2013 (10) TMI 196 - HC - Companies Law

Approval granted for Amalgamation Scheme enhancing business focus and competitiveness

The Court granted sanction to the Scheme of Amalgamation among three companies under Sections 391 and 394 of the Companies Act, 1956. The Scheme aims to ... Scheme of Amalgamation - Merger of shareholders - Held that:- In view of the approval accorded by the shareholders and creditors of the Petitioner, representations / reports filed by the RD and the OL to the proposed Scheme, there appears to be no impediment to the grant of sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme under Sections 391 to 394 of the Act. Since, the registered office of the Transferor company 1 and the Transferee company is situated in the State of Karnataka, the second motion petition is pending adjudication before the Bangalore Bench of Karnataka High Court. The Scheme shall come into operation only after the same is also sanctioned by the Bangalore Bench of Karnataka High Court. The Petitioner company will comply with the statutory requirements in accordance with law - Upon sanctioning of the Scheme by Bangalore Bench of Karnataka High Court, the certified copy of this order shall be filed with the Registrar of Companies within 30 days. In terms of Sections 391 and 394 of Act and in terms of the Scheme, the whole of the undertaking, the property, rights and powers of the Petitioner Transferor company 2 shall be transferred to and vest in the Transferee company without any further act or deed. Similarly, in terms of the Scheme, all the liabilities and duties of the Transferor company shall be transferred to the Transferee company without any further act or deed. Upon the Scheme coming into effect the Transferor company shall stand dissolved without winding up - Petition allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the Scheme of Amalgamation satisfies the requirements of Sections 391 to 394 of the Companies Act, 1956 so as to warrant the Court's sanction. 2. Whether this Court has jurisdiction to entertain the petition in respect of a transferor company whose registered office is within its territorial limits when other parties to the Scheme have registered offices in another State and parallel proceedings are pending before that State's High Court. 3. Whether statutory and procedural requirements for notice, publication and consents of shareholders and creditors, and reports from the Regional Director (RD) and Official Liquidator (OL), have been met. 4. Whether employee rights and continuity of service are preserved by the Scheme and whether any additional conditions (such as compliance with foreign exchange laws) are required. 5. The legal effect of the Court's sanction on vesting of assets, liabilities, dissolution of the transferor company and any exemptions (stamp duty, taxes, other statutory permissions). 6. Whether any directions or conditions should be imposed (including deposit to the Common Pool Fund of the OL and requirement of sanction by the other State High Court) as a prerequisite to operation of the Scheme. ISSUE-WISE DETAILED ANALYSIS Issue 1: Sanction under Sections 391-394 - Legal framework Legal framework: Sections 391-394 empower the Court to sanction compromises, arrangements and amalgamations if statutory requirements are met, and if the Court is satisfied there is no prejudice to shareholders, creditors or public interest. Precedent Treatment: No precedent was cited or applied in the judgment. Interpretation and reasoning: The Court examined the Scheme's salient features, board approvals, audited accounts, memorandum and articles, and the exchange ratio. It also noted that meetings of members and creditors of the petitioner were dispensed with by prior order, that notices and statutory publications were made, and that there were no objections on record. Reports from RD and OL were before the Court and contained no adverse findings. On the material placed, the restructuring objectives (business focus, integration, cash management, organizational capability) and benefits to shareholders, creditors and employees were identified. Ratio vs. Obiter: Ratio - the Court sanctioned the Scheme because statutory requirements were complied with, there were requisite approvals, and no stakeholder objections or adverse findings from RD/OL; Obiter - general observations on the benefits of restructuring and global strategy are explanatory. Conclusion: The Scheme is sanctioned under Sections 391-394 as there appears to be no impediment to its grant on the facts before the Court. Issue 2: Territorial Jurisdiction and Conditionality on Parallel Proceedings Legal framework: A Court may entertain a petition where the transferor company's registered office is within its territorial jurisdiction; where co-parties are outside the territorial jurisdiction, concurrent proceedings may be required in other jurisdictions for the Scheme to be fully effective. Precedent Treatment: Not addressed by the Court. Interpretation and reasoning: The petitioner's registered office lies within the Court's jurisdiction, justifying adjudication. However, because the other transferor and the transferee have registered offices in another State and a similar second motion petition is pending there, the Court made its sanction conditional upon sanction by that other Bench. The Court explicitly provided that the Scheme shall come into operation only after sanction by the other High Court bench. Ratio vs. Obiter: Ratio - partial sanction by one competent Court is permissible but the Scheme shall operate only after all requisite courts having jurisdiction in relation to other parties also sanction the Scheme; Obiter - procedural coordination between High Courts may be desirable. Conclusion: The Court exercised jurisdiction to sanction but conditioned operative effect on sanction by the other State High Court where the remaining parties are registered. Issue 3: Compliance with Notice, Publication, Meetings, and Approvals; Reports of RD and OL Legal framework: Sanction requires compliance with statutory notice, publication, holding/dispensing of meetings as per Court directions, board and member/creditor approvals, and consideration of RD and OL reports. Precedent Treatment: None cited. Interpretation and reasoning: The Court noted: (a) board resolutions approving the Scheme were placed on record; (b) audited accounts and constitutional documents were produced; (c) an earlier application to dispense with convening meetings of members and creditors of the petitioner was granted; (d) notices and newspaper citations were published and proof filed; (e) RD filed an affidavit raising the point of employee continuity and seeking an undertaking on FEMA/RBI compliance; (f) OL filed a report stating no complaints and no conduct prejudicial to members or public; and (g) no objections were filed by any party. The Court found these materials satisfactory. Ratio vs. Obiter: Ratio - where statutory notices, publications, required approvals and favourable RD/OL reports are on record and no objections exist, sanction is appropriate; Obiter - none beyond factual findings. Conclusion: Procedural and statutory requirements for sanction were complied with on the record before the Court, supporting grant of sanction. Issue 4: Employee Transfer and Compliance with Foreign Exchange Laws Legal framework: Schemes often provide for transfer of employees to the transferee 'without break or interruption'; where shareholding is foreign, compliance with RBI/FEMA may be required. Precedent Treatment: Not discussed. Interpretation and reasoning: The RD drew attention to Clause 5.1 of the Scheme providing that employees shall become employees of the transferee without break. The RD also noted that the petitioner's shareholding is wholly held by foreign entities and requested an undertaking regarding compliance with RBI/FEMA. The petitioner provided the undertaking on record to comply with FEMA/RBI requirements. The Court accepted the employee continuity provision and the petitioner's undertaking. Ratio vs. Obiter: Ratio - employee continuity provisions in the Scheme and undertaking to comply with statutory foreign exchange regulations are acceptable to cure issues raised; Obiter - careful compliance with FEMA/RBI must be ensured in execution. Conclusion: Employee continuity under the Scheme is preserved and compliance with FEMA/RBI is required by undertaking; the Court considered the undertaking satisfactory. Issue 5: Legal Effect of Sanction - Vesting, Liabilities, Dissolution, and Non-exemption Clauses Legal framework: Upon sanction under Sections 391-394 and filing of certified order with Registrar, the undertaking, property, rights and powers of the transferor vest in the transferee and liabilities transfer; the transferor is dissolved without winding up. Sanction does not automatically exempt statutory taxes, stamp duty, or other legal permissions unless expressly granted. Precedent Treatment: Not referenced. Interpretation and reasoning: The Court ordered that upon sanction by the other High Court and filing of certified copy with the Registrar of Companies within 30 days, the whole undertaking, property, rights and powers of the transferor shall transfer to and vest in the transferee without further act or deed; all liabilities and duties shall transfer; the transferor shall be dissolved without winding up. The Court expressly clarified that its order does not constitute exemption from stamp duty, taxes or other statutory permissions which must be complied with separately. Ratio vs. Obiter: Ratio - effect of sanctioned Scheme is automatic vesting and transfer of liabilities and dissolution upon compliance with filing requirements; Obiter - explicit caveat that sanction does not imply tax or stamp duty exemption. Conclusion: Sanction effects automatic vesting and dissolution upon completion of mandated filings; statutory payments and permissions remain separately payable/required. Issue 6: Directions/Conditions - Deposit to OL Common Pool Fund and Filing Requirements Legal framework: Courts may impose directions or conditions as part of sanction where appropriate to protect stakeholders or for administrative compliance (e.g., filing certified orders, deposits to OL fund). Precedent Treatment: None applied. Interpretation and reasoning: The petitioner volunteered to deposit a specified sum into the Common Pool Fund of the OL within three weeks; the Court recorded this undertaking. The Court directed filing of certified copy of its order with the Registrar within 30 days after sanction by the other High Court, affirming standard statutory compliance. Ratio vs. Obiter: Ratio - voluntary or Court-directed deposits to OL common pool and timely filing with Registrar are appropriate conditions to be recorded; Obiter - none. Conclusion: The petitioner's undertaking to deposit to the OL Common Pool Fund was accepted and recorded; certified order must be filed with the Registrar within the stipulated period after other Court's sanction.