TaxTMI 
TaxTMI 
2016 (3) TMI 553
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....value of Rs. 10 each at a premium of Rs. 490 per share in transferor company no. 9. Thus, the applicant, paid an issue price of Rs. 500 per share, and thereupon, expended a total amount of Rs. 5.16 crores. Similarly, the applicant bought 22590 shares, of a face value of Rs. 100 each, at a premium of Rs. 4900 per share of transferor company no. 10. The applicant thus paid an issue price of Rs. 5000 per share for purchasing shares in transferor company no. 10. The total amount defrayed, in this behalf, was a sum of Rs. 11,29,50,000/-. 2.1 Admittedly, the applicant made these investments after seeking approval of its Board of Directors (in short the BOD) and making its interest, known in, investing the amounts in transferor company no. 9 and 10. The requisite approvals of its BOD were taken in March, 2011. This aspect is not disputed by either the applicant or BDR. 2.2 The applicant is, principally, aggrieved by the fact that no sooner did it make the investment in the transferor company no. 9 and 10, a scheme of amalgamation was proposed which involved, inter alia, amalgamation of these two companies along with ten other companies with BDR. The applicant claims that prior to th....
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.... so far as the shareholders of transferor company no. 9 were concerned, 95.5% (in value) had given their consent. There were a total number of 28 shareholders in transferor company no. 9, out of which 27 had given their consent. (iii) It was stated that in so far as transferor company no. 10 is concerned, 79% (in value) had given their consent. As regards number of share holders, who had given their consent, it was submitted, that 11 out of 12 shareholders of transferor company no. 10, had given their consent. (iv) This apart, it was contended that in so far as matters pertaining to valuation of shares and fixation of share exchange ratio are concerned, these are aspects, which are within the domain of the concerned companies and, therefore, this court would not sit in an appeal over such a decision, which had commercial connotations, unless, a fraud is shown to have been played or, the decision taken is shown to impinge upon the public interest. For this purpose, learned counsel relied upon the judgement of the Supreme Court in the case of Miheer H. Mafatlal vs Mafatlal Industries Ltd. AIR 1997 SC 506. (v) Furthermore, it was submitted that at the second motion stage, as ....
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....hich led to investment of such substantial amounts, would have been filed with the application. This aspect I must state was brought to fore during the course of the arguments. 6.2 Be that as it may, what is important is, at least, from the point of view of the issue at hand, are the averments made in paragraph 8 of the reply filed by BDR. In paragraph 8 of its reply, BDR has denied the suggestion that communication seeking consent/ no-objection to the proposed scheme of amalgamation was not sent to the applicant. 6.3 As a matter of fact, with the additional affidavit, filed on behalf of BDR, formats of the communication seeking consent/ no-objection of the shareholders of various companies, which included the transferor company no. 9 and 10, have been appended. 6.4 Having said so the question is: would this assertion of the transferee company by itself suffice? 6.5 Answer to this question would depend on the facts and circumstances obtaining in each case. Having said so, it is well settled that inadvertent omission or a bonafide mistake in failing to issue notice under Section 391 of the Companies Act, 1956 is not fatal to the resolution passed at a meeting either of t....
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....of the Company and we have not been referred to any law which would invalidate a decision arrived at by the creditors and the Company in the absence of any individual creditor. On the other hand, at page 364 of Rustomji's Company Law a case has been cited in which it was held that where there was an inadvertent omission to advertise a scheme of arrangement under Section 153 but it was satisfactorily proved that thirty out of thirty one shareholders of the Company had received the notices, the meetings had in substance been held in the manner prescribed and the Court would not insist on further meetings being convened. Moreover as we interpret the law, the only safeguard intended to protect the interest of the creditors is that provided in sub-section (2) of section 153. In either words, if a majority in number representing three-fourths in value of the creditors or class of creditors or members or class of members, as the case may be, present either in person or by proxy at the meeting, agree to any compromise or arrangement, the compromise, or arrangement, if sanctioned by the court, is binding both on the creditors or members and the company. In the case before us, it is not urge....