9911796707
TMI Blog2011 (9) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... on, Annexures filed thereto, Affidavit of Registrar of Companies, Report of Official Liquidator and reply affidavits filed thereto. 2. Petitioner is second transferor company and in this Company Petition sanction of the Scheme of Amalgamation appended to the petition as per Annexure G1 is sought for Petitioner Company was incorporated on 13.10.2000 at Bangalore under the name of "Siemens Shared India Pvt. Ltd.," and later changed its name to "Siemens BPO Services Pvt. Ltd.," w.e.f. 15.7.2005 and thereafter changed its name so the present name w.e.f. 17.8.2006 as per certificate of incorporation produced along with Memorandum and Articles of Association vide Annexure-E. 3. The petitioner Company is having its registered office at Ozone Manay Tech Park Block A, 6th Floor No. 56/18 55/9, G.B. Palya, Hosur Road, Bangalore-560 068. 4. The authorised, issued, subscribed and paid up share capital of the petitioner Company is as per the audited balance sheet made up to 30th September, 2010 which is specifically mentioned in paragraph 4 of the Petition. 5. The objects of the petitioner Company is as enumerated in the Memorandum and Articles of Association and carries on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... INDU" and "KANNADA PRABHA" on or before 4.3.2011 by fixing the date of hearing as 25.3.2011. Accordingly, petitioner has taken out advertisement in the newspapers on 26.2.2011 and has filed a memo on 3.3.2011 enclosing the copies of the newspapers. Same has been placed on record. 12. Pursuant to the notice issued to the Regional Director, the Registrar of Companies Bangalore has filed affidavit on behalf of the Regional Director with following observations: "3.1 The finances of the second Transferor Company (which is situated in Karnataka) for which the Balance sheet and Profit and loss account as at 30.9.2010 has been audited; adopted, approved and filed with the Registrar of Companies as required Secs. 210 and 220 of the Act. If the company is not filing the Balance Sheet and Profit and Loss account as at 30.3.2011, its affairs for one full financial year will not be audited, adopted, approved and filed in accordance with various provisions of Companies Act and also will not be available in public domain u/s. 610 of the Act. Hence, the company should file its Balance sheet, and profit and Loss account for the financial year 30.9.2011 before the scheme being put into opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies, Karnataka as required u/ss. 210 and 220 of the Companies Act, and if the company (second Transferor) is not filing the balance sheet and profit and loss account as at 30.9.2011, its affairs for one full financial year will not have been audited, adopted, approved and filed in accordance with the provisions of the Companies Act and consequently, the affairs of the petitioner Company for the period 1.10.2010 to 30.9.2011 will not be available for public domain which is required to be made available under section 610 of the Companies Act and as such "appointed date" in the Scheme ought to be revised as 1.10.2010 on the petitioner company has to file its Balance Sheet and profit and loss account for the financial year 30.9.2011 before Scheme being put into operation. 16. In so far as the first observation of ROC at para 3.1 is concerned, the argument advanced on behalf of the learned senior counsel, is that what is required to be placed on record by the petitioner company as per proviso to Sec. 391(2) is latest financial position of the company, along with the latest auditors report of the accounts of the petitioner company and the petition in question having been filed on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court." 19. The Board resolutions of the second transferor company (petitioner herein), first transferor company and transferee company passed on 6.12.2010, 6.12.2010 and 4.12.2010 respectively are appended to the present petition collectively as Annexure G would also depict that Board of Directors of these Companies have agreed that 'appointed date' under the Scheme of Amalgamation would be 1.10.2011. The 1st transferor company (Siemens Corporate. Finance Pvt. Ltd.,) and transferee company (Siemens Information Systems Ltd.) had filed company petitions 82/2011 and 83/2011 before High Court of Judicature at Bombay enclosing this very Scheme of Amalgamation (Annexure-G1) for sanction and same has to be sanctioned and approved by order dated 26.8.2011 and "subject to present petition being sanctioned by this Court". 20. Learned counsel for the petitioner has filed a memo on 20.9.2011 enclosing copies of the Company Scheme Petition Nos. 82 and 83/2011 filed by first Transferor Company and Transferee Company before the High Court Judicature at Mumbai. In the said petitions also the audited accounts for the year ending 30.9.2010 had been appended thereto which came to be consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt petition 'appointed date' is shown as 1.10.2011. Hence, in the normal course, this court would have refused to sanction the scheme as propounded by accepting the 'appointed date' as 1.10.2011 or would have sanctioned the Scheme with 'appointed date' modified as 1.10.2010. However, this court is placed in a piquant situation namely not able to refuse the sanction of scheme inasmuch as the High Court Judicature of Mumbai has already sanctioned the very same scheme which is at Annexure G1 in COP Nos. 82 and 83/2011 on 21.1.2011 wherein the "appointed date" has been shown as 1.10.2011. 23. In order to answer the above formulated question it would be necessary to extract the proviso to sub-section (2) to Section 391 of the Companies Act, 1956, which reads as under: "391. Power to compromise or make arrangements with creditors and members. (1) ** ** ** (2) If a majority in number representing three-fourths in value of the creditors, or class of creditors, or members, or class of members as the case may be, present and voting either in person or, where proxies are allowed (under the rules made u/s. 643), by proxy, at the meeting, agree to any compromise or arrangement, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by that company to or for any person; ( iii )the continuation by or against, the transferee company of any legal proceedings pending by or against any transferor company; ( iv )the dissolution, without, winding up, of any transferor company; ( v )the provision to be made for any persons who, within such time and in such manner as the Court directs dissent; from the compromise or arrangement; and ( vi ) such incidental, consequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation shall be fully and effectively carried out: Provided that no compromise or arrangement proposed for the purposes of, or in connection with, a scheme for the amalgamation of a company, which is being would up, with any other company or companies; shall be sanctioned by the (Tribunal) unless the Court has received a report from the Registrar that the affairs of the company have not, been conducted in a manner prejudicial to the interests of its members or to public, interest: Provided further that no order for the dissolution of any transferor company under clause (iv) shall be made by the (Tribunal) unless the Official Liquidator has, on scrutiny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at any of the offices for the registration of companies under this Act, certified to be a true copy under the hand of the Registrar (whose official position it shall not be necessary to prove), shall, in all legal proceedings, be admissible in evidence as of equal validity with the original document." 26. One another prayer that has been sought for in this petition apart from approval/sanction of the scheme is dissolution of the company without being wound up as of the 'appointed date'. In effect, the petitioner company is seeking for its dissolution. While sanctioning the Scheme this court would also consider the prayer for dissolution of the 2nd transferor company without separate order for winding up being passed and it is at that juncture, it would be incumbent upon this court to secure the reports from the Regional Director, Ministry of Corporate Affairs as well as Official Liquidator to ascertain whether there is statutory compliances and as to whether the books of account of such company is duly audited and it has not conducted its affairs in any manner prejudicial, to the interests of its members, share holders or the public at large. This exercise can be done by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an arrangement. 27. While sanctioning the scheme of arrangement this court retains its powers to supervise such scheme and this court is also empowered to give directions either at the time of passing the order or thereafter and modify the arrangement for its proper working. In fact sub-section (2) of Section 392 empowers this court to order for winding up if the scheme of arrangement cannot be worked satisfactorily with or without modifications. In the light of this provision when the facts of the present case are examined, it can be noticed that accounts of the petitioner company for the period 1.10.2010 to 30.9.2011 has not been audited, not approved by the Board of directors of the petitioner company, its shareholders, its creditors etc. In that view of the matter it would be necessary to issue direction to the petitioner company to serve a copy of the audited accounts relating to the period 1.10.2010 to 30.09.2011 on the Regional Director/Registrar of Companies, Karnataka and on the Official Liquidator to enable them to have their say both in the interest of the shareholders, creditors, etc., as also the public. In that view of the matter, directions are being given herei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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