TMI Blog2022 (4) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 230 of the Act is met, this Tribunal is of the considered view that the ratio of the Hon ble Supreme Court in MIHEER H. MAFATLAL VERSUS MAFATLAL INDUSTRIES LTD. [ 1996 (9) TMI 488 - SUPREME COURT] is applicable to this case and hence, there is no illegality or infirmity in the order of the Learned NCLT - It was held in the case of MIHEER H. MAFATLAL 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. Appeal dismissed. - COMPANY APPEAL ( AT ) No. 175 of 2020 - - - Dated:- 4-4-2022 - [ Justice Anant Bijay Singh ] Member ( Judicial ) And [ Ms. Shreesha Merla ] Member ( Technical ) For the Appellant : Ms. Shankari Mishra and Ms. Priyadarshini Dewan, Advocates For the Respondent No. 1 to 7 : Mr. Saurabh Kalia, Mr. Rajiv Malik and Mr. Manoj Sharma, Advocates for R-1 to R-7 JUDGEMENT [ Per; ShreeshaMerla, Member (T) ] 1. Challenge in this Company Appeal (AT) No.175/2020 is the Impugned Order dated 08.06.2020 passed by NCLT (National Company Law Tribunal, New Delhi, Special Bench) in CAA- 131 (N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation, the sanction granted by this Court to the Scheme will not come in any way of action being taken, albeit, in accordance with the law, against the concerned persons, directors and officials of the petitioners. 14. While approving the Scheme as above, we further clarify that this order should not be construed an order in any granting exemption from payment of stamp duty, taxes including Income Tax, GST etc. or any other charges, if any, and payment in accordance with law or in respect of any permission/compliance with any other requirement which may be specifically required under any other law. 2. It is the case of the Appellant that Respondent had filed five different schemes of merger under Section 230-231 of the Companies Act, 2013 on 25.3.2019 with Sunrays Finance Limited emerging as the final transferee company. The five different Schemes were filed before the different coordinate Benches of NCLT, Delhi which are detailed as hereunder:- Scheme Transferor Companies Transferee companies 1 Indus Valley Investment and Finance Pvt Ltd M/s Osiatic Consulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of passing an order with respect to one Application, the new members, stakeholders, creditors, debenture holders of the respective transferee companies would be deprived of Notice under Section 230(3) of the Act. It is also further submitted by the Learned Counsel for the Appellant that the contentions of the Appellant were not heard and also were not taken on record on 16.03.2020 and NCLT has passed the order without giving an opportunity to them for putting forth their arguments. 7. At the outset, we address to the submissions of the Learned Counsel for the Appellant as to whether they were not heard by NCLT on 16.03.2020, It is seen from the material on record that the counsel for the Appellant was present and their arguments were heard and the Counsel for the Regional Director were also present and heard and only then NCLT had reserved the Order. 8. It is seen from the record that at the time of filing of the First Motion Application before the NCLT for the Scheme, NOC of all the shareholders and debenture holders of all the Applicant Companies was filed. The shareholders and debentures holders of the Applicant Company 1 to 6 are the Group Companies and had been apprised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Creditors 12.09.2019 16.00 PM 100% 9. The Company subsequent to the approval forwarded the Scheme to the Regulatory Authority and then for the approval of the Tribunal. Section 230(1) of the Companies Act, 2013 reads as follows: 230. Power to compromise or make arrangements with creditors and members.- (1) Where a compromise or arrangement is proposed- (a) xxxxx (b) between a company an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, order a meeting of the creditors or class of creditors, or of the members or class of members, as the case may be, to be called, held and conducted in such manner as the Tribunal directs. Explanation.-For the purposes of this sub-section, arrangement includes a reorganisation of the company s share capital by the consolidation of shares of different classes or by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 of which is as follows:-. a) The sanctioning court has to see to it that all the requisite statutory procedure for supporting such a scheme has been complied with 13 that the requisite meetings as contemplated by Section 391(1) (a) have been held. b) That the Scheme put up for sanction of the Court is backed up by the requisite majo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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