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COMA/301/2010 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No.301 of 2010
=====================================================
ESSAR
SHIPPING PORTS & LOGISTICS LTD-Applicant(s)
Versus
.
- Respondent(s)
=====================================================Appearance
:
MR SAURABH N SOPARKAR, SR. COUNSEL, with MRS SWATI SOPARKAR and
MS BHOOMI M THAKORE for Applicant : 1
None for Respondent(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 21/10/2010
ORAL
ORDER
Upon
the application of the abovenamed applicant company which is the
amalgamated company with respect to the proposed amalgamation of
Essar Ports & Terminals Limited and Essar International Limited
(the companies registered under the provisions of the Mauritius
Companies Act, 2001) and also the De-merged Company with respect to
the proposed de-merger and transfer of two Demerged Undertakings,
comprising the Shipping and Logistics Business and Oilfield Drilling
Business of the applicant company to Essar Shipping Limited, in the
proposed Composite Scheme of Arrangement, by summons dated 19th
October, 2010, filed under Sections 391 to 394 read with Sections 78
and Sections 100 to 104 of the Companies Act, 1956; upon hearing
Smt.Swati Soparkar, advocate for the application company and upon
reading of the affidavit dated 18th October 2010, filed
in support of the Judges’ Summons for directions and other relevant
annexures attached in support of the contents of the affidavit filed
by the deponent, (Exhibit ‘J’ being a copy of the proposed Composite
Scheme of Arrangement):
IT
IS ORDERED:
That
separate meetings of the Equity Shareholders, Secured Creditors
(including holders of non convertible debentures) and Unsecured
Creditors of the applicant company shall be convened and held at the
registered office of the applicant company at Administrative
Building, Essar Refinery Complex, Okha Highway (SH-25), Taluka
Khambalia, Jamnagar-361 305, in the State of Gujarat on Tuesday, the
30th day of November, 2010 respectively at 11:00 a.m.,
1.00 p.m. And 1.30 p.m., for the purpose of considering and if
thought fit, approving with or without modifications, the proposed
Composite Scheme of Arrangement amongst Essar Shipping Ports &
Logistics Limited, Essar Ports & Terminals Limited, Essar
International Limited and Essar Shipping Limited, as well as a
consequential reorganisation of capital of the applicant company, as
proposed between the applicant company and its shareholders and
creditors.
That
at least 21 clear days before the meetings to be held as aforesaid,
Notice convening the said meetings, indicating the day, the date,
the place and the time as aforesaid, together with a copy of the
Scheme of Arrangement, copy of the Explanatory Statement required to
be sent under Section 393 of the Companies Act, 1956 and the
prescribed Form of Proxy shall be sent by a pre-paid letter posted
under Certificate of Posting, addressed to each of the Equity
Shareholders, Secured Creditors (including holders of non
convertible debentures) and Unsecured Creditors of the Applicant
Company, at their last known address.
Vide
para 23 of the Affidavit filed in support of the Judges’ summons, it
has been submitted that the company has large number of small
unsecured creditors and the aggregate value of the debt of such
small creditors amount to a very small part of the total
outstanding. It has been further pointed out vide the tabular
statement, submitted today that there are 125 unsecured creditors
whose individual debt is less than Rs.5 lacs and the total value of
such debt amounts to apprx. 4.06% of the total value of the
outstanding debt of the applicant company as on 30th
September, 2010. Hence, in order to save the cost of service,
dispensation is sought from the service of individual notice to such
small creditors. Considering the submissions, the service of
individual notice to such small creditors having the individual
value of their debt being less than Rs.5 lacs is hereby dispensed
with. However, it is made clear that on publication of the notice in
the newspaper, such unsecured creditors are entitled to attend and
vote at the meeting.
That
at least 21 clear days before the meetings to be held as aforesaid,
Notice convening the said meetings indicating the day, the date, the
place and time as aforesaid be published, stating that copies of the
Scheme of Arrangement, the Explanatory Statement required to be
furnished pursuant to Section 393 of the Companies Act, 1956 and
Form of Proxy can be obtained free of charge at the Registered
Office of the Applicant Company and/or at its Advocate’s office i.e.
301, Shivalik-10, Opp. SBI Zonal Office, Nr. Old Excise Chowky, S.M
Road, Ambavadi, Ambavadi, Ahmedabad 380 015 once each in the Indian
Express, English daily (Ahmedabad edition), Sandesh, Gujarati daily
(Rajkot edition) and ‘Gujarat Mitra’ Gujarati daily (Surat edition).
Shri
S.V. Venkatesan, an Independent Director and failing him Shri Rajiv
Agarwal, CEO & Managing Director of the Applicant Company, and
failing him Shri A.R. Ramakrishnan, Wholetime Director of the
applicant company, shall be the Chairman of the aforesaid meetings
to be held on 30th November 2010 and in respect of any
adjournment or adjournments thereof.
That
the Chairman appointed for the aforesaid meetings do issue
advertisements and sent out notices of the said meetings referred to
above. It is further directed, that the Chairman of the meetings
shall have all powers under the Articles of Association of the
Applicant Company and under the Companies (Court) Rules, 1959 in
relation to conduct of meetings including an amendment to the Scheme
or resolution, if any, proposed at any of the meetings by any
person(s) and to ascertain the decision of the meeting on a poll.
That
the quorum for the meetings of Equity Shareholders shall be 5(Five)
members, present in person, whereas for the meeting of Secured
Creditors (including holders of non-convertible debentures), the
quorum shall be 2(Two) persons, present through authorized
representative or through proxy and for the meeting of Unsecured
Creditors shall be 5(Five) persons, present in person, through
authorized representative or proxy.
That
voting by proxy is permitted provided that the proxy in the
prescribed form and duly signed by the person entitled to attend and
vote at the aforesaid meetings, or by his authorised representative,
is filed with the Applicant Company at its registered office
Administrative Building, Essar Refinery Complex, Okha Highway
(SH-25), Taluka Khambalia, Jamnagar-361 305 Gujarat, not later than
48 hours before the said meeting.
That
the value of the vote of each Equity Shareholder of the Company
shall be as per the entries in the Registers of the company and that
of the creditor shall be as per the books of accounts of the company
and where the entries in the records or registers are disputed, the
Chairman of the meetings shall determine the value or number for the
purposes of the meeting and his decision in that behalf would be
final.
That
the Chairman do report to this Court, the result of the said meeting
within 14 days of the conclusion of the meeting and the said Report
shall be verified by his affidavit.
The
application is hereby disposed of.
Sd/-
[RAVI
R.TRIPATHI, J]
***
Bhavesh*
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