Circular resolution

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soundarya (Querist)
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31 July 2018 Can a resolution giving consent to the Scheme of Amalgamation as a Shareholder / Creditor be passed by means of circular resolution?

CS Mitesh Mehta

CS Mitesh Mehta (Expert)
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01 August 2018 No. In notice of the meeting of creditors/members , the details pertaining to the date of the board meeting at which the scheme was approved by the board of directors including the name of the directors who voted in favour of the resolution, who voted against the resolution and who did not vote or participate on such resolution need to be mentioned.

soundarya

soundarya (Querist)
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01 August 2018 Thank you so much, sir.
Can a creditor/shareholder of a transferor /transferee company accord their consent for not convening the meeting for class of creditors / shareholders and for providing consent affidavit for the Scheme, by means of passing a circular resolution?

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CS Mitesh Mehta

CS Mitesh Mehta (Expert)
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02 August 2018 JVA Trading Private Limited(“Transferor Company”) and C&S Electric Limited (“Transferee Company”),jointly filed an application before the Tribunal under Section 230 to 232 of the Companies Act, 2013 (“Act, 2013”) read with Companies (Compromise, Arrangements and Amalgamation) Rules, 2016 (“CAA Rules”) in relation to the Scheme of Amalgamation proposed between them wherein it has been prayed to either grant dispensation from the Meeting or to issue necessary directions w.r.t the NCLT convened Meeting

The Hon’ble Bench held that Section 230(9) of the Act, 2013 and Rule 5 of the CAA Rules, 2016 provide that NCLT has the power to grant dispensation for the Meeting. Such power is limited to the Meeting of creditors or class of creditors where such creditors or class of creditors, having at least ninety percent value, agreed and confirmed, by way of an Affidavit, to the Scheme of compromise and arrangement. Further, there is no explicit power mentioned in the Act or Rules w.r.t granting of dispensation from the Meeting of members. Hence, the Bench cannot grant dispensation for the Meeting of members. On the said grounds, the Hon’ble Bench issued the directions in relation to calling, convening and holding of the Meeting of the equity shareholders, secured creditors and unsecured creditors of both the applicant companies-

As per practice, NCLT will not dispense with calling of a meeting of shareholders but may dispense with calling of a meeting of creditors or class of creditors where such creditors or class of creditors, having at least ninety per cent. in value, agree and confirm, by way of an affidavit, to the scheme of compromise and arrangement