2010 (12) TMI 1068 - HC - Companies Law

Whether the proposed scheme is opposed to the interest of the company or public interest, as to whether the material facts relating to the company have been disclosed and the company is not facing any investigation under sections 235 to 251 of the Act? Held that - There shall be an order approving the scheme of arrangement, as provided in the scheme of arrangement annexed as annexure A to the company petition with effect from April 1, 2009, as the procedure laid down under sections 391 and 394 of the Act has been duly complied with. However, the said approval is subject to sanction of the scheme of arrangement by the High Court of Karnataka with respect to the transferor companies. It is also made clear that the approval of the scheme shall be without prejudice to the right of the objector in proceeding for winding up petition filed by it, in respect of which no opinion is expressed by this court. This petition is allowed.

Issues Involved:
1. Sanction of the scheme of arrangement under sections 391 to 394 of the Companies Act, 1956.
2. Objections raised by a creditor regarding the scheme.
3. Compliance with procedural requirements for shifting the registered office.
4. Financial stability and disclosures by the petitioner/transferee company.
5. Rights and interests of creditors and employees.
6. Approval of the scheme by the court.

Detailed Analysis:

1. Sanction of the Scheme of Arrangement:
The petitioner filed for the sanction of a scheme of arrangement under sections 391 to 394 of the Companies Act, 1956, proposing the merger of three transferor companies with the petitioner/transferee company. The court examined the scheme's compliance with statutory requirements, including the approval by the board of directors of the involved companies and the benefits of the merger, such as reduced operational costs, pooled marketing facilities, and better financial structuring.

2. Objections Raised by a Creditor:
A creditor objected to the scheme, claiming the petitioner/transferee company owed it a significant amount and had not obtained the necessary consents from creditors. The objector also alleged procedural violations in shifting the registered office and raised concerns about the financial stability of the companies involved. The court noted that the objector had already filed a winding-up petition and emphasized that the scheme's approval would not frustrate the objector's right to pursue the winding-up process.

3. Compliance with Procedural Requirements for Shifting the Registered Office:
The objector argued that the registered office's shift from Karnataka to Tamil Nadu was not properly effected. The court found that the shift was done in accordance with the order of the Company Law Board and the provisions of the Companies Act, and thus, the objection was not valid.

4. Financial Stability and Disclosures by the Petitioner/Transferee Company:
The court examined the financial statements and auditor's reports of the petitioner/transferee company and the transferor companies. It was noted that the petitioner/transferee company's assets were substantial, and the auditor's reports did not indicate any suppression of facts. The court found that the financial position of the petitioner/transferee company was stable and that the scheme did not involve any reduction of share capital requiring a special resolution under sections 100 and 101 of the Act.

5. Rights and Interests of Creditors and Employees:
The scheme provided for the protection of employees' interests, including the transfer of provident fund, gratuity, and other benefits. The court noted that the scheme did not adversely affect the creditors' rights, as the petitioner/transferee company would continue its operations, and the creditors' claims could still be pursued.

6. Approval of the Scheme by the Court:
The court considered the objections raised by the creditor but found that the scheme was fair, reasonable, and beneficial to the petitioner/transferee company. The court emphasized that the scheme had been approved by the requisite majority of shareholders and that no other creditors had objected. The court also noted that the statutory requirements for the scheme's approval had been met, and there was no evidence of any suppression of material facts.

Conclusion:
The court approved the scheme of arrangement with effect from April 1, 2009, subject to the High Court of Karnataka's sanction regarding the transferor companies. The approval was granted without prejudice to the objector's rights in the pending winding-up petition. The learned Additional Central Government Standing Counsel was awarded a fee of Rs. 2,500 from the petitioner/transferee company.

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