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Mr. P. Chidambram, and Mr. Parag Tripathi, Senior counsel appeared for the transferor company through the hearing of the petition, on different dates. Mr. P. Chidambram submitted that the objection to the sanction of the scheme for reason of a fixed appointed date not having been provided is misconceived and devoid of merit, inasmuch as no law so mandates. It was submitted that the scheme in issue in its definition clause states that the appointed date means the effective date and this for the reason that the telecom business undertaking of the transferor company is to be transferred on an ongoing concern basis on the effective date which itself is subject to satisfaction of multiple regulatory approval in view of the nature of business. Only on satisfaction of such preconditions set out in clause 18 of the scheme which the telecom business is to stand transferred and vested with the transferee company. It was emphasised that there is nothing sacrosanct about a fixed appointed date or any legal necessity therefore for it to be spelt out definitively at a pre-condition for a valid scheme. An appointed date is only a date for identification of assets and liabilities that would be transferred and it can be any date--even an uncertain one in the future. The Sections 391 to 394 of the Act of 1956 which give to the company court is not limited except on the issue of statutory compliances, public interest and the justness, fairness and reasonable of the scheme as a corporate/ commercial document on the test of a prudent businessman. Mr. P. Chidambram submitted that the filing of annual accounts on 31-3-2015 by the transferor company with the first motion for convening the meeting of the equity shareholders and unsecured creditors of the Transferor Company has no corelation with the appointed date under the scheme.

Mr. Parag Tripathi appearing for the transferor company has submitted that the two companies agitating the objections hold a total of 0.01% equity shares of the Transferor Company, the objectors are completely misconceived and in fact an abuse of the process of this court. 99.88% of those present at the court convened meeting of equity shareholders with a value of 99.99% of the shareholding have approved the scheme. It was submitted that vide order dated 8-5-2006 in SB company petition No.23/2005 a scheme of arrangement inter alia between the transferor company and one Shyam Telecom company was sanctioned with a provision relating to the listing of the shares of the transferor company. The condition was not in mandatory form nor it could be as listing of shares is subject to regulatory provisions and fulfillment of preconditions set by SEBI. And despite the best efforts of the Transferor company it could not be done. In the circumstances, SB Company Application No.45/2012 in Company Petition No.23/2005 was filed seeking directions from the court with regard to providing an exit option as sought for the minority shareholders or taking requisite steps for listing of shares of the transferor company on the Stock Exchanges. The said application was dismissed vide order dated 9-1-2015 which in appeal was affirmed by the Division Bench of this Court in DB Special Appeal (civil) No.9/2015 vide order dated 7-8-2015. The entire dispute relating to the listing of shares of the transferor company and for otherwise giving an exit option to minority shareholders at the price of their choosing stood concluded and the same cannot be resuscitated in the present petition by a sleight of hand. It was submitted that the scheme in issue, for transfer of the telecom business of the transferor company having been approved by its equity shareholders by an overwhelming majority of over

Objections have also been filed by one Srinivasraghavan Seshadri an ex-employee of the transferor company through his Power of Attorney Debranjan Bhattacharya. Appearing on his behalf Mr. Gunjan Pathak asserted that the scheme in issue requires to be modified to record the interest of and provide for the debt of the applicant therein to an extent of Rs.1,84,65,459/- with interest @ 6% p.a. under the judgment and decree dated 10-2-2016 in Suit (No.44/2013 passed by Civil Judge (Junior Division) Gurgaon district court Haryana) for damages and recovery against the transferor company for the applicant's unlawful removal from service, Mr. Gunjan Pathak submitted that as a decree holder the applicant was a creditor of the transferor company within the meaning of Section 390(c) of the Act of 1956 yet the applicant's name was not included in the list of unsecured creditors and he was not served any notice of the meeting of unsecured creditor as directed by this court on 29-1-2016. The infraction, it was argued tantamounts to fraud not only on the applicant but also on this court. Mr. Parag Tripathi in reply has submitted that an appeal against the judgment and decree dated 10-2-2016 (No.174/2016) has been filed before the District Judge Gurgaon, Haryana. It was further submitted that SB Company Petition No.13/2016 was filed on the first motion by the Transferor company on 20-1-2016 and list of unsecured creditor as of 31-12-2015 annexed thereto, if time antecedent to the judgment and decree dated 10-2-2016. And in any event the applicant claiming to be an unsecured creditor could have attended the court convened meeting of the unsecured creditors pursuant to the court directed public notice dated 18-2- 2016. That was not done. Further even if the decreetal amount of Rs.1.84 crore is reckoned for, it is inconsequential in moving the needle even by a fraction for the purpose of ascertaining the price of the majority of unsecured creditors in the context of passing of the resolution by the attending unsecured creditors at the court convened meeting approving the scheme of arrangement by 99.618% in number and 99.952% in value of a unsecured debt of Rs.1425,8726884/-. It was further submitted that in any event the claim is disputed, and the applicant cannot seek adjudication of his claim in the present proceedings.

Replying to the objections aforesaid, Mr. Parag Tripathi, submitted that the application is wholly misconceived, based on a blatant and mischievous, reading of clause 8.1 of the scheme with the sole object of seeking to misuse the forum of this court to cause harassment to the transferor company and thereby arm twist it into satisfying the applicant objector in monetary terms through payment of amounts not at all legally due and recoverable. It was submitted that clause 8.1 of the scheme in respect of which mis declaration is alleged only adverts to legal proceedings with regard to "transferred undertaking" as defined in the scheme. The said clause does not provide for disclosure of any legal proceeding against the transferor company with reference to which the entire objection has been premised. Clause 8.1 of the scheme does not state in any manner or form that there are no legal proceedings pending against the transferor company. No false declaration with reference to clause 8 of the scheme has thus been made. It was submitted that the applicant/ objector has all of a Rs.25 lacs claim for damages in the alternative against the Transferor Company in its counter claim. And as the Transferor company continues in its corporate existence under the scheme with substantial business assets remaining with it even after the transfer of its telecom business, in the unlikely event of the applicant objector succeeding in its counter claim, the Transferor company would be in a position to satisfy the judgment and decree.