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NCLAT Clears Ambiguity Over NCLT's Power To Dispense With The Meetings Of Shareholders & Creditors In A Scheme Of Arrangement/ Amalgamations
11 Sep 2019 08:13 pm
In a landmark Judgement, the National Company Law Appellate Tribunal (NCLAT) set aside the order of National Company Law Tribunal (NCLT), Chandigarh Bench, as being per incuriam. This was because it declined the dispensation of certain meetings of shareholders and creditors of Applicant Companies while holding that such dispensations are not permissible under the provisions of the Section 230-232 of the Companies Act, 2013.
Various benches of the NCLT gave contradictory judgments on the subject and created ambiguity. Few benches of the NCLT denied themselves the jurisdiction to dispense with such meetings, even when 100% written consents of members/ creditors were obtained in writing. Whereas few benches, while exercising their discretion, dispensed with such meetings in cases where no such written consents were obtained.
Dr. U. K. Chaudhary, Senior Advocate while arguing before the NCLT, Chandigarh Bench submitted that the meetings of shareholders and creditors are not required in the present case as the Transferor Companies are wholly owned subsidiaries of Transferee Company, and no shares would be issued or allotted as consideration pursuant to the Scheme. Accordingly, the rights of the members of Transferee Company are not affected, and the Scheme will not result in any dilution of the shareholding of public shareholders. It was further submitted that creditors are also not affected since the Scheme does not envisage any reduction in their claims and the Transferee Company shall have a highly positive net worth post sanction of the Scheme. Reliance was placed on various judgments of co-ordinate benches of NCLT including a full member bench judgment of NCLT and various judgments of High Court(s).
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