Gujarat High Court
Adani Enterprises Limited vs Respondent(S) on 17 March, 2015
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
O/COMA/54/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 54 of 2015
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ADANI ENTERPRISES 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 Enterprises Limited, 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(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.
Page 1 of 8O/COMA/54/2015 ORDER
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. By the present Scheme there would be a reduction of the Securities Premium Account 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 the Securities Premium Account. 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.
4. Having gone through the application and the supporting affidavit of Mr. Parthiv Parikh dated 15.3.2015 and the Annexures therein referred to (Annexure K being a copy of the Scheme) and having heard Mr. Mihir Joshi, Senior Advocate for the Applicant Company, I pass the following order:
1. That a meeting of the Equity 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 9.30 a.m. (0930 hours), 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 Page 2 of 8 O/COMA/54/2015 ORDER 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 Secured Creditors 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 1.00 p.m. (1300 hours), or soon after the conclusion of the meeting of the Preference Shareholders of Adani Ports and Special Economic Zone Limited (whichever is later), for the purpose of considering, and if thought fit, approving with or without modification(s), the Scheme.
3. That a meeting of the Unsecured Creditors 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 2.00 p.m. (1400 hours), or soon after the conclusion of the meeting of the Secured Creditors of Adani Enterprises Limited (whichever is later), for the purpose of considering, and if thought fit, approving with or without modification(s), the arrangement embodied in the Scheme.
4. 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, Page 3 of 8 O/COMA/54/2015 ORDER 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, 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.
5. 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, Secured Creditors and the 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 the persons appearing on the record of the Applicant Company and its register as on 13.3.2015. The notice shall be sent to the Secured Creditors and the Unsecured Creditors of the Applicant Company with reference to the list of persons appearing on the record of the Applicant Company as on 12.3.2015.Page 4 of 8
O/COMA/54/2015 ORDER
6. 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.
7. That Mr. Ameet H. Desai, the Executive Director and Chief Financial Officer of the Applicant Company, and in his absence Mr. Rajesh S. Adani, the Managing Director of the Applicant Company and in his absence Mr. Vasant S. Adani, the 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.
8. 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.
9. That the quorum for the meeting of the Equity Shareholders shall be 30 (thirty) persons present in Page 5 of 8 O/COMA/54/2015 ORDER person. The quorum for the meeting of the Secured Creditors shall be 5 (five) persons present in person. The quorum for the meeting of the Unsecured Creditors shall be 5 (five) person present in person.
10. 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 House, Near Mithakhali Six Roads, Navrangpura, Ahmedabad-380 009, Gujarat, not later than 48 hours before the respective meetings.
11. That the value of each Equity Shareholder, 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.
12. 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.
13. That, in view of paragraph 39 of the affidavit accompanying the Company Application, the Applicant Company is directed to seek the approval of the public Page 6 of 8 O/COMA/54/2015 ORDER 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.
14. That, the Applicant Company shall place the result of the postal ballot or E-voting before the Court, before or along with the Company Petition.
15. Mr. Joshi, Senior Counsel, has submitted that there would be reduction of Securities Premium Account 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 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 Securities Premium Account 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. Mr. Joshi has relied upon the order dated 31.1.2003 passed by this Court in Company Application Page 7 of 8 O/COMA/54/2015 ORDER No. 30 of 2003 and the order dated 21.12.2012 passed by this Court in Company Application No. 375 of 2012 wherein this Court has dispensed with the following a separate procedure for reduction of Capital.
16. 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 Scheme which includes reduction is not required. I hold that no separate procedure is required to be followed for reduction of Securities Premium Account, as the same is part and parcel of the said Scheme.
5. 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.
6. This Company Application is disposed off accordingly.
(S.R.BRAHMBHATT, J.) Vahid Page 8 of 8