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2022 (1) TMI 362 - Tri - Companies LawReduction of Share Capital of Company - Section 66 of Companies Act - HELD THAT - The present position of law, while dealing with the provisions of Section 66 is that if none of the shareholders are objecting for the proposed reduction, then after considering the merits of the case as also connected facts and circumstances such petition normally deserves to be admitted. In the case of Elpro International Limited 2007 (6) TMI 292 - HIGH COURT OF BOMBAY , Hon'ble Bombay High Court has expressed that the question of reduction of share capital is the matter of domestic concern of the company. Further observed that decision for reduction is based on commercial consideration undertaken by the businessmen who are in the best position to know of the necessities and interests of the company concerned, in the absence of serious allegations as regards the bona fides of the proposed Scheme, the Courts are of the view that no interference in such decisions are acquired. It is ordered to confirm the reduction of share capital of Petitioner Company by approving the minutes of the EOGM commenced on 23rd January 2021 and concluded on 21st February 2021, wherein the members of the Petitioner Company resolved for the reduction of share capital of the Company, as prescribed U/s. 66 of the Companies Act, 2013 - the necessary alteration shall be made in the Memorandum of Association by the Petitioner Company for reduction of the amount of its share capital and of its shares, the copy of the altered Memorandum of Association and the minutes approved along with the order shall be delivered to the ROC by filing the E form INC, within 30 days of the receipt of copy of the Order.
Issues Involved:
1. Incorporation and Business Activities of the Petitioner Company 2. Proposed Preferential Issue and Allotment 3. Reduction of Share Capital 4. Compliance with Legal Provisions and Regulatory Approvals 5. Impact on Creditors and Financial Solvency 6. Observations by the Regional Director 7. Final Judgment and Order Issue-wise Detailed Analysis: 1. Incorporation and Business Activities of the Petitioner Company: The Petitioner Company was incorporated on October 17, 1944, in Lahore under the Companies Act, 1913, as 'Escorts (Agents) Limited'. It underwent a name change to 'Escorts Limited' on January 18, 1960. The company is listed on BSE, NSE, and DSE and is engaged in manufacturing and dealing in ferrous and non-ferrous castings and machinery. 2. Proposed Preferential Issue and Allotment: The Board of Directors approved a preferential issue and allotment to attract a globally reputed player, Kubota Corporation, to subscribe to 1,22,57,688 equity shares at INR 850 per share, amounting to 9.09% of the post-issue share capital. This was aimed at funding the expansion of its agri-machinery business without diluting the shareholding of existing shareholders in the long run. 3. Reduction of Share Capital: The reduction of share capital was proposed under Article 8 of the Articles of Association and in accordance with Sections 66 and 52 of the Companies Act, 2013. The scheme involved cancelling and extinguishing 1,22,57,688 equity shares held by Escorts Benefit and Welfare Trust (EBWT) without any consideration, ensuring no adverse effect on the creditors. 4. Compliance with Legal Provisions and Regulatory Approvals: The proposed reduction was compliant with Section 66 of the Companies Act, 2013, and received approval from the equity shareholders and the Competition Commission of India. The scheme was also filed with NSE and BSE, which provided their no-objection letters. 5. Impact on Creditors and Financial Solvency: The Petitioner Company confirmed it had no arrears in the repayment of deposits and was solvent with a net worth of INR 4,413.08 crore as of March 31, 2020. The scheme did not envisage any payout, ensuring no adverse impact on creditors. Notices were sent to all creditors, and no objections were received. 6. Observations by the Regional Director: The Regional Director raised several observations, including outstanding dues, accounting treatment of the reduction, and pending enquiries under Section 206(4) of the Companies Act, 2013. The Petitioner Company responded adequately, clarifying that statutory dues would be paid, and provided detailed accounting treatment for the capital reduction. It also confirmed no further communication regarding the pending enquiry had been received since 2018. 7. Final Judgment and Order: The Tribunal confirmed the reduction of share capital, approving the minutes of the EOGM held from January 23, 2021, to February 21, 2021. The issued, subscribed, and paid-up capital was reduced from INR 1,34,83,45,660 to INR 1,22,57,68,780 by cancelling 1,22,57,688 equity shares held by EBWT. The Petitioner Company was directed to alter its Memorandum of Association accordingly and file the necessary forms with the Registrar of Companies within 30 days. Conclusion: The Tribunal's order confirmed the reduction of share capital as compliant with the legal provisions and beneficial to the company's shareholders without adversely affecting creditors. The detailed responses to the Regional Director's observations ensured transparency and compliance with applicable laws.
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