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"6....The term control has been defined in Regulation 2(1)(c) of the takeover code to "include the right to appoint majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner." This definition is an inclusive one and not exhaustive and it has two distinct and separate features: i) the right to appoint majority of directors or, ii) the ability to control the management or policy decisions by various means referred to in the definition. This control of management or policy decisions could be by virtue of shareholding or management rights or shareholders agreement or voting agreements or in any other manner. This definition appears to be similar to the one as given in Black's Law Dictionary (Eighth Edition) at page 353 where this term has been defined as under:

"Control - The direct or indirect power to direct the management and policies of a person or entity, whether through ownership of voting securities, by contract, or otherwise; the power or authority to manage, direct, or oversee."

Control, according to the definition, is a proactive and not a reactive power. It is a power by which an acquirer can command the target company to do what he wants it to do. Control really means creating or controlling a situation by taking the initiative. Power by which an acquirer can only prevent a company from doing what the latter wants to do is by itself not control. In that event, the acquirer is only reacting rather than taking the initiative. It is a positive power and not a negative power. In a board managed company, it is the board of directors that is in control. If an acquirer were to have power to appoint majority of directors, it is obvious that he would be in control of the company but that is not the only way to be in control. If an acquirer were to control the management or policy decisions of a company, he would be in control. This could happen by virtue of his shareholding or management rights or by reason of shareholders agreements or voting agreements or in any other manner. The test really is whether the acquirer is in t h e d riving seat. To extend the metaphor further, the question would be whether he controls the steering, accelerator, the gears and the brakes. If the answer to these questions is in the affirmative, then alone would he be in control of the company. In other words, the question to be asked in each case would be whether the acquirer is the driving force behind the company and whether he is the one providing motion to the organization. If yes, he is in control but not otherwise. In short control means effective control."

27. Needless to say here, that the definition of the term "control" in the IBC 2016 is the same/ identical as defined under Section 2(27) of the Companies Act, 2013 and Regulation 2(1)(c) of the SAST Regulations, 1997.

28. The respondent contended that the definition of "control" under the SAST Regulations is an inclusive definition. Its wide sweep will bring within its ambit direct as well as indirect matters through which control can be acquired and exercised in a target company. It was urged, that in order to assess whether control has been acquired, the actual control that the acquirer is able to exercise in the indirectly acquired company through intermediary company is to be considered. It was urged, that the expression "control" in Justice P.N. Bhagwati Committee Report, 1997 found it prudent to define the word in an inclusive and wide sense in order for it to cover a wide array of real life situation where control of a listed company has changed. It was urged, that the legislative intent was not to provide a straitjacket definition of control keeping in mind the dynamics of the securities market and, therefore, the definition of control was kept open ended and SEBI was granted a discretion to determine change of control on a case to case basis. In support of his submission, reliance was made in the decision of Ashwin K. Doshi vs. SEBI in Appeal No. 44 of 2001 decided on October 25, 2002 wherein it was held that the expression "control" is not of a narrow magnitude and that the Justice P. N. Bhagwati Committee itself knew about the limitation and that is why it wanted SEBI to draw its own conclusion through investigation if necessary. It was further held that a narrow interpretation of the concept of control would frustrate the object of the Act and the Regulations. It was thus urged, that the expression "control" not only includes positive but also negative control and that the term "control" should be construed accordingly. Reliance was also made of a decision of the Delhi High Court in Future Retail Limited vs. Amazon .Com Investment Holdings LLC & Ors. 2020 SCC Online Delhi 1636 wherein the Delhi High Court held in the context of certain negative rights prohibiting sale of assets of the listed company to certain specific entities holding that the conflation of the three agreements besides creating protective rights in favour of Amazon for its investment also transgressed to control over future Retail Ltd. ("FRL").

30. It was thus urged, that the order of this Tribunal in Shubhkam cannot be treated as a binding precedent and that the question on the interpretation of the expression "control" was left open qua the SAST Regulations.

31. The submission of the respondent in this regard is patently erroneous and cannot be accepted. The definition of "control" as defined in Regulation 2(1)(c) of the SAST Regulations, 1997 has been held to be an inclusive one and not exhaustive in Shubhkam which has been approved by the Supreme Court in Arcelormittal India Private Limited. The extent of the expression "control" as given in Shubhkam, namely, positive and not negative has been approved by the Supreme Court in Arcelormittal India Private Limited meaning positive control. In short, the Supreme Court has concluded that the expression "control" means effective control.