United Power Generation Vs. Shajahanullah Power Generation 2016 (2) LNJ 319

Case No: Company Matter No. 236 of 2015

Judge: Syed Refaat Ahmed,

Court: High Court Division,,

Advocate: Mr. Tanjib-ul-Alam,Mr. Mohammad Hasan Habib,Mr. Kazi Ershadul Alam,Mr. Md. Nasir Shikder,Ms. Farhana Khan,,

Citation: 2016 (2) LNJ 319

Case Year: 2016

Appellant: United Power Generation

Respondent: Shajahanullah Power Generation

Subject: Company Matter,

Delivery Date: 2016-03-02

United Power Generation Vs. Shajahanullah Power Generation 2016 (2) LNJ 319
HIGH COURT DIVISION
(STATUARY ORIGINAL JURISDICTION)
 
Syed Refaat Ahmed, J
Judgment on
02.03.2016
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United Power Generation and Distribution Company Limited, Gulshan Centre Point, House No. 23-26, Road No. 90, Gulshan-2, Dhaka, represented by its Company Secretary and Chief Financial Officer.
. . . Petitioner
-Versus-
Shajahanullah Power Generation Company Limited, a public limited company incorporated under the laws of Bangladesh and having its office at Karim Ullah Market (3rd Floor), Bandar Bazar, Sylhet-3100, represented by its Director and others.
. . . Respondents
 
Companies Act (XVIII of 1994)
Sections 228 and 229
There is nothing inherent in the UAPL/ BPDB Contract that excludes the applicability of the Section 229 provisions, thereby, paving the way for UAPL to participate in the merger/amalgamation process under the Scheme. Accordingly, BPDB’s construction otherwise of contractual bars operating in the circumstances is, therefore, found to be misconceived and unsubstantiated in law. This Court, accordingly, finds that the Respondent No. 5 BPDB has been unable to make out a definite case for BPDB’s prior approval of the Scheme over and beyond the judicial sanction envisaged under Section 228 and 229 of the Act.        . . . (17)

Companies Act (XVIII of 1994)
Section 229
A clear understanding of the Section 229 transfer and vesting provisions allows for the tax relief pertaining to the power generation undertakings of the Transferor Companies, coupled with other assets and liabilities, to pass on to the Petitioner Transferee Company UPGDCL. For the purpose of BPDB administering its separate contractual relationship with UAPL, and possibly at a later date with SPGCL, it must be borne in mind that the Scheme of Amalgamation based on the tenets of Section 229 shall, necessarily, ensure that the incomes of each of the power generation undertakings shall stand compartmentalized and be maintained separately by the amalgamated entity. This shall enable the allocation of different tax exemptions/ benefits to respective income streams. This Court also finds that the Scheme does not blur the distinction between the separate nature of power generation activities of UAPL vis-à-vis SPGCL and UPGDCL. That is aptly in keeping with the notion that that tax reliefs as at issue in this case attach effectively to the relevant power generation undertakings pursuant to the individual and separate licenses under which each of the three entities operates. Accordingly, the nature of tax exemption is found by this Court to be dependent on the nature of power generation itself and will remain so upon the implementation of the Scheme. Contrary to what BPDB has deduced from the circumstance, this Court finds that tax exemption is dependent not on the nature or identity of the company owning the projects but rather on the process and nature of that company’s power generation activities. ...(18)

Companies Act (XVIII of 1994)
Section 229
This Court finds that there is nothing in Section 6(b) that detracts in any way from the legal principle of nemo dat quod non habet i.e. one cannot transfer what one does not have. Implicit in Section 6(b), as indeed in Section 229 of the Act, is that while transferring its undertaking UAPL shall be bringing into this Scheme only such of the tax benefit as attaches to its transferred undertaking i.e. the rental power plant. In no circumstances is it contemplated, therefore, that the tax benefits accrued and enjoyed by the rental power plant shall permeate all the undertakings of the amalgamated entity in as much as the tax exemption/ relief attach always to specific undertakings as opposed to individual entities. Importantly, and vice versa, there is no implication in the Scheme either of UPGDCL’s tax benefits at any time accruing or attaching to UAPL’s rental power generating activity during the validity period of the UAPL/BPDB Contract.           . . . (20)

Companies Act (XVIII of 1994)
Sections 228 and 229
It shall be incumbent upon the parties to spell put further that upon the coming into the effect of the Scheme both SPGCL and UAPL shall automatically stand dissolved without further winding-up and cease to operate and their undertakings shall be amalgamated with that of the UPGDCL which shall continue to operate as a going concern in an amalgamated form and as the Amalgamated Company.         . . . (24)
Company Matter No. 236 of 2015.

 

Mr. Tanjib-ul Alam, Advocate with
Mr. Mohammad Hasan Habib, Advocate
Mr. Kazi Ershadul Alam, Advocate and
Ms. Farhana Khan, Advocate
..... For the Petitioner
Mr. Md. Nasir Shikder, Advocate
… For the Pro forma Respondent No. 5.
 
JUDGMENT

Syed Refaat Ahmed, J:
This is an Application under Section 228 read with Section 229 of the Companies Act, 1994 (“the Act”) praying for an approval of a Scheme of Amalgamation (hereinafter referred to as the “Scheme” as necessary) concerning the Respondent No. 1, Shajahanullah Power Generation Company Limited (“SPGCL”) and the Respondent No. 2, United Ashuganj Power Limited (“UAPL”), collectively the “Transferor Companies”, and the Petitioner United Power Generation and Distribution Company Limited (“UPGDCL”) as the Transferee Company.
  1. UPGDCL is engaged in the business of producing, distributing and supplying power and has established a Commercial Power Plant of 84 MW at Dhaka Export Processing Zone and 72 MW at Chittagong Export Processing Zone under Part II of the Policy Guidelines for Enhancement of Private Participation in the Power Sector, 2008. It operates the power plants pursuant to licenses granted by Bangladesh Energy Regulatory Commission (BERC) as Independent Power Producer. Under various Power Supply Agreements with Bangladesh Export Processing Zone, Rural Electrification Board (REB) and Bangladesh Power Development Board (BPDB), UPGDCL supplies power to industries located inside the Dhaka and Chittagong Export Processing Zones, REB and BPDB.
  2. As of 1.9.2015, UPGDCL has an authorized share capital of Tk.1000,00,00,000/- being Tk. 800,00,00,000/- divided into 80,00,00,000 ordinary shares of Tk. 10 each and Tk. 200,00,00,000/- divided into 20,00,00,000 redeemable preference shares of Tk. 10/- each. Furthermore, the issued, subscribed and paid-up capital of UPGDCL is Tk. 362,94,46,980/- divided into 362,944,698 ordinary shares of Tk. 10/- each.
  3. Similar to UPGDCL, the Respondent No. 1 Transferor Company SPGCL operates a 28 MW Commercial Power Plant at Kumargaon, Sylhet under Part II of the Policy Guidelines for Enhancement of Private Participation in the Power Sector, 2008. Furthermore, in accordance with the terms and conditions of the Power Purchase Agreement dated 9.5.2013 SPGCL sells the power produced by it to REB. 
  4. At year end on 31.12.2014 SPGCL had an authorized share capital of Tk.10,00,00,000/- divided into 1,00,00,000 shares with a face value of Tk. 10/- per share. The issued, subscribed and paid-up capital of the SPGCL is Tk. 3,00,000/- divided into 30,000 ordinary shares of Tk. 10/-  
  5. The origins of the Respondent No. 2 Transferor Company UAPL is traced to the Government of Bangladesh’s (GOB) endeavour to purchase power on a fast-track basis pursuant to the বিদ্যুৎ ও জ্বালানীর â্রত সরবরাহ বৃদ্ধি (বিশেষ বিধান) আইন, ২০১০ or Increasing Fast Supply of Electricity and other Energies (Special Provision) Act, 2010. UAPL responding to such endeavour submitted its proposal for 53 MW gas- fired power station and at present operates a 53 MW Power Plant at Ashuganj, Brahmanbaria. In terms of the Contract, or power purchase agreement as necessary, for the Installation of the 53 MW Power Plant, its Operation and Maintenance Services and Supply of Electricity on Rental Basis dated 23.12.2010, as amended on 16.9.2014, UAPL supplies power to the BPDB.
  6. As of 31.12.2014, UAPL has an authorized share capital of Tk.100,00,00,000/- with a face value of Tk. 10/- per share. The issued, subscribed and paid-up capital of UAPL is Tk. 75,00,00,000/- divided into 7,50,00,000 ordinary shares of Tk. 10/- each.
  7. It is evident at the outset that all three Companies have virtually a co-extensive membership and management. Dwelling on the precise nature of power generation activity that all three entities are engaged in, this Court deduces from materials on record and submission made both on behalf of the Petitioner as well as the Respondent No. 5, BPDB that the Transferee Company UPGDCL and the Transferor Company SPGCL are primarily engaged in the operation of commercial power plants whereas the other transferring entity UAPL is engaged in the supply of power on a rental basis. That distinction in the very nature of the power generation activities of UPGDCL and SPGCL on the one hand and UAPL on the other denotes somewhat distinct statutory, policy, regulatory and contractual régimes governing the activities in general and in particular the financial obligations of these separate sets of entities.
  8. It is evident, therefore, from Policy Guidelines for Enhancement of Private Participation in the Power Sector, 2008, the power plants being operated by the UPGDCL and the SPGL are Commercial Power Plants and are independent in nature, i.e. not established or operated in response to solicitation by the GOB. Since these power plants are of commercial nature, the parties are free to dispose of the ownership of the companies/acquire new companies at their discretion without any contractual restrictions. It is, accordingly, submitted by the learned Advocate for the Petitioner Mr. Tanjib-ul Alam that both these entities may proceed with the proposed merger/ amalgamation upon requisite sanction from this Court and resolutions adopted at their respective general meetings. On the other hand, the Respondent No. 2 Transferor Company UAPL established a power plant by a submission of a proposal against the GOB’s venture of obtaining power on a fast-track basis. Clause 4.2 (h)(ii) of the Contract for Installation of 53 MW Power Plant, its Operation and Maintenance Services and Supply of Electricity on Rental Basis dated 23.12.2010 stipulates that prior written approval of BPDB would be required for the transfer, conveyance, loss or relinquishment to any person or entity of UAPL’s right to own and/or operate the 53 MW power plant or any material part thereof or to occupy the site, to any other person. As noted later, BPDB would have this Court appreciate that since the proposed merger/amalgamation would involve transfer of UAPL’s right to own the 53 MW power plant to UPGDCL, UAPL would be required to obtain permission from BPDB prior to effectiveness of the Scheme of Amalgamation. Noted further is the fact that Clause 22(ii) of the Scheme contemplates the effectiveness of the Scheme to be conditional upon this Court’s judicial sanction under the Act and that from “any other authorities”.
  9. It is in the context above that this Court’s attention is drawn to UAPL’s 23.10.2010 Contract or power purchase agreement with BPDB for supplying electricity. That contract is found to contemplate merely this Court’s sanction of the Scheme as per the Act’s prescription obviating the necessity of seeking further approvals or prior consents from any other authority including BPDB. Attention is drawn in this regard to Clause 4.2 (h) and (i) of the UAPL/BPDB Contract as deals with Events of Default drawing a distinction, however, between simple acts or assignments of transfer and an exceptional instance of amalgamation or reconstruction. Clause 4.2 restricts assignment or transfer generally except upon the BPDB’s prior consent. However, any instance of merger/amalgamation is noted significantly to have been left out of the purview of BPDB’s prior approval under the same Clause. Clause 4.2(h) and (i) read thus:
“(h)      The occurrence of any of the following events:
  1. the assignment or transfer of Rental Power Company’s right or obligations in the assets of the Facility without the prior consent of BPDB.
  2. the transfer, conveyance, loss or relinquishment to any person or entity of Rental Power Company’s right to own and/or operate the Facility or any material part thereof or to occupy the Site to any person without the prior written approval of BPDB.
  1. except for the purpose of amalgamation or reconstruction (provided, that such amalgamation or reconstruction does not affect the ability of the amalgamated or reconstructed entity, as the case may be, to perform its obligations under this Contrct), the occurrence of any of the following events.
…”   
  1. The fact of co-extensive membership and management as previously noted coupled with a similarity of the broad objectives of the three entities of generating electricity and selling the same are now argued on behalf of UPGDCL to be the crucial determinants of the proposed merger and amalgamation. A consensus in this regard for the convergence of the business interests of all three entities catering for production of electricity on an efficient and effective manner is said to be reflected in the minutes of their respective BOD meetings held on 15.9.2015 approving the draft Scheme and deciding upon filing this Application for this Court’s sanction of the Scheme under Sections 228 and 229 of the Act.
  2. It is in the context above that the learned Advocate for UPGDCL Mr. Tanjib-ul Alam has also highlighted the long-term commercial objectives of the amalgamated entity to be equipped with an enhanced capacity to face an ever increasing competition in electricity generation and to provide the same to customers efficiently. Such a stance, Mr.  Alam submits, gets reiterated in the respective Extra Ordinary General Meetings (EGM) of the three entities held on 29.11.2015 and 30.11.2015 as per this Court’s directions of 18.10.2015 unanimously adopting resolutions approving the Scheme without any modification. Furthermore, reports prepared by the Chairman of each such EGM as well as of the creditors meetings have been brought on record along with the minutes of the EGMs by an Affidavit-in-Compliance of 19.1.2016 by the Petitioner Transferee Company UPGDCL.  
  3. An Affidavit-in-Opposition substantively opposing the Scheme has been filed by the Respondent No. 5, BPDB as represented by the learned Advocate Mr. Md. Nasir Shikder. That opposition is basically predicated on an inherent distinction between the nature of electricity generation undertaken by the Respondent No. 2 Transferor Company UAPL as compared to the other transferring entity SPGCL and indeed the Petitioner Transferee Company UPGDCL. Coming under the purview of a separate statutory, policy, regulatory and contractual régime, as above noted, it is apprehended that the proposed amalgamation may unduly grant UAPL a tax exemption windfall that is legitimately not its due. By that reason BPDB perceives the Scheme to be a device for tax evasion and this Application, resultantly, to be one filed with mala fide intent. Mr. Shikder submits that governed by the Policy Guidelines of 2008 and the Private Sector Power Generation Policy, 1996 (as amended in 2004) both UPGDCL and SPGCL generate electricity through Commercial Power Plants to the benefit of Large Consumers specified in the Policy Guidelines of 2008. These entities are shown to have been established on a permanent basis significantly benefiting from tax exemption for a period of fifteen years. UAPL, on the other hand, established as a Rental Power Company to rent electric capacity and energy output Facility to BPDB only is shown to benefit from comparatively limited tax exemption facilities. 
  4. The Scheme is in that context perceived by BPDB to blur that distinction of the scope, nature and purpose of power generation by these three entities with a view specifically to unduly benefit UAPL with tax exemption privileges for a period of fifteen years which is submitted to militate against the very concept of establishing rental- based power generating companies. That concern, arising in the domain of public policy and reflected in the need to protect public interest, is matched by the BPDB’s fear further of a serious complication at an administrative level in enforcing its separate agreements with the two transferring entities post-amalgamation. It is in that context that BPDB questions the feasibility of the Scheme in ushering in an efficient and productive management system conducive to revenue generation and profit augmentation. 
  5. Referring to the Affidavit-in-Opposition, Mr. Shikder submits that in addition to the existing electricity supply Contract with UAPL a similar agreement with SPGCL is in the pipeline. The reality of these two agreements once in place, it is feared, will “create huge perplexity in enforcing the agreements” given that the dates of imposing tax and the power purchase rates shall vary in each case. Notably the duration of these contracts shall also vary. Coupled with that concern further is the prospect of UAPL eventually converting itself to a Commercial Power Plant under the Scheme availing of the opportunity, thereby, to sell electricity to large Consumer without BPDB’s prior consent. In other words, the apprehension is of BPDB eventually losing control over UAPL.
  6. It is in that context that BPDB highlights the existence of certain contractual barriers purportedly obstructing UAPL’s participation in the Scheme of Amalgamation. Clause 25.3 of Article 25 of the UAPL/BPDB Contract is relied upon to submit that such contractual arrangement is intended solely for the benefit of the parties thereto i.e. UAPL and BPDB and nothing therein is to be construed as creating any duty, liability, right etc. of whatsoever nature pertaining to or affecting any person or entity not a party to such contract. Stressing that the contracting parties have, thereby, wholly contracted out of the transfer and vesting provisions of Section 229 of the Act in particular, Mr. Shikder submits that there is resultantly no option reserved to the Petitioner UPGDCL to assume all contractual duties and liabilities of UAPL through the device of the Scheme of Amalgamation as the very option of such transferability of duty or liability or rights remains wholly contractually excluded. That apprehension, based on BPDB’s constructions of certain contractual provisions and interpretation of the law, it is noted, gets reflected in its communication of 25.2.2016 addressed to UAPL declining to grant its consent to UAPL’s participation in the Scheme on the ground further that it would otherwise cause serious prejudice to BPDB.
  7. The Petitioner UPGDCL’s response to BPDB’s apprehensions are predicated on the very nature of the transfer and vesting process inherent in the Section 229 provisions and, as Mr. Alam argues, expressly anticipated in the UAPL/BPDB Contract. The Petitioner stresses that Clause 4.2(i) of the Contract, as above referred, clearly exempts any act of amalgamation or reconstruction from operating as an event off default triggering of a possible termination of such agreement. The proviso to Clause 4.2(i), appearing in parenthesis, Mr. Alam aptly submits, encapsulates the very essence of transferability and vesting focal to Section 229 in anticipating the acquisitional capacity of an amalgamated entity and its consequential ability to perform its obligations under this very pre-existing contractual arrangement with BPDB. It is therefore, satisfactorily established that there is nothing inherent in the UAPL/ BPDB Contract that excludes the applicability of the Section 229 provisions, thereby, paving the way for UAPL to participate in the merger/ amalgamation process under the Scheme. Accordingly, BPDB’s construction otherwise of contractual bars operating in the circumstances is, therefore, found to be misconceived and unsubstantiated in law. This Court, accordingly, finds that the Respondent No. 5 BPDB has been unable to make out a definite case for BPDB’s prior approval of the Scheme over and beyond the judicial sanction envisaged under Section 228 and 229 of the Act.
  8. There is also the residual range of concerns expressed by BPDB of the administration of a future contract with SPGCL with regard to power purchase rate and tax exemption issues. This Court finds that a clear understanding of the Section 229 transfer and vesting provisions allows for the tax relief pertaining to the power generation undertakings of the Transferor Companies, coupled with other assets and liabilities, to pass on to the Petitioner Transferee Company UPGDCL. For the purpose of BPDB administering its separate contractual relationship with UAPL, and possibly at a later date with SPGCL, it must be borne in mind that the Scheme of Amalgamation based on the tenets of Section 229 shall, necessarily, ensure that the incomes of each of the power generation undertakings shall stand compartmentalized and be maintained separately by the amalgamated entity. This shall enable the allocation of different tax exemptions/ benefits to respective income streams. This Court also finds that the Scheme does not blur the distinction between the separate nature of power generation activities of UAPL vis-à-vis SPGCL and UPGDCL. That is aptly in keeping with the notion that that tax reliefs as at issue in this case attach effectively to the relevant power generation undertakings pursuant to the individual and separate licenses under which each of the three entities operates. Accordingly, the nature of tax exemption is found by this Court to be dependent on the nature of power generation itself and will remain so upon the implementation of the Scheme. Contrary to what BPDB has deduced from the circumstance, this Court finds that tax exemption is dependent not on the nature or identity of the company owning the projects but rather on the process and nature of that company’s power generation activities. 
  9. There is, therefore, found no conflict, or a potential one, in tax treatment in as much as UPGDCL as the Transferee Company will continue to enjoy tax exemption for its Commercial Power Projects for a period of fifteen years and can feasibly and legally enjoy tax benefit for the Rental Power Project of UAPL only during the period of validity of the rental electricity supply Contract or any extension thereof. There is found no scope of availing of tax benefits beyond the validity of such agreement. In that regard the apprehensions of BPDB are found to be misplaced. Indeed a perusal of the Scheme reveals that the obligations and rights under each of the power supply agreements currently enjoyed or to be enjoyed by either or both of the Transferor Companies are expressly declared to be vested in UPGDCL obliging it to duly discharge such the duties vested in it under such agreements. This is encapsulated in clear terms in Section 6(b) of the Scheme as reads thus:
“All benefits and obligations under the Power Purchase Agreement dated 9th May, 2013 between SPGCL and Rural Electrification Board and the Power Purchase Agreement dated 23rd December, 2010 subsequent renewal on 16th September, 2014 being Contract No. 09783 thereafter renewal no. 09966 between UAPL and BPDB shall vest and stand transferred in favour of the Transferee Company without any further act or consent from any other party and the Transferee Company shall be obliged to discharge all obligations towards the customers of the Transferor companies including BPDB and the recipients of electricity under the relevant Power Purchase Agreement shall be obliged to pay for the same to the Transferee Company in accordance with the terms and conditions of the respective Power Purchase Agreement.” 
  1. This Court finds that there is nothing in Section 6(b) that detracts in any way from the legal principle of nemo dat quod non habet i.e. one cannot transfer what one does not have. Implicit in Section 6(b), as indeed in Section 229 of the Act, is that while transferring its undertaking UAPL shall be bringing into this Scheme only such of the tax benefit as attaches to its transferred undertaking i.e. the rental power plant. In no circumstances is it contemplated, therefore, that the tax benefits accrued and enjoyed by the rental power plant shall permeate all the undertakings of the amalgamated entity in as much as the tax exemption/ relief attach always to specific undertakings as opposed to individual entities. Importantly, and vice versa, there is no implication in the Scheme either of UPGDCL’s tax benefits at any time accruing or attaching to UAPL’s rental power generating activity during the validity period of the UAPL/BPDB Contract. 
  2. BPDB’s misgiving so addressed by the Petitioner UPDGCL, in this Court’s view, clears the way for the construction that since the businesses of SPCL and UAPL and their respective undertakings with all the rights and obligations will continue with and against the Transferee Company respectively, in the event of any default by the Rental Power Plant currently owned by UAPL, BPDB will clearly have recourse against the amalgamated entity which shall have a broader asset base to offer greater security of enforcing any remedy in the event of contractual breach. The scenario is, therefore, of BPDB being assured of greater security enuring under the Scheme to its benefit by dint of the amalgamated entity’s asset base being far stronger than that of UAPL.
  3. It is based on the above that Mr. Alam satisfactorily submits  that allegations made in the Affidavit-in-Opposition are misplaced and misconceived and that Section 6(b) of the Scheme properly construed amply addresses BPDB’s concerns in that regard. Satisfied as this Court is of the adequacy in law of the formulation in Section 6(b) as above noted, it is nevertheless felt necessary by way of abundant caution to further enunciate the essential components of that Section in light of issues raised by BPDB in its Affidavit-in-Opposition. It is deemed necessary, therefore, for the avoidance of doubt and to dispel any misgiving about perceived inadequacies otherwise in Section 6(b) to direct that the Scheme expressly spells out that tax benefits attached to the undertakings of SPGCL and UAPL shall indeed be limited to those undertakings. In that regard, this Court directs that the Scheme would be well served by incorporation of additional provisions in keeping with the observations below:
    1. UPGDCL shall continue to discharge the obligations of UAPL under the power purchase agreement dated 23.12.2010 as subsequently renewed between the Respondent No.2 and BPDB as if there had been a novation of the agreement and BPDB shall have the same recourse against UPGDCL as it would have had against UAPL had there not been any merger of the latter company with UPGDCL. In consideration of discharging obligations in favour of BPDB under the said agreement, as subsequently renewed, UPGDCL shall be entitled to all the benefits thereunder including any right to receive consideration for the supply of electricity and benefits as if UAPL is replaced by UPGDCL;     
    2. for avoidance of doubt, UPGDCL shall be entitled to tax benefit and customs duties under the UAPL/ BPDB power purchase agreement as renewed, and any subsequent renewal thereof, during the validity thereof, as are available under the applicable laws for rental power projects in light of the Private Sector Power Generation Policy and applicable tax legislations; and
    3. in the event of expiry of the rental power purchase agreement and lack of renewal by BPDB, UPGDCL shall be at liberty to continue to operate the Rental Power Project as a Commercial Power Project by converting the same accordingly with the approval of BERC, and BPDB shall have no objection to such conversion of the Rental Power Project into a Commercial Power Project as long as the regulatory approval is obtained from BERC.
  4. It is against that backdrop of the transfer and vesting of rights, benefits and privileges as found upon by this Court, the Scheme is additionally submitted to consequentially ensure that:
    1. any legal of proceedings, claims, demands etc., pending by or against the Transferor Companies shall be continued and be enforced by or against the Transferee Company;
    2. the employees and personnel of the Transferor Companies in service on the Effective Date shall become the employees of the Transferee Company on such date without any breach or interruption in service and on such terms and conditions that were agreed between the employees and the Transferor Companies;
    3. the existing provident, gratuity or other employee-related funds created and administered by the Transferor Companies shall duly and expeditiously be transferred to the relevant funds of the Transferee Company;
    4. the amalgamation shall be effective subject to all permissions, authorization, consents as may otherwise have to be obtained by any or all of the three companies under existing law; and
    5. the Scheme shall be and deemed to have been effective on the date that a certified copy of this Judgment and Order is filed with the Respondent Registrar, Joint Stock Companies and Firms (“RJSC”).
  5. It shall be incumbent upon the parties to spell put further that upon the coming into the effect of the Scheme both SPGCL and UAPL shall automatically stand dissolved without further winding-up and cease to operate and their undertakings shall be amalgamated with that of the UPGDCL which shall continue to operate as a going concern in an amalgamated form and as the Amalgamated Company.
  6. Accordingly, this Court, hereby, sanctions the Scheme of amalgamation (Annexure-‘A’) subject to the findings, observations and directions above and declares that the same shall be binding on all concerned upon a due and proper execution of the Scheme of Amalgamation inclusive of duly formulated provision on the basis of the directives above by and on behalf of all three entities at any date prior to the Effective Date as defined in the Scheme.
  7. Furthermore, it is ordered that the merger of the Transferor and Transferee Companies shall be deemed to be effective on the date that a certified copy of this Judgment and Order, and as decided by the BODs of all three Companies, is delivered to the RJSC for registration, such filing necessarily, however, taking place within 4 (Four) weeks of receipt of a certified copy of this Judgment and Order.
  8. Moreover, the costs, charges and expenses, including any taxes, duties etc., arising in connection with the Scheme and incidental to the completion of the amalgamation as envisaged therein, including those related to this Application, shall be borne and paid for by the Petitioner Transferee Company, UPGDCL.
  9. In the result, the Application is allowed, subject to the above observations and directions.
  10. All three entities concerned are further directed to proceed to give effect to the Scheme of Amalgamation pursuant to this Court’s sanction of the Scheme as above upon due notification of such judicial sanction communicated to the said Companies through a Lawyer’s Certificate of today’s date.
  11. The Petitioner No. 1 Transferee Company UPGDCL is, hereby, now directed to donate a sum totalling Tk. 3,00,000/- (Taka Three Lac) only out of which two payments of Tk. 50,000/- (Taka Fifty Thousand) will have to be made to (1) Bangladesh Supreme Court Day Care Centre, (2) Shilpa Aleaka Jame Mashjeed, Village- Charadpakhia, Thana- Muktagacha, District-Mymensingh and individual payments of donations of Tk. 25,000/- (Taka Twenty-five Thousand) each will have to be made in favour of (1) Lalit-Mohan Gono-Gronthagar, Village- Tilakpur, P.O. & Upazilla- Kamalgonj, District- Moulavibazar, (2) Lalit-Mohan Dhonobati Memorial Foundation, Village- Tilakpur, P.O. & Upazilla- Kamalgonj, District- Moulavibazar, (3) Dargahpur Bodrunnesa Siddique, Abdul Oahab Siddique Forkania Madrasha, Village and Post- Dargahpur, Upazilla- Ashasuni, District- Satkhira, (4) Dr. Kawsher Uddin Ahmed Foundation, 39/A, Baily Road, Dhaka-1000, (5) Kazi Abul Kashem O Sufia Khatun Cadet Madrasha, Purbo- Raghobpur, Pabna Sadar, Pabna, (6) Bangladesh Itihash Parishad 3014 Arts Faculty, Dhaka University, Dhaka, (7) Society for the Welfare of Autistic Children, 70/ka, PC Culture, Shyamoli, Dhaka and (8) Al Madrasatul Fathiyea Darul Ulum and Yatimkhana, Vill- Aligaon, P.O. Fajalgonj, P.S.- Charfasion, Dist- Bhola, within 1 (one) week from the date of the drawing up of this Order and to report the compliance thereof within 1(one) week thereafter.
Ed.