Gujarat High Court
Adani Ports And Special Economic Zone ... vs Respondent(S) on 17 March, 2015
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
O/COMA/55/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 55 of 2015
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ADANI PORTS AND SPECIAL ECONOMIC ZONE LIMITED....Applicant(s)
Versus
......Respondent(s)
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Appearance:
Mr. Mihir Joshi, Senior Advocate with Mr. Sandeep Singhi and Ms. Niti
Sheth for Singhi & Co., for the Applicant.
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 17/03/2015
ORAL ORDER
1. Heard Mr. Mihir Joshi, Senior Advocate, for the Applicant Company. In this Company Application, the Applicant Company, Adani Ports and Special Economic Zone Limited, has prayed for holding separate meetings of the Equity Shareholders and Preference Shareholders of the Applicant Company for the purpose of considering and, if thought fit, approving with or without modification(s), the Composite Scheme of Arrangement between Adani Enterprises Limited and Adani Ports and Special Economic Zone Limited and Adani Power Limited and Adani Transmission Limited and Adani Mining Private Limited and their respective shareholders and creditors ("Scheme") and for issuing appropriate directions incidental for holding of such meetings.
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2. The Applicant Company has also prayed for seeking approval of its public shareholders to the Scheme through voting by postal ballot and E-voting in compliance with the SEBI Circular No. CIR/CFD/DIL/5/2013 dated 4th February 2013 read with SEBI Circular No. CIR/CFD/DIL/8/2013 dated 21st May 2013.
3. The Applicant Company has also prayed for dispensing with the meetings of the Secured Creditors and Unsecured Creditors of the Applicant Company in light of the fact that the rights and interests of the Secured Creditors and Unsecured Creditors of the Applicant Company are not affected by the Scheme.
4. By the present Scheme there would be a reduction of the paid-up share capital of the Applicant Company which shall be effected as an integral part of the Scheme and to which the Applicant Company has prayed for dispensing with following a separate procedure for reduction of paid-up share capital. In the circumstances, the Applicant Company has also prayed that no separate meetings of the Creditors of the Applicant Company are required to be called for considering the aforesaid reduction.
5. Having gone through the application and the supporting affidavit of Ms, Dipti Shah dated 15.3.2015 and the Annexures therein referred to (Annexure E being a copy of the Scheme) and having heard Mr. Joshi, Senior Advocate for the Applicant Company, I pass the following order:
1. That a meeting of the Equity Shareholders of the Page 2 of 9 O/COMA/55/2015 ORDER Applicant Company shall be convened and held at J. B. Auditorium, AMA Complex, ATIRA, Dr. Vikram Sarabhai Marg, Ahmedabad-380 015 on Monday, the 20th day of April 2015 at 10.30 a.m. (1030 hours), or soon after the conclusion of the meeting of the Equity Shareholders of Adani Enterprises Limited (whichever is later), for the purpose of considering, and if thought fit, approving with or without modification(s), the Composite Scheme of Arrangement between Adani Enterprises Limited and Adani Ports and Special Economic Zone Limited and Adani Power Limited and Adani Transmission Limited and Adani Mining Private Limited and their respective shareholders and creditors ("Scheme").
2. That a meeting of the Preference Shareholders of the Applicant Company shall be convened and held at J. B. Auditorium, AMA Complex, ATIRA, Dr. Vikram Sarabhai Marg, Ahmedabad-380 015 on Monday, the 20th day of April 2015 at 12.30 p.m. (1230 hours), or soon after the conclusion of the meeting of the Equity Shareholders of Adani Power Limited (whichever is later), for the purpose of considering, and if thought fit, approving with or without modification(s), the Scheme.
3. That at least 21 clear days before the day appointed for the meetings to be held as aforesaid, an advertisement convening the said meetings indicating the day, the date, the place and time aforesaid and stating that copies of the said Scheme and of the statement required to be furnished pursuant to section 393 of the Companies Act, Page 3 of 9 O/COMA/55/2015 ORDER 1956 and Form of Proxy can be obtained free of charge at the Registered office of the Applicant Company or at the office of its Advocates, i.e. M/s. Singhi & Co., 7-8 Premchand House Annexe, Ashram Road, Old High Court Way, Ahmedabad-380 009, be inserted once in each of "Indian Express", Ahmedabad Edition and "Sandesh", Ahmedabad Edition. Publication of the advertisement in the Gujarat Government Gazette is dispensed with.
4. That, in addition, at least 21 clear days before the date of the meetings to be held as aforesaid, a notice convening the said meetings, indicating the day, the date, the place and time aforesaid, together with a copy of the said Scheme, a copy of the Statement required to be furnished pursuant to Section 393 of the Companies Act, 1956 and the prescribed Form of Proxy, shall be sent by ordinary post addressed to each of the Equity Shareholders and Preference Shareholders of the Applicant Company at their respective registered or last known addresses. The notice shall be sent to the Equity Shareholders and Preference Shareholders of the Applicant Company with reference to the list of the persons appearing on the record of the Applicant Company and its register as on 13.3.2015.
5. That the settling and/or approval of the advertisement, the form of Notice and the Statement to accompany the Notice by the Registrar of this Court is dispensed with.
6. That Mr. Sudipta Bhattacharya, the Whole-time Director of the Applicant Company, and in his absence Mr. Rajesh Page 4 of 9 O/COMA/55/2015 ORDER S. Adani, the Director of the Applicant Company and in his absence Dr. Malay Mahadevia, the Whole-time Director of the Applicant Company, shall be the Chairman of the aforesaid meetings to be held on Monday, the 20th day of April 2015 and in respect of any adjournment or adjournments thereof.
7. That the Chairman appointed for the aforesaid meetings do issue the advertisement and send out the notices of the meetings referred to above. The Chairmen are free to avail the services of the Applicant Company or any agency for carrying out the said direction. It is further directed that the Chairman of the meetings shall have all powers under the Articles of Association of the Applicant Company and under the Companies (Court) Rules, 1959 in relation to conduct of meetings including an amendment to the aforesaid Scheme or resolution, if any, proposed at the aforesaid meetings by any person(s) and to ascertain the decision of the aforesaid meetings on the poll.
8. That the quorum for the meeting of the Equity Shareholders shall be 30 (thirty) persons present in person. The quorum for the meeting of the Preference Shareholders shall be 1 (one) person present in person.
9. That voting by proxy be permitted, provided that the proxy in the prescribed form duly signed by the person entitled to attend and vote at the meetings, is filed with the Applicant Company at its registered office at Adani Page 5 of 9 O/COMA/55/2015 ORDER House, Near Mithakhali Six Roads, Navrangpura, Ahmedabad-380 009, Gujarat, not later than 48 hours before the respective meetings.
10. That the value of each Equity Shareholder and Preference Shareholder shall be in accordance with the books of the Applicant Company and where the entries in the books are disputed, the Chairman shall determine the value for purposes of the meetings and his decision in that behalf shall be final.
11. It is further ordered that the Chairman do report to this Court the result of the said meetings within 14 days of the conclusion of the meetings, and the said report shall be verified by his affidavit.
12. That, in view of paragraph 26 of the affidavit accompanying the Company Application, the Applicant Company is directed to seek the approval of the public shareholders of the Applicant Company to the proposed scheme through, voting by postal ballot and E-voting incompliance of the SEBI Circular bearing No.CIR/CFD/DIL/5/2013 dated 4th February, 2013 read with Circular No.CIR/CFD/DIL/8/2013 dated 21st May, 2013.
13. That, the Applicant Company shall place the result of the postal ballot or E-voting before the Court, before or along Page 6 of 9 O/COMA/55/2015 ORDER with the Company Petition.
14. Mr. Joshi, Ld. Senior Advocate, submits that the meetings of the Secured Creditors and Unsecured Creditors of the Applicant Company is not required to be called for as there is no compromise or arrangement offered to any of the Secured Creditors and Unsecured Creditors and neither any liability of the Secured Creditors and the Unsecured Creditors under the Scheme is being reduced or extinguished. Mr. Joshi, Ld. Senior Advocate submitted that when the interest of the creditors is in no way affected by the Scheme, it is not obligatory to call a meeting of the creditors to obtain their views on the Scheme. Hearing the submissions of Mr. Joshi, I am of the view that the meetings of the Secured Creditors and Unsecured Creditors for considering the aforesaid Scheme is not required to be called for as the rights of the Secured Creditors and Unsecured Creditors of the Applicant Company are in no manner affected by the Scheme.
15. Mr. Joshi, Senior Counsel, has submitted that under the Scheme there would be reduction of paid-up share capital of the Applicant Company pursuant to cancellation of shares held by Adani Enterprises Limited in the Applicant Company which shall be effected as an integral part of the Scheme itself by way of a composite order from this Court. Mr. Joshi has further submitted that the Equity Shareholders of the Applicant Company are to consider the Scheme in the meeting which includes the said Page 7 of 9 O/COMA/55/2015 ORDER reduction. As the procedure under section 100 of the Companies Act, 1956 being para materia with the present proceedings, no separate procedure for reduction of share capital is required to be followed. Mr. Joshi has referred to Section 100 and 101 of the Companies Act, 1956 and submitted that reduction contemplated in the Scheme do not involve either diminution of liability in respect of unpaid share capital or payment to the Shareholders of paid-up share capital and do not in any manner affect the interest of Creditors and no meeting of Creditors is required.
16. Upon hearing the submissions of Mr. Joshi, I am of the view that the meeting of Creditors for considering the aforesaid Scheme which includes reduction is not required. I hold that no separate procedure is required to be followed for reduction of the paid-up share capital, as the same is part and parcel of the said Scheme.
6. This order may not be construed as either diluting anyonce liability or absolving any one concerned of its liability on account of passing of this order.
7. This Company Application is disposed off accordingly.
(S.R.BRAHMBHATT, J.)
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O/COMA/55/2015 ORDER
Vahid
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