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2017 (12) TMI 1538 - Tri - Companies LawScheme of Arrangement by way of Amalgamation - Dispense with convening the meeting of Shareholders and unsecured creditors of the Applicant Transferor Company and of the Applicant Transferee Company. Also Allow the Applicant Companies to make Petition u/s 230, 232 of the Companies Act, 2013 for approval of the Scheme of Amalgamation - Held that:- This Tribunal however is not convinced by the representation put forth on behalf of the Petitioners/applicants that in the cases where the relationship between the Transferor and Transferee Company is that of a wholly owned subsidiary and a holding Company and that in the absence of any share exchange contemplated, then meeting should be dispensed with as was done by the Courts earlier under the provisions of Companies Act,1956. It is pertinent to note that under the erstwhile provisions of Companies Act, 1956, provisions which are analogous to Section 233 of the Companies Act, 2013 were not available for the companies to avail of. Hence taking into consideration the facts and circumstances of the case, Courts were permitting dispensation as per exigencies of the situation. The companies involved in the Scheme should not be denied with an opportunity to seek sanction of their Scheme and hence a recourse or fall back has been provided by virtue of sub-Section (14) of Section 233 of the Act. Hence the Applicants/Petitioners have to show the reasons as to what prevents them from approaching the named authority prescribed in Section 233 of the Act for the sanction of the Scheme between companies envisaged thereunder and instead take recourse to this Tribunal for sanction. As seen that no such reasons have been given in the instant application by the companies involved in the Scheme of Merger or Amalgamation. Once the applicant companies elect to approach this Tribunal instead of taking recourse to the provisions of Section 233 of the Act, it consciously subjects itself to the rigors of the provisions of Section 230 to 232 of the Act of 2013 read along with attendant rules framed thereunder. Even though in some instances this Tribunal had dispensed with meetings, however they are far and few and even in the said cases it has been dispensed with in view of they being private limited companies and also closely held having miniscule number of shareholders and consents having been also obtained and produced.
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