BEFORE THE HON’BLE SUPREME COURT OF INDIA


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5TH NLIU – JURIS CORP NATIONAL CORPORATE LAW MOOT 2014 Team Code -X
BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF:

Lifeline Limited And Others ……………………………………APPLICANTS VERSUS
Jeevani Limited And Others…………………………………...RESPONDENT ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

SUBMITTED

MOST RESPECTFULY MEMORANDUM ON BEHALF OF THE APPELLANTS

Memorial On Behalf of the Appellants -Counsels for the Appellants-

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5TH NLIU – JURIS CORP NATIONAL CORPORATE LAW MOOT 2014 TABLE OF CONTENTS INDEX OF AUTHORITIES …………………………………………………………..3 A. LIST OF ABBREVIATIONS……………………………………….………3 B. BOOKS REFERRED……………………………………………………….3 C. JOURNALS REFERRED….………………………………………...……...4 D. STATUTES REFERRED……………………………………………...........4 E. WEBSITES REFERRED ..…………………………………...……………..5 F. CASES REFERRED………………………………………………………...5 STATEMENT OF JURISDICTION ……………………………………………..…..7 STATEMENT OF FACTS……………………………………………………..……..8 ISSUES RAISED……………………………………………………………...………16 SUMMARY OF ARGUMENTS……………………………………………...………17 ARGUMENTS ADVANCED………………………………………………...………20 PRAYER……………………………………………………………………………….29

Memorial On Behalf of the Appellants -Counsels for the Appellants-

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5TH NLIU – JURIS CORP NATIONAL CORPORATE LAW MOOT 2014

INDEX OF AUTHORITIES

A. LIST OF ABBREVIATIONS

1. AIR – All India Reporter 2. SCC – Supreme Court Cases 3. Comp Cas – Company Cases 4. Bom–Bombay 5. Del – Delhi 6. C.C.I- Competition Commission of India 7. Hon'ble - Honorable 8. Pg. – Page. 9. V – Versus 10. L.R. – law reports 11. D.G - Director General 12. SC – Supreme Court 13. Vol – Volume 14. r/w - Read with 15. edn - Edition

B. BOOKS REFERRED
1. Anson’s: Law of Contract, 25th edn , Oxford 2. Avtar Singh: Contract & Specific Relief. 10th edn, EBC 3. Mulla : Indian Contract Act , 2nd edn 4. Surendra Malik : S.C Words and Phrases,3rd edn Memorial On Behalf of the Appellants
-Counsels for the Appellants-

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5TH NLIU – JURIS CORP NATIONAL CORPORATE LAW MOOT 2014 5. H.K Saharay : Words and Phrases under the Const.,2nd edn
C. JOURNALS REFERRED 1.All India Reporter 2.Supreme Court Reporter 3.Madras Law Journal 4.Supreme Court Cases 5.Indian Law Journal 6.Delhi Law Times 7.Supreme Court Today

D.STATUTES REFERRED 1. Companies Act, 1956 2. Indian Contract Act, 1892 3. The Arbitration and Conciliation Act, 1996 4. The Competition Act,2002
Memorial On Behalf of the Appellants -Counsels for the Appellants-

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5TH NLIU – JURIS CORP NATIONAL CORPORATE LAW MOOT 2014 E. WEBSITES REFERRED
1. http://manupatra.com/ 2. http://lexisnexis.in/lexisindia/ 3. http://www.indiankanoon.org/ 4. http://www.lawyersclubindia.com/ 5. http://www.lawyerscollective.org/ 6. http://www.legallyindia.com/wiki/Main_Page 7. http://www.legalcrystal.com 8. http://www.advocatekhoj.com/ 9. www.lawyerservices.in 10. Scconline.com

F.CASES REFERRED

1. Amar Singh V. Union of INDIA

(2011)7 SCC 69

2. Paramount Publicity Ltd v. M.C.D

(1995)32 DRJ 185

3. Raja Bahadur Motilal Poona Mills ltd vs. State of Maharashtra (2003)1Bom CR 251

4. Fibrosa Spolka Akcyjna v. Fairbairn Barbour Ltd. 1943 AC 32 : (1942) 2 All ER 122

5. Nagpur Golden Transport Co. (Regd.) v. Nath Traders

(2012) 1 SCC 555

Memorial On Behalf of the Appellants -Counsels for the Appellants-

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5TH NLIU – JURIS CORP NATIONAL CORPORATE LAW MOOT 2014

6. Mafatlal Industries Ltd. v. Union of India, 7. Air Canada v. British Columbia
Can SC] 8. A. Shanmugam v. A K R V M N P Sangam

(1997) 5 SCC 536 [(1989) 59 DLR (4th) 161,
(2012) 6 SCC 430 at page 459

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5TH NLIU – JURIS CORP NATIONAL CORPORATE LAW MOOT 2014
STATEMENT OF JURISDICTION
The Appellant has approached this Honorable Court under Article 136 of the Constitution of India, by way of special leave to appeal. Leave has been granted for filing appeal. The Appellant submits to the Jurisdiction of this Honorable Court.

Memorial On Behalf of the Appellants -Counsels for the Appellants-

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5TH NLIU – JURIS CORP NATIONAL CORPORATE LAW MOOT 2014

STATEMENT OF FACTS

1. Jeevani Limited, herein after referred to as the 1st Respondent , is a listed public company incorporated in the year 1990 under the C.A,2013 with its registered office in New Delhi and it's equity shares are listed on the B.S.E. The 1st Respondent is one of the leading market players in the pharmaceutical manufacturing industry. In addition to holding a considerable market share in this sector in India, the 1st Respondent also had a global presence with its products being sold to many countries. Later in a statement made by the 1st Respondent in July, 2011 it was announced that in effort to meet the growing global demands of industry standards , increasing challenges of the oncoming competition in the market and reaching maximum profitability, the 1st Respondent was looking forward to opportunities for expansion in the market.

2.Lifeline Limited, hereinafter referred to as the 2nd Appellant , is another listed public company registered and incorporated under the C.A, 2013 having it's registered office in Mumbai. The 2nd Appellant , is a popular company in the Indian market as a major producer of food products and is known for its quality and variety of food products in India, they are also amongst the few Indian companies whose products are traded internationally. Realizing the huge potential in the pharmaceutical sector and only after establishing itself in the abovementioned market, the 2nd Appellant decided to foray into the pharmaceutical sector. The 2nd Appellant , approached the

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5TH NLIU – JURIS CORP NATIONAL CORPORATE LAW MOOT 2014 1st Respondent for a possible partnership to venture into this sector. In and around November, 2011 both companies initiated negotiations for a possible merger.

3.After a lot of deliberations and negotiations , both companies on 27th, January 2012 decided to merge. It was decided that the 1st Respondent , would completely merge into the 2nd Appellant and all assets and liabilities of the 1st Respondent would be transferred to the 2nd Appellant . A scheme of arrangement (the "Scheme") ,for the 1st Respondent was prepared keeping this in mind. It was also decided that the three Promoters, herein after collectively referred to as the 2nd Respondent, who are also majority shareholders in the company would sell their entire promoter shareholding (18 percent) of their stake in the 1st Respondent to the 2nd Appellant . However this sale of stake was affected vide a separate sale agreement entered into on 23rd March 2012 between the 2nd Appellant and the 2nd Respondent. This agreement, inter alia , contained specific representations regards disclosure of information, by either of the parties, which may be vital to the transaction which the parties were entering into. It was specifically provided in this agreement that all the intangible properties including the active R&D and IPRs of the 1st Respondent would become the property of the 2nd Appellant and all rights accruing from it would vest wirlevant th the 1st Respondent.

4.The Scheme was finalized on 5th March 2012 and immediately thereafter the Scheme was filed before the B.S.E for its approval. However, the B.S.E did not approve it.

5.On 30th March, the 1st Respondent and the 2nd Appellant filed an application under s.391 of

the C.A, 1956, for initiating the process of approval of the Scheme by the Hon'ble Delhi H.C .

The Hon'ble Company Judge in accordance with the mandate of chapter V of the C.A, ordered

Memorial On Behalf of the Appellants -Counsels for the Appellants-

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5TH NLIU – JURIS CORP NATIONAL CORPORATE LAW MOOT 2014
for a meeting of creditors to be convened. The 1st Respondent issued a notice for meeting of its creditors to by publishing an advertisement in a local English language newspaper and local language newspaper containing the terms of the proposal and explaining its effect. A meeting of the creditors to whom notice was sent, was accordingly held and resolution supporting the Scheme were also passed by a vote of majority. Thereafter the Scheme was also approved by the Hon'ble Delhi H.C on 5th July 2013. All other relevant approvals were taken by the 1st Respondent. Around the same time the 1st Appellant, had approached the Bombay H.C under the relevant provisions of the C.A to get the Scheme approved and got the approval of the Bombay H.C.

6.Prior to the P.A being made by the 1st Respondent , certain creditors of the 1st Respondent mainly foreign banks ("foreign lenders") had jointly, invoked arbitration proceedings before a foreign arbitral tribunal constituted Hong Kong, against the 1st Respondent. The arbitration was initiated for payments to be made under a consortium agreement providing financial assistance to 1st Respondent entered into between the foreign lenders, herein after collectively referred to as the 1st Appellant, and the 1st Respondent. On 27th July 2010, a foreign arbitral award was passed in favour of the 1st Appellant against the 1st Respondent. Under this award the 1st Respondent was to pay the 1st Appellant the amounts as stated in the arbitral award. Till date no proceedings for enforcement of this foreign award has been filed by the 1st Appellant.

7.In early August 2013 the 1st Appellant, of the 1st Respondent made an application before the Hon'ble Company Judge for recall of order dated 5th July 2013, passed by the Hon'ble Company Judge of the Delhi H.C approving the Scheme. The 1st Appellant contended that they had not

Memorial On Behalf of the Appellants -Counsels for the Appellants-

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BEFORE THE HON’BLE SUPREME COURT OF INDIA