2010 (7) TMI 267 - HC - Companies Law

Compromise and arrangement - Held that - As the petitioner has made out a case for sanction of scheme of arrangement at Annexure A. Hence, the company petition is allowed. The scheme of arrangement at Annexure A to the petition is hereby sanctioned subject to sanction of scheme of arrangement by the High Court of judicature at Bombay in respect of the transferor/demerged company and the petitioner company complying with the observations made by the Registrar of the Companies, and the same shall be binding on the shareholders, creditors of the company and also on the said company. The petitioner company shall file copy of this order with the Registrar of Companies, Karnataka and Registrar of Companies, Bombay within thirty days from the date of receipt of copy of this order.

Summary

Issues:
Petition under sections 391 to 394 of the Companies Act, 1956 seeking sanction of a scheme of arrangement for merger. Approval of scheme by the Board of Directors. Approval of scheme by secured and unsecured creditors. Observations by the Registrar of Companies regarding the scheme. Undertaking to increase authorized capital. Transfer of employees to the transferee-company. Lack of objections from shareholders, creditors, and employees. Sanction of the scheme of arrangement by the High Court.

Analysis:
The petition was filed under sections 391 to 394 of the Companies Act, 1956 by the petitioner company, seeking the sanction of a scheme of arrangement for the merger of two companies. The petitioner, a transferee-company, intended to merge with the transferor/demerged company. The petitioner company's Board of Directors had approved the scheme of arrangement, and both secured and unsecured creditors had unanimously approved the scheme in their respective meetings.

The Registrar of Companies raised observations regarding the scheme, stating that the transferor-company's registered office in Maharashtra required the High Court at Bombay's sanction. Additionally, the company needed to increase its authorized capital to issue new equity shares to the shareholders of the demerged company, as per section 97 of the Companies Act, 1956. In response, the petitioner company filed an affidavit undertaking to increase the authorized capital if necessary.

The scheme also addressed the transfer of employees from the transferor/demerged company to the transferee-company. It ensured that all employees of the Facility Maintenance Services undertaking would continue their employment with the transferee-company on the same terms and conditions as with the transferor/demerged company, without any interruption in service.

Despite the advertisement of the petition, no objections were raised by shareholders, creditors, or employees of the transferee-company. After hearing the counsel and reviewing all relevant documents, the court found that the petitioner had made a case for the sanction of the scheme of arrangement. Consequently, the court allowed the company petition and sanctioned the scheme, subject to the High Court of judicature at Bombay's approval for the transferor/demerged company. The petitioner was directed to comply with the Registrar of Companies' observations and file a copy of the order with the Registrars of Companies in Karnataka and Bombay within thirty days. The sanctioned scheme would be binding on the shareholders, creditors, and the company itself.