TMI Blog2020 (10) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... hare capital which should not deemed to be inequitable or unfair transaction. In the present case, it can be seen that in the present case, exiting equity shareholders are being issued equivalent preference shares in order to fix their priority dividend over that of ordinary share dividend. Therefore, there is no need to furnish valuation report to the ROC because there is no change in the paid up share capital of the petitioner company post reduction of the capital in the present case. The petitioner company in the present case has already filed Form GNL-2 online on 04.05.2018 and the copy of the same is a part of Diary No. 7090 dated 13.12.2019. As the application for reduction of share capital under Section 66 of the Act has to be filed before this Tribunal, therefore, it is held that there is no need to file Form GNL-1 with the Registrar of Companies in respect of application of Reduction of Share Capital and filing of GNL-2 online would be sufficient in the present situation. It is hereby ordered to confirm the reduction of share capital of Petitioner Company by approving the minutes of the EOGM dated 30.05.2018, wherein the members of the Petitioner Company resolved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Company are as under:- To acquire and to take over the running business of the SARASWATI OFFSET PRINTERS partnership concern doing the business as Printers, Paper Converters and also as security Printers at Delhi with effect from the date agreed upon between the proposed company and the said firm and retrospectively acquire its goodwill and other assets and undertake the whole or part of its liabilities and the The said firm cease to exist. 5. The Petitioner Company has made the following prayers:- (a) That the reduction of equity share capital resolved on by the special resolution set out in paragraph 8 above may be confirmed; (b) That to this end all directions necessary and proper may be made and given; (c) That the proposed minute may be approved; and (d) That such further or other orders may be made in the premises as to the Tribunal shall deem fit 6. It is averred that the applicant company has passed a special resolution in the Extra Ordinary General Meeting of the company held on 30.05.2018, resolving to reduce share capital the following resolution was passed:- RESOLVED that pursuant to the provisions of Section 66 (1) and other applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he liability on any of its shares in respect of the share capital not paidup; or (b) either with or without extinguishing or reducing liability on any of its shares,- (i) cancel any paid-up share capital which is lost or is unrepresented by available assets; or (ii) pay off any paid-up share capital which is in excess of the wants of the company, alter its memorandum by reducing the amount of its share capital and of its shares accordingly: Provided that no such reduction shall be made if the company is in arrears in the repayment of any deposits accepted by it, either before or after the commencement of this Act, or the interest payable thereon. 10. The present capital structure is as follows:- Share Capital Amount in Rs. Authorised: 80,000 Equity Shares of ₹ 100/-each ₹ 80,00,000/- Total ₹ 80,00,000/- Issued, Subscribed Paid-up Share Capital: 61,670 Equity Shares of ₹ 100/- each ₹ 61,67,000/- Total ₹ 61,67,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97,35,162.00 Particulars Address Amount (Rs.) Trade Payable Ashwani Metals A-43/1, Ground Floor, Naraina Indus. Area Phase-I, New Delhi-110028 3107732.00 31,07,732.00 13. The No Objection Certificates from all the Unsecured Creditors is placed at Annexure A-8 of the petition. 14. As per the Certificate of P.D. Mittal Company (Annexure A-4), Chartered Accountants, the accounting treatment proposed by the Petitioner Company for the reduction of share capital is in conformity with Accounting Standards specified in Section 133 or any other applicable provisions of the Companies Act, 2013. 15. As per the Certificate of P.D. Mittal Company (Page 17 of the petition), Chartered Accountants, it is stated that the Petitioner Company has neither accepted any deposit nor in arrears in the repayment of the deposits or the interest thereon as on date of filing of application under Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As per report dated 30.01.2019, the Registry has stated that no objection has been received as per order dated 07.01.2019. 19. The petitioner company has submitted that it has not received any objection to the Scheme for Reduction of Share Capital till the date of filing of affidavit dated 19.01.2019. This affidavit has been placed on record vide Diary No. 381 dated 24.01.2019. 20. The Registrar of Companies, NCT of Delhi Haryana (ROC) in its report along with the Report of Regional Director has submitted that the petitioner company is a loss making company. It is also stated that the company has incurred net profit of ₹ 13,19,771/- for the year 2017-18. It has also been submitted that there is no prosecution pending against the company as find mentioned in the petition. It is also mentioned that the petitioner company has not furnished the valuation report to the ROC. It is further submitted that the petitioner company has not served notice of reduction of share capital to this office in accordance with Rule 3(i)of the national Company Law Tribunal (Procedure for reduction of share capital of Company) Rules, 2016 read with Rule 7 of Chapter 24 of the Companies (regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that decision for reduction is based on commercial consideration undertaken by the businessmen who are in the best position to know of the necessities and interests of the company concerned, in the absence of serious allegations as regards the bona fides of the proposed Scheme, the Courts are of the view that no interference in such decisions is required. It has also been observed that considering the commercial aspect of the decision it is not permissible for the Court to come to the conclusion that the exit opportunity offered is inequitable and unjust. Likewise, in the case of Reckitt Benckiser (India) Ltd. (Company Petition No. 206 of 2004) Order dated 31.05.2005 reported in 2005 SCC Online Del 674, after due consideration of the pre and post reduction, admittedly selective one, it was held that if majority by a special resolution decides to reduce share capital of company, it has also right to decide as to how this reduction should be carried into effect. Further, observed that while reducing the share capital, company can decide to extinguish some of its shares without dealing in the same manner as with all other shares of the same class. The company limited by shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the petitioner company post reduction of the capital in the present case. 26. The ROC has also submitted that it has not received, the copy of notice as per Form RSC-2 accompanied with copy of the application alongwith its attachments as per Rule 3(I)(i) and (ii) of the NCLT (Procedure for Reduction of Share Capital). The petitioner company has attached the copy of notice (RSC-2) (Annexure B-2) with the speed post receipt (Annexure D-2) alongwith its tracking report (Annexure F-2) and the same has been filed vide Diary No. 3780 dated 31.10.2018, showing successful service to the ROC. It is also contended by the ROC that Form GNL-1 has to be filed by the petitioner company in relation to the present application of reduction of share capital with its office. It can be seen that Form GNL-1 and GNL-2 are both creatures of Companies (Registration Offices and Fees) Rules, 2014. Rule 12(2) is as follows:- (2) For the purpose of filing the documents or applications for which no e-form is prescribed under the various rules prescribed under the Act, the document or application shall be filed through Form No. GNL.1or GNL.2 along with fee as applicable and in case a single form i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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