In re Archernar Brand Technologies Private Limited (NCLAT Delhi)
NCLAT Delhi held that post consent affidavit representing at least 90% of the value of the unsecured creditors, dispensation from convening meeting of unsecured creditors can be granted under section 230(9) of the Companies Act, 2013. Accordingly, the appeal is allowed.
Facts- The present Appeal has been preferred under Section 421 of the Companies Act, 2013, challenging the impugned order dated 10.06.2025 passed by the National Company Law Tribunal (Adjudicating Authority), Chandigarh Bench (Court-II). The said order was passed pursuant to an application filed by the Appellant Nos. 1 to 8 under Section 230 & 232 of the Code, in relation to the Composite Scheme of Arrangement between the Appellant Companies and their respective shareholders and creditors.
The Appellants have filed the present Appeal before this Appellate Tribunal on 22.07.2025, contending that the NCLT exceeded its jurisdiction by refusing to grant dispensation from convening meetings of unsecured creditors under Section 230(9), despite acknowledging that consent affidavits representing at least 90% in value of the unsecured creditors of each Transferor Company had been obtained.
Conclusion- The case of Reliance Industries was also related to merger between wholly owned subsidiary and the parent company and the net worth of the Transferee Company after the implementation of the scheme would far exceed the liabilities in such a case the requirement of holding meetings of shareholders, secured and unsecured creditors may be dispensed with. Vide the aforesaid Judgment this Tribunal even dispensed with the consent affidavits of 90% of the total value of shareholders, secured creditors and unsecured creditors. In the present case the holding company and its 7 subsidiary company are merging in the 8th subsidiary company. The case is similar to the Reliance Industries (supra) except that it’s a case reverse merger, where holding company is merging in subsidiary. The aforesaid ratio is squarely applicable in the present care also.
