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TMI Blog2009 (9) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... . 110/2009, vide order dated 2-5-2009 passed by this Court in Company Application No. 188 of 2009, as all the equity shareholders had given consent for approval of the scheme, the meeting of the equity shareholders was dispensed with and it was also recorded that there was no secured or unsecured creditor of the company. 3. In Company Petition No. 111/2009, vide order dated 2-5-2009 passed by this Court in Company Application No. 189 of 2009, as all the equity shareholders and preference shareholders had given consent for approval of the scheme, the meeting of the equity shareholders and preference shareholders was dispensed with and it was also recorded that there was no secured or unsecured creditor of the company. 4. In Company Petition Nos. 112; 113; 114; and 115 of 2009, vide order dated 2-5-2009 passed by this Court in Company Application Nos. 190; 191; 192; and 193 of 2009, as all the equity shareholders and unsecured creditors had given consent for approval of the scheme, the meeting of the equity shareholders and unsecured creditors were dispensed with and it was also recorded that there was no secured creditor of any such transferor-companies. 5. In Company Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has stated in the report of the Official Liquidator that the affairs of the transferor-companies have not been conducted in a manner prejudicial to the interest of its members or public interest. The pertinent aspect is that though the opinion of the Chartered Accountant was not solicited by the Official Liquidator, the Chartered Accountant has further mentioned that the amalgamation is in the larger interest of its members, creditors and public at large. Such an opinion is not expected to be given by the Chartered Accountant, unless it is called for specifically by this Court. Therefore, the said opinion of the Chartered Accountant to that extent does not deserve to be considered and the opinion only to the extent of conducting the affairs of the company as to whether it is prejudicial to the interest of its members or public at large or not, is required to be taken into consideration. 10. The aspect of the appointed date provided in the scheme of amalgamation deserves consideration. In the present group, the scheme at Annexure-C shows that in the definitions, the appointed date is provided as under: The 'Appointed Date' means 1-4-2008. 11. As per the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r voting can take an informed and objective decision whether to vole for the scheme or against it. On a conjoint reading of the relevant provisions of Sections 391 and 393 it becomes at once clear that the Company Court which is called upon to sanction such a scheme has not merely to go by the ipse dixit of the majority of the shareholders or creditors or their respective classes who might have voted in favour of the scheme by requisite majority but the Court has to consider the pros and cons of the scheme with a view to finding out whether the scheme is fair, just and reasonable and is not contrary to any provisions of law and it does not violate any public policy. This is implicit in the very concept of compromise or arrangement which is required to receive the imprimatur of a Court of law. No Court of law would ever countenance any scheme of compromise or arrangement arrived at between the parties and which might be supported by the requisite majority if the Court finds that it is an unconscionable or an illegal scheme or is otherwise unfair or unjust to the class of shareholders or creditors for whom it is meant. Consequently it cannot be said that a Company Court before whom a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider that such company has not approached to this Court well in time seeking sanction to the scheme of amalgamation which is proposed by the company. It is well-settled that though delay is not to operate as a bar to exercise of the power by the Court, such delay would be required to be considered not only on the aspect of alteration of the rights of the parties but may also be required to be considered on the aspect as to whether such litigant or such company as the case may be, has approached to this Court at the earliest or well in time or within reasonable period or not. If the Court finds that any litigant has merely allowed time to go or that he has not moved the Court within reasonable time and has allowed the period to go to the extent that the whole accounting year is over and the consequence as per the relevant statute for fiscal laws may also be allowed to operate and thereafter has moved this Court. Court may find that keeping in view the said aspects, the appointed date as provided in the scheme may be altered keeping in view the aspect that there is no further complications to the proper observance of other relevant statute under the fiscal laws and the scheme wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme was allowed to go on with the very appointed date. In furtherance to his submission he relied upon the observations made at pages 649 to 652 of the said decision. 22. In the very decision this Court at page 652 found that the purpose for which the amalgamation is proposed, is not to defeat the tax and it was further observed that if the amalgamation as proposed is not sanctioned, the loss suffered by the transferor company would be carried forward and would be adjusted against profits which it has made in the subsequent year. Therefore the Court found that shifting the date would not result into against the public interest. In the said decision, the Court had no occasion to consider the exercise of the discretion by the Court after the prescription of the accounting year by statute under the fiscal laws. Further the Court had also no occasion to consider the aspect of discretion to be exercised upon the delay by the litigant in approaching before the Court within the reasonable time by such company concerned. 23. In case of Marshall Sons Co. (India) Ltd. v. ITO [1997] 88 Comp. Cas. 52811 SCL 6 (SC), when the High Court sanctioned the scheme no order was passed for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioner to raise such a contention on the face of the observations of the Apex Court reproduced hereinabove in case of Miheer H. Mafatlal (supra). 28. Mr. Soparkar, learned Counsel for the Petitioner further contended that if this Court alters the 'appointed date', it may result into further complication inasmuch as, the transferor company in anticipation of sanction which may be granted for the scheme, has not got the accounts approved through its General Board and if the appointed date is changed the accounts shall remain unapproved and it may invite further penal consequences. He also contended that the books of transferor company are examined by Official Liquidator through Chartered Accountant up to the appointed date. Therefore, if the appointed date is altered nobody is there to look after for the period after the appointed date mentioned in the scheme. Therefore he submitted that appointed date may not be altered. 29. Firstly if such a contention is accepted, it would mean that under no circumstances the Court can alter the appointed date on the face of the statutory power to make modification in the scheme. Further such date in the scheme is to be finaliz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore it was submitted that the delay is sufficiently explained and this Court may maintain the appointed date as mentioned in the scheme. 33. As regards the meeting of the Board of Directors is concerned, the same is an internal management of the Petitioner-company. The relevant date would be the initiation of the statutory process for convening of the meeting by moving to this Court. If the contention is entertained that the Board had passed the resolution in the end of March and thereafter this Court is moved at the earliest though accounting year is over, it would leave room for large number of uncertainty and it may also leave room for manipulations. Therefore, it appears to the Court that if the statutory process is not initiated for convening of the meeting, the appointed date in the scheme normally should not be accepted beyond the date of beginning of such accounting year. No other explanation has come on record which may require this Court to take a different view for maintaining the same appointed date as mentioned in the scheme. 34. In view of the aforesaid, the scheme deserves to be modified to the extent that the appointed date shall be 1-4-2009 and not 1-4-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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