2024 (5) TMI 1403 - AT - Companies Law

Modification of terms of the Demerger Scheme by altering the Appointed Date to the date of pronouncement of the Impugned Order - Section 421 of the Companies Act, 2013 - wrong interpretation of law and no reasoning - HELD THAT - It is seen from the case of Accelyst Solutions Pvt Ltd Vs Freecharge Payment Technologies Pvt Ltd 2021 (3) TMI 1009 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI that while sanctioning the scheme of arrangement if the Court comes to a conclusion that the provisions of statute have been complied with; and that there is no violation of any provision of law, or the proposed scheme of compromise or arrangement is not unquestionable, unconscionable or contrary to public policy, then the NCLT has no further jurisdiction to sit in appeal over the commercial wisdom of the class of person who with their eyes open have given their approval, even if, the Court is of the view that better scheme could have been framed. Further we also agree the alterations in the appointed date would affect the calculation and would have a serious financial implication. Hence if the parameters for sanctioning the scheme are complete, then the Tribunal would only have a supervisory jurisdiction. There was no reason to change the appointed date as was given in the scheme of merger and even the reliance on Sterlite Port 2023 (12) TMI 1220 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI was incorrect since in the said case the definition of the term Appointed Date itself gave an authority to the Ld. NCLT to fix a date other than the date fixed by the Scheme but though the NCLT had fixed another date than the Appointed Date yet in the cited case this Tribunal retained the Appointed Date to be the one as fixed under the Scheme. The appeal is allowed holding the Appointed Date be the date as fixed by the scheme per para 5 above and it shall not be the date of pronouncement as is held by the Ld. NCLT.

Issues Involved:
1. Modification of the Appointed Date by the NCLT.
2. Compliance with statutory provisions and commercial wisdom.
3. Jurisdiction and powers of the NCLT in modifying the Appointed Date.
4. Financial implications of altering the Appointed Date.

Detailed Analysis:

Issue 1: Modification of the Appointed Date by the NCLT
The primary issue in the appeal concerns the modification of the Appointed Date by the National Company Law Tribunal (NCLT) from the Effective Date agreed upon by the parties to the date of pronouncement of the Impugned Order. The Appellant argued that this modification was based on an incorrect interpretation of legal precedent and lacked a legal basis. The Scheme defined the Appointed Date as the Effective Date or such other date as decided by the Board of the Parties, and this was approved by the shareholders, creditors, and regulatory authorities without objections. The NCLT, however, cited its powers under Rule 11 of the NCLT Rules, 2016, to fix the Appointed Date, referencing the case of Sterlite Ports Ltd. vs. Regional Director Southern Region.

Issue 2: Compliance with Statutory Provisions and Commercial Wisdom
The Appellate Tribunal examined whether the NCLT had adhered to the statutory provisions and respected the commercial wisdom of the parties involved. The Tribunal referenced the judgment in Accelyst Solutions Pvt Ltd vs. Freecharge Payment Technologies Pvt Ltd, which emphasized that the Court's role is supervisory and not appellate. The Court must ensure compliance with statutory procedures and that the proposed scheme is not violative of any law, unconscionable, or contrary to public policy. The commercial wisdom of the parties, who approved the scheme with their eyes open, should not be overridden by the Court unless there are compelling reasons.

Issue 3: Jurisdiction and Powers of the NCLT in Modifying the Appointed Date
The Appellate Tribunal scrutinized the NCLT's jurisdiction and powers in modifying the Appointed Date. It was noted that the NCLT's discretion to alter the Appointed Date should be exercised for cogent reasons. In the case of Shree Balaji Cinevision (India) Pvt Ltd, it was held that the Company Court has discretion to modify the proposed scheme but must provide cogent reasons for such modifications. The Appellate Tribunal found that the NCLT had no justifiable reason to modify the Appointed Date proposed in the scheme and that such modifications could have significant financial implications.

Issue 4: Financial Implications of Altering the Appointed Date
The Appellate Tribunal highlighted the financial implications of altering the Appointed Date. It referenced the judgment in Shree Balaji Cinevision (India) Pvt Ltd, which underscored that changing the Appointed Date could affect calculations and have serious financial implications. The Tribunal agreed that the alteration of the Appointed Date would render all calculations awry and noted that none of the shareholders opposed the Appointed Date proposed in the scheme. The Tribunal concluded that the NCLT's reliance on Sterlite Ports Ltd was incorrect, as the definition of the term "Appointed Date" in that case allowed for such discretion, which was not applicable in the present case.

Conclusion:
The Appellate Tribunal allowed the appeal, holding that there was no reason to change the Appointed Date as given in the scheme of merger. The Tribunal emphasized that the NCLT's role is supervisory, and it should not sit in appeal over the commercial wisdom of the parties who approved the scheme. The Appointed Date as fixed by the scheme was reinstated, and the appeal was accordingly disposed of. Pending interim applications, if any, were also disposed of.

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