1995 (9) TMI 275 - HC - Companies Law

Summary

Issues Involved:

1. Direction to convene shareholders' meetings for the proposed scheme of amalgamation.
2. Objections by the Central Government regarding the procedure for reduction of capital.
3. Consent of creditors for the proposed scheme.
4. Compliance with statutory requirements for reduction of capital.
5. Reappointment of the managing director post-amalgamation.
6. Change of name of the transferee company.
7. Sanctioning of the scheme of amalgamation and arrangement.

Issue-wise Detailed Analysis:

1. Direction to Convene Shareholders' Meetings for the Proposed Scheme of Amalgamation:

Company Application No. 46 of 1995 by the transferor-company and Company Application No. 47 of 1995 by the transferee-company were filed under section 391 of the Companies Act, 1956, seeking a direction to convene the meeting of the shareholders for considering the proposed scheme of amalgamation. The scheme included the transfer of business, assets, and liabilities of the transferor-company to the transferee-company and the allotment of shares of the transferee-company to the shareholders of the transferor-company. The court ordered the meetings to be convened, and the shareholders unanimously approved the scheme on 26-4-1995.

2. Objections by the Central Government Regarding the Procedure for Reduction of Capital:

The Central Government, through the Registrar of Companies, raised objections stating that the scheme involved both merger and capital reduction, which required a separate procedure under rules 46 to 65 of the Companies (Court) Rules, 1959. The Registrar highlighted that the consent of all creditors, including unsecured creditors, was necessary. Additionally, the scheme did not comply with the requirement of adding "and capital reduced" to the company's name as per section 102(2) of the Act.

3. Consent of Creditors for the Proposed Scheme:

The managing director of the transferee-company stated that the consent of all creditors, including the IDBI, Canara Bank, and other secured creditors, was obtained for the proposed reduction of share capital. Consent letters from these institutions were annexed to the reply affidavit. The court found that there was no need to call for a separate meeting of the creditors for sanctioning the scheme.

4. Compliance with Statutory Requirements for Reduction of Capital:

The court examined the objections concerning compliance with statutory requirements for reduction of capital. It was noted that the scheme proposed the reduction of the issued, subscribed, and paid-up share capital from Rs. 14.78 crores to Rs. 2.95 crores by canceling the paid-up share capital to the extent of Rs. 8 per share. The reduction was to be followed by the consolidation of shares. The court referred to the decision in Maneckchowk & Ahmedabad Mfg. Co. Ltd., which held that section 391 was a complete code and that procedures for reduction of capital must be complied with. The court found substantial compliance with rule 85 and noted that the creditors had given their consent.

5. Reappointment of the Managing Director Post-Amalgamation:

The Registrar of Companies objected to the continuance of the managing director's tenure post-amalgamation without the approval of the post-amalgamation members. The managing director's tenure was to expire on 9-8-1995, and her reappointment required the sanction of the board of directors and subsequent ratification by the shareholders. The court noted that the necessary sanction would be obtained as and when the scheme was approved.

6. Change of Name of the Transferee Company:

The scheme proposed changing the name of the transferee-company to Novopan Industries Ltd. The Registrar of Companies had made the name available for adoption. The court held that there was no need to delete the clause from the scheme as the change of name could be effected only after the scheme was sanctioned and the necessary approvals were obtained.

7. Sanctioning of the Scheme of Amalgamation and Arrangement:

The court considered the unanimous approval of the scheme by the shareholders and the report of the Official Liquidator, which stated that the affairs of the transferee-company had not been conducted in a manner prejudicial to the interests of its members or public interest. The court found no harm in sanctioning the scheme and confirmed the amalgamation and arrangement, including capital restructuring by way of reduction and consolidation of share capital.

Conclusion:

The scheme of amalgamation as approved unanimously by the shareholders of the transferor and transferee-companies and the arrangement between the transferee-company and its members, including capital restructuring, was sanctioned and confirmed. The transferor-company was directed to be dissolved without being wound up. The parties were given liberty to approach the court for any direction required for carrying out the scheme. Both companies were directed to deliver a certified copy of the order to the Registrar of Companies within 30 days.