1. These petitions are filed by the petitioner companies for sanction of a Scheme of Arrangement in the nature of Amalgamation of Anagram Shares Registry Limited and Shwetratna Trading and Investments Private Limited with Aura Securities Private Limited, under Section-391 read with Section-394 of the Companies Act, 1956. It has been contended that all the three companies belong to the same group of management and are engaged in similar kinds of commercial activities viz. sale, purchase and investment of shares, securities, stocks, bonds etc. The amalgamation is proposed with a view to reduce the number of group entities, realign the group structure and thereby achieve synergic benefits. The petitions give in detail, the benefits envisaged due to the scheme.
2. It has been pointed out that vide order dated 09.04.2012 passed in Company Application Nos.134/2012 and 135/2012, the meetings of the Equity Shareholders of the Transferor Companies were dispensed with, in view of the written consent letters placed on record. The meetings of Secured and Unsecured Creditors were not directed to be convened, as it had been pointed out that there are no secured and unsecured creditors of either of these companies as on the date of the applications. The said contention was substantiated by the Certificate issued by the Chartered Accountant. Similarly, vide the order dated 09.04.2012, passed in Company Application No.136/2012, the meeting of the Equity Shareholders and Preference Shareholders of the Transferee Company were also dispensed with, in view of the written consent letter from all of them being placed on record.
3. The petitions were admitted vide order dated 17.04.2012. Public notices for the same were duly advertised in the newspapers 'Indian Express' English daily, and 'Gujarat Samachar' Gujarati Daily, both Ahmedabad Editions, dated 02.05.2012. Publication in the Government Gazette was dispensed with. Affidavits dated 08.05.2012 confirm the same. No one has come forward with any objections to the said petitions even after publication. The same has been further confirmed by the additional affidavit dated 15.06.2012.
4. Notice of the petition of the Transferor Companies were served upon the Official Liquidator attached to this Court. Vide the respective report dated 07.06.2012, filed by the Official Liquidator, it is observed that the affairs of the Transferor Companies have not been conducted in a manner prejudicial to the interest of their members or to the public interest. However, the Official Liquidator has requested this Court to direct the Transferor Companies to maintain its books of accounts and records for a period of 8 years from the date of sanctioning the scheme and not to dispose off the same without prior permission of the Central Government. The Transferor Companies are, accordingly, directed to keep their books and records for a period of 8 years from the date of sanctioning the Scheme and not to dispose off the same without prior permission of the Central Government.
5. Notice of the petitions have been served upon the Central Government and Mr.Iqbal Shaikh, learned Central Government Standing Counsel appears for the Central Government. An affidavit dated 24.05.2012 has been filed by Mr.Kashmir Lal Kamboj, the Regional Director, (In-Charge) North-Western Region, Ministry of Corporate Affairs, wherein some observations have been made.
6. The attention of this Court is drawn to the Additional Affidavit dated 15.06.2012, whereby explanations have been submitted with regard to all the said issues. Perusal of the same indicates that with regard to the first observation pertaining to Clause 9.2 of the Scheme, the petitioner has submitted that due to an inadvertent error, the number of shares of the Second Transferor Company for which the Transferee Company shall issue 1 (One) share has been missed out. The petitioner has sought the permission of this Court to rectify the said error. Considering the nature of the error and the copy of the C.A. Certificate produced on record indicating the fair and reasonable ratio worked out, the petitioner is hereby permitted to rectify the error in the Scheme as well as in the petitions and Clause 9.2 of the Scheme of Arrangement annexed as Annexure-C to each of the petitions. The same being included in paragraph-8 of the petition is permitted to be substituted by the following :
"9.2 Upon the Scheme becoming finally effective, in consideration of the transfer and vesting of the Undertaking of the Second Transferor Company in the Transferee Company in terms of the Scheme, the Transferee Company shall subject to the provisions of the Scheme and without any further application, act or deed, issue and allot at par 1 (One) Equity Share of Rs.10/- (Rupees Ten only) each credited as fully paid-up in the Capital of the Transferee Company to the Equity Shareholders of the Second Transferor Company, other than the Transferee Company, for every 1 (One) Equity Share, of Rs.10/- (Rupees Ten only) each held, whose names appear in the Register of Members on a date to be fixed by the Board of Directors of the Transferee Company or to such of their respective heirs, executors, administrators or other legal representatives or other successors in title as may be recognized by the Board of Directors of the Transferee Company and approved by them to be placed on its register of members.
The new equity shares shall rank pari passu with the existing equity shares in the matters of dividend voting rights and in all other respects."
7. With regard to the second observation of the Regional Director pertaining to Clause-10 of the Scheme which provides for the proposed accounting entries/adjustments to be made in the Books of Accounts of the Transferee Company, it has been submitted that clause-10(i) clearly specifies that the said entries shall be passed in compliance with the Accounting Standard-14. It is apprehended by the Regional Director that clause-10(v) of the Scheme uses the word Reserve Account, which may include General Reserve. In this regard, it has been clarified that the petitioner Transferee Company shall make the necessary adjustments, if any, only against the Amalgamation Reserve and not against the General Reserve and thereby comply with applicable legal provisions. Further, it is submitted that Clause-10(vii) provides only for a contingency and is only an authorization envisaged to meet with a contingency. In view of this explanation, it is not necessary to issue any further directions.
8. The third observation of the Regional Director refers to the orders dated 09.04.2012, passed by this Court respectively in Company Applications Nos.134, 135 and 136 of 2012, filed by the petitioner companies. The petitioner has pointed out that in case of the Transferor Company, the Regional Director has not considered the Certificate of the Chartered Accountant confirming that as on date of the application there were no Secured or Unsecured Creditors of the Company. In this situation, the Applicant Company is not required to convene the meeting of the Creditors as on the date of the audited Balance Sheet. Similarly, it has been submitted that in case of Transferee Company, the Court thought it appropriate not to issue directions for convening the meeting of the Creditors, accepting the contention that the proposed scheme does not envisage any compromise or arrangement with the Creditors of the Transferee Company. The Transferee Company shall continue to exist and carry on its commercial activities even after the Scheme is made effective. In view of the same, the rights and interests of the creditors of the Transferee Company are not likely to be affected in any manner. It has been further contended, and deserves to be noted, that despite publication in the newspapers inviting objections to the proposed Scheme, none of the creditors of the Transferee Company have come up with any objections. This reaffirms the contention of the petitioner that their rights and interests are not affected due to the Scheme and hence it is not necessary to issue any such directions to place their consent/approval on record at this stage.
9. Considering the aforesaid explanations, and in view of the aforesaid direction issued by this Court, the observations made by the Regional Director do not survive.
10. Heard Smt.Swati Saurabh Soparkar, learned advocate for petitioner company and Shri Iqbal Shaikh, learned counsel appearing for the Central Government.
11. Having gone through the petitions and after consideration of the submissions made in this regard, this Court is satisfied that the Arrangement in the nature of Amalgamation under the proposed Scheme would be in the interest of the companies and their members and Creditors. The Scheme in its modified form as referred above, is hereby sanctioned. Prayers in terms of paragraph 15(1) of the Company Petition Nos.63, 64 and 65 of 2012 are hereby granted, subject to the rectification being carried out.
12. The petitions are disposed of, accordingly. Insofar far as the costs to be paid to the Central Government Standing Counsel are concerned, the same are quantified at Rs.7,500/- per petition. The same may be paid to Mr.Iqbal A. Shaikh, learned counsel appearing for the Central Government. Costs of Rs.5,000/- be paid to the Office of the Official Liquidator, towards costs for the Transferor Companies.
(Smt.
Abhilasha Kumari, J.) Gaurav+ Top