page 4 of 5 HC-NIC Page 5 of 6 Created On Tue Aug 15 18:00:12 IST 2017 5 of 6 O/COMA/435/2016 ORDER been further submitted that notwithstanding the above contention, in compliance with the contractual terms of the loan agreements with the Secured Creditors, the Applicant Transferee Company has already approached the consortium of its Lenders and sought their approval to the proposed Scheme. The Applicant Transferee Company has undertaken that the approval shall be obtained from the said consortium in form of written consent letters and the same shall be placed on record of the Hon'ble High Court before the final sanction of the Scheme.
8. The Application is hereby disposed off.
(R.M.CHHAYA, J.) mrp Page 5 of 5 HC-NIC Page 6 of 6 Created On Tue Aug 15 18:00:12 IST 2017 6 of 6