National Company Law Appellate Tribunal
Ankit Mittal vs Ankita Pratisthan Ltd. & Ors on 17 September, 2021
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
I. A. No. 2440 of 2020 in
Company Appeal (AT) No. 238 of 2018 (Disposed off matter)
IN THE MATTER OF:
Rama Investment Company Private Limited, ...Applicant
Dalmiapuram, Lalgudi, (On behalf of
Distt Tiruchhirappalli, Respondent Nos. 3,
Tamil Nadu - 621651 4, 5 and 6)
Versus
Ankit Mittal
S/o Shri Raj Kumar Mittal,
117, Lohiya Building,
Railway Road, Samalkha,
Panipat - 132101. Haryana. ...Respondent
AND IN THE MATTER OF:
(As arrayed in Appeal)
Ankit Mittal
S/o Shri Raj Kumar Mittal,
117, Lohiya Building,
Railway Road, Samalkha,
Panipat - 132101. Haryana. ...Appellant
Versus
Ankita Pratishthan Limited
Dalmiapuram, Lalgudi,
Distt Tiruchhirappalli,
Tamil Nadu - 621651. ...Respondent No. 1
Mayuka Investment Limited
Dalmiapuram, Lalgudi,
Distt Tiruchhirappalli,
Tamil Nadu - 621651. ...Respondent No. 2
Puneet Trading and Investment
Company Private Limited
Dalmiapuram, Lalgudi,
Distt Tiruchhirappalli,
Tamil Nadu - 621651. ...Respondent No. 3
Cont'd..../
2
Zipgead.Com Private Limited
Dalmiapuram, Lalgudi,
Distt Tiruchhirappalli,
Tamil Nadu - 621651 ...Respondent No. 4
Mahanadi Trading Private Limited
B-5 Tardeo Everest Premises
Cooperative Society Ltd.,
156, Tardeo Main Road,
Mumbai - 400 034. ...Respondent No. 5
Shreevallabh Textile Private Limited
B-5 Tardeo Everest Premises
Cooperative Society Ltd.,
156, Tardeo Main Road,
Mumbai - 400 034. ...Respondent No. 6
Keshav Power Limited
Dalmiapuram, Lalgudi,
Distt Tiruchhirappalli,
Tamil Nadu - 621651 ...Respondent No. 7
Shree Nirman Limited
Dalmiapuram, Lalgudi,
Distt Tiruchhirappalli,
Tamil Nadu - 621651 ...Respondent No. 8
Rama Investment Company Private Limited,
Dalmiapuram, Lalgudi,
Distt Tiruchhirappalli,
Tamil Nadu - 621651 ...Respondent No. 9
For Appellant: Mr. Kausik Chatterjee and Ms. Samridhi Solanki,
Advocates.
For Respondents: Mr. Mukul Rohatgi and Mr. Ramji Srinivasan, Sr.
Advocates with Mr. Mahesh Agarwal, Mr. Anshuman
Shrivastava, Mr. Rohan Talwar, Ms. Vanita Bhargava,
Mr. Ajay Bhargava, Ms. Wamika Trehan and Ms.
Maithli Mondra, Advocates for R-3, 4, 5, 6, & 9.
I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018
3
J U D G M E N T
[17.09.2021] A. I. S. Cheema, J.
This Application has been filed by the Original Respondent No. 9 of Company Appeal (AT) No. 238 of 2018 claiming to be representing Respondents No. 3, 4, 5 and 6 (as arrayed in the Appeal) against Respondent - 'Ankit Mittal' - the Original Appellant. The Application has been filed under Rule 11 of National Company Law Appellate Tribunal Rules, 2016 (for short NCLAT Rules) seeking modification/ clarification of the judgment and order dated 29th November, 2019, passed by this Appellate Tribunal (hereafter referred as 'concerned judgment').
2. We will refer to the parties as were arrayed in the Appeal and which is reflected in the cause title of this Application also.
3. The Application claims and it is argued that in the concerned judgment passed by this Tribunal in the Company Appeal, this Tribunal rejected the Scheme of Amalgamation and Arrangement which had been approved by NCLT Chennai vide order which was impugned in the Appeal having dated 12th April, 2018 (Annexure 'C' at page 89) in CP/159, 160, 161, 162, 163, 164 & 165/CAA/ 2017 (CA/95, 96, 97, 98, 99, 100 & 101/CAA/2017). The Learned NCLT Chennai had approved the Scheme of Amalgamation and Arrangement between Respondents as arrayed in the Appeal.
I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 4
4. It is stated that the Scheme of Amalgamation and Arrangement is at Annexure B (page 50). Seven petitions had been filed under Section 230 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. The petitions pertain to proposed Scheme of Amalgamation by virtue of which Companies, Respondent Nos. 1 to 6 as in the cause title, were proposed to be amalgamated with Respondent No. 9 - 'Rama Investment Company Private Limited'. Respondent No. 7 - 'Keshav Power Limited' and Respondent No. 8 - 'Shree Nirman Limited' as Demerged Company - 1 and Demerged Company - 2 were proposed to stand transferred to the Transferee Company Respondent No. 9 - 'Rama Investment Company Private Limited'.
5. The Application claims and it is argued that the Respondents No. 3 to 6 and Respondent No. 9 are Private Limited Companies. Respondent No. 3 and 4 fell within the jurisdiction of NCLT Chennai Bench. NCLT Chennai Bench approved scheme of their amalgamation with Respondent No. 9 by the impugned order dated 12th April, 2018. However, Respondent No. 5 and 6 had registered offices in Mumbai and NCLT Mumbai had been pleased allow their petition and approved the Scheme with respect to Respondent No 5 and 6 vide judgment and order dated 6th December, 2017 (Annexure D at page 108). The Application claims that the said judgment dated 6th December, 2017 of NCLT Mumbai was never challenged before this Tribunal. The Applicant then refers to the case which was put up before this Tribunal by the Appellant - 'Ankit Mittal' with regard to shares held by him in Respondent No. 1. Reference is also made to the I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 5 objections which were raised to the scheme by Intervenor Maya Devi, Ved Prakash and Prem Prakash and seven others who claimed to be having shareholding. The claims were made for shares held in Respondent No. 1 and Respondent No. 2. The Application has referred to steps which have been taken by the Companies before NCLT Mumbai and at NCLT Chennai and reference is made to the scheme. The applicant then claims that no objections had been made with regard to amalgamation of the Private Transferor Companies - Respondent No. 3 to 6 with Respondent No. 9, all of whom were Private Companies and that the scheme had been unanimously approved by their respective shareholders and Board of Directors of these Private Companies. It is claimed that these Respondent No. 3 to 6 Companies by their consent letters (Annexure-G Colly) duly consented to the scheme being reinstated, declared to be sanctioned, valid operational and effective qua their merger with Respondent No. 9 and have authorised Original Respondent No. 9 to file this application. The Application claims that no prejudice or impediment would be caused to any party if scheme is reinstated, declared to be sanctioned, valid and effective qua the merger of Respondent Nos. 3 to 6 with Respondent No. 9. The Application claims and it is argued that the scheme can work out satisfactorily and in accordance with law so far as merger of Respondent Nos. 3 to 6 with Respondent No. 9 is concerned. The Learned Senior Counsel for the Applicant submitted that this Tribunal can exercise its inherent powers under Rule 11 of NCLAT Rules, 2016 to clarify/ modify the judgment and order dated 29th November, 2019 to the effect I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 6 that the scheme shall not be rejected in so far as merger of Respondent Nos. 3 to 6 with Respondent No. 9 is concerned.
6. Original Appellant and Respondent to the Application - 'Ankit Mittal' has filed reply opposing the application and Applicant has filed rejoinder to the counter. We have heard the parties.
7. The Applicant has filed Written Submissions vide Diary No. 28870 to claim that it should be clarified that the scheme of merger of Private Companies was not subject matter of the Appeal and that concerned order of this Tribunal setting aside the impugned order of NCLT dated 12th April, 2018 will not apply to merger of these Private Companies with Respondent No. 9. It is argued that by the impugned order dated 12th April, 2018, NCLT Chennai has sanctioned the merger/demerger of Respondent Nos. 1 to 4 and 7 & 8 with Respondent No. 9 and that by another order dated 6th December, 2017 (Annexure D) NCLT Mumbai had sanctioned merger of Respondent No. 5 and 6 with Respondent No. 9. It is argued that the Original Appellant claimed to be representative of a shareholder in Respondent Nos. 1 and 2 Companies and had filed the Appeal only in respect of merger of Public Companies - Respondent Nos. 1 and 2 and only against the judgment passed by NCLT Chennai. The Applicant is thus claiming that this Tribunal has inadvertently set aside the merger/demerger of all companies, both private and public and it should be clarified that the concerned judgment of this Tribunal is confined only to the Public Companies and not to the Private Companies. The reasoning in support given by the Applicant is that the I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 7 Appellant - Ankit Mittal has no locus to challenge the merger of Private Companies. It is claimed that there was no challenge to the order passed by NCLT Mumbai Bench; that the Respondent No. 3 to 6 did not have any Secured Creditors and they are closely held by the Promoter Group with whom the Appellant has no concern and that those companies do not affect any public shareholding. It is claimed that the discussion of this Tribunal was limited to Respondent No. 1 and 2 Companies.
8. It is argued for Applicant that in judgment in the matter of 'Mahavir Weaves Pvt. Ltd.', (1194) SCC OnLine Guj 201, Hon'ble High Court of Gujarat sanctioned a scheme involving private companies which were closely held with shareholding limited to family members. The Central Government raised objections qua valuation of shares and swap ratios which were rejected by the High Court for the reason that the shareholders who belonged to two families had accorded their consent for amalgamation and it would be unnecessary to burden the companies with extra cost of valuation. The Learned Senior Counsel further submitted that in judgment in the matter of 'S. K. Gupta & Anr. vs. K. P. Jain & Anr.', (1979) 3 SCC 54, Hon'ble Supreme Court interpreted Section 392(1)(b) of the Companies Act, 1956, which is pari materia to Section 231(b) of the Companies Act, 2013. The argument is that the Hon'ble Supreme Court has found that the legislature has conferred wide powers on the Court to make such modifications as may be considered necessary for proper working of the scheme/arrangement. It is thus claimed that the NCLT has power to modify present scheme to implement the same with regard to Private Companies.
I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 8
9. The Respondent Nos. 3 to 6 for whom the Applicant has filed application are naturally supporting the Application.
10. Counsel for the Original Appellant - Ankit Mittal referred to the Reply filed and the Written Submissions to submit that this Tribunal in the concerned judgment rejected the scheme in its entirety. The powers under Rule 11 of NCLAT Rules are to exercise inherent powers and it cannot be equated with power to review. It is claimed that power to review is not an inherent power and in absence of specific provisions such power cannot be exercised. It is argued that the inherent power available is only to rectify clerical/ mathematical errors which are ex facie or apparent on record and requires no re-examination of facts or re-appreciation of evidence. Learned Counsel referred to the judgment passed by this Tribunal to submit that this Tribunal had rejected the whole scheme on basis that very foundation was compromised. It is argued that the Applicant is trying to claim that the scheme in part should be accepted as valid and in garb of such claim what the Applicant is trying to do is asking for re-examine de novo the scheme so as to segregate one part from another or try to do so. The judgment of this Tribunal was never challenged before the Hon'ble Supreme Court and the right has now became time barred and thus in the grab of modification/ clarification such reliefs as are being sought which cannot be granted. It is argued that after rejection of scheme as a whole opportunistically it cannot be bifurcated/subdivided to suit the present purpose of the Applicant. It is also argued that at the time of Appeal no such arguments were raised so as to bifurcate and approach the scheme one from the aspect of Public Company and I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 9 second from the aspect of Private Company. That consents obtained from the individual companies for a composite Scheme for Group of Companies cannot be held valid, if the Scheme is not going through as a composite one. The Counsel for the Respondent referred to paragraphs 11 to 13 of the Application filed by the Applicant to submit that in the said paragraphs of the Application the Applicant is trying to claim that as there was no stay to the impugned order of NCLT Chennai dated 12th April, 2018, before orders passed by this Tribunal the Respondents had done various statutory compliances and had already taken steps under the scheme and thus the clarification is being sought. The Counsel for Original Appellant submitted that difficulty in implementation of orders passed by this Tribunal cannot be a reason to not comply orders of this Tribunal which has rejected the scheme. It is claimed that the principles of sub judice will apply and when the Appeal was filed within limitation which is continuation of original proceeding, the orders passed in the Appeal would be binding. Steps taken pending Appeal are subject to outcome of Appeal.
11. The Respondent - Original Appellant, is claiming that the scheme was rejected in entirety on the ground of compromise with the very foundation thereof. The purported scheme was unreasoned, unfair and based on unprofessionally prepared Valuation Report. Impugned Orders of NCLT Chennai were not maintainable for non-consideration of objections of the Regional Director. It is argued that there cannot be partial reversal of the judgment of this Tribunal and there cannot be an order holding the scheme partially as illegal and partially enforceable when it is a composite scheme.
I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 10
12. We have heard parties. Section 230 of the Companies Act, 2013 deals with compromises or arrangements which are proposed between a company and its creditors or any class of them or between a company and its members or any class of them. The definition of 'Company' is given under Section 2(20) which specifies that 'company means a company incorporated under this Act or under any previous company law'. Section 232 deals with merger and amalgamation of companies. Under this Section an application is required to be made to the Tribunal under Section 230 for the sanctioning of a compromise or an arrangement proposed between a company and any such persons as are mentioned in that section. This section deals with as to what is required to be shown to the Tribunal when such sanctioning of compromise or arrangement is sought. The Learned Counsel for the Respondent is rightly arguing that this section does not make any distinction between scheme relating to compromise or arrangement with regard to Public Limited Companies or Private Limited Companies. The scheme of Amalgamation and Arrangement (Annexure B) shows all the nine respondents and their respective shareholders and creditors proposing scheme of amalgamation and arrangement between them. It is a composite scheme with no separate streams for unlisted Public Limited Companies and Private Limited Companies, in the merger/demerger. Rather Clause 21 of the scheme needs to be reproduced. The same reads as under:
"21. EFFECT OF NON-RECEIPT OF APPROVALS In the event of any of the said sanctions and approvals referred to in the preceding clause not I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 11 being obtained and /or the Scheme not being sanctioned by the NCLT or such other competent authority and / or the Order not being passed as aforesaid before March 31st, 2018 or within such further period or periods as may be mutually agreed upon between the Transferee Company, the Demerged Companies and the Transferor Companies, by their respective Board of Directors (and which the Board of Directors of the companies are hereby empowered and authorised to agree to and extend the Scheme from time to time without any limitation), this Scheme shall stand revoked, cancelled and be of no effect, save and except in respect of any act or deed done prior thereto as is contemplated hereunder or as to any rights and/ or liabilities which might have arisen or accrued pursuant thereto and which shall be governed and be preserved or worked out as is specifically provided in the Scheme or as may otherwise arise in law."
13. Thus, in the given contingency of scheme not getting sanctioned by the NCLT, the scheme as a whole was scheduled to stand as revoked, cancelled and be of no effect, save and except in respect of contingency stated. Apart from above the Appeal arsing from order of NCLT being continuation of the proceeding, when this Tribunal rejected the scheme, the same would be unenforceable as a whole.
I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 12
14. The present nine Respondents had also moved NCLT Mumbai as can be seen from Annexure-D (page 108) referring to the same scheme of arrangement between the nine entities and sought sanction of the scheme. The order of Learned NCLT Mumbai dated 6th December, 2017 dealt with Respondent Nos. 5 and 6 Companies and referred to the report of Regional Director dated 25th September, 2017. The relevant portion of Para 8 needs to be reproduced:
"8. The Regional Director has filed his Report dated 25th September, 2017 stating therein that save and except as stated in paragraph IV of the said Affidavit, it appears that the Scheme is not prejudicial to the interest of shareholders. In paragraph IV of the said Affidavit, the Regional Director has stated that:
a) The Registered office of the Transferor Company 1, Transferor Company 2, Transferor Company 3, Transferor Company 4, Demerged Company 1 and Demerged Company 2 and the Transferee Company are situated in the State of Tamil Nadu respectively i.e. outside of the jurisdiction of NCLT of this Tribunal and falls within the jurisdiction of NCLT of Chennai. Accordingly, similar approval be obtained by the abovesaid companies from Hon'ble NCLT at Chennai;"
I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 13
15. Thus, the Regional Director for Mumbai Division had pointed out that the approval of Chennai Bench would also be necessary. In this context, the Counsel for these Respondent Companies who were Petitioners before NCLT Mumbai made a statement which is recorded in Para 9 in judgment of NCLT Mumbai dated 6th December, 2017, which reads as under:
"9. In so far as observations made in paragraph IV (a) of the Report of Regional Director is concerned, the Counsel for the Petitioner Companies submit that the Scheme has been approved by the Chennai Bench of the NCLT on 7th November, 2017 and the order is yet to be pronounced."
16. Thus, a Statement was made before NCLT Mumbai that the scheme has already been approved by the Chennai Bench on 17th November, 2017. The fact remains that the NCLT Chennai approved the scheme only on 12th April, 2018 as can be seen from Annexure - C. It is because of such statement NCLT Mumbai appears to have accorded approval of the scheme for Respondent No. 5 and 6 and mentioned in Para 15 of the judgment as under:
"15. Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition No. 516 of 2017 filed by the Transferor Company 5 is made absolute in terms of prayer clause (a) of the Petition and Company Scheme Petition 517 of 2017 filed by the Transferor Company 6 is made absolute in terms of prayer clause (a) of the Petition."
I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 14
17. Thus, the arguments being raised by the Applicant that the orders of the NCLT Mumbai were not challenged are not good reasons for this Tribunal to take cognizance firstly because the orders were passed in view of a statement made which on record does not appear to be correct and secondly the scheme being composite unless it is approved by all concerned authorities it cannot be implemented or acted upon. It is for such reasons only all these Respondents including Respondent Nos. 5 and 6 also stood before NCLT Chennai for approval of the same scheme which was approved by the impugned order by NCLT Chennai, but came to be rejected in Appeal by this Tribunal.
18. The concerned order of this Tribunal sought to be modified/ clarified has dealt with the scheme as a whole which was proposed and which was challenged and after going into the various details and the objections raised by the Regional Director, the Appeal was allowed. The Appellant challenging the Scheme of Arrangement and Amalgamation claimed that the scheme was impermissibly promoter oriented, anti-minority, anti-public shareholders, illegal, unlawful, unjust and against the public policy. The Appellant claimed that the Scheme of Arrangement and Amalgamation inter se the Respondent Companies is illegal and bad in law. This Tribunal considered the grievances of the Appellant as well as Intervenors and inter alia this Tribunal referred to the Valuation Report and observed at page 27 of the judgment as follows:
"In view of the serious compromises in the process of the valuation of shares the creditability of the exchange ratio recommended could at best be termed as I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 15 guess work by the valuer. The scheme based on such a valuation report losses its creditability and will impact the entitlement of the shareholders of the transferor companies.
We have noted that the original scheme has not provided any payment to the shareholders whose shares are cancelled and the NCLT passed another order directing the transferee companies to consider to make payment to the shareholders whose shares were cancelled in terms of respective clauses of the scheme and on the intervention of the Tribunal, the Transferee companies accepted to make payment to the objector/shareholders at the book value as on 1.4.2016. If the principle of Book Value given by the Ld. Tribunal is accepted for the scheme, this will require re-working of the exchange share ratio for all the companies. This will amount to re-writing the scheme of amalgamation together again which will necessitate that the process of approval of amalgamation scheme be initiated de novo. In view of the serious consequences it would be unfair to approve the scheme the foundation of which is seriously compromised."
19. At page 28 of the concerned judgment this Tribunal noted the objections which were raised by the Regional Director and at page 29 of the concerned judgment recorded findings, which are as follows:
"The Regional Director further stated that the composite scheme of arrangement/ merger/ amalgamation filed with the applications have been examined in view of the I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 16 observations/objections raised in the affidavit regarding lack of clarity/lack of furnishing of crucial information/details on many aspects of the scheme which has been pointed out in para (9) and (11) (Page 704 to 711 of appeal) and prayed that the Bench may dispose of the matter on merits and pass such order/orders as deemed fit and proper."
20. It is clear that even the Regional Director looked at the scheme as a composite scheme of arrangement/ merger/ amalgamation filed with the applications and thus we do not find that the argument that the scheme should be segregated in the context of Private Limited vis-à-vis Public Limited Companies.
21. Section 11 of NCLAT Rules gives Inherent Powers to pass such orders as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Tribunal. What the Applicant, in effect, is seeking from this Tribunal is to reopen the whole Appeal and consider if the scheme can be partly enforced with regard to the Private Companies. This cannot be done relying on powers under Rule 11. Under Sub-section (2) of Section 420 of the Companies Act, 2013, this Tribunal can rectify any mistake apparent from the record and amend any order passed by it and shall make such amendment, if the mistake is brought to the notice by the parties. There is no mistake apparent on the face of the record.
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22. As regards reliance placed by the Learned Counsel for the Applicant on judgment in the matter of 'S. K. Gupta & Anr. vs. K. P. Jain & Anr.' (supra), the said judgment arose under Companies Act, 1956 where Section 392(1) was considered. The Learned Counsel for the Applicant has argued that Section 392(1)(b) of the old act is pari materia to Section 231(b) of the Companies Act, 2013. It may be appropriate to reproduce Section 231(1) of the Companies Act, 2013 and the same reads as under:
"231. Power of Tribunal to enforce compromise or arrangement. - (1) Where the Tribunal makes an order under section 230 sanctioning a compromise or an arrangement; and
(a) shall have power to supervise the implementation of the compromise or arrangement; and
(b) may, at the time of making such order or at any time thereafter, give such directions in regard to any matter or make such modifications in the compromise or arrangement as it may consider necessary for the proper implementation of the compromise or arrangement."
23. It is quite clear that the Section applies if order has been made under Section 230 sanctioning compromise or arrangement, modification can be done if it is necessary for proper working of the scheme. In the present matter even if NCLT had passed order under Section 230, said order was reversed by this Tribunal. When the scheme has been rejected, Section 231 cannot be relied upon to seek a modification. The Learned Counsel for the Appellant has rightly argued I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018 18 that the judgment does not apply to the facts of the present matter. In the matter of S. K. Gupta & Anr. vs. K. P. Jain & Anr.' (supra) the scheme of compromise/arrangement between IHI and its unsecured creditors was proposed by parties having controlling interest in DFM which had been sanctioned by the Companies Court and later application was filed to the Companies Court for modification and substitution of the Applicant in place of DFM. Thus, the judgment does not apply to the facts of present matter.
24. For the above reasons, we do not find there is any substance in the Application. The Application is rejected.
The Contempt Case record be now transferred to Chennai Bench and the same will be taken up before Chennai Bench, as arising from Judgment in matter which is now in jurisdiction of Chennai Bench.
[Justice A.I.S. Cheema] The Officiating Chairperson [V. P. Singh] Member (Technical) Archana I.A. No. 2440 of 2020 in Company Appeal (AT) No. 238 of 2018