TMI Blog2019 (12) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... : Ravi Pahwa For the Respondent : Purvi Dave, CS ORDER Harihar Prakash Chaturvedi, Member (J) 1. This joint petition is filed by the Petitioner Companies under Sections 230-232 of the Companies Act, 2013, seeking sanctioning of the proposed Company Scheme of Amalgamation of Essen Polymers Private Limited with Essen Multipack Limited and their respective shareholders. 2. As per record, the petitioner companies earlier have filed Company Application, i.e. CA (CAA) No.59/NCLT/AHM/2019 before this Bench and sought for dispensation of meeting of its Equity Shareholders (both companies, i.e., transferor and transferee company). Further, direction was also sought for convening the meeting of the Unsecured Creditors of both petitioner companies. 3. It was also reported that since there are no secured creditors in the petitioner companies. Hence, question of convening their meeting did not arise. In view of the above, this Bench, vide its order dated 24th June, 2019 (passed in the above stated company application) had dispensed with meetings of the Equity Shareholders of both companies (transfer and transferee companies) and further issued direction for convening th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h October 2019, before this Bench, he has stated that he duly received a report from the Registrar of Companies (RoC), Ahmedabad, there are no complaint against the petitioner companies that there is no complaint/representation against the scheme of amalgamation of companies. Further, the RD also sought some directions from this Bench, while sanctioning the proposed company scheme, to direct to the petitioner companies to place on record all its relevant facts and to pay related legal fees, expenses of the office of the RD for submitting this report. It is also stated that subject to the observations made in the representation of the office of the RD is having no observations / comments to oppose the proposed scheme of amalgamation of petitioner companies, i.e. Essen Polymers Private Limited (Transferor Company) and Essen Multipack Limited (Transferee Company). While expressing so and giving implied no objection to sanction the proposed company scheme, he made certain comments to be replied properly by the company and to be considered by this Bench while sanctioning the Scheme, which are reproduced as under; c That, the Regional Director further submits that capital clause of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fees payable to Registrar of Companies, by an amount of ₹ 80,00,000 (Rupees Eighty lakhs Only) being the authorised Share capital of the Transferor Company shall, without any further act, instrument or deed, be and stand altered, modified and amended and the consent of the shareholders to the scheme shall be deemed to be sufficient for the purpose of effecting this amendment and no further resolution(s) under provisions of the Act, would be required to be separately passed. For this purpose, the filing fees and stamp duty already paid by the Transferor Company on its authorized share capital shall be utilized and applied to the increased share capital of the Transferee Company in terms of Section 233(11) of the Act and shall be deemed to have been so paid by the Transferee Company on such combined authorised share capital. Accordingly, in terms of this Scheme, the authorised share capital of the Transferee Company shall stand enhanced to an amount of ₹ 2,05,00,000/- (Rupees Two Crores Five Lakhs Only) divided into 20,50,000 equity shares of ₹ 10 each and the capital clause being Claus V of the Memorandum of Association of the Transferee Company shall on the effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961, the Inter Company balances / investments shall be cancelled. The OL has further stated that a proper direction should be given by this Court while sanctioning the scheme by directing the company to preserve its books of accounts, papers and records and it shall not be disposed of without prior permission of Central Government as per the provisions of Section 239 of the Companies Act, 2013. Further, the company to file audited Balance Sheet for the period of 01.04.2018 to 31.12.2018 with concerned Registrar of Companies since the proposed appointed date is 01.01.2019. This Bench should direct the transferor company to ensure its statutory compliances of all applicable laws and also on sanctioning of the present company scheme, the transfer company shall not be absolved from any of its statutory liability, in any manner. 11. In addition to the above, the OL has sought for necessary expenses made by the Central Government towards preparation and also filing report and has submitted that company should be directed to comply with provision of Section 232(5) of Companies Act, 2013, in respect of filing of a certified copy of order of sanction of the scheme with the Registrar of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransferee company and we have gone through the contents of the proposed Scheme of Amalgamation and perused the documents annexed therewith. It may be seen that petitioner companies in its first stage motion petition, i.e. CA (CAA) No. 59 of 2019 have described about the rationale of the proposed company Scheme, which has been narrated in para-4 (xi) of the company application. The same, for the sake of convenience, are being reproduced hereinbelow; Rational of the Scheme Essen group primarily operates into same line of business Proposed Amalgamation would enable greater/enhanced focus of the Management and will have better administrative Convenience and better Utilization of the resources, better exploration and production business thereby facilitating the management to efficiently explore the opportunities of the said Business and assets and the properties of the Companies will be resulting into higher returns on Investment and Capital. In view of the aforesaid advantages, the Board of Directors of the Applicant Companies have considered the proposed Scheme of Amalgamation under Provision 230-232 and any other relevant Provision of the Companies Act, 2013. 16. In addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny has been annexed with the present petition. vii I respectfully say and submit that as per the latest audited Balance Sheet of the applicant company as at 31.03.2018 and 31.12.2018 the Authorized Capital, Issued, Subscribed and Paid up Capital of the applicant company is as follows: Particulars (Amount in Rs.) Authorized Capital 80,000 Equity Shares of ₹ 100/- each 80,00,000 8,00,000 Equity Shares of ₹ 10/- each (w.e.f. 17.12.2018 the sub division of shares each from ₹ 100/- to ₹ 10/-) 80,00,000 Total 80,00,000 Issued, Subscribed paid up Capital 58,500 Equity Shares of ₹ 100/- each 58,50,000 5,85,000 Equity Shares of ₹ 10/- each (w.e.f. 17.12.2018 the sub division of shares each from ₹ 100/- to ₹ 10/-) 58,50,000 Total 58,50,000 It is state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oning court has to see to it that all the requisite statutory procedure for supporting such a scheme has been complied with and that the requisite meetings as contemplated by s.391 (1)(a) of the 1956 Act have been held. b. That the scheme put up for sanction of the court is backed up by the requisite majority vote as required by s. 391 (2) of the 1956 Act. c. That the concerned meetings of the creditors or members or any class of them had the relevant material to enable the voters to arrive at an informed decision for approving the scheme in question. That the majority decision of the concerned class of voters is just and fair to the class as a whole so as to legitimately bind even the dissenting members of that class. d. That all necessary material indicated by s. 393 (1)(a) of the 1956 Act is placed before the voters at the concerned meetings as contemplated by s. 392 of the 1956 Act. e. That all the requisite material contemplated by the proviso to s. 391 (2) of the 1956 Act is placed before the court by the concerned applicant seeking sanction for such a scheme and the court gets satisfied about the same. f. That the proposed scheme of compromise and arrangement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etters stating their willingness to continue with their holding, are to have deemed to be agreeable for purchase of their shares. This is an arrangement between the Company and the shareholders and as pointed out by the Supreme Court of India in the case of Miheer Mafatlal (Supra) this court cannot examine the propriety of every clause of the scheme or look into the commercial wisdom of the shareholders as regards one or other commercial terms of the scheme. It is not open to this court to reject the scheme merely because according to the court some other better scheme would be possible. I also find that the scheme containing similar clause has been approved by the Bombay High Court in the case of Jay Corp Ltd. 22. By following the above stated judicial precedents, we considered the contents and salient features of the proposed company scheme and have gone through the report and observations of the Regional Director and Official Liquidator, respectively. We also perused the reply affidavit submitted by the petitioner companies and the undertaking/assurance given therein can be accepted and acted upon. Hence, we find the proposed company scheme appears to be reasonable and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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