2017 (3) TMI 50 - HC - Companies Law

Court Tentatively Sanctions Company Arrangement; Requires Further Evaluation by CDR EG

In Re : Asmitha Microfin Limited (Asmitha)

In Re : Asmitha Microfin Limited (Asmitha) - TMI Issues Involved:1. Entitlement of a financially weak company to enter into a scheme of arrangement under Section 391 of the Companies Act.2. Approval of the scheme of arrangement by the requisite majority of shareholders, preferential creditors, and creditors.3. Jurisdiction of the Court to modify the scheme of arrangement and the necessity of any modifications in light of objections raised.Issue-wise Detailed Analysis:1. Entitlement of a Financially Weak Company to Enter into a Scheme of Arrangement:The Court examined whether a company with liabilities exceeding its assets can propose a scheme of arrangement under Section 391 of the Companies Act. The Court referred to Section 391, which allows a company to propose a compromise or arrangement with its creditors or members. The Court cited the Delhi High Court’s decision in *Wearwell Cycle Company India Limited v. A.K. Misra and Brahm Arenja*, emphasizing that the law favors the revival of companies over winding them up. The Court concluded that there is no legal bar preventing a financially weak company from submitting a scheme of arrangement. Thus, this point was held in favor of the petitioner companies.2. Approval of the Scheme of Arrangement by the Requisite Majority:The Court analyzed whether the scheme was approved by the requisite majority of shareholders, preferential creditors, and creditors. The meetings were convened as per the Court’s directions, and the scheme was approved by the required majority in each meeting. However, objections were raised by HDFC Bank and Aditya Birla Finance Limited, who argued that the scheme was detrimental to creditors' interests and that the voting process was flawed. The Court noted that the objections primarily concerned the allocation of debts and the reduction of share capital. Despite these objections, the Court found that the statutory requirements for approval were met, but the objections warranted further scrutiny.3. Jurisdiction of the Court to Modify the Scheme and Necessity of Modifications:The Court discussed its jurisdiction to sanction or modify the scheme of arrangement. It referred to the Supreme Court’s decision in *Miheer H. Mafatlal v. Mafatlal Industries Limited*, which outlined the Court’s role in ensuring that the scheme is fair, reasonable, and not violative of any law or public policy. The Court emphasized that it must ensure the scheme does not unfairly prejudice any class of creditors or shareholders. Given the objections raised, particularly regarding the transfer of business between the companies and the impact on creditors, the Court found it necessary to involve the Corporate Debt Restructuring (CDR) Empowered Group (EG) for a thorough evaluation. The Court tentatively sanctioned the scheme subject to approval by the CDR EG, indicating that if the CDR EG approves the scheme, it would become final. If modifications are suggested, the modified scheme would need to be placed before the Court for final sanction.Conclusion:The Court tentatively sanctioned the scheme of arrangement between the two companies, subject to approval by the CDR EG. The scheme’s approval by the requisite majority was acknowledged, but the objections raised by significant creditors necessitated further evaluation by the CDR EG. The Court directed that the scheme, along with the CDR EG’s decision, be submitted to the Registrar of Companies for necessary action. If the CDR EG suggests modifications, the modified scheme must be resubmitted to the Court for final approval. The Company Petitions and related applications were disposed of accordingly.