2015 (5) TMI 908 - HC - Companies Law

Application for Scheme of Amalgamation under Sections 391(1) to 394 read with Section 100 of the Companies Act, 1956 - Regional Director s observation regarding Appointment date duly addressed - Held that - Although no objection has been raised by the Regional Director, Northern Region, but in para 12 of his report, he has submitted that the Scheme has provided the appointed date as 01.04.2013, whereas the petitioners have filed the balance sheet for the year 2014 and as such in order to avoid the revision of balance sheet, the petitioner companies may be asked to shift the appointed date as at 01.04.2014. In response to the aforesaid, learned counsel for the petitioners submitted that they are not inclined to change the appointed date and that the appropriate revised balance sheets with effect from the appointed date of 01.04.2013 shall be appropriately drawn up and filed. So far as the question with regard to fixing of appointed date of the Scheme is concerned, it has been held in numerous judgments passed by this Court and other High Courts that it is in the prerogative of the petitioners to fix any date as the appointed date of the Scheme and the Courts need not require alteration of the said date unless it is deemed necessary to do so, inter alia, for the reasons that either the petitioners have used the appointed date as a colourable device to evade taxes or it is in the interest of all stakeholders of the companies concerned to change the appointed date. In the present case, the only reason given by the Regional Director for change in the appointed date is that the petitioners have filed their balance sheets as at 31st March, 2014 and thus the appointed date may also be fixed as at 01.04.2014. However, no malafide is alleged in fixing the appointed date as at 01.04.2013. Learned counsel for the petitioners have submitted that the balance sheets of the petitioner companies shall be drawn up and filed with effect from the appointed date i.e. 01.04.2013. In view of the aforesaid, the observation raised by the Regional Director is suitably addressed. Considering the approval accorded by the equity shareholders and creditors of the petitioner companies to the proposed Scheme of Amalgamation and the affidavits filed by the Regional Director, Northern Region, and the Official Liquidator not raising any objection to the proposed Scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under Sections 391 and 394 of the Companies Act, 1956. - Application for Scheme of Amalgamation approved.

Summary

Issues:
1. Scheme of Amalgamation under Sections 391(1) to 394 read with Section 100 of the Companies Act, 1956.
2. Share exchange ratio and approval of the Board of Directors.
3. Directions to dispense with the requirement of convening meetings of equity shareholders, secured and unsecured creditors.
4. Compliance with statutory requirements and objections raised by Regional Director and Official Liquidator.
5. Appointment date discrepancy and its resolution.
6. Sanction of the Scheme of Amalgamation and imposition of costs.

Analysis:
1. The judgment involves a joint petition seeking approval for the Scheme of Amalgamation under Sections 391(1) to 394 read with Section 100 of the Companies Act, 1956. The petitioners aim to merge the transferor company with the transferee company, citing benefits such as reduced overheads, better resource utilization, and enhanced business opportunities.

2. The share exchange ratio in the Scheme indicates that no shares will be allotted to the shareholders of the transferor company as it is a wholly owned subsidiary of the transferee company. Unanimous approval from the Board of Directors of both companies has been obtained for the proposed Scheme.

3. Earlier, the petitioners sought directions to dispense with the requirement of convening meetings of equity shareholders, secured and unsecured creditors, which was granted by the court. This step was taken to streamline the approval process for the Scheme of Amalgamation.

4. The compliance with statutory requirements is highlighted, with no objections received from any party except for a discrepancy pointed out by the Regional Director regarding the appointed date. However, the court addressed this issue by allowing the petitioners to maintain the original appointed date of the Scheme.

5. The discrepancy regarding the appointed date was resolved by the court, emphasizing that the petitioners have the prerogative to fix the date unless there are compelling reasons to change it. The court found no malafide intent in maintaining the appointed date as 01.04.2013.

6. Ultimately, the court granted sanction to the Scheme of Amalgamation under Sections 391 and 394 of the Companies Act, 1956. The petitioners were directed to comply with statutory requirements, and the transferor company was to stand dissolved without undergoing the winding-up process. Additionally, costs were imposed on the petitioners for the examination of records and prioritized hearings, which they agreed to pay.

This detailed analysis covers the key issues addressed in the judgment, providing a comprehensive overview of the legal proceedings and decisions made by the court.