2019 (10) TMI 1413 - AT - Companies Law

Appellate Tribunal Overturns NCLT Decision on Merger Application, Emphasizes Compliance and Shareholder Protection

The Appellate Tribunal set aside the National Company Law Tribunal, Mumbai's rejection of the merger application by 'UFO Moviez India Ltd.' and 'PJSA,' ... Approval of scheme of merger - Application of Merger rejected on certain ground which was not required to be noticed for determination of merger u/s 230-232 of the Companies Act, 2013 - HELD THAT:- In view of the stand taken by the parties and taking into consideration the facts of the case, the impugned order passed by the ‘National Company Law Tribunal’ Mumbai Bench is set aside. If the Appellant Companies proceeds further, it should follow the procedure enshrined in Section 230-232 of the Companies Act, 2013 and other provisions as required to be followed under the Law including the permission from the Income Tax Department and requirement, if any, from SEBI and if procedure required to be followed under Accounting Standard so as to ensure that the shareholders do not suffer on ‘Merger’ - appeal allowed. Issues:1. Merger and demerger of companies2. Rejection of merger application by National Company Law Tribunal, MumbaiMerger and Demerger of Companies:The judgment revolves around the demerger and merger of companies involving 'Qube Cinema Technologies Private Limited' ('QCTPL'), 'UFO Moviez India Ltd.' (referred to as Appellant), and 'MPL.' The demerger resulted in business synergies being transferred to 'QDCPL,' leaving non-synergic businesses in 'QCTPL.' Subsequently, 'MPL' merged into 'QDCPL,' leading to the dissolution of 'MPL.' Intellectual property rights of 'QCTPL' were vested in 'QDCPL,' along with the nil value intellectual property rights of 'MPL.' Shareholders of 'QCTPL' and 'MPL' were allotted shares in 'QDCPL' as consideration for the demerger and merger. Some shareholders of 'QCTPL' chose to exit the demerged business, and 'UFO Moviez' and New Investors were to purchase their shares through a Share Purchase Agreement (SPA), which was not part of the scheme but aimed at representing the post-merger shareholding structure accurately.Rejection of Merger Application by National Company Law Tribunal, Mumbai:The Appellants, 'UFO Moviez India Ltd.' and 'PJSA,' filed an application for modification and 'Scheme of Merger' under sections 230-232 of the Companies Act, 2013 before the National Company Law Tribunal, Mumbai. The Tribunal rejected the application citing grounds that were deemed unnecessary for determining the merger under the said sections. The Director (Legal & Prosecutor), Ministry of Corporate Affairs, representing the Union of India, acknowledged that the rejection grounds were uncalled for and the Tribunal only needed to ensure compliance with the Companies Act provisions and Accounting Standards for shareholder treatment. The Appellant's counsel highlighted that even if the merger was allowed, certain financial changes made during the appeal's pendency would require reworking and fresh notification of dates. The Appellate Tribunal set aside the impugned order, directing the Appellant companies to follow the procedures outlined in the Companies Act, 2013, and other relevant laws, including obtaining necessary permissions and ensuring shareholder protection during the merger process.In conclusion, the judgment addresses the intricacies of corporate mergers and demergers, emphasizing compliance with legal provisions and protection of shareholder interests throughout the process.