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2015 (9) TMI 1194 - HC - Companies LawApplication for recall of the Scheme of Arrangement and Amalgamation - scheme was approved / sanctioned by the court vide order dated 17-6-2011 - SEBI has alleged that the Petitioners have suppressed from this Court, inter alia, the facts to achieve their objective of increasing their shareholding - SEBI also received a complaint that the consideration offered is detrimental for the interest of the equity shareholders. - whether the parties have as alleged by SEBI not disclosed the relevant facts but have suppressed the same from their shareholders or from the BSE/NSE or from the Regional Director or the Official Liquidator or this Court, thereby committing a fraud as alleged. Held that:- It is clear that there was no suppression of any relevant and/or material fact whilst obtaining orders on either the 2010 Scheme or the 2011 Scheme. The question therefore of any fraud committed by the Companies which have approached the Court seeking orders on the said Schemes by suppression of facts as alleged does not arise and in fact the Regional Director has, with the exception of certain objections which have been complied with, informed the Court that the Scheme is in the interest of the shareholders of the Company. The question therefore of setting aside the orders sanctioning the Scheme of Arrangement and Amalgamation or sanctioning amendments to the Scheme on the ground of alleged suppression thereby perpetrating a fraud on this Court does not arise. This Court has hereinabove already recorded its finding that SEBI has failed to establish any fraud played by NFCL/KFL by way of suppression of facts and is therefore not entitled to the reliefs as prayed for in the above Applications. However, SEBI has in support of its case also alleged that NFCL/KFL has perpetrated a fraud on the shareholders of NFCL in view of several other grounds. The contention raised by SEBI to the effect that the valuation is “unrealistic, perverse and incredibly high” on account of the fact that GT had used arbitrary growth rates to project the revenue for the year beyond 2012 and has not provided any rationale for arriving at the growth rates also cannot be accepted in view of what is stated hereinabove as well as the fact that the GT Report and the letter of GT dated 22nd July 2013 make it clear that GT had reviewed the data provided by the Management for reasonableness and consistency and that GT did not accept the projections at face value. SEBI has failed to make out any case of fraud in GT arriving at the above exchange ratio. The Composite Scheme of 2011 as stated hereinabove has already been made effective and shares have been allotted to the respective shareholders. Subsequent to the Composite Scheme, dividends have been declared and paid. The shares of the demerged entity viz. NORL have been listed on 23rd March, 2012, and are being traded on the Bombay Stock Exchange (“BSE”) and National Stock Exchange (“NSE”). In fact, as regards the Resultant Company No. 1 (Originally KFL and now renamed NFCL), BSE and NSE granted in principle approval for listing on 8th December, 2011 and 13th January, 2012, respectively. In the circumstances, the question of granting any reliefs as prayed for or otherwise to SEBI does not arise and the above Applications are dismissed with costs.
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