2012 (10) TMI 828 - HC - Companies Law

Scheme of Amalgamation - contravening the Provisions of Section 295 as the company has granted a loan to Ms. Manju Goel, relative of director - Held that - Mr. Anuj Goyal, Director of Transferor Company No.1 filed an affidavit in response to the affidavit filed by Regional Director stating that that the above non-compliance has occurred inadvertently and due to oversight; without any mala-fide intention on the part of the Board of Directors of the Transferor Company No. 1. also whole amount of Rs. 15,80,000/- has been repaid on 09.11.2011 by Ms. Manju Goel to the Transferor Company No. 1 and the Transferor Company No. 1 has filed a compounding application under section 621A r.w.s. 295 in respect of the loan given by the Transferor Company No. 1 to Ms. Manju Goel. In view of the submissions made at the bar and the settled law on the subject, the objection raised by the Regional Director is rejected and the Scheme is sanctioned subject to and without prejudice to the liability, if any, in the civil and criminal proceedings in respect of past transactions. It is further clarified that the proceedings pending before the ACMM, Tis Hazari, Delhi against the transferor company and/or its Board, Directors and management etc. shall continue and the liability, if any, of the Board, Directors, Management etc., in the said proceedings would continue as if the Scheme has not been made - No objection has been received to the Scheme of Amalgamation from any other party by either of the Petitioner Company or the counsel neither the Petitioner Companies nor the counsel has received any objection pursuant to citations published in the newspapers, Consequently, sanction is hereby granted to the Scheme of Amalgamation under sections 391 and 394 of the Companies Act, 1956.

Summary

Issues:
1. Sanction of the Scheme of Amalgamation under sections 391(2) & 394 of the Companies Act, 1956.
2. Share Exchange Ratio determination for the amalgamation.
3. Compliance with legal proceedings and provisions under the Companies Act, 1956.
4. Objections raised by the Regional Director regarding non-compliance with Section 295 of the Act.
5. Approval of the Scheme of Amalgamation by Shareholders and Creditors.
6. Grant of sanction to the Scheme of Amalgamation and compliance requirements.

The judgment pertains to a joint Petition filed under sections 391(2) & 394 of the Companies Act, 1956 for the sanction of the Scheme of Amalgamation between several Transferor Companies and a Transferee Company. The Petition includes details of the companies involved, their capital structure, resolutions passed, and compliance with legal provisions. The Share Exchange Ratio for the amalgamation is specified, detailing the exchange of equity shares between the companies. The Court had previously allowed dispensation of shareholder and creditor meetings for the companies. Notices were issued to the Regional Director and Official Liquidator, with publications in newspapers for public information and compliance. The Official Liquidator's report indicated no complaints against the Scheme, ensuring the interests of stakeholders. However, the Regional Director highlighted non-compliance with Section 295 of the Act by one of the Transferor Companies, necessitating a Compounding Application. The Directors of the concerned company acknowledged the oversight, repaid the loan, and filed the required application for compounding. The judgment referred to previous legal precedents to address liabilities in civil and criminal proceedings post-amalgamation.

The judgment further noted the absence of objections to the Scheme from any party involved. Approval from Shareholders and Creditors, along with reports from regulatory bodies, supported the grant of sanction to the Scheme of Amalgamation. The Court sanctioned the Scheme, directing compliance with statutory requirements within a specified timeline. The transfer of assets, liabilities, and duties to the Transferee Company was approved without the need for additional formalities. However, the order did not exempt the companies from stamp duty, taxes, or other charges as per the law. The Petitioner Companies agreed to deposit a sum in the Official Liquidator's fund voluntarily. The Petition was allowed as per the terms outlined in the judgment, concluding the legal proceedings with an order for immediate action and compliance.

This detailed analysis covers the issues of amalgamation sanction, share exchange ratio determination, legal compliance, objections, approval, and the final grant of sanction with compliance directives.