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TMI Blog2017 (12) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the Applicant Transferee Company. (iii) Allow the Applicant Companies to make Petition u/s 230, 232 of the Companies Act, 2013 for approval of the Scheme of Amalgamation of Mega Airways Limited with Mega Corporation Limited. (iv) Direct service of Notice of this Application on (a) the Central Government through the office of the Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi; (b) the Registrar of Companies, Delhi and Haryana, New Delhi; (c) The Official Liquidator, Ministry of Corporate Affairs, New Delhi; (d) the Income Tax Department, New Delhi; (e) the Bombay Stock Exchange; and (f) the Reserve Bank of India. (v) To pass such order as this Hon'ble Bench may deem fit. 2. An Affidavit in support of the above application sworn for and on behalf of the Applicant Companies by one Mr. Surendra Chhalani, Director in both the companies has been filed. Counsel for the joint applicants took us through the averments made in the application as well as the typed set of documents annexed therewith. Learned Counsel represents that the Scheme does not contemplate any corporate debt restructuring exercise as contemplated under Section 230(2) of the Act. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Amalgamation. Further, it is also represented that the accounting treatment as contemplated in the Scheme is by way of pooling of interests method which has also been certified by the statutory auditors of the respective companies. In relation to the above submission that even though the Transferee Company being a listed Company, in view of the Scheme of Amalgamation being contemplated is between the Holding Company and its subsidiary and that the meetings as contemplated under the provisions of Companies Act, 2013 can be dispensed with, reliance is placed on several decisions including the one passed by the Hon'ble High Court of Punjab & Haryana at Chandigarh in Company Petition No. 153 of 2013 dated 22.11.2013 under the erstwhile provisions of Companies Act, 1956. When this Tribunal queried about the procedure prescribed specifically under Section 233 of the Companies Act, 2013 as applicable to schemes involving holding and subsidiary companies, the reply of the Counsel for Applicants was that as per Section 233(14) it is only an optional procedure and that the Applicant Companies can either come under the procedure as prescribed under Section 233 or have resort to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived are considered by the companies in their respective general meetings and the scheme is approved by the respective members or class of members at a general meeting holding at least ninety per cent. of the total number of shares; (c) each of the companies involved in the merger files a declaration of solvency, in the prescribed form, with the Registrar of the place where the registered office of the company is situated; and (d) the scheme is approved by majority representing nine-tenths in value of the creditors or class of creditors of respective companies indicated in a meeting convened by the company by giving a notice of twenty-one days along with the scheme to its creditors for the purpose or otherwise approved in writing. (2) The transferee company shall file a copy of the scheme so approved in the manner as may be prescribed, with the Central Government, Registrar and the Official Liquidator where the registered office of the company is situated. (3) On the receipt of the scheme, if the Registrar or the Official Liquidator has no objections or suggestions to the scheme, the Central Government shall register the same and Issue a confirmation thereof to the companies. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore any court of law shall be continued by or against the transferee company; and (d) where the scheme provides for purchase of shares held by the dissenting shareholders or settlement of debt due to dissenting creditors, such amount, to the extent it is unpaid, shall become the liability of the transferee company. (10) A transferee company shall not on merger or amalgamation, hold any shares in its own name or in the name of any trust either on its behalf or on behalf of any of its subsidiary or associate company and all such shares shall be cancelled or extinguished on the merger or amalgamation. (11) The transferee company shall file an application with the Registrar along with the scheme registered, indicating the revised authorised capital and pay the prescribed fees due on revised capital: Provided that the fee, if any, paid by the transferor company on its authorised capital prior to its merger or amalgamation with the transferee company shall be set-off against the fees payable by the transferee company on its authorised capital enhanced by the merger or amalgamation. (12) The provisions of this section shall mutatis mutandis apply to a company or companies specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken at face value, then the provisions of Section 233 and the opening words used in Section 233 of the Act is to be effectively considered as otiose. However, that cannot be the intent of the Legislature, taking into consideration that while interpreting a statute, each and every word enacted as contained in statute has to be considered as having been enacted with a purpose and intent and with wisdom behoved on the Legislature which enacted the statute. In the circumstances the opening words as contained in sub-Section (1) of Section 233 as well as sub-Section 14 of Section 233 is required to be harmoniously read so as not to render the provision as superfluous and keeping that in view it will be seen that even though a Scheme of Merger or Amalgamation may be contemplated between companies whose relationship is that of the one envisaged in Section 233 of the Act, however may not satisfy one or more of the conditions prescribed therein, for (e.g.) in relation to clause( c) of sub-Section (l) of Section 233 pertaining to solvency test. Under the said circumstances, the companies involved in the Scheme should not be denied with an opportunity to seek sanction of their Scheme and henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in relation to the Schemes as the one contemplated herein even when it is between a holding and wholly owned subsidiary. It is also to be seen that even in the simplified procedure prescribed under Section 233 of the Act the meetings of shareholders have not been dispensed with and this Tribunal, hence is of the view, particularly in relation to the Transferee Company, being a widely held public company as well as listed Company in stock exchange, that the dispensation as sought for, is not to be granted and hence in relation to Transferee Company, the meeting of the shareholders and Unsecured Creditors is directed to be convened and for this purpose following directions are issued, namely:- 13. In relation to Transferor Company: Meetings of the equity shareholders, secured creditors and unsecured creditors for the approval of the Scheme of Amalgamation is dispensed with in view of consents having been obtained and produced or there being none, as the case may be In relation to Transferee Company: (i) (a) With respect to equity shareholders: Meeting of the equity shareholders of the Transferee Company is directed to be held at 10:00 AM on 29th January, 2018 at the regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson shall be Rs. 50,000/- in addition to meeting their incidental expenses. Mr.Rajiv K.Adlakha, Company Secretary (Mobile9312257946/9810023612) is appointed as a Scrutinizer and would be entitled to fee of Rs. 50,000 for services in addition to meeting incidental expenses. The Chairpersons will file their reports within a week from the date of holding of the above said meetings. v) That individual notices of the above said meetings shall be sent by the Applicant/ Transferee Company through registered post or speed post or through courier or through e-mail, 30 days in advance before the scheduled date of the meeting, indicating the day, date, the place and the time as aforesaid, together with a copy of Scheme of Amalgamation, copy of explanatory statement, required to be sent under the Companies Act, 2013 and the prescribed form of proxy shall also be sent along and in addition to the above any other documents as may be prescribed under the Act or rules may also be duly sent with the notice. vi) That the Applicant/ Transferee Company shall publish advertisement with a gap of atleast 30 clear days before the aforesaid meetings, indicating the day, date and the place and time as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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