2017 (6) TMI 654 - Tri - Companies Law

Scheme of Amalgamation - Held that - Considering the approval accorded by the members and creditors of the Petitioners to the proposed Scheme, and the affidavits filed by the Regional Director, Northern Region, Ministry of Corporate Affairs and Official Liquidator whereby no serious objections save the one relating to NBFC which has also been dealt with have been raised to the proposed Scheme, there appears to be no impediment to grant sanction to the Scheme. We also accept that none of the companies fall in the definition of NBFC and do not require to be registered as such with the RBI. However, the Companies shall remain bound by the undertaking filed by all of them. Consequently, sanction is hereby granted to the Scheme under sections 391 and 394 of the Companies Act, 1956. The Petitioners shall however remain bound to comply with the statutory requirements in accordance with law.

Summary

Issues Involved:
1. Approval of the Scheme of Amalgamation.
2. Compliance with statutory requirements.
3. Objections raised by the Regional Director.
4. Status of companies as Non-Banking Financial Companies (NBFC).

Issue-wise Detailed Analysis:

1. Approval of the Scheme of Amalgamation:
The petition sought approval for the Scheme of Amalgamation between Superlite Auto Private Limited, Sunlite Finvest Private Limited, and Ferolite Jointings Limited. The Hon'ble High Court of Delhi initially dispensed with the requirement of convening meetings of shareholders and creditors. Notices were duly published, and no objections were received. The petition was transferred to the National Company Law Tribunal (NCLT) following the notification of Sections 230-232 of the Companies Act, 2013.

2. Compliance with Statutory Requirements:
The NCLT considered the compliance affidavit filed by the petitioner confirming the issuance of notices to the Regional Director, Northern Region, and the Official Liquidator. The Regional Director's report indicated no violations of laws such as the Companies Act, FEMA, SEBI Act, and RBI Act. The Official Liquidator also confirmed no objections against the proposed Scheme of Amalgamation.

3. Objections Raised by the Regional Director:
The Regional Director raised several objections:
- Transferor Company No. 1 had not filed its statutory documents for the financial year 2015-2016, violating Sections 129, 134, and 137 of the Companies Act, 2013.
- The Transferee Company had not filed the required resolution (e-form MGT-14) with the office of the Regional Director, violating Section 117(1) of the Companies Act, 2013.
- The object clause of Transferor Company No. 2 reflected NBFC activities, but there was no mention of registration as an NBFC with RBI.

The petitioner responded that Transferor Company No. 1 had filed its balance sheet and annual return for FY 2015-16 in January 2017. The non-filing of e-form MGT-14 was unintentional, and steps were being taken to rectify it. Regarding the NBFC status, the petitioner argued that the companies did not fall under the definition of NBFC as per RBI guidelines and did not require registration.

4. Status of Companies as Non-Banking Financial Companies (NBFC):
The Regional Director's report indicated that the financial assets of the transferee company constituted more than 50% of their total assets, and income from financial assets constituted more than 50% of the gross income, requiring NBFC registration. The petitioner contended that investments in fixed deposits and interest income on fixed deposits should not be treated as financial assets or income from financial assets. They argued that neither Transferor Company exceeded the 50% limit for financial assets and income criteria, and thus did not require NBFC registration.

Conclusion:
The NCLT found no impediments to granting sanction to the Scheme of Amalgamation, accepting that none of the companies fell under the definition of NBFC and did not require registration with RBI. The companies were bound by their undertakings and statutory requirements. The Tribunal emphasized that the order did not grant exemption from stamp duty, taxes, or other charges, and any deficiencies or violations would not prevent legal action against concerned persons.

Order:
The NCLT ordered the transfer of all properties, rights, powers, and liabilities of the Transferor Companies to the Transferee Company. All pending proceedings by or against the Transferor Companies would continue against the Transferee Company. The Transferor Companies were deemed dissolved without winding up upon registration of the order with the Registrar of Companies. The petition was disposed of accordingly.