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Judgment
Kishore Vemulapalli, Member (Judicial)
The Bench is convened by videoconference today.
The Learned Counsel for the Applicant Companies states that the present Scheme is Composite Scheme of Amalgamation and Arrangement Amongst Energair Windfarms Private Limited (“EWPL” or “Transferor Company 1”) and Primeair Windfarms Limited (“PWL” or “Transferor Company 2”) and Soverign Windfarms Private Limited (“SWPL” or “Transferor Company 3”) and Vespower Windfarm Private Limited (“VWPL” or “Transferor Company 4”) and Windeon Windfarms Private Limited (“WWPL” or “Transferor Company 5”) and Powerica Sales And Services Private Limited (“PSSPL” or “Transferor Company 6”) and Empower Gensets Private Limited (“Empower” or “Transferor Company 7”) and Everest Industrial Gases Private Limited (“EIGPL” or “Transferor Company 8”) with Powerica Limited (“Powerica” or “Transferee Company”) and their respective shareholders (“the Scheme”).
The Counsel for the Applicant Companies further submits that the Applicant Company 1 is engaged in the business of development and construction of wind power projects, wind park, wind power generation and all other allied activities relating to setting up and operation of wind parks or wind power projects. The Applicant Company 2 is engaged in the business of undertaking, layout, develop, construct, build, erect, demolish, re-erect, alter, repair, re-model or sale or deal in any manner, on behalf of its clients as well as on its own in connection with wind power projects, windfarms or wind parks or any infrastructure development related to wind power projects, windfarms or wind parks. The Applicant Company 3 is engaged in the business of organizing, undertaking, layout, develop, construct, build, erect, demolish, re-erect, alter, repair, re-model, wind projects in India on behalf of clients as well as on its own in connection with any infrastructure development. The Applicant Company 4 is engaged in the business of organizing, undertaking, layout, develop, construct, build, erect, demolish, re-erect, alter, repair, re-model on behalf of clients as well as on its own in connection with any infrastructure development. The Applicant Company 5 is engaged in the business of organizing, undertaking, layout, develop, construct, build, erect, demolish, re-erect, alter, repair, re-model, wind projects in India on behalf of clients as well as on its own in connection with any infrastructure development. The Applicant Company 6 was incorporated to carry on the business of dealing in electric power generating sets of all types, its spares, accessories, etc. and hiring of electric power generating set. Currently, Applicant Company 6 has no business operations. The Applicant Company 7 is engaged in the business of manufacturing, trading and other services related to diesel generating sets. The Applicant Company 8 was incorporated to carry on the business of manufacture, sell and carry on business of industrial gases. Currently, Applicant Company 8 has no business operations. The Applicant Company 9 is engaged in the business of manufacturing, trading and other services related to diesel generating sets and generation of electricity from Wind Turbine Generators.
The Counsel for the Applicant Companies further submits that the Rationale for the Composite Scheme of Amalgamation and Arrangement amongst the Applicant Companies is as follows:
a. EWPL, PWL, SWPL, VWPL, WWPL, PSSPL, Empower, EIGPL, and Powerica are part of the same group with similar set of shareholders. Management of all the companies believe that it is in the best interest of all the stakeholders to consolidate all the group companies with Powerica.
b. As a result of Amalgamation of EWPL, PWL, SWPL, VWPL, WWPL, PSSPL, Empower and EIGPL with Powerica the following benefits will accrue to the Group:
i. Consolidation of businesses of the Group;
ii. Reduction in number of companies and regulatory compliances thereof;
iii. Streamlining the holding structure;
iv. Ease of management;
v. Reduction of operating and administrative costs; and
vi. Leveraging on synergies on consolidation.
The Counsel for the Applicant Companies state that as per the valuation report dated 19th July 2021 issued by Aashay Hasmukh Dedhia, Registered Valuer, determining the share entitlement and share exchange ratio pursuant to the Composite Scheme of Amalgamation and Arrangement the consideration proposed is as under:
a. Upon this Scheme becoming effective and upon amalgamation of PSSPL with Powerica in terms of this Scheme, Powerica shall, without any application or deed, issue and allot its Redeemable Preference Shares as per terms mentioned in Schedule 1, credited as fully paid up, to the extent indicated below, to the shareholders of PSSPL (other than shares held by Powerica in PSSPL, if any) whose names appear in the register of members of PSSPL, on the Record Date or to such of their respective heirs, executors, administrators or other legal representatives or other successors in title as may be recognized by the Board of Directors of Powerica in the following proportion viz.:
“272 (Two Hundred Seventy-Two) 0.001% Non-Convertible, Non-Cumulative, Redeemable Preference Shares of Rs 10 each fully paid-up issued by Powerica Limited in exchange for every 10 (Ten) equity shares of Rs 10 each fully paid-up held by the shareholders in Powerica Sales and Services Private Limited”
b. Upon this Scheme becoming effective and upon amalgamation of Empower with Powerica in terms of this Scheme, Powerica shall, without any application or deed, issue and allot its RPS as per terms mentioned in Schedule 1, credited as fully paid up, to the extent indicated below, to the shareholders of Empower (other than shares held by Powerica in Empower, if any) whose names appear in the register of members of Empower, on the Record Date or to such of their respective heirs, executors, administrators or other legal representatives or other successors in title as may be recognized by the Board of Directors of Powerica in the following proportion viz.:
“1 (One) 0.001% Non-Convertible, Non-Cumulative, Redeemable Preference Share of Rs 10 each fully paid-up issued by Powerica Limited in exchange for every 1 (One) equity share of Rs 10 each fully paid-up held by the shareholders in Empower Gensets Private Limited”
c. Upon this Scheme becoming effective and upon amalgamation of EIGPL with Powerica in terms of this Scheme, Powerica shall, without any application or deed, issue and allot its RPS as per terms mentioned in Schedule 1, credited as fully paid up, to the extent indicated below, to the shareholders of EIGPL (other than shares held by Powerica in EIGPL, if any) whose names appear in the register of members of EIGPL, on the Record Date or to such of their respective heirs, executors, administrators or other legal representatives or other successors in title as may be recognized by the Board of Directors of Powerica in the following proportion viz.:
“495 (Four Hundred Ninety-Five) 0.001% Non-Convertible, Non-Cumulative, Redeemable Preference Shares of Rs 10 each fully paid-up issued by Powerica Limited in exchange for every 100 (One Hundred) equity shares of Rs 10 each fully paid-up held by the shareholders in Everest Industrial Gases Private Limited”
d. EWPL, PWL, SWPL, VWPL, WWPL are wholly owned subsidiaries of Transferee Company. Accordingly, upon the Scheme becoming effective, no consideration shall be payable by the Transferee Company and the shares of the respective wholly owned subsidiary held by Transferee Company will stand cancelled, without any further act, instrument or deed and, pursuant to merger.
The Authorized, Issued, Subscribed and Paid-up Share Capital of the Transferor Company No.1 as on 31st March 2021 is as under:
Particulars
Amount (in Rs.)
Authorized Share Capital
1,00,000 Equity Shares of Rs. 10/- each
10,00,000/-
Total
10,00,000/-
Issued, Subscribed and Paid-up
19,000 Equity Shares of Rs. 10/-
each
1,90,000/-
Total
1,90,000/-
The Authorized, Issued, Subscribed and Paid-up Share Capital of the Transferor Company No.2 as on 31st March 2021 is as under:
Particulars
Amount (in Rs.)
Authorized Share Capital
1,00,00,000 Equity Shares of
Rs.10/- each
10,00,00,000/-
Total
10,00,00,000/-
Issued, Subscribed and paid up;
22,00,000 Equity Shares of Rs.
10/- each
2,20,00,000/-
Total
2,20,00,000/-
The Authorized, Issued, Subscribed and Paid-up Share Capital of the Transferor Company No.3 as on 31st March 2021 is as under:
Particulars
Amount (in Rs.)
Authorized Share Capital
4,60,000 Equity Shares of Rs.10/- each
46,00,000/-
Total
46,00,000/-
Issued, Subscribed and paid up;
4,60,000 Equity Shares of
Rs.10/- each
46,00,000/-
Total
46,00,000/-
The Authorized, Issued, Subscribed and Paid-up Share Capital of the Transferor Company No.4 as on 31st March 2021 is as under:
Particulars
Amount (in Rs.)
Authorized Share Capital
2,00,000 Equity Shares of Rs.10/- each
20,00,000/-
Total
20,00,000/-
Issued, Subscribed and paid up;
2,00,000 Equity Shares of
Rs.10/- each
20,00,000/-
Total
20,00,000/-
The Authorized, Issued, Subscribed and Paid-up Share Capital of the Transferor Company No.5 as on 31st March 2021 is as under:
Particulars
Amount (in Rs.)
Authorized Share Capital
2,50,000 Equity Shares of Rs.10/- each
25,00,000/-
Total
25,00,000/-
Issued, Subscribed and paid up;
2,50,000 Equity Shares of
Rs.10/- each
25,00,000/-
Total
25,00,000/-
The Authorized, Issued, Subscribed and Paid-up Share Capital of the Transferor Company No.6 as on 31st March 2021 is as under:
Particulars
Amount (in Rs.)
Authorized Share Capital
5,00,000 Equity Shares of Rs.10/- each
50,00,000/-
Total
50,00,000/-
Issued, Subscribed and paid up;
3,64,334 Equity Shares of
Rs.10/- each
36,43,340/-
Total
36,43,340/-
The Authorized, Issued, Subscribed and Paid-up Share Capital of the Transferor Company No.7 as on 31st March 2021 is as under:
Particulars
Amount (in Rs.)
Authorized Share Capital
50,00,000 Equity Shares of Rs.10/- each
5,00,00,000/-
Total
5,00,00,000/-
Issued, Subscribed and paid up;
49,89,364 Equity Shares of
Rs.10/- each
4,98,93,640/-
Total
4,98,93,640/-
The Authorized, Issued, Subscribed and Paid-up Share Capital of the Transferor Company No.8 as on 31st March 2021 is as under:
Particulars
Amount (in Rs.)
Authorized Share Capital
35,00,000 Equity Shares of Rs.10/- each
3,50,00,000/-
Total
3,50,00,000/-
Issued, Subscribed and paid up;
3,22,00,000 Equity Shares of
Rs.10/- each
32,20,00,000/-
Total
32,20,00,000/-
The Authorized, Issued, Subscribed and Paid-up Share Capital of the Transferee Company No.9 as on 31st March 2021 is as under:
Particulars
Amount (in Rs.)
Authorized Share Capital
5,00,00,000 Equity Shares of
Rs.5/- each
25,00,00,000/-
Total
25,00,00,000/-
Issued, Subscribed and paid up;
3,44,89,151 Equity Shares of Rs.5/- each
17,24,45,755/-
Total
17,24,45,755/-
The Financial details/ summary of the First Applicant Company as on 31st March, 2021
Year
Revenue
Profit/(Loss)
2019 – 2020
Nil
(80,475)
2020 – 2021
Nil
(97,237)
The Financial details/ summary of the Second Applicant Company as on 31st March, 2021
Year
Revenue
Profit/Loss
2019 – 2020
75,25,569
11,24,050
2020 – 2021
71,70,000
5,69,130
The Financial details/ summary of the Third Applicant Company as on 31st March, 2021
Year
Revenue
Profit/Loss
2019 – 2020
40
(6,04,491)
2020 – 2021
00.00
(2,28,891)
The Financial details/ summary of the Fourth Applicant Company as on 31st March, 2021.
Year
Revenue
Profit/Loss
2019 – 2020
27,409
(356,488)
2020 – 2021
9,163
(12,75,296)
The Financial details/ summary of the Fifth Applicant Company as on 31st March, 2021
Year
Revenue
Profit/Loss
2019 – 2020
30,216
(3,27,468)
2020 – 2021
63,246
(1,43,882)
The Financial details/ summary of the Sixth Applicant Company as on 31st March, 2021.
Year
Revenue
Profit/Loss
2019 – 2020
50,82,434
31,80,588
2020 – 2021
6,91,630
(1,10,37,857)
The Financial details/ summary of the Seventh Applicant Company as on 31st March, 2021.
Year
Revenue
Profit/Loss
2019 – 2020
3,94,72,160
(82,86,356)
2020 – 2021
7,62,68,541
(21,98,329)
The Financial details/ summary of the Eighth Applicant Company as on 31st March, 2021.
Year
Revenue
Profit/Loss
2019 – 2020
20,72,000
16,54,290
2020 – 2021
10,77,561
6,70,193
The Financial details/ summary of the Ninth Applicant Company as on 31st March, 2021.
Year
Revenue
(in Million)
Profit/Loss
(in Million)
2019 – 2020
12,731.63
625.10
2020 – 2021
9,276.27
(149.62)
The Counsel for the Applicant Companies states that the Scheme has been approved by the Board of Directors of the Applicant Companies in their respective meetings held on 19th day of July, 2021.
The Counsel for the Applicant Companies states that the Appointed Date: -
a. In relation to amalgamation of Applicant Company 1, Applicant Company 2, Applicant Company 3, Applicant Company 4, Applicant Company 5 and Applicant Company 6 with Applicant Company 9 is the opening business hours of the 1st day of April, 2021.
b. In relation to amalgamation of Applicant Company 7 with Applicant Company 9 is opening business hours of the 2nd day of April, 2021.
c. In relation to amalgamation of Applicant Company 8 with Applicant Company 9 is opening business hours of the 1st day of August, 2021.
The Learned Counsel for the Applicant Companies submits that:
(i) In the First Applicant Company there are 2 (two) Equity Shareholders. The list of Equity Shareholders of the Applicant Company 1 is annexed as “Annexure F” to the Company Scheme Application. The consent affidavit of Equity Shareholders of the Applicant Company 1 is annexed as “Annexure F1 and F2” to the Company Scheme Application the meeting of the Equity Shareholders of the Applicant Company 1 is not required to be convened;
(ii) In the Second Applicant Company, there are 7 (seven) Equity Shareholders.The list of Equity Shareholders of the Applicant Company 2 is annexed as “Annexure G” to the Company Scheme Application. The consent affidavit of Equity Shareholders of the Applicant Company 2 is annexed as “Annexure G1 and G6” to the Company Scheme Application the meeting of the Equity Shareholders of the Applicant Company 2 is not required to be convened;
(iii) In the Third Applicant Company, there are 2 (two) Equity Shareholders.The list of Equity Shareholders of the Applicant Company 3 is annexed as “Annexure H” to the Company Scheme Application. The consent affidavit of Equity Shareholders of the Applicant Company 3 is annexed as “Annexure H1 and H2” to the Company Scheme Application the meeting of the Equity Shareholders of the Applicant Company 3 is not required to be convened;
(iv) In the Fourth Applicant Company, there are 2 (two) Equity Shareholders.The list of Equity Shareholders of the Applicant Company 4 is annexed as “Annexure I” to the Company Scheme Application. The consent affidavit of Equity Shareholders of the Applicant Company 4 is annexed as “Annexure I1 and I2” to the Company Scheme Application the meeting of the Equity Shareholders of the Applicant Company 4 is not required to be convened;
(v) In the Fifth Applicant Company, there are 2 (two) Equity Shareholders. The list of Equity Shareholders of the Applicant Company 5 is annexed as “Annexure J” to the Company Scheme Application. The consent affidavit of Equity Shareholders of the Applicant Company 5 is annexed as “Annexure J1 and J2” to the Company Scheme Application the meeting of the Equity Shareholders of the Applicant Company 5 is not required to be convened;
(vi) In the Sixth Applicant Company, there are 2 (two) Equity Shareholders. The list of Equity Shareholders of the Applicant Company 6 is annexed as “Annexure K” to the Company Scheme Application. The consent affidavit of Equity Shareholders of the Applicant Company 6 is annexed as “Annexure K1 and K2” to the Company Scheme Application the meeting of the Equity Shareholders of the Applicant Company 6 is not required to be convened;
(vii) In the Eighth Applicant Company, there are 2 (two) Equity Shareholders. The list of Equity Shareholders of the Applicant Company 8 is annexed as “Annexure M” to the Company Scheme Application. The consent affidavit of Equity Shareholders of the Applicant Company 8 is annexed as “Annexure M1 and M2” to the Company Scheme Application the meeting of the Equity Shareholders of the Applicant Company 8 is not required to be convened;
(viii) In the Ninth Applicant Company, there are 7 (two) Equity shareholders. The list of Equity Shareholders of the Applicant Company 9 is annexed as “Annexure N” to the Company Scheme Application. The consent affidavit of Equity Shareholders of the Applicant Company 9 is annexed as “Annexure N1 and N6” to the Company Scheme Application the meeting of the Equity Shareholders of the Applicant Company 9 is not required to be convened.
The Counsel for the Applicant Companies submits that there are 6 (Six) Equity Shareholders in the Applicant Company 7 and that the Applicant Company 7 has procured the consent affidavits, in writing agreeing to the Scheme from 4 out of 6 Equity Shareholders holding 99.80% of the issued, subscribed and paid-up Share Capital of the Applicant Company 7. The list of Equity Shareholders of the Applicant Company 7 is annexed as “Annexure L” to the Company Scheme Application. The consent affidavits of Equity Shareholders of the Applicant Company 7 are annexed as “Annexure L1 – L4” to the Company Scheme Application.
That the meeting of the Equity Shareholders of the Applicant Company 7 be convened and held through Video Conferencing on 11.10.2022 at 11.00 A.M. for the purpose of considering and, if thought fit, approving with or without modification(s) the proposed Scheme.
That the Applicant Company 7 to comply with the General Circular No. 10/2021 dated 23rd day of June, 2021 clarifying the passing of ordinary and special resolutions by companies under the Companies Act, 2013 read with rules made thereunder on account of COVID-19. The Applicant Company 7 to conduct the meeting of shareholders through Video Conferencing or Other Audio-Visual Means (VC/OAVM) and to report this Tribunal about the compliance of the same.
That at least one month before the said meetings of the Equity shareholders of the Applicant Company 7 to be held as aforesaid, a notice convening the said meeting of the Equity Shareholders indicating the day, date and time as aforesaid, together with a copy of the Scheme, a copy of statement disclosing all material facts as required under Section 230(3) of the Companies Act, 2013 read with Rule 6 of the Companies (Compromises, Arrangements and Amalgamations) Rule, 2016 shall be sent through email to each of the Equity Shareholder of the Applicant Company 7, at their email addresses as per the records of the Applicant Company 7, as on cut-off date determined by the Board of Directors of the Applicant Company 7.
That at least one month before the meeting of the Equity shareholders of the Applicant Company 7 to be held as aforesaid, a notice convening the said meeting, indicating the day, date and time of meeting as aforesaid be published and advertised in two local newspapers viz. “Business Standard” in English and translation thereof in “Navshakti” in Marathi, both circulated in Mumbai, Maharashtra. The Applicant Company 7 may publish notices online in the respective e-newspaper editions.
The Applicant Company 7 undertake to:
i. Issue Notice convening meeting of the Equity Shareholders of the Applicant Company 7 in Form No. CAA.2 as per Rule 6 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016;
ii. Issue Statement containing all the particulars as per Section 230(3) of the Companies Act, 2013; and
iii. Advertise the composite Notice convening meeting(s) in Form No. CAA.2 as per Rule 7 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.
That, Mr. Yashwant S Joshi failing whom Mr. Madhur Prabhu, directors of the Applicant Company 7 are hereby appointed as the Chairperson of the meeting of the Equity Shareholders of the Applicant Company 7 to be held as aforesaid or any adjournment or adjournments thereof.
The Scrutinizer for the aforesaid meeting shall be Kety P. Mistry, Practicing Company Secretary. The fee of the Scrutinizer is fixed at Rs. 25,000/- for the services rendered for the meeting of the Equity Shareholders of the Applicant Company 7.
The Chairperson appointed for the aforesaid meeting of the Equity Shareholders of the Applicant Company 7 to issue the advertisement and send out the notices of the meeting of the Equity Shareholders referred to above. The Chairperson of the meeting shall have all powers as per Articles of Association and also under the Companies Act, 2013 in relation to the conduct of the meeting, including the decision on the procedural questions that may arise at the aforesaid meeting or at any adjournment thereof or any other matter including any amendment to the Scheme or resolution, if any, proposed at the meeting by any person(s).The quorum for the aforesaid meeting of the Equity Shareholders of the Applicant Company 7 shall be as prescribed under Section 103 of the Companies Act, 2013, present either in person or by authorized representative, no proxies would be allowed as appointment of Proxy by members is not required as physical attendance of members in any case has been dispensed with as per General Circular No.14/2020 dated April 8, 2020 issued by the Ministry of Corporate Affairs. If the quorum is not present within half an hour from the time appointed for the holding of the meeting, the members present shall be the quorum and the meeting shall be held.
The voting by authorized representative in case of body corporate be permitted, provided that authorization duly signed by the Director of a body corporate entitled to attend and vote at the meeting, is filed with the Applicant Company 7 at its Registered Offices not later than 48 hours before the aforesaid meeting.
The value and number of the equity shares of each member of the Applicant Company 7 shall be in accordance with the books / register of the Applicant Company 7 and where the entries in the books / register are disputed, the Chairperson of the meeting shall determine the value for the purpose of the aforesaid meeting and his decision in that behalf would be final.
The Chairperson shall file a Compliance Report not less than (7) seven days before the date fixed for the holding of the meeting of the Equity Shareholders of the Applicant Company 7 and report to this Tribunal that the directions regarding the issue of notices and advertisements have been duly complied with as per Rule 12 of the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016.
The Chairperson shall report to this Tribunal, the results of the aforesaid meeting within the period of 30 (Thirty) days after the conclusion of the meeting of the Equity Shareholders of the Applicant Company 7.
The Counsel for the Applicant Companies submits that there are no Secured Creditors in the Applicant Company 1, 2, 3, 4, 5 and 8. Therefore, the question of convening and holding of the meeting of Secured Creditors of the aforesaid Applicant Companies does not arise. The certificate from the Chartered Accountant certifying the details of Secured Creditors of the Applicant Company 1, 2, 3, 4, 5 and 8 are annexed as “Annexure B1”, “Annexure B2”, “Annexure B3”, “Annexure B4”, “Annexure B5” and “Annexure B8” to the additional affidavit dated 20th August 2021, respectively.
The Counsel for the Applicant Companies submits that the Applicant Company 6 has 1 (one) Secured Creditor having an aggregate value of Rs. 75,00,00,000/-, the Applicant Company 7 has 1 (one) Secured Creditor having an aggregate value of Rs. 3,40,83,094.46/- and the Applicant Company 9 has 4 (Four) Secured Creditors having an aggregate value of Rs. 5,31,65,53,897.17/-. The Counsel for the Applicant Companies submits that the Applicant Companies 6, 7 and 9 have procured the consent from all the Secured Creditors annexed as “Annexure A1-A5” to Additional Affidavit dated 11th November 2021. In view of the Fact that all the Secured Creditors of Applicant Companies 6, 7 and 9 have given their consent affidavits, the meeting of the Secured Creditors of the Applicant Companies 6, 7 and 9 is not required to be convened.
The Counsel for the Applicant Companies submits that the Applicant Companies has filed an additional affidavit on 30th day of August, 2021 stating that as on 31st March, 2021 the Applicant Company 1 has 2 (Two) Unsecured Creditors having an aggregate value of Rs. 10,000/- (including provisions), the Applicant Company 2 has 7 (Seven) Unsecured Creditors having an aggregate value of Rs. 2,97,857/- (including provisions), the Applicant Company 3 has 6 (Six) Unsecured Creditors having an aggregate value of Rs. 7,14,902/-(including provisions), the Applicant Company 4 has 2 (Two) Unsecured Creditors having an aggregate value of Rs.25,750/- (including provisions), the Applicant Company 5 has 3 (Three) Unsecured Creditors having an aggregate value of Rs.30,375/- (including provisions), the Applicant Company 6 has 4 (Four) Unsecured Creditors having an aggregate value of Rs. 70,93,67,191/- (including provisions), the Applicant Company 7 has 58 (Fifty-Eight) Unsecured Creditors having an aggregate value of Rs. 6,93,25,787/- (including provisions), the Applicant Company 8 has 1 (One) Unsecured Creditor having an aggregate value of Rs. 30,000/- and the Applicant Company 9 has 2005 (Two thousand five) Unsecured Creditors having an aggregate value of Rs. 572,87,74,899/-. The certificate from the chartered accountant certifying the details of Unsecured Creditors of the Applicant Company 1, 2, 3, 4, 5, 6, 7, 8 and 9 are annexed as “Annexure B1”, “Annexure B2”, “Annexure B3”, “Annexure B4”, “Annexure B5”, “Annexure B6”, “Annexure B7”, “Annexure B8” and “Annexure B9” to the additional affidavit, respectively.
The Counsel for the Applicant Companies submits that the present Scheme is an arrangement between the Applicant Companies and its Shareholders as contemplated under Section 230(1) (b) and not in accordance with the provisions of Section 230 (1) (a) of the Companies Act 2013, as there is no compromise and/or arrangement with the creditors, as no sacrifice is called for. The rights of the creditors will not be affected as the assets of the Applicant Company 9 /Transferee Company post sanctioning the Scheme will be sufficient to pay off all the creditors in the ordinary course of business, the meeting of the Unsecured Creditors of the Applicant Companies is dispensed with. Further, this Bench hereby directs that:
a. The Applicant Company 1, 2, 3, 4, 5, 6, 7 and 8 to issue notice to their respective concerned Unsecured Creditors, with the direction that they may submit their representation, if any, to the Tribunal and copies of such representation shall simultaneously be served upon the respective Applicant Company, as the case may be. The notice to be sent by Registered -AD/ Speed Post & Hand Delivery and also by E-mails (whose mail -Ids are available with the Applicant Company.)
b. The Applicant Company 9 to issue notice to their Unsecured Creditors having a value of Rs.5,00,000/- and above, with the direction that they may submit their representation, if any, to the Tribunal and copies of such representation shall simultaneously be served upon the Applicant Company 9. The notice to be sent by Registered -AD/ Speed Post and also by E-mails (whose mail -Ids are available with the Applicant Company.)
The Applicant Companies shall submit Audited Financial Statement for Financial Year 2020-21 along with Audited/Unaudited Financial statement for the Financial Year 2021-22 at the time of submitting the Company Petition.
The Applicant Companies shall submit list of pending IBC cases, if any, along with all other litigation pending against the Applicant Companies having material impact on the proposed Scheme.
The Applicant Companies shall submit details of all Letters of Credit sanctioned and utilized as well as Margin Money details; if any.
The Counsel for the Applicant Companies states that there are no Corporate Guarantee, Bank Guarantee and Performance Guarantee as on 28th July 2022, in any of the Applicant Companies except for Applicant Company 2, 7 and 9 as mentioned herein below:
Corporate Guarantee
Particulars
Number
Amount (in Rs.)
Primeair Windfarms Limited (Applicant
Company 2)
1
2,42,25,000
Powerica Limited
(Applicant Company 9)
1
50,000,000
Bank Guarantee
Particulars
Number
Amount (in Rs.)
Empower Gensets
Private Limited (Applicant Company 7)
1
2,072,000
Powerica Limited
(Applicant Company 9)
213
2,632,396,684
Performance Guarantee
Particulars
Number
Amount (in Rs.)
Empower Gensets
Private Limited (Applicant Company 7)
5
87,83,068
Powerica Limited
(Applicant Company 9)
3
199,085,640
The respective Applicant Companies thus undertake to serve notices to the aforesaid by Registered -AD/ Speed Post & also by E-mail (whose mail-Ids are available with the Applicant Companies).
The Counsel for the Applicant Companies states that the Applicant Company 9 provides electricity to the following entities:
Sr.
No
Name of the Government
Bodies/DISCOMS/Agency
Address
1.
Gujarat Urja Vikas Nigam Limited (GUVNL)
Sardar Patel Vidyut Bhavan, Race Course, Vadodara 390 007.
2.
Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO)
MPQ7, J98, 3rd St, Tirunelveli, Tamil Nadu 627005 (Tirunelveli)
3.
Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO)
2F7J, PF2, Power House Rd, NRT Nagar, Theni Allinagaram, Tamil Nadu 625531 - (Theni)
4.
Solar Energy Corporation of India Limited (SECI)
6th Floor, Plate-B, NBCC Office Block Tower-2, East Kidwai Nagar, New Delhi- 110023 , India
5.
Indian Renewable Energy Development Agency Limited
(IREDA)
GS1 India - August Kranti Bhavan, 3rd Floor, Bhikaji Cama Place, Delhi 110066
The Applicant Company 9 thus undertakes to serve notices to the aforesaid by Registered -AD/ Speed Post & also by E-mail (whose mail-Ids are available with the Applicant Companies).
The Applicant Companies are directed to serve notices by Registered -AD/ Speed Post & Hand Delivery also by E-mail (whose mail-Ids are available with the Applicant Companies) along with copy of Scheme upon:
(i) Income Tax Authorities with in whose jurisdiction the said Applicant Companies assessments are made, details of Income Tax are as follows:
Applicant
Company
PAN Number
Address of
Authority
Income tax
Energair Windfarms Private
Limited
AAFCE5494E
WARD
MUMBAI
6(2)(1),
Primeair Windfarms Limited
AAECN8881F
WARD
MUMBAI
7(2)(3),
Soverign Windfarms Private
Limited
AAYCS7555H
WARD
MUMBAI
8(2)(3),
Vespower Windfarm Private
Limited
AAGCV0428C
WARD
MUMBAI
8(2)(3),
Windeon Windfarms Private
Limited
AAHCG0666N
CIRCLE
MUMBAI
7(1)(1),
Powerica Sales and Services
Private Limited
AAACP4047M
WARD
MUMBAI
3(2)(4),
Empower
Limited
Gensets
Private
AABCE6945J
PNE C522
Everest Industrial Gases
Private Limited
AAACE0926E
WARD
MUMBAI
3(1)(3),
Powerica Limited
AAACP3812E
LTU CIRCLE 1,
MUMBAI
(ii) Central Government through the office of Regional Director, Western region, Mumbai,
(iii) Registrar of Companies,
(iv) Ministry of Corporate Affairs;
(v) Office of the Principal Chief Commissioner (CGST & Central Excise), Mumbai Zone, under the Central Board of Indirect Taxes & Customs (CBIC) the details of GST are as follows:
Applicant Company
GSTIN
Jurisdiction
Energair Windfarms
Private Limited
N.A.
N.A.
Primeair Windfarms Limited
27AAECN8881F1Z2
State - Maharashtra Zone -
MUMBAI_NORT H_WEST
Division -
GHATKOPAR
Charge - SION- CHUNABHATTI_ 702
Soverign Windfarms Private Limited
24AAYCS7555H1ZM
State - Gujarat
Division - Division - 1
Range - Range - 3
Unit - Ghatak 9 (Ahmedabad)
Vespower Windfarm Private Limited
37AAGCV0428C2ZL
Commissionerate - TIRUPATI
Division -
ANANTAPUR
Range -
ANANTAPUR - 1 RANGE
Windeon Windfarms Private Limited
24AAHCG0666N1ZC
State - Gujarat Division - Division - 1
Range - Range - 3 Unit - Ghatak 9
(Ahmedabad)
Powerica Sales and Services Private Limited
27AAACP4047M1Z7
State - Maharashtra Zone -
MUMBAI_SOUTH
_EAST
Division -
NARIMAN POINT
Charge -
NARIMAN- POINT_701
Empower Gensets Private
Limited
27AABCE6945J1ZC
Commissionerate -
PUNE - II
Division -
DIVISION-VI HADAPSAR
Range - RANGE-II
Everest Industrial Gases
Private Limited
N.A.
N.A.
Powerica Limited
27AAACP3812E1ZT
Commissionerate - MUMBAI-SOUTH
Division -
DIVISION VIII Range - RANGE-IV
and to any other applicable Regulatory Authority with a direction that they may submit their representations, if any, if no response is received by the Tribunal from such authorities within 30 days of the date of receipt of the notice it will be presumed that they have no objection to the proposed Scheme as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.
The Applicant Companies to serve notice by Registered -AD/Speed Post and Hand Delivery upon the Official Liquidator, High Court, Bombay at Mumbai pursuant to Section 230(5) of the Companies Act, 2013. The Tribunal is appointing M/s M.A. SHAH & COMPANY Chartered Accountants, having their office at 101-B/101-C, Jolly Bhavan, New Marine Lines, Mumbai-400069 Email: - mayur@mashahca.com, to assist the Official Liquidator to scrutinize books of Accounts of the Applicant Companies for the last five years on a remuneration of Rs. 2,00,000/- If no response is received by the concerned Tribunal from Official Liquidator within 30 days it may be presumed that Official Liquidator, High Court, Bombay at Mumbai has no objection to the proposed Scheme as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.
The Applicant Companies shall host the notices directed herein, on their respective websites, if any.
The Applicant Companies to file an Affidavit of Service and Compliance Report within 10 working days after serving to notice to all the Regulatory Authorities as stated above and do report to this Tribunal that the directions regarding the issue of notices have been duly complied with.