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COMA/22020/2009 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No. 220 of 2009
=========================================================
IDEA
CELLULAR LIMITED - Applicant(s)
Versus
.
- Respondent(s)
=========================================================
Appearance
:
MR
MIHIR JOSHI, Ld. SENIOR ADVOCATE with SINGHI & CO
for Applicant(s) : 1,
None for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 12/05/2009
ORAL ORDER
1. Heard Senior Advocate,
Mr. Mihir Joshi, appearing for the Applicant Company.
2. In this Company
Application the Applicant has prayed for holding separate meetings of
the Equity Shareholders, Secured Creditors and Unsecured Creditors of
the Applicant Company for the purpose of considering and, if thought
fit, approving with or without modification, the arrangement embodied
in the Scheme of Arrangement between Idea Cellular Limited and
Vitesse Telecom Private Limited and their respective shareholders and
creditors and for issuing appropriate directions incidental for
holding of such meetings.
3. By the present Scheme
of Arrangement there would be reduction of Securities/Share Premium
Account. The said reduction is an integral part of the Scheme of
Arrangement and the Applicant Company has prayed for dispensing with
following a separate procedure for the said reduction.
4. Upon hearing Shri Mihir
Joshi, Ld. Senior Advocate and upon perusal of the Application and
supporting Affidavit dated 11-5-2009 filed by Shri Pankaj Kapdeo,
Company Secretary and the Annexures referred to therein (Annexure-E
being the copy of the Scheme of Arrangement), it is directed as
under:
5. A meeting of the Equity
Shareholders of the Applicant Company shall be convened and held at
Cambay Spa and Resort, Plot No. X-22/23 GIDC Electronic Estate,
Sector 25, Gandhinagar-382 044, Gujarat, India, on Monday, the 13th
day of July, 2009 at 10.00 a.m. (1000 hours) for the purpose of
considering, and if thought fit, approving with or without
modification, the arrangement embodied in the Scheme of Arrangement
between Idea Cellular Limited and Vitesse Telecom Private Limited and
their respective shareholders and creditors.
6. A meeting of the
Secured Creditors of the Applicant Company shall be convened and held
at Cambay Spa and Resort, Plot No. X-22/23 GIDC Electronic Estate,
Sector 25, Gandhinagar-382 044, Gujarat, India, on Tuesday, the 14th
day of July, 2009 at 10.00 a.m. (1000 hours), for the purpose of
considering, and if thought fit, approving with or without
modification, the arrangement embodied in the Scheme of Arrangement
between Idea Cellular Limited and Vitesse Telecom Private Limited and
their respective shareholders and creditors.
7. A meeting of the
Unsecured Creditors of the Applicant Company shall be convened and
held at Cambay Spa and Resort, Plot No. X-22/23 GIDC Electronic
Estate, Sector 25, Gandhinagar-382 044, Gujarat, India, on Tuesday,
the 14th day of July, 2009 at 2.30 p.m. (1430 hours) or
immediately after the conclusion of the meeting of the Secured
Creditors of the Applicant Company as directed by the Court by its
order dated 12.5.2009 passed in Company Application No. 221 of 2009
(whichever is later), for the purpose of considering, and if thought
fit, approving with or without modification, the arrangement embodied
in the Scheme of Arrangement between Idea Cellular Limited and
Vitesse Telecom Private Limited and their respective shareholders and
creditors.
8. At least 21 clear days
before the day appointed for the meetings to be held as aforesaid, an
advertisement convening the said meetings indicating the day, the
date, the place and time aforesaid and stating that copies of the
said Scheme of Arrangement, the 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 or at the office of its Advocates, i.e. M/s. Singhi
& Co., 7-8 Premchand House Annexe, Ashram Road, Old High Court
Way, Ahmedabad-380 009, be inserted once in Indian Express (all
editions in the State of Gujarat) and Gujarat Samachar (all editions
in the State of Gujarat). Publication of the advertisement in the
Gujarat Government Gazette is dispensed with.
9. In addition, at least
21 clear days before the date of the meetings to be held as
aforesaid, a notice convening the said meetings, indicating the day,
the date, the place and time aforesaid, together with a copy of the
said Scheme of Arrangement, a copy of the Statement required to be
furnished pursuant to Section 393 of the Companies Act, 1956 and the
prescribed Form of Proxy, shall be sent by prepaid letter post under
Certificate of Posting addressed to each of the Equity Shareholders,
Secured Creditors and Unsecured Creditors of the Applicant Company at
their respective registered or last known addresses. The Notice shall
be sent to the Equity Shareholders of the Applicant Company with
reference to the list of persons appearing on the record of the
Applicant Company and its register as on 5th June 2009.
The notice shall be sent to the Secured Creditors and Unsecured
Creditors of the Applicant Company with reference to the list of
persons appearing on the record of the Applicant Company as on 30th
May 2009.
10. The settling and/or
approval of the advertisement, the form of Notice and the Statement
to accompany the Notice by the Registrar of this Court is dispensed
with.
11. Mr. Sanjeev Aga,
Managing Director of the Applicant Company, in his absence Mr. Gian
Prakash Gupta, Director of the Applicant Company and in his absence,
Mr. Saurabh Misra, Director of the Applicant Company shall be the
Chairman of the aforesaid meetings to be held on Monday, the 13th
day of July, 2009 and on Tuesday, the 14th day of July
2009, respectively, and in respect of any adjournment or adjournments
thereof.
12. The Chairman appointed
for the aforesaid meetings do issue the advertisement and send out
the notices of the meetings referred to above. The Chairmen are free
to avail the services of the Applicant Company or their Officers or
servants or agents or any other agency for carrying out the said
direction. 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
aforesaid Scheme of Arrangement or resolutions, if any, proposed at
the aforesaid meetings by any person(s) and to ascertain the decision
of the aforesaid meetings on the poll.
13. The quorum for the
meeting of the Equity Shareholders shall be 5 persons present in
person. The quorum for the meeting of the Secured Creditors shall be
2 persons present in person and the quorum for the meeting of the
Unsecured Creditors shall be 5 persons present in person.
14. The voting by proxy be
permitted, provided that the proxy in the prescribed form duly signed
by the person entitled to attend and vote at the meetings, is filed
with the Applicant Company at its Registered Office at Suman Towers,
Plot No. 18, Sector No.11, Gandhinagar-382 011, Gujarat, India, not
later than 48 hours before the respective meetings.
15. The value of each
Equity Shareholders, Secured Creditors and Unsecured Creditors shall
be in accordance with the books of the Applicant Company and where
the entries in the books are disputed, the Chairman shall determine
the value for purposes of the meetings and his decision in that
behalf shall be final.
16. It is further directed
that the Chairman do report to this Court the result of the said
meetings within 14 days of the conclusion of the meetings, and the
said report shall be verified by his affidavit.
17. Mr. Joshi, Ld. Senior
Counsel, has submitted that there would be reduction of
Securities/Share Premium Account, which shall be effected as an
integral part of the Scheme itself. Mr. Joshi has further submitted
that the Equity Shareholders of the Applicant Company are to consider
the Scheme in the meeting which includes the said reduction. As the
procedure under section 101 read with section 78 of the Companies
Act, 1956 being parimateria with the present proceedings, no separate
procedure for reduction of Securities/Share Premium Account is
required to be followed. Mr. Joshi has referred to Section 100 and
101 of the Companies Act, 1956 and submitted that reduction
contemplated in the Scheme do not involve either diminution of
liability in respect of unpaid share capital or payment to the
Shareholders of paid-up share capital and do not in any manner affect
the interest of Creditors and no meeting of Creditors is required to
consider the said reduction. Mr. Mihir Joshi has relied upon the
order dated 31.1.2003 passed by this Court in Company Application No.
30 of 2003 and the order dated 29.7.2008 passed by this Court in
Company Application No. 426 of 2008 wherein this Court has dispensed
with the following a separate procedure for reduction of Capital.
18. Upon hearing the
submissions of Mr. Joshi and upon considering the orders cited by
him, I am of the view that the meeting of Creditors for considering
the aforesaid reduction is not required. I hold that no separate
procedure is required to be followed for reduction of
Securities/Share Premium Account, as the same is part and parcel of
the Scheme.
19. This Company
Application is disposed off accordingly.
(K. A. PUJ, J)
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