Gujarat High Court
Elitecore vs Respondent(S)
Author: K.M.Thaker
Bench: K.M.Thaker
COMP/22/2012 8/ 8 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY PETITION No. 22 of 2012 In COMPANY APPLICATION No. 533 of 2011 With CIVIL APPLICATION No. 61 of 2012 In COMPANY PETITION No. 22 of 2012 ========================================================= ELITECORE TECHNOLOGIES PRIVATE LIMITED - Petitioner(s) Versus . - Respondent(s) ========================================================= Appearance : M/S THAKKAR ASSOC. for Petitioner(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 22/02/2012 ORAL ORDER
1. Heard learned advocate Mr. Pahwa appearing for the applicant.
2. The applicant has taken out present application seeking below mentioned relief/direction:
"11(B). YOUR LORDSHIPS may be pleased to accept the documents produced along with the present application on record and be further pleased to accept filing of the said documents in compliance with para 6 of the order dated 24.01.2012 made by this Hon'ble Court in Company Petition No.22 of 2012."
3. It is necessary to mention that before taking out present application the applicant company had taken out a note dated 01/02/2012 in nature of speaking to minutes. The said note/speaking to minutes was circulated by the registry under the office note dated 06/02/2012. In the said speaking to minutes, the applicant submitted, inter alia, that:
"1. The petitioner begs to submit this Note for Speaking to Minutes with regard to the order dated 24.01.2012 made by this Hon'ble Court in Company Petition No.22/2012. The petitioner begs to annex a copy of the oral order dated 24.01.2012 made by this Hon'ble Court in Company Petition No.22/2012 at ANNEXURE-'A'.
2. The petitioner submits that in the meetings of the shareholders and the unsecured creditors held on 2.1.2012, no poll was demanded as per Sec. 179 of the Act. The resolutions were put to vote and on show of hands, all the shareholders and unsecured creditors present at their respective meetings approved the resolution unanimously. The petitioner begs to annex a copy each of the minutes of the meeting of the unsecured creditors which is signed by the Chairman of the meetings together with the attendance sheet at Annexure 'B' Colly.
3. The petitioner submits that in view of the above, there were no ballets used for casting the votes. Accordingly, the directions contained in para 6 of the order may please be omitted. Para 6 of the order read as under:
"The petitioner shall file, within ten days, the Ballot papers (of both meetings) being the votes cast by the unsecured creditors and shareholders and the petitioner shall also file the scrutinizer's report, with the registrar."."
4. At the time of hearing of the said note/speaking to minutes and upon consideration of the above mentioned averments, the chairman's report filed in Company Petition No.33 of 2012 was again taken into consideration. In the chairman's report dated 10/01/2012 which was filed in connection with the meetings of the unsecured creditors which was reportedly convened on 02/01/2012 at 01:00 p.m., the chairman in the said report observed, in para-2 to 7 that:
"2. The meeting of Unsecured Creditors was held on Monday, the 2nd day of January, 2012 at 1.00 PM at registered office at Silicon Towers, Off: C. G. Road, Ahmedabad 380006.
3. The said meeting was attended by ten Unsecured Creditors (including proxy holders) either personally or by proxy.
4. The meeting was convened at 1.00 PM for Unsecured creditors and since the quorum was present, I proceeded to conduct the meeting further.
5. The Scheme of Arrangement was read out and explained by me to the Unsecured creditors present at the meeting and the question submitted to the said meeting was whether the Unsecured Creditors of the said company approved the scheme of Arrangement submitted to the meeting with or without modification thereto.
6. The said meeting was unanimously of the opinion that the said Scheme of Arrangement is to be approved and agreed to without any modification. All the Unsecured Creditors present at the meeting (attended either personally or through proxy) casted valid votes "in favour"
of the Scheme.
7. The under mentioned Unsecured creditors voted personally or through proxy holder in favour of the Scheme of Arrangement being adopted and carried in to effect:
The V M Factory Jay Pen Centre Nar Narayan Raj Graphics Vishwakarma Laser Tech Gautam Technologies AAM Associates K J Patel & Associates Avismit Maintenance Services Nipam R Shah & Co."
5. The said report was supported by chairman's affidavit. The chairman of the meetings had filed another report dated 10/01/2012 which was with reference to the meeting of the equity shareholders which was reportedly convened on 02/01/2012 at 12:30 p.m. In the said report also the chairman mentioned in para-2 to 7 that:
"2. The meeting of shareholders was held on Monday, the 2nd day of January, 2012 at 12.30 PM at registered office at Silicon Towers, Off: C.G.Road, Ahmedabad 380006.
3. The said meeting was attended by ten members either personally or by proxy. The shareholders/proxy holders of the company entitled together to vote totaling 2,41,24,828 equity Shares (Two Crores Forty One Lacs Twenty Four Thousand Eight Hundred Twenty Eight Shares).
4. The meeting was convened at 12.30 PM for shareholders and since the quorum was present, I proceeded to conduct the meeting further.
5. The Scheme of Arrangement was read out and explained by me to the Shareholders present at the meeting and the question submitted to the said meeting was whether the shareholders of the said company approved the scheme of Arrangement submitted to the meeting with or without modification thereto.
6. The said meeting was unanimously of the opinion that the said Scheme of Arrangement is to be approved and agreed to without any modification. All the shareholders present at the meeting (attended either personally or through proxy) casted valid votes having total voting of 95.76% of total capital/voting, holding 2,41,24,828 equity shares (Two Crore Forty One Lakhs Twenty Four Thousand Eight Hundred and Twenty Eight Equity Shares) of the Company (100% in value of those attending and casting valid votes) voted "in favour" of the Scheme.
7. The under mentioned Shareholders voted personally or through proxy holder in favour of the Scheme of Arrangement being adopted and carried in to effect:
Sr. No. Name of Shareholder Number of Shares Number of Votes 1 Nikhil Jain 257643 257643 2 Rakesh Mistry 82859 82859 3 First Carlyle Ventures Mauritius present through Representative Mr. Nikhil Mohta 21799563 21799563 4 Nipam Shah 373621 373621 5 Nikhil Mohta 4359 4359 6 Hemal Patel through proxy Rakesh Mistry 1506347 1506347 7 Hina Patel through proxy Ashish Karanji 89186 89186 8 Ashish Karanji 5000 5000 9 Nirav Thakkar 5000 5000 10 Ashish Oza 1250 1250 24124828 24124828"
6. At the time of hearing of the above mentioned speaking to minutes, it was pointed by the learned advocate that the details mentioned in the speaking to minutes are not mentioned and are not to be found in the chairman's report and that both are at variance and contain different details.
7. Learned advocate for the applicant, upon being confronted with the aforesaid aspects requested for time to place appropriate material on record and subsequently the applicant has, now, come out with present application seeking above mentioned directions.
8. In present application dated 25/02/2012 which is registered as OJ Civil Application No.61 of 2012 the applicant company has inter alia stated in para-3 to 8 that:
"3. The applicant submits that in the meetings held on 02.01.2012, all the equity shareholders whether present in person or through proxy and the unsecured creditors as the case may be approved the scheme unanimously. The Chairman has already filed the reports supported by his affidavit.
4. The applicant submits that thereafter, this Hon'ble Court was pleased to admit the Company Petition No.22/2012 by order dated 24.01.2012. The applicant begs to annex a copy of the oral order dated 24.01.2012 made by this Hon'ble Court in Company Petition No.22/2012 at ANNEXURE 'A'.
5. The applicant submits that while admitting the petition, this Hon'ble Court was pleased to direct that the applicant should produce ballot papers of both the meetings before the Registrar. The applicant submits that the applicant thereafter filed a note for speaking to minutes which is pending.
6. The applicant submits that all the unsecured creditors and the equity shareholders who remained present either personally or through proxy gave letters to the Chairman at the time of respective meetings approving the scheme. In cases of proxies, the original equity shareholders issued letters on the date on which the appointed their proxies approving the scheme. The proxies in turn have issued letters on the date of the respective meetings to the Chairman of the meeting approving the scheme. The applicant begs to annex a copy of the letters received from the original equity shareholders and/or their proxies at ANNEXURE 'B' COLLY. The applicant also begs to produce letters received from the unsecured creditors at ANNEXURE 'C'. The applicant also begs to produce original attendance sheet for the meeting of the unsecured creditors and for the meetings of the equity shareholders at ANNEXURE 'D' COLLY.
7. The applicant submits that the Chairman of the meetings has also confirmed that all these equity shareholders and unsecured creditors either personally or through proxies have given the letters of approval to the Chairman of the meetings. The applicant begs to annex an affidavit of the Chairman of the meetings at ANNEXURE 'E'.
8. The applicant submits that in view of the above facts and circumstances, as all the equity shareholders and unsecured creditors either personally or through proxies have given letters of approval in support of the scheme of arrangement."
9. It can be noticed from the above mentioned details stated in the application that now the applicant company has come out with the case that actually during the meetings of unsecured creditors and the equity shareholders the representatives, president and the equity shareholders who attended the meetings had submitted their approval letters.
10. The said submission that the persons who attended the meetings, has either personally or through proxy had given consent letters is altogether different and contrary to the submission/case made in the speaking to minutes and in the reports filed by the chairman. Thus, as of now, there are three different cases put by the applicant company namely (1) as per the details mentioned in the chairman's report, (2) as per the details mentioned in speaking to minutes and (3) as per the details mentioned in present application.
11. All the three cases differ from one another and there are apparent contradictions.
12. Before proceeding further it is necessary to note that since the Court, after perusing the record of the Company Petition No.22 of 2012 and particularly the Chairman's report, considered it appropriate to verify the record of the meetings and passed specific directions in para-6 of the order dated 24/01/2012 which reads thus:
"The petitioner shall file, within ten days, the Ballot papers (of both meetings) being the votes cast by the unsecured creditors and shareholders and the petitioner shall also file the scrutinizer's report, with the registrar, with the registrar."
13. Since the applicant company was required to comply with the said directions contained in para-6 of the order, initially speaking to minutes was filed. Thereafter, present application has been taken out.
14. As mentioned above, present application/speaking to minutes and the report filed by the Chairman containing different cases as regards the attendance of the equity shareholders (either personally or through proxy) and the manner in which the meetings were held and the process of voting was undertaken.
15. Having regard to the above mentioned details and discrepancies and formalities it is considered appropriate and in the interest of justice to recall the order dated 24/01/2012 passed in Company Application No.22 of 2012.
16. I have considered the request and submissions made by learned advocate Mr.Pahwa for the petitioner. He, at one stage submitted that the applicant company does not join the issue on the point as to whether the meetings were not convened and whether any procedure were properly followed or not and company is ready to abide by the terms which may be passed by the Court. He, however, after taking into account the above mentioned aspects submitted that the company may be allowed to explore any other alternative as permissible in law, if available.
17. After considering the request and submissions made by learned advocate Mr. Pahwa for the applicant company, this court is still of the opinion and view that under the circumstances of the facts of the case and for ensuring proper compliance with the provisions and the Act and applicable rules, it is appropriate, necessary and in the interest of justice that the order dated 24/01/2012 be recalled. Hence, below mentioned order is passed:
18. The order dated 24/01/2012 is recalled. The said order shall stand cancelled. The office shall place the petition being Company Petition No.22 of 2012 for fresh admission hearing. At the time of fresh hearing of the company petition (when it is placed by the office in regular course), the request by the applicant company shall be taken into account.
19. In view of present order, OJ Civil Application No.61 of 2012 would not survive and any separate order is not required in the said civil application. Therefore, the said application is accordingly disposed of in terms of order passed in Company Petition No.22 of 2012. Similarly in view of present order passed in Company Petition No.22 of 2012, the note/speaking to minutes dated 01/02/2012 also does not survive and any separate order in respect of the request made vide said note is not required. Even otherwise in view of the fact that there was no error in the order dated 24/01/2012, the speaking to minutes would not be maintainable.
20. With the above directions, Civil Application No.61 of 2012 and speaking to minutes are disposed of.
21. Registry shall circulate Company Petition No.22 of 2012 for fresh admission hearing in regular course.
(K.M.THAKER, J.) (ila)