2009 (3) TMI 564 - HC - Companies Law

Amalgamation - Held that - This order sanctioning the scheme will not in any manner affect any action that may be taken by any authorities for the contravention of section 295 or 297 or the contentions of such authorities on any application that may be made by the company or the concerned director for compounding. Scheme of amalgamation allowed.

Summary

Issues Involved:

1. Sanction of the scheme of amalgamation.
2. Compliance with procedural requirements.
3. Objections by the Regional Director regarding violations of Sections 295 and 297 of the Companies Act, 1956.
4. Validity of the Board of Directors' resolution proposing the scheme in light of alleged disqualifications under Section 283(1)(h).
5. Adequacy of disclosure to shareholders and creditors.
6. Application of Section 290 of the Companies Act concerning the validity of acts by directors.

Issue-wise Detailed Analysis:

1. Sanction of the Scheme of Amalgamation:
The petitioners sought the sanction of the High Court of Bombay for a scheme of amalgamation where Niulab Equipment Company Pvt. Ltd. (the transferor company) would merge with Ashok Industries Ltd. (the transferee company). The scheme involved issuing two equity shares of Rs. 10 each of the transferee company for every one equity share of Re. 1 each held by the shareholders of the transferor company. The provisions of the scheme were not challenged, and the scheme was subject to the court's sanction.

2. Compliance with Procedural Requirements:
The procedural requirements were duly complied with. Meetings of equity shareholders and unsecured creditors were convened as directed by the court, and the scheme was unanimously approved by them. Notices were given to all concerned parties, including the Regional Director, the Official Liquidator, and secured creditors. The Official Liquidator confirmed that the affairs of the transferor company had been conducted properly and did not oppose the scheme.

3. Objections by the Regional Director:
The Regional Director filed an affidavit raising concerns about violations of Sections 295 and 297 of the Companies Act, 1956. Specifically, the transferee company had issued a corporate guarantee of Rs. 765 lakhs to Punjab National Bank for the transferor company's credit facilities without prior approval from the Central Government, which was a violation of Section 295. Additionally, the company had not charged any commission for extending the corporate guarantee, which was deemed prejudicial to the transferee company by the statutory auditors. The Regional Director suggested that the violation of Section 295 should be disclosed to shareholders and creditors.

4. Validity of the Board of Directors' Resolution:
The Regional Director argued that due to the violation of Section 295, the directors who issued the guarantee had vacated their office under Section 283(1)(h), rendering the Board's resolution proposing the scheme void. However, the court held that Section 283(1)(h) did not apply to this case because the transferor company had not accepted a loan or guarantee for a loan from the transferee company. Therefore, the directors had not vacated their office, and the Board's resolution was valid.

5. Adequacy of Disclosure to Shareholders and Creditors:
The court found that the necessary disclosures were made to the shareholders and creditors. The annual reports of both companies contained details of the guarantees and the directors' interests. The court held that the disclosure was adequate to enable shareholders and creditors to make an informed decision regarding the scheme.

6. Application of Section 290:
The court considered the application of Section 290, which validates acts done by directors even if their appointment is later found to be invalid due to disqualification. The court held that the directors were not aware of their disqualification and continued to act in good faith. Therefore, the resolution passed by the Board of Directors was valid under Section 290, despite any alleged disqualification.

Conclusion:
The court sanctioned the scheme of amalgamation, finding that there was no opposition from any party and that the procedural requirements were met. The violations under Sections 295 and 297 did not invalidate the scheme, and the resolution passed by the Board of Directors was upheld as valid under Section 290. The petitioners were directed to pay costs to the Regional Director and the Official Liquidator.