TMI Blog2021 (3) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the shareholder of the Appellant Company. Appeal allowed. - COMPANY APPEAL (AT) No.15/2021 - - - Dated:- 24-3-2021 - Justice Jarat Kumar Jain, Member (Judicial) and Kanthi Narahari, Member (Technical) For Appellant:- Mr Jayant Mehta, Mr Arjun Krishan, Mr KaustavSom, Advocates JUDGMENT The Appellant Accelyst Solutions Pvt. Ltd. filed this Appeal against the Order dated 28.02.2020 passed by National Company Law Tribunal, Mumbai (NCLT) in CSP No. 280/C-II/2019 connected with CSA No.517/C-II/2019 whereby allowed the scheme of amalgamation of Freecharge Payment Technologies Pvt. Ltd. and Accelyst Solutions Pvt Ltd under Sections 230 to 232 of the Companies Act, 2013. However, modified, the Appointed date from 07.10.2017 to 01.04.2018. 2. Brief facts for deciding this Appeal, are that Accelyst Solutions Pvt Ltd (Petitioner / Transferor Company) and Freecharge Payment Technologies Pvt. Ltd. (Non-Petitioner / Transferee Company) under Sections 230 to 232 of the Companies Act, 2013 submitted a scheme for amalgamation of the Transferor Company into Transferee Company. NCLT, Delhi has approved the scheme of amalgamation with Appointed date 07.10.2017 vide orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Appointed date is liable to set aside and fixed the Appointed date as per scheme i.e. 07.10.2017 and condone the delay and extend the time for compliance 8. After hearing Learned Counsel for the Appellant, we have perused the record and considered the submissions. 9. It is admitted fact that amalgamation scheme of Transferee Company Freecharge Payment Technologies Pvt. Ltd. with the Appointed date 07.10.2017 is approved by NCLT, Delhi vide order dated 22.10.2019 passed in CP No. CAA-144/ND/2018. 10. Now, we have considered, whether in regard to Appointed date the impugned order had mis-quoted the RD report dated 15.01.2019. As quoted in Para 10(e) of the impugned order at pg. 36-37 The Observations ofthe Regional Director on proposed scheme at Page. 864. (e) As per clause 3.2 of the Scheme, the Appointed date means October, 7, 2017 (Or such other date as may be mutually determined by the Board of Directors of the Transferor Company and the Transferee Company). In this regard. It is submitted that Section 232 (6) of the Companies Act, 2013 states that the Scheme under this Section sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction of the company court in granting sanction to the scheme as follows:- 1. The sanctioning 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 Section 391(1)(a) have been held. 2. That the scheme put up for sanction of the Court is backed up by the requisite majority vote as required by Section 391 sub-section (2). 3. That the meetings concerned 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. 4. That all necessary material indicated by Section 393(1)(a) is placed before the voters at the meetings concerned as contemplated by Section 391 sub-section (1). 5. That all the requisite material contemplated by the proviso of sub-section (2) of Section 391 of the Act is placed before the Court by the applicant concerned seeking sanction for such a scheme and the Court g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to that how best the game is to be played is left to the players and not to the umpire. The supervisory jurisdiction of the Company Court can also be culled out from the provisions of Section 392. Of course this section deals with post-sanction supervision. But the said provision itself clearly earmarks the field in which the sanction of the Court operates. The supervisor cannot ever be treated as the author or a policy-maker. Consequently the propriety and the merits of the compromise or arrangement have to be judged by the parties who as sui juris with their open eyes and fully informed about the pros and cons of the scheme arrive at their own reasoned judgment and agree to be bound by such compromise or arrangement. 12. Two broad principles underlying a scheme of amalgamation which have been brought out in this judgment are: 1. That the order passed by the Court amalgamating the company is based on a compromise or arrangement arrived at between the parties; and 2. That the jurisdiction of the company court while sanctioning the scheme is supervisory only, i.e., to observe that the procedure set out in the Act is met and complied with and that the proposed scheme o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 65 of 2009 in CP No. 100 of 2009 in Re. Shree BalajiCinevision IndiaPvt. Ltd. decided on 23.09.2009 held that: We have perused the Judgment of the Ld. Company Judge.We do agree with the Ld. Company Judge that the Company Court has discretion to make modification in the proposed scheme of compromise, arrangement etc. However, such discretion is required to be exercisedfor cogent reasons.We do agree with Mr Soparkar that the Ld. Company Judge had no reason to modify the Appointed date proposed inthe scheme of amalgamation.We also agree that the alteration in the appointed date would affect the calculations and would have financial implications. For the aforesaid reasons, we allow these appeals. The modification made by the Ld. Company Judge in respect of the Appointed date proposed in the scheme of amalgamation is set aside. The scheme of the amalgamation as proposed is sanctioned. 16. With the aforesaid, we are of the considered view that the exercising jurisdiction by the NCLT Mumbai to modify the Appointed date from 07.10.2017 to 01.04.2018 in the facts of this case was unwarranted. Thus, the impugned order so far as the modification of Appointed date is conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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