 "IFFCO")
IFFCO has moved the NCLT against Swan Energy Ltd (SEL) and their joint venture Triumph Offshore to restrain their JV firm from passing any resolution without its approval and issuing any share/security to the lenders against loans.
Seeking an injunction against any such proposal, IFFCO, in its petition filed before the Ahmedabad bench of the NCLT, alleged that Triumph Offshore is pre-paying the debt, which may result in dilution of its shareholding in the joint venture firm and is detrimental to its interest.
IFFCO has moved the NCLT under sections 241 and 242 of the Companies Act 2013, alleging oppression and mismanagement.
It has prayed to restrain Swan Energy and Triumph Offshore "from passing any board resolution without the prior written approval of petitioner (IFFCO), with reference to the substitution of the bank term loan with promoters loan or from issuing any shares/security or any instrument convertible into equity in favour of R2 (SEL) or any third party, which may result into diluting shareholder of the petitioner".
Leading fertiliser player IFFCO owns 49 per cent of Triumph Offshore, the joint venture with Swan Energy, established to set up a Floating Storage and Regasification Unit (FSRU).
Swan Energy Ltd (SEL) is the majority partner with a 51 per cent stake.
Triumph Offshore's board comprises three nominees from Swan Energy, two from IFFCO and two independent directors.
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According to IFFCO, Triumph Offshore had tied up with banks to get a term loan of Rs 1,604 crore, out of which SBI sanctioned Rs 500 crore. To secure the loan, the entire equity share capital held by IFFCO was mortgaged with lenders.
IFCO has alleged that Triumph Offshore -- through its nominee directors and two independent directors -- "has worked in cohorts with R2 (SEL) to create a situation wherein R1 (Triumph) has been rendered in a state of financial crisis by using all cash reserves to hastily and needlessly pre-pay lenders' money.
Moreover, it has also not taken any steps to charter any Floating Storage and Regasification Unit (FSRU) and the decision were taken by the directors "only to facilitate the intentions" of SEL to ultimately lead Triumph Offshore, where it becomes a necessity to accept the proposal if accepting the loan from SEL to restore JV's capacity to repay bank loans, it added.
It has prayed the National Company Law Tribunal to pass directions to Triumph Offshore and its employees from taking any loan from SEL or its affiliates without its written approval.
IFFCO in its petition submitted that Swan Energy on September 22, 2023, decided to call an extraordinary general meeting on October 19, 2023, to raise Rs 1,435.50 crore by issuing preferential issue of shares to a foreign entity GCP INAB PTE Ltd, Singapore. The issue price was proposed at around 60 per cent premium to the then market price.
Triumph Offshore called a board meeting with a shorter notice on October 10, 2023, to approve the proposal for making a rights issue of Rs 1,100 crore to SEL for replacing the bank loan with a promoter loan.
The move was opposed by IFFCO's nominee director stating that the said items were part of 'reserved matters' and that any decision regarding the same cannot be made without the consent of the petitioner as per Articles of Association(AoA) and the tri-partite agreement.
The board meeting was convened on October 10, 2023, wherein both nominee directors of IFFCO raised objections and opposed the introduction of said agendas.
It was pointed out that funds of more than Rs 400 crore were available with Triumph Offshore, and there was no need to raise additional capital. And as per the AoA, prior consent of IFFCO was required.
After the Board meeting, Triumph Offshore sent a letter to IFFCO seeking approval to pre-pay the lenders by further issuing shares on a rights basis.
On being enquired, Trumph replied that there is no scope for further chartering of FSRU. They had around Rs 400 crore surplus with annual liability for debt servicing of approximately Rs 190 crore per annum.
"...in view of the Respondents' proven oppressive acts such as their constant denial of granting the Petitioner participation in the Board Committees of R1 (Triumph) and mismanagement of R-1 Company... of using all of R-2's (SEL's) reserve funds to hastily and unnecessarily prepay the lenders, loan without any such request being made by the lenders and also their lack of efforts to re-charter the FSRU... continuing their illegal activities has left the present petitioner with no other option but to present petition," it said.
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