2021 (2) TMI 460 - Tri - Companies Law

Seeking sanction of Scheme of Amalgamation - Section 230-232 of Companies Act - HELD THAT - On going through the report of the Registrar of Companies, it is seen that both companies have violated the provisions of the Companies Act and the petitioners could not successfully controvert the objections raised by the Regional Director. They have not followed most of the provisions of the Companies Act, which are mandatory for continuance of a company honestly. They must be humble and serious enough to abide the law and any proposition of business must be planned in such a manner that no law, logic and rights of any person are violated. Hence this Tribunal is of the opinion that this is not a fit case to sanction the Scheme of Amalgamation. Application dismissed.

Summary

Issues Involved:
1. Sanction of Scheme of Amalgamation
2. Compliance with Sections 73 and 74 of the Companies Act, 2013
3. Compliance with Companies (Acceptance of Deposits) Rules, 2014
4. Financial and statutory compliance of the petitioner companies

Issue-wise Detailed Analysis:

1. Sanction of Scheme of Amalgamation:
The petitioner companies, M/s Hotel City Plaza Private Limited (Transferor Company) and M/s Trivandrum Apollo Towers Private Limited (Transferee Company), sought the sanction of a Scheme of Amalgamation under Sections 391 to 394 of the Companies Act, 1956. The primary objective of the proposed amalgamation was to consolidate business operations, achieve synergies, and reduce administrative costs. The amalgamation aimed at pooling physical and financial resources to enhance business efficiency and growth, resulting in benefits such as economies of scale, reduction in overheads, and a stronger financial base.

2. Compliance with Sections 73 and 74 of the Companies Act, 2013:
The Registrar of Companies (ROC) reported that both companies had violated Sections 73 and 74 of the Companies Act, 2013, which pertain to the acceptance and repayment of deposits. The companies received unsecured loans from multiple individuals, which were not in compliance with the provisions of Sections 73 and 74 read with Companies (Acceptance of Deposits) Rules, 2014. The ROC highlighted that the companies had not provided the necessary disclosures in their financial statements and had retained deposits beyond the permissible period, violating Section 74(1)(b).

3. Compliance with Companies (Acceptance of Deposits) Rules, 2014:
The ROC's report indicated that the companies accepted deposits from directors and other individuals without the required declarations and disclosures, violating Rule 2(1)(c)(viii) of the Companies (Acceptance of Deposits) Rules, 2014. The Transferor Company manipulated records to show amounts received from non-members as member deposits to circumvent Section 58A of the Companies Act, 1956. The companies failed to upload necessary financial disclosures on the MCA portal and did not furnish required information on deposits received and retained.

4. Financial and statutory compliance of the petitioner companies:
The ROC's report revealed significant non-compliance with statutory requirements, including non-disclosure of deposits in financial statements, manipulation of records, and retention of deposits beyond permissible limits. The petitioners contended that the alleged violations were not valid grounds for objecting to the amalgamation and cited the Supreme Court decision in Miheer H Mafatlal Vs. Mafatlal Industries to support their argument. However, the Tribunal emphasized the importance of adherence to legal provisions and transparency in financial dealings.

Tribunal's Decision:
The Tribunal, after considering the ROC's report and the petitioners' counter-statements, concluded that the companies had violated multiple provisions of the Companies Act, 2013, and the Companies (Acceptance of Deposits) Rules, 2014. The Tribunal referred to a similar case decided by the Mumbai Bench, emphasizing that business combinations must comply with legal requirements and not violate the rights of any stakeholders. Consequently, the Tribunal dismissed the petitions (TCAA/4/KOB/2019 & TCAA/5/KOB/2019) for sanctioning the Scheme of Amalgamation due to the companies' non-compliance with statutory provisions.

Conclusion:
The judgment highlights the critical importance of statutory compliance and transparency in corporate transactions. The Tribunal's decision underscores that any business proposition, including amalgamations, must adhere to legal requirements and uphold the rights of all stakeholders. The dismissal of the petitions serves as a reminder that violations of statutory provisions can lead to the rejection of proposed schemes, regardless of their potential business benefits.