2012 (10) TMI 76 - HC - Companies Law

Scheme of Arrangement - what would be an effective date of conversion? - Held that - Considering the reports of the surveyor Ernst and Young appearing at the supplementary paper book where it is found that the effective date of conversion should be the date of merger meaning thereby, it would be a post-merger issue and not pre-merger as suggested in the scheme. As no reasonable plea was placed to ignore the opinion of the expert on that count the opinion of the surveyor, having the competent expertise, must prevail, particularly, when the company relied on the same at the meeting of the shareholders as contended by Mr. Deb, learned senior counsel appearing for the respondent and not confronted by Mr. Sarkar, learned senior counsel appearing for the appellant. Unfair dealings at the meeting - It would have been proper if such unpleasant things did not happen at the meeting. The learned Judge rightly held, it did not tilt the balance as the overwhelming majority of the shareholders approved the same. In the process, if the balance is tilted in favour of the promoter that would be a consequence for which the respondent would have to suffer without a redressal. We are helpless on that count. Discounted value must be the best possible one, beneficial to the minority shareholders including Chandak and Fofalia and such date must be fixed by the company accordingly from the chart handed over in Court by Mr. Sarkar. To make it clear for removal of doubts, the conversion must take effect after the merger and not anterior to it. Thus with these modifications the scheme is sanctioned.

Issues Involved:

1. Compliance with Section 81(1A) of the Companies Act, 1956.
2. Irregularities in the shareholders' meeting.
3. Fairness of the Scheme of Arrangement and Demerger.
4. Effective date of conversion of bonds and preference shares.
5. Discounting of bonds and preference shares.

Detailed Analysis:

1. Compliance with Section 81(1A) of the Companies Act, 1956:

The learned single Judge dismissed the application primarily on the ground that the petitioners did not comply with the provisions of Section 81(1A) of the Companies Act, 1956. This section pertains to the issuance of further shares to persons other than the existing shareholders and requires a special resolution. The appellant contended that Section 81(1A) would not apply as the creditors had sanctioned the scheme with a 3/4th majority, making the requirement of Section 81(1A) superfluous. However, the Court held that the shareholding could only be increased as per the appropriate provisions of law, which was not adhered to in the scheme.

2. Irregularities in the shareholders' meeting:

The learned Judge addressed the issue of irregularities in the shareholders' meeting, particularly the rejection of proxies and missing attendance slips. Even if the sixteen rejected proxies and forty-one ballots were credited to the objector, it would not have defeated the scheme as it would still be below the 3/4th majority required. Thus, the objection on this count was rejected. The Court found that the alleged unfair dealings at the meeting did not significantly impact the outcome, as the scheme was approved by an overwhelming majority of shareholders.

3. Fairness of the Scheme of Arrangement and Demerger:

The learned Judge observed that the share exchange ratio could not be faulted as no better ratio was produced, and the method adopted in arriving at such ratio was not challenged. However, the scheme was termed unfair as it would primarily benefit the promoters by increasing their shareholding, to the detriment of the minority shareholders. The Court emphasized that the conversion contemplated in the scheme would benefit the promoters and none else. The Court also noted that the scheme did not consider the present discounted value of redeeming the bonds and preference shares, which was a significant oversight.

4. Effective date of conversion of bonds and preference shares:

The Court agreed with the opinion of the surveyor, Ernst & Young, that the effective date of conversion should be post-merger and not pre-merger as suggested in the scheme. The Court found no reasonable plea to ignore the expert opinion on this count. The effective date of conversion should be the date of the scheme's approval, ensuring that the conversion takes effect after the merger.

5. Discounting of bonds and preference shares:

The learned Judge found impropriety in the scheme's handling of the discounting aspect of the bonds and preference shares. The present discounted value ought to have been considered, which was not done. The Court held that no prudent businessman would propose a scheme without considering the discounting aspect. The company must adopt the best possible discounted value beneficial to the minority shareholders, including Chandak and Fofalia.

Conclusion:

The appeal was allowed in part. The scheme was sanctioned with modifications. The effective date of conversion should be post-merger, and the discounted value must be the best possible one beneficial to the minority shareholders. The application for sanction of the scheme was allowed with consequential reliefs, and the appeal was disposed of without any order as to costs.

Post-Judgment Note:

Mr. Sarkar mentioned the matter post-judgment, suggesting an effective conversion date of April 1, 2010, to address the respondent's principal grievance. However, Mr. Deb contended that the resultant effect of such change needed scrutiny. The Court agreed with Mr. Deb, deciding to retain the date mentioned in the scheme until a comparative study of relevant particulars was conducted.

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