Gujarat High Court
Idea vs Respondent(S) on 11 August, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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COMA/22120/2009 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No. 221 of 2009
=========================================================
IDEA
CELLULAR LIMITED - Applicant(s)
Versus
.
- Respondent(s)
=========================================================
Appearance
:
MR
MIHIR JOSHI, Ld with SINGHI & CO for
Applicant(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 12/05/2009
ORAL ORDER
1. Heard Senior Advocate, Mr. Mihir Joshi, appearing for the Applicant Company.
2. In this Company Application the Applicant has prayed for holding separate meetings of the Equity Shareholders, Secured Creditors and Unsecured Creditors of the Applicant Company for the purpose of considering and, if thought fit, approving with or without modification, the arrangement embodied in the Scheme of Amalgamation of Spice Communications Limited with Idea Cellular Limited and for issuing appropriate directions incidental for holding of such meetings.
3. By the present Scheme of Amalgamation there would be reductions of Securities/Share Premium Account. The said reductions are an integral part of the Scheme of Amalgamation and the Applicant Company has prayed for dispensing with following a separate procedure for the said reductions.
4. Upon hearing Shri Mihir Joshi, Ld. Senior Advocate and upon perusal of the Application and supporting Affidavit dated 11-5-2009 filed by Shri Pankaj Kapdeo, Company Secretary and the Annexures referred to therein (Annexure-E being the copy of the Scheme of Amalgamation), it is directed as under:
5. A meeting of the Equity Shareholders of the Applicant Company shall be convened and held at Cambay Spa and Resort, Plot No. X-22/23 GIDC Electronic Estate, Sector 25, Gandhinagar-382 044, Gujarat, India, on Monday, the 13th day of July, 2009 at 12.00 noon (1200 hours) or immediately after the conclusion of the meeting of the Equity Shareholders of the Applicant Company as directed by the Court by its order dated 12.5.2009 passed in Company Application No. of 2009 (whichever is later) for the purpose of considering, and if thought fit, approving with or without modification, the arrangement embodied in the Scheme of Amalgamation of Spice Communications Limited with Idea Cellular Limited.
6. A meeting of the Secured Creditors of the Applicant Company shall be convened and held at Cambay Spa and Resort, Plot No. X-22/23 GIDC Electronic Estate, Sector 25, Gandhinagar-382 044, Gujarat, India, on Tuesday, the 14th day of July, 2009 at 11.30 a.m. (1130 hours) or immediately after the conclusion of the meeting of the Secured Creditors of the Applicant Company as directed by the Court by its order dated 12.5.2009 passed in Company Application No. 220 of 2009 (whichever is later), for the purpose of considering, and if thought fit, approving with or without modification, the arrangement embodied in the Scheme of Amalgamation of Spice Communications Limited with Idea Cellular Limited.
7. A meeting of the Unsecured Creditors of the Applicant Company shall be convened and held at Cambay Spa and Resort, Plot No. X-22/23 GIDC Electronic Estate, Sector 25, Gandhinagar-382 044, Gujarat, India, on Tuesday, the 14th day of July, 2009 at 4.00 p.m. (1600 hours) or immediately after the conclusion of the meeting of the Unsecured Creditors of the Applicant Company as directed by the Court by its order dated 12.5.2009 passed in Company Application No. 220 of 2009 (whichever is later), for the purpose of considering, and if thought fit, approving with or without modification, the arrangement embodied in the Scheme of Amalgamation of Spice Communications Limited with Idea Cellular Limited.
8. 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 of Amalgamation, the statement required to be furnished pursuant to section 393 of the Companies Act, 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 Indian Express (all editions in the State of Gujarat) and Gujarat Samachar (all editions in the State of Gujarat). Publication of the advertisement in the Gujarat Government Gazette is dispensed with.
9. 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 of Amalgamation, 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 prepaid letter post under Certificate of Posting addressed to each of the Equity Shareholders, Secured Creditors and Unsecured Creditors of the Applicant Company at their respective registered or last known addresses. The Notice shall be sent to the Equity Shareholders of the Applicant Company with reference to the list of persons appearing on the record of the Applicant Company and its register as on 5th June 2009. The notice shall be sent to the Secured Creditors and Unsecured Creditors of the Applicant Company with reference to the list of persons appearing on the record of the Applicant Company as on 30th May 2009.
10. 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.
11. Mr. Sanjeev Aga, Managing Director of the Applicant Company, in his absence Mr. Gian Prakash Gupta, Director of the Applicant Company and in his absence, Mr. Saurabh Misra, Director of the Applicant Company shall be the Chairman of the aforesaid meetings to be held on Monday, the 13th day of July, 2009 and on Tuesday, the 14th day of July 2009, respectively, and in respect of any adjournment or adjournments thereof.
12. 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 their Officers or servants or agents or any other 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 of Amalgamation or resolutions, if any, proposed at the aforesaid meetings by any person(s) and to ascertain the decision of the aforesaid meetings on the poll.
13. The quorum for the meeting of the Equity Shareholders shall be 5 persons present in person. The quorum for the meeting of the Secured Creditors shall be 2 persons present in person and the quorum for the meeting of the Unsecured Creditors shall be 5 persons present in person.
14. The 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 Suman Towers, Plot No. 18, Sector No.11, Gandhinagar-382 011, Gujarat, India, not later than 48 hours before the respective meetings.
15. The value of each Equity Shareholders, Secured Creditors and Unsecured Creditors 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.
16. It is further directed 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.
17. Mr. Joshi, Ld. Senior Counsel, has submitted that there would be reductions of Securities/Share Premium Account, which shall be effected as an integral part of the Scheme itself. 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 reductions. As the procedure under section 101 read with section 78 of the Companies Act, 1956 being parimateria with the present proceedings, no separate procedure for reductions of Securities/Share Premium Account are required to be followed. Mr. Joshi has referred to Section 100 and 101 of the Companies Act, 1956 and submitted that reductions 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 to consider the said reductions. Mr. Mihir Joshi has relied upon the order dated 31.1.2003 passed by this Court in Company Application No. 30 of 2003 and the order dated 29.7.2008 passed by this Court in Company Application No. 426 of 2008 wherein this Court has dispensed with the following a separate procedure for reductions of Capital.
18. Upon hearing the submissions of Mr. Joshi and upon considering the orders cited by him, I am of the view that the meeting of Creditors for considering the aforesaid reductions is not required. I hold that no separate procedure is required to be followed for reductions of Securities/Share Premium Account, as the same is part and parcel of the Scheme.
19. This Company Application is disposed off accordingly.
(K. A. PUJ, J) kks Top