1. Under consideration is an Petition filed Under Sections 230-232 of the Companies Act, 2013, inter-alia seeking following reliefs:
(a) This Tribunal be pleased to sanction the Scheme being Annexure "I" to the Petition and declare the same to be binding on the Petitioner Company, its Equity Shareholders, Unsecured Creditors and all persons connected under the Scheme;
(b) This Hon'ble Tribunal be pleased to pass appropriate orders and directions under Section 230 read with Section 232 of the Companies Act, 2013, which may be necessary or relevant to the facts of the present petition;
(c) This Hon'ble Tribunal be pleased to dispense with the filing and issuance of drawn up orders as envisaged under Rule 17(3) and Rule 20 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and be further pleased to direct that the concerned authorities shall act on the copy of the order, passed by this Hon'ble Tribunal sanctioning the Scheme, along with the Scheme duly authenticated by the Registrar, National Company Law Tribunal, Hyderabad Bench; and
(d) This Hon'ble Tribunal be pleased to pass such further or other orders/orders and/or issue such directions as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present petition.
2. The object of this petition is to obtain sanction of this Tribunal to the Composite Scheme of Arrangement among Gangavaram Port Limited (hereinafter referred to as "Petitioner Company" or "GPL", as the context may admit) and Adani Ports and Special Economic Zone Limited (hereinafter referred to as "APSEZ") and Adani Gangavaram Port Private Limited (hereinafter referred to as "AGPPL") and their respective shareholders and creditors (hereinafter referred to as the "Scheme"). The Scheme, inter alia, provides for:
(a) amalgamation of GPL with APSEZ, with effect from the Appointed Date 1 (as defined in the Scheme), pursuant to the provisions of Sections 230 - 232 and/or other applicable provisions of the and in compliance with Section 2(IB) of the(as defined in the Scheme); and
(b) transfer of the Divestment Business Undertaking (as defined in the Scheme) as a going concern on a Slump Sale (as defined in the Scheme) basis, with effect from the Appointed Date 2, by APSEZ to AGPPL for a lump sum consideration under Sections 230 - 232 and/or other applicable provisions of the and in accordance with Section 2(42C) of the(as defined in the Scheme).
3. The Registered Offices of the Petitioner Company is situated in the State of Telangana and therefore, they are within the jurisdiction of this Tribunal.
4. GPL was incorporated on 27 September 2001 as Visual Infrastructure Projects Limited, a public limited company, with the Registrar of Companies, Andhra Pradesh, under the provisions of the Companies Act, 1956 and now deemed to be incorporated under the. Its name was changed to Gangavaram Port Limited on 25 March 2003. GPL is an unlisted public limited company. The Corporate Identification Number of GPL is U63032TG2001PLC037861. The Permanent Account Number of GPL is AABCV3417E. Gangavaram Port Services (India) Private Limited is the wholly owned subsidiary of GPL. As on 22 September 2021, APSEZ holds 41.89% of the paid-up share capital of GPL, pursuant to acquisition of equity shares of GPL from Windy Lakeside Investment Limited and Government of Andhra Pradesh.
5. The objects for which GPL has been established are set out in its Memorandum of Association. The main objects of GPL are as follows:
"III.
A.
1. To carry on in India or elsewhere either alone or jointly with one or more person, Government, local or other Bodies the business of designing, developing, building, maintaining and operating seaport terminals for bulk, break bulk, liquids, chemicals, gas, petroleum products and containerized cargo and works of all descriptions, including sea ports, wharves, docks, piers, railways, tramways, waterways, roads, bridges, construction of submarine pipeline, warehouses, ships vessels of every description, gas work, electric works, water works, drainage and sewerage works and buildings of every description.
"III
B.
37. To amalgamate with any other Company having objects altogether or in part similar to those of this Company."
There has been no change in the main object clause of GPL in the last five (5) years.
6. Presently, GPL is engaged in the business to develop, build, own, operate and maintain the Port (as defined in the Scheme), including but not limited to construction, provisions of facilities such as navigation channels, harbor basins, breakwaters, aids to navigation, docks, berths, storage (both covered and open), tank farms, internal roads, rails, conveyor system, cargo handling facilities and system, utilities such as water supply, power supply, bunkering facilities, sewage system, etc., communication facilities, ship repair facilities and all other engineering structural facilities etc. and its associated infrastructure facilities for the development of the Port.
7. The Authorised, Issued, Subscribed and Paid up Share Capital of GPL as on 30 April 2022 was as follows:
8. The rationale for the Scheme is as under:
(a) GPL is operating an all-weather, deep-water, multi-purpose port located at Gangavaram, Andhra Pradesh, under a 30 year (extendable for a period of another 20 years in 2 blocks of 10 years each) Build-Own-Operate-Transfer concession from GoAP (as defined in the Scheme).
(b) The Scheme will result in catering to a large hinterland forming part of Visakhapatnam and Gangavaram Ports in the State of Andhra Pradesh. The State of Andhra Pradesh is progressive, and growth focused with investor friendly policies. It has great potential of industrial development which in turn would require new ports and facilities. With this Scheme, APSEZ would be able to expand its presence in the State of Andhra Pradesh and contribute to the progress of the state's economy by upgrading and further developing the state's marine infrastructure through its wholly owned subsidiary company, viz. AGPPL.
(c) The Scheme will help in creating synergies and would benefit from the combined resources, experience and expertise in developing and operating ports in India. This would lead to reduction in logistic costs for the customers and trade as a whole as a part of the same APSEZ group. Additionally, development of Gangavaram port would also create value for APSEZ and its shareholders.
9. The Petitioner Companies had filed CA(CAA) No. 2/230/HDB/2022 before this Bench seeking dispensation of convening meetings of the Equity Shareholders, Secured and Unsecured Creditors of both the Petitioner Companies. The Tribunal vide its order dated 06.05.2022 dispensed with convening the meetings of the Equity Shareholders, Secured and Unsecured Creditors of the Petitioner Company.
10. The Petitioner Companies then filed the present Petition before this Tribunal seeking sanction of the Scheme with appointed date 1 as April 1, 2021 and appointed date 2 shall mean April 2, 2021. This Tribunal vide its order dated 13.05.2022 ordered notice of hearing of the Petition to be advertised in Daily Newspapers one in Telugu Daily Newspaper, Hyderabad Edition and another one in English Daily News Paper, Hyderabad Edition. Accordingly, the Petitioner Companies published notice of hearing of the Petition in English Newspaper i.e. Indian Express and Telugu Newspaper i.e. Sakshi on 01.06.2022. The notice of hearing of the Petition was served on the Regional Director (South East Region), Ministry of Corporate Affairs, Hyderabad, Registrar of Companies, Hyderabad, Official Liquidator and Income Tax Department by hand on 09.05.2022.
11. Heard the Counsels appearing for the Petitioner Companies, Regional Director and Official Liquidator.
12. The Official Liquidator vide his Report dated 08.06.2022 filed on 10.06.2022 while reiterating the averments made in the Petition made the observations in Para 22, and the Petitioner Companies filed their reply affidavit dated 18.06.2022 filed on 20.6.2022. The Official Liquidator has filed its Further Report dated 22.06.2022 filed on 22.06.2022 as detailed below:-
13. Official Liquidator has further submitted that this Tribunal may be pleased to decide the Petition on merits.
14. The Regional Director vide his Report dated 08.06.2022 filed on 10.06.2022 while reiterating the averments made in the Petition made the observations and the Petitioner Companies filed their reply affidavit dated 23.06.2022 filed on 23.06.2022 as detailed below:-
15. In view of the above reply the Petitioner Companies prayed this Tribunal to sanction the Scheme.
16. The Petitioner Company enclosed a certificate by Chartered Accountant certifying that the Accounting treatment proposed in the proposed Scheme is in conformity with Accounting Standard specified under Section 133 of the Companies Act, 2013.
17. Considering the facts and circumstances of the case and on perusal of the Scheme, the documents produced on record and the undertakings given by the Petitioner Companies by way of affidavits, the Scheme of Amalgamation appears to be fair and reasonable and is not contrary to public policy and not violative of any provisions of law. All the statutory compliances have been made under Sections 230 to 232 of the Companies Act, 2013. Hence ordered.
ORDER
18. The Petition be and the same is allowed with the following directions:-
a) The Scheme of Amalgamation Annexed to the Petition with appointed date as proposed in the scheme is hereby sanctioned. The same shall be binding on the Petitioners and their respective Shareholders, Secured Creditors, Unsecured Creditors/Trade Creditors, Employees and all concerned.
b) This order shall not be construed as an order granting exemption from payment of stamp duty or taxes or any other charges and fees if payable, or from any applicable permissions that may have to be obtained or compliances that may have to be made under law.
c) Petitioner company i.e., Gangavaram port is directed to furnish a certificate from the auditor stating that the scheme is in conformity with the accounting standards as per provisions of Companies Act, 2013.
d) All concerned shall act on a copy of this order along with the Scheme duly authenticated by the Registrar of this Tribunal. The Registrar of this Tribunal shall issue the certified copy of this order along with the Scheme forthwith.
e) The Petitioner Companies are directed to take appropriate steps to submit the said Scheme to Registrar of Companies within 30 days from the date of receipt of copy of this order.
f) The Petitioner Companies are directed to issue newspaper publication with respect to approval of Scheme of Amalgamation, in the same newspapers in which previous publications were issued.
g) The Petitioner Companies are further directed to take all consequential and statutory steps required in pursuance of the approved Scheme of Amalgamation under the provisions of the Companies Act, 2013 and submit necessary compliance and undertaking relating to the objections raised by the Regional Director (SER), MCA, GoI, Hyderabad.
h) Any person shall be at the liberty to approach to the Tribunal in the above matter, in case of any grievance or for any direction that may be necessary.
19. With the above directions, the CP(AA) Merger & Amalgamation/10/2022 is disposed of.
