P.K. Saikia, Member - (1.) Heard Mr. P.K. Sharma, learned Advocate and Ms. P. Sabarwal, PCS representing the petitioner companies. Also heard Mr. K. Sanyal, Asstt. Director, Office of the Regional Director, N.E. Region, Ministry of Corporate Affairs, Shillong representing the Central Government.
(2.) This Petition has been filed by the petitioner companies for sanctioning the scheme of arrangement in the nature of Amalgamation of Manas Hydel Power Company Private Limited and Pahumara Hydel Power Company Private Limited (All Transferor Companies) with Agnipa Energo Private Limited (Transferee Company).
(3.) While dealing with the present petition, this Tribunal has to pass various orders at different points of time keeping in view the materials on record as well as various orders passed by Hon'ble Gauhati High Court in connected proceedings. In order to appreciate the prayers made in the present proceeding in proper perspective, I find it necessary to peruse, the order dated 09.03.2017 rendered in this proceeding. The relevant part of the same is reproduced below: "Heard Mr. P.K. Sharma, Learned Counsel for the petitioners assisted by Ms. Payal Sabarwal, Company Secretary. Perused the petition in Form No. CAA. 5 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 for confirmation of the Scheme of Amalgamation among the petitioner companies and their respective equity shareholders. It is submitted by the learned counsel for the petitioners that the petitioners had earlier filed before the Hon'ble Gauhati High Court an application under Section 391(1) & 393 of the Companies Act, 1956 in connection with their amalgamation, which was registered as Co. Application No. 07/2016 and the Hon'ble Gauhati High Court, vide order dated 08.09.2016, was pleased to dispose of the same, with a direction, amongst other, to hold meetings of the Equity Shareholders of each of the aforesaid 3 petitioner companies on 22.10.2016 at House No. 59, Nowjan Road, Uzanbazar, Guwahati - 781003, by giving notice to each of the equity shareholders of the companies and also by publishing advertisement, in two newspapers, convening the same, at least 21 (twenty one) clear days before the date of the said meetings. However, by the aforesaid order, the forms of notices were directed to be settled by the Assistant Registrar (Company) instead of Registrar (Judicial) and as such, another Interlocutory Application, being I.A.(C) 1502/2016 was filed with a prayer to substitute the word "Assistant Registrar (Company)" by the word "Registrar (Judicial)". The said I.A.(C) 1502/2016 was disposed of by the Hon'ble Gauhati High Court vide order dated 30.10.2016 with a direction to substitute the word "Assistant Registrar (Company)" with "Registrar (Judicial)" and by the same order, the date of meeting was also deferred to 05.11.2016. The order dated 08.09.2016 passed by the Hon'ble Gauhati High Court in Co. Application No. 07/2016 as well as the order dated 30.10.2016 passed by the Hon'ble Gauhati High Court in I.A.(C) 1502/2016 are respectively reproduced below for ready reference: "Order dated 08.09.2016 passed in Co. Application No. 07/2016 1. This is an application under Section 391(1) & 393 of the Companies Act, 1956 (hereinafter referred to as "the Companies Act") in connection with the amalgamation of two Transferor Companies, namely Manas Hydel Power Co. Pvt. Ltd. and Pahumara Hydel Power Co. Pvt. Ltd. with Agnipa Energo Private Limited. 2. Upon hearing Mr. Pranab K. Sharma, learned counsel for the applicants, the application is admitted. Let a meeting of the holders of Equity shares in Manas Hydel Power Co. Pvt. Ltd., being the Applicant No. 1 above named be convened and held at House No. 59, Nowjan Road, Uzanbazar, Gauhati - 781003 on Saturday, the 22nd day of October, 2016 at 11 A.M. for the purpose of considering, and if thought fit, approving with or without medication, the proposed, the proposed Scheme of Amalgamation of the Applicant No. 1 and Applicant No. 2 with the Applicant No. 3. 2. That a meeting of the holders of Equity shares in Pahumara Hydel Power Co. Pvt. Ltd., being the Applicant No. 2 above named be convened and held at House No. 59, Nowjan Road, Uzanbazar, Gauhati - 781003 on Saturday, the 22nd day of October, 2016 at 11.30 A.M. for the purpose of considering, and if thought fit, approving with or without medication, the proposed, the proposed Scheme of Amalgamation of the Applicant No. 2 and Applicant No. 1 with the Applicant No. 3. 4. That a meeting of the holders of Equity shares in Agnipa Energo Pvt. Ltd., being the Applicant No. 3 above named be convened and held at House No. 59, Nowjan Road, Uzanbazar, Gauhati - 781003 on Saturday, the 22nd day of October, 2016 at 11.30 A.M. for the purpose of considering, and if thought fit, approving with or without medication, the proposed, the proposed Scheme of Amalgamation of the Applicant No. 1 and Applicant No. 2 with the Applicant No. 3. 5. That at least 21 (twenty one) clear days before the date of he said meetings, an advertisement convening the same and stating that the copies of the said Scheme of Amalgamation and of the statement required to be furnished to Section 393 of the Companies Act, 1956 and a form of proxy can be obtained free of charge at the registered office of the company or at the office of their Advocate Mr. Pranab K. Sharma, House No. 59, Nowjan Road, Uzanbazar, Gauhati - 781003 be inserted once each in the Assam Tribune English newspaper and in the AmarAsom, an assamese newspaper. The publication in the Gauhati Gazette is dispensed with. 6. In addition, at least 21 (twenty days) clear days before the meetings to be held as aforesaid, a notice convening the said meeting at the place and times as aforesaid together with the copy of the said scheme, a copy of the statement required to be sent under section 393 of the Companies Act, and the prescribed form of Proxy by registered post or by hand through personal messenger addressed to the each of the holders of the said Equity shares of the Applicants at their respective or last known addresses. 7. The Advocate - on - record for the applicants do within 7 days (after obtaining the order) file in court the form of the notices and the statement to accompany the notice and the same shall be settled by the Assistant Registrar Company) of this Court. 8. Mr. Surajeet A. Sangma, Advocate and failing him Mr. Ayusman Acharya, Advocate shall be the Chairperson of the said meeting of the Equity Shareholders of the Applicant No. 1 to be held as aforesaid at a remuneration of Rs. 15,000/-. 9. Mr. Ayushman Acharya, Advocate and failing him Mr. Surajeet A. Sangma, Advocate shall be the Chairperson of the said meeting of the Equity Shareholders of the Applicant No. 2 to be held as aforesaid at a remuneration of Rs. 15,000/-. 10. Mr. Sarfaraz Nawaz Ali, Advocate and failing him Mr. Surajeet A. Sangma, Advocate shall be the Chairperson of the said meeting of the Equity Shareholders of the Applicant No. 3 to be held as aforesaid at a remuneration of Rs. 15,000/-. 11. Any of the Chairperson appointed for the said meetings or any person authorized by them do issue and sent out the notice of the meetings referred to above. 12. The quorum for the said meetings of the Equity shareholders of the Transferor Companies and Transferee Company shall be two persons each respectively present either personally or by proxy. 13. The voting by proxy be permitted, provided that a proxy in the prescribed form duly signed by the persons entitled to attend and vote at the respective meeting is filed with the respective applicant company at its registered office not later than forty eight hours before the respective meetings. Any one of the Chairpersons shall have the power to adjourn the meeting, if necessary. 14. The value of each member shall be in accordance with the books of the respective books of the concerned Applicant Companies and where entries in the books are disputed, the Chairperson concerned shall determine the value for the purpose of the meeting. 15. The Chairpersons do report to this Court the results of the said meetings within four weeks from the date of the conclusion of the respective meetings and their respective report shall be verified by their respective affidavits." 16. The Chairpersons and all parties concerned do act on a copy of the minutes of this order duly signed by an officer of this Court being served on them, on usual undertakings. 17. The application is disposed off with the above order. Order dated 30.10.2016 passed in I.A.(C) 1502/2016 "Heard Mr. Pranab Kamal Sharma, learned counsel for the petitioner. By filing this application under Section 152 of the Code of Civil Procedure, petitioners pray for correction typographical error in the order dated 08.09.2016. In paragraph-7 of the order the word 'Registrar (Judicial) 'was wrongly typed as 'Assistant Registrar (Company). By that order, it was directed that the meeting would be held on 22.10.2016. But this application although filed on 23.09.2016 was not listed earlier. In that view of the matter, it is also necessary to defer the date of the meeting to 05.11.2016. Having gone through the averments made in the application, the Court finds force in the submission made by Mr. P.K. Sharma. Accordingly, the application stands allowed. The word 'Assistant Registrar (Company) occurring in paragraph-7 of the order dated 08.09.2016 in Co. Application No. 07 of 2016 shall be read as 'Registrar (Judicial)' and the date of the meeting mentioned therein as 22.09.2016 shall stand replaced by 05.11.2016. This order shall be considered to be a part of the order dated 08.09.2016. The interlocutory application stands allowed." "It is submitted by Mr. P.K. Sharma, Learned Counsel for the petitioners assisted by Ms. Payal Sabarwal, Company Secretary that notice of the said meetings were served and advertised and the meetings of the Equity Shareholders of the concerned Companies were duly convened and held in accordance with the aforesaid orders of the Hon'ble Gauhati High Court and after duly complying with the Hon'ble Gauhati High Court's Order(s), the petitioners companies filed appropriate Company petition before the Hon'ble Gauhati High Court, alongwith the reports of the Chairpersons, in order to obtain sanction for amalgamation, such company petition, which was filed vide Co. Pet. Sl. No. 287588 dated 08.12.2016, was subsequently numbered as Co. Pet. Sl. No. 16/2016. However, before the case could be listed for hearing before the Hon'ble Gauhati High Court, the Ministry of Corporate Affairs issued Notification dated 7th December, 2016 vide No. F.S.R. 1119(E) (sic G.S.R. 1119(E) : MANU /DCAF/0145/2016), whereby it has been notified that "proceedings under the 1956 Act with High Courts on all cases other than winding-up as on 15th December, 2016 shall stand transferred to the Benches of the Tribunals exercising respective territorial jurisdiction." Accordingly, the Co. Pet. Sl. No. 16/2016 was returned by the registry of the Hon'ble Gauhati High Court as required under the notification dated 7th December, 2016. In this regard, a certificate issued by the Administrative Officer (Judl), Gauhati High Court is annexed with the petition (Annexure-10).";