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TMI Blog2022 (4) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... CLT has allowed the Joint Application filed by the Petitioner Companies under Section 230-232 of the Companies Act, 2013 (hereinafter referred to as the "Act) for the purpose of approval of the Scheme of Amalgamation. By the impugned order the NCLT has observed as follows:- "7. The Official Liquidator has filed its Report wherein no specific objection has been raised against the approval of the scheme. It is submitted in the report that the official liquidator has not received any complaint against the proposed Scheme from any person/party interested in the Scheme in any manner and the affairs of the Petitioner Companies do not appear to has been conducted in a manner prejudicial to the interest of its members, creditors or public interest. 8. It is further submitted by the Petitioner Companies that the dues of Income Tax Department are fully secured as all the dues, if any, shall be the liability of the Transferee Company as provided in the Scheme of Amalgamation. 9. Further the Certificate of respective statutory auditors of the Petitioner Companies have been placed on the record to the effect that Accounting Treatment proposed in the Scheme of Amalgamation is in conformity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Properties and Investments Company Pvt Ltd (Approved vide Order dated 17.2.2020 in CA(CAA) 55 (ND)/2019) III 1.Nanak Consultants Pvt Ltd 2. Kewaldeep Consultants Pvt Ltd 3.Sayush Consultants and Investment Pvt Ltd. 4. Ganga Kaveri Credit and Holdings Pvt Ltd 5.Kenstar Investments and Finance Pvt Ltd (Under present Appeal) IV M/s Osiatic Consultants and Investment Apollo Finance Ltd. The said scheme is pending in petition bearing (CAA)145-PB2019. V Apollo Finance Limited Sunrays Properties and Investment Company Pvt Ltd The said Scheme is pending in Petition bearing (CAA)-146(PB)/2019. 3. The Learned Counsel for the Appellant strenuously contended that all the Schemes wee filed at the same time before different coordinate Benches of Hon'ble NCLT New Delhi and due approval of Scheme I vide order dated 12.12.2019 into the Transferee Company/the Seventh Respondent herein existing and pending during the pendency of Scheme III in CAA-131(ND)/2019 no longer existed after the due approval of Scheme I of the Transferor Company into the Seventh Respondent. Therefore, any such merger into a hypothetical Company is absolutely void ab initio and is hence liable to be set aside. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Equity Shareholders 11.09.2019 10.00 AM 100% 2 Nanak Consultants Pvt Ltd Debenture Holders 11.09.2019 11.00 AM 100% 3 Kawaldeep Consultants Pvt Ltd Equity Shareholders 11.09.2019 12.00 AM 100% 4 Kawaldeep Consultants Pvt Ltd Debenture Holders 11.09.2019 01.00 PAM 100% 5 Sayush Consultants and Investment Pvt Ltd Equity Shareholders 11.09.2019 14.30 AM 100% 6 Ganga Kaveri Credit and Holding Pvt Ltd EquityHolders 11.09.2019 15.30 PM 100% 7 Ganga Kaveri Credit and Holding Pvt Ltd Debentjure Shareholders 11.09.2019 16.30 P M 100% 8 Sacred Heart Investment Company Pvt Ltd Equity Shareholders 12.09.2019 10.00 AM 100% 9 Sacred Heart Investment Company Pvt Ltd Debenture Holders 12.09.2019 11.00 AM 100% 10 Sacred Heart Investment Company Pvt Ltd Professional holders 12.09.2019 12.00 PM 100% 11 Kenstar Investments and Finance Pvt Ltd Equity Shareholders 12.09.2019 13.00 PM 100% 12 Osiatic Consultants and Investments Pvt Ltd Equity Shareholders 12.09.2019 14.30 PM 100% 13 Osiatic Consultants and Investment Pvt Ltd Debenture Holders 12.09.2019 15.30 PM 100% 14 Osiatic Consultants and Investment Pvt Ltd Unsecured Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the same sequence as mentioned in the Scheme of Amalgamation i.e. Scheme 1 on 17.03.2020, Scheme 2 on 12.06.2020 and Scheme 3 on 03.07.2020. 12. It is significant to mention that the Appellant had given their consent and not objected to Scheme 1 and Scheme 2. The Registrar of Companies (ROC) had duly approved the E-Form INC-28 filed and the 'Status' of the Respondent Companies were changed in their 'Record'. With regard to Scheme 1 and 3, the relevant E-forms INC-28 have also been duly filed and approved by the Registrar of Companies (ROC). 13. The Appellant has not been able to establish whether there is any loss to the exchequer or such a merger of the Group Companies is opposed in Public Policy. 14. Section 230(1), (3) and (5) read as hereunder:- "230. Power to compromise or make arrangements with creditors and members.- (1) Where a compromise or arrangement is proposed- (a) between a company and its creditors or any class of them; or (b) between a company and its members or any class of them, the Tribunal may, on the application of the company or of any creditor or member of the company, or in the case of a company which is being wound up, of the liquidator, orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulators or authorities which are likely to be affected by the compromise or arrangement and shall require that representations, if any, to be made by them shall be made within a period of thirty days from the date of receipt of such notice, failing which, it shall be presumed that they have no representations to make on the proposals." 15. It is seen from the Record that the Respondent Companies has complied with all the provisions of Section 133 of the Act which provides for a certificate from the Company's Auditor that all accounting is in conformity with the accounting standards prescribed under Section 133 of the Act and have also placed on record the documentary evidence that there is 100% approval of all the stakeholders. At this juncture, we find it relevant to place reliance on the Judgment of the Hon'ble Supreme Court in the matter of Mihir H. Mafatlal Vs. Mafatlal Industries Limited (1997) 1 SCC 579 in which the Hon'ble Supreme Court has observed that if the stakeholders have approved the valuation after applying their commercial wisdom, the same need not be interfered with and has laid down the scope and ambit of the jurisdiction of the Company Court; broad contours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who with their open eyes have given their approval to the scheme even if in the view of the Court there would be a better scheme for the company and its members or creditors for whom the scheme is framed. The Court cannot refuse to sanction such a scheme on that ground as it would otherwise amount to the Court exercising appellate jurisdiction over the scheme rather than its supervisory jurisdiction." 16. It is also seen from the 'Record' that the Official Liquidator has also filed its 'Report' without raising any objection. 17. For all the aforenoted reasons, specially keeping in view that the Appellant has given their unconditional approval for Scheme 1 and 3; that all the stakeholders have approved and given consent; that the rights of the stakeholders are not affected and the provisions under Section 230 of the Act is met, this Tribunal is of the considered view that the ratio of the Hon'ble Supreme Court in Mihir H Mafatlal (Supra) is applicable to this case and hence we find that there is no illegality or infirmity in the order of the Learned NCLT and this Appeal fails and is accordingly dismissed. No order as to costs. 18. The Registry is directed to upload the Judgement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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