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TMI Blog2017 (8) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... nce this Tribunal cannot be made an accomplice to illegality, we are not convinced by the explanations given by the Petitioner Companies. Further, prior approval of RBI is a must for proceeding further with the consideration of the Scheme, which has not been obtained and hence we are unable to sanction the scheme before us and hence the petition is dismissed with costs of ₹ 25000/- payable to Prime Minister National Relief Fund. - Company Petition No. 1152 of 2016 and Company Application (Main) No. 134 of 2016 - - - Dated:- 11-8-2017 - M.M. Kumar, C.J. (President) and R. Varadharajan, Member (J) For the Appellant: Ashish Aggarwal, Gurkamal Hora Arora, Amit Bhatnagar, Amit Chaudhry, Harleen Kaur, Ashish Virmani, Subodh Kumar Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner No. 4, there is 14 (Fourteen) secured and 10 (Ten) unsecured creditor whose consent has been obtained and are placed on record, therefore, necessity of convening the meeting did not arise. 2. Under the circumstances, the petitioners have filed their joint petitions for sanction of the Scheme of Amalgamation before the Hon'ble High Court of Delhi under the provisions of erstwhile Companies Act, 1956, subsequent to the order of dispensation of the meeting ordered by the Hon'ble High Court of Delhi on 26.09.2016. 3. On 21.11.2016 the Hon'ble High Court of Delhi ordered Notice in the Second Motion petition in C.P. No. 1152/2016 moved by the petitioners under Sections 391 to 394 of the Companies Act, 1956 read with relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the same discloses that the petitioners have effected the paper publication as directed by the Hon'ble High Court of Delhi in one issue of the 'The Statesman in English edition and 'Veer Arjun' in Hindi edition on 17.12.2016. Further, it has also been stated by the Learned Counsel for the Petitioner Companies that notices have been issued to the Regional Director, Northern Region on 03.01.2017, Official Liquidator on 22.11.2016 attached to the High Court, Delhi as well as to the Registrar of Companies, NCT of Delhi and Haryana on 22.11.2016 in compliance with the order dated 21.11.2016 and in proof of the same acknowledgement made by the respective offices have also been enclosed. 6. Further, it is also seen that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance of provisions of section 117(3)(g) of the Companies Act, 2013. b. The objects clause of all the Transferor Companies reflects NBFC activities however there is no mention in the scheme/petition whether the Company is registered as NBFC with RBI or not. However, it has been observed from the Balance Sheet and profit and loss A/c filed by the Transferor Companies on MCA 21 Portal that there is no financial income in the Transferor companies since last two years in terms of section 45-1A of the RBI Act, 1934. In respect of Transferee Company the following has been the observation: Company Total Assests (netted of by intangible assets Financial Assets % ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of India as NBFCs in terms of section 45-IA of the RBI Act, 1934. C. Further, as per the Non-Banking Financial Companies (Approval of Acquisition of Transfer of Control), Directions, 2015 issued vide RBI Notification No, DNBR (PD).029/CGM(CDS)-2015 dated July 09, 2015, the NBFCs are required to obtain prior written permission of Reserve Bank of India for any scheme of acquisition/transfer of control. The above aspect may be clarified before proposed scheme is approved. D. As per MCA21 portal, the paid up, issued and subscribed capital of the Transferee company is ₹ 1,62,20,200/-. However, the Transferee Company has shown its paid up, issued and subscribed capital as ₹ 5,68,79,400 in the scheme. The company may be asked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Balance sheet dated 31st Dec, 2016 the income generated from that segment is more than 50% of the total income (including dividend income) generated.. Apparently the Transferee Company is not a Non-Banking Financial Company. Since the transferee company was not required to be registered as NBFC as such there was no occasion to obtain any prior approval from RBI as alleged. Further they have stated in para 4 of the rejoinder affidavit is that the Transferor companies are primarily holding assets in the forms of investments in shares, stocks etc. in the group companies. Therefore they are not required to be registered as NBFC . That in response to the observation made in para 9 (a) it has been held that the admittedly the private limi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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