2021 (3) TMI 995 - Tri - Companies Law

Reduction of Equity and Preference Share Capital and approving minutes - HELD THAT - The petitioner has undertaken to publish Notice of Registration of Order confirming reduction of share capital and Minutes thereof in two local newspapers in which notice of hearing of Petition is published, within 14 days of its registration - Since the requisite statutory procedure has been fulfilled, the Company Petition is made absolute in terms of the prayer clause of the Petition. The form of minutes set forth herewith be and is hereby approved. The issued, subscribed and paid-up equity share capital of BBM Heavy Machinery Private Limited (post-capital reduction) shall be ₹ 6,35,33,800/- divided into 63,53,380 equity shares of ₹ 10 each.

Summary

Issues:
1. Reduction of equity and preference share capital approval.

Detailed Analysis:

Reduction of Equity and Preference Share Capital Approval:
The judgment pertains to the reduction of equity and preference share capital of the Petitioner Company. The Petitioner Company sought approval for the reduction of equity share capital as per Article 8 of its Articles of Association and under the provisions of the Companies Act, 2013. The resolution for reduction was passed by the Board of Directors and was subsequently approved by the shareholders through a Special Resolution. The proposed reduction aimed to write off accumulated losses against the equity share capital, specifically held by a shareholder. The resolution was passed unanimously by all shareholders, representing 100% of the equity share capital, through a poll. The Tribunal confirmed the reduction of share capital and approved the minutes reflecting the revised share structure.

Compliance and Affidavit Submission:
The Petitioner Company's Counsel confirmed that there were no pending inspections, inquiries, or investigations against the company under relevant sections of the Companies Act, 2013. It was emphasized that the proposed reduction would not prejudice the creditors of the company, and it would not impact the company's ability to meet its obligations or pay its debts. The company provided a rationale for the reduction, citing the need to address accumulated losses that had eroded the share capital and hindered the company's ability to raise further funds. The company also assured compliance with all statutory requirements and undertook to publish the order confirming the reduction and related minutes in local newspapers.

Observations and Acceptance:
The Regional Director's report highlighted certain observations, including the need for an affidavit to protect the interests of creditors and stakeholders, potential tax implications subject to the decision of the Income Tax Authorities, and concerns regarding selective reduction affecting other shareholders. The Petitioner Company accepted these observations and submitted an affidavit acknowledging the same. The company explained liquidity constraints that led to delays in creditor payments, particularly to a joint venture partner. The Counsel affirmed the company's compliance with statutory requirements and commitments to fulfill any additional obligations under the Companies Act, 2013.

Conclusion:
The Tribunal, after ensuring all statutory procedures were followed and requirements met, made the Company Petition absolute, confirming the reduction of share capital. The approved form of minutes reflected the revised equity share capital post-reduction. The Petitioner Company agreed to file the necessary documents with the Registrar within the stipulated timeline for further regulatory action.