2020 (3) TMI 1330 - Tri - Companies Law

Sanction of scheme of Amalgamation - section 230 to 232 of the Companies Act, 2013 - HELD THAT - Considering the factual details, the profit earning capacity and other financials of the Transferor-I and Transferor-II Companies, the share exchange ratio as per the valuation given by the Auditor and the Fairness Opinion given by the Merchant Banker appears to be too high which results in undue advantage/ enrichment to the shareholders of both the Transferor Companies and to the shareholders of the ultimate holding Company RHI Magnesita. Therefore, we are of the considered view that the Scheme is devised/ designed majorly to benefit the Two shareholders of Transferor Company-I and few shareholders of Transferor Company-II which in turn the undue advantage ultimately flows to the shareholders/ holding Company, i.e. RHI Magnesita. The Scheme appears to benefit only a few shareholders of Transferor Company to be unfair and unreasonable and contrary to the public policy, public shareholders of the listed Company therefore, we deem it fit not to sanction/ approve the proposed Scheme of Amalgamation - The scheme cannot be sanctioned.

Summary

Issues Involved:
1. Scheme of Amalgamation
2. Compliance with Sections 230 to 232 of the Companies Act, 2013
3. Observations of the Regional Director
4. Valuation Report and Fairness Opinion
5. Appointed Date
6. Share Exchange Ratio
7. Potential Benefit to Shareholders

Detailed Analysis:

1. Scheme of Amalgamation:
The matter concerns the Scheme of Amalgamation involving three companies: RHI India Private Limited, RHI Clasil Private Limited, and Orient Refractories Limited. The Tribunal noted that no objections were raised against the Scheme, and the sanction was sought under sections 230 to 232 of the Companies Act, 2013.

2. Compliance with Sections 230 to 232 of the Companies Act, 2013:
The Petitioner Companies stated that they are engaged in various businesses related to refractory products. The rationale for the Scheme includes simplification of corporate structure, consolidation of businesses, improved resource utilization, enhanced shareholder value, and no additional burden on members. The Scheme was approved by the board resolutions dated 31 July 2018, and the Petitioner Companies complied with all directions and statutory requirements.

3. Observations of the Regional Director:
The Regional Director's report dated 24 June 2019 included several observations:
- Section 230(5) Compliance: Notices were served to all concerned authorities, and their decisions post-Scheme approval remain binding.
- Document Submission: The Petitioner Companies submitted the Chairman’s Report, admitted copy of the petition, and Order for admission of the petition.
- Scheme Consistency: An undertaking was filed confirming no discrepancies between the Scheme enclosed to the Company Application and the Company Petition.
- Accounting Standards Compliance: The Transferee Company undertook to comply with AS-14 (IND AS-103) and other applicable standards.
- Section 232(3)(i) Compliance: An undertaking was filed to comply with provisions regarding the set-off of fees.
- Appointed Date: The Appointed Date was fixed as 1 January 2019, compliant with section 232(6).

4. Valuation Report and Fairness Opinion:
The Valuation Report and Fairness Opinion, both dated 31 July 2018, were addressed to the Board of Directors of Orient Refractories Limited. The valuation was based on the highest share price of ?182.58 for the share exchange ratio.

5. Appointed Date:
The Tribunal discussed the importance of the Appointed Date, referencing a previous NCLT order. The Appointed Date should align with the valuation date to ensure accurate financial implications for stakeholders. The Tribunal noted that the Appointed Date of 1 January 2019 was not tied to any event or precondition, thus the valuation date of 31 July 2018 should be considered as the Appointed Date.

6. Share Exchange Ratio:
The share exchange ratio was scrutinized, revealing significant benefits to certain shareholders. The Tribunal observed that the valuation and fairness opinion, both dated 31 July 2018, raised concerns due to the timing and potential undue advantage to specific shareholders.

7. Potential Benefit to Shareholders:
The Tribunal found that the Scheme disproportionately benefited a few shareholders of the Transferor Companies and the ultimate holding company, RHI Magnesita. The share exchange ratio was deemed too high, resulting in undue enrichment to these shareholders.

Conclusion:
The Tribunal concluded that the Scheme was designed to benefit a few shareholders and was contrary to public policy. Consequently, the Scheme of Amalgamation was not sanctioned. The Petitioner Companies were directed to file a copy of the Order with the Registrar of Companies.