Whether violating/ non-compliance to the companies act can be a ground to reject the scheme of merger and amalgamation?
Shubham
Budhiraja[1]
Company-A and Company-B filed
scheme of merger. ROC, Regional Director (RD) filed their report that both of
the companies have violated section 73 of companies act, 2013 and wrong
disclosure made regarding deposits. The directors were also disqualified. The
NCLT dismissed the scheme. Hon'ble NCLAT confirmed the order of NCLT and held
that violation of law cannot be ignored particularly when both A & B has
never replied to Show cause notice of RD.[2]
(I)
Section 75 of the Companies Act, 2013, relates
to `Damages for Fraud’, due to `failure to repay the Deposits’, accepted by a
`Company’.
(II)
The definition
of `Fraud’, under Section 447 of
the Companies Act, 2013, is an inclusive one and it concerns the `Affairs’ of a `Company’ or a
`Body Corporate’.
(III)
In Swansea Corporation v. Harpur, reported in
(1912) KB 493 (CA), where Fletcher Moul Ton LJ, observed to the effect the
words `damages’ and `damage in Law’, have more
than one meaning and great care has to be exercised, in
examining the context in which they severally appear.
(IV)
If a `Company’, had `Defaulted’
in the repayment of the `Fixed Deposit’, which was already
`Matured’, despite the fact that the `Company’ was making `Profits’, it was
obligated on the `Company’s’ part, that it should
make arrangements in such a way that there could be no problem in the
`Repayment of Deposits’, as per decision in Unitech Limited in
Re., reported in (2015) 191 Comp cas 588 (CLB).
(V)
Section 230 of the Companies Act, 2013, deals
with `Power to Compromise’ or make `Arrangements’ with the `Creditors’ and the
`Members’, and the said Section is wide enough to include any reasonable
`Compromise’ or `Arrangement’. The word `Arrangement’,
has wider meaning, than the term `Compromise.
(VI)
If the `Scheme’, is `unjust’, `unfair’,
`unconscionable’ or an `illegal’ one, the `Court’ (now `Tribunal’), is
justified in declining to `Sanction’ the `Scheme’, in the considered opinion of
this `Tribunal’. No wonder, a `Tribunal’ / a
`Court of Law’, is to bear in mind that the `fairness’ and `viability’ of the
`Scheme’, qua the `right’ of `minority shareholders’, before according an
`Approval’.
(VII)
The `Tribunal’, under the Companies Act, 2013,
is to perform a `supervisory role’, near to a
`Judicial Review’, of `Administrative’ action.
(VIII)
The `Tribunal’, aptly points out that if a `Transaction’, is entered into mainly with a view to
circumvent, supplant, evade or avoid the `Rules of the Game’ or any `Law’ in
`Force’, and also evade `Tax Liability’, a `Tribunal’ / `Court of Law’, cannot
and will not `approve’, any `Compromise’ / `Arrangement’.
Moreover, if the `Arrangement’, is an `inequitable’ and `unfair’ one, the
`Scheme’, cannot be given a `Green Signal’, for an `Approval’, sought for in
the matter, by the `Party / Parties’, concerned.
(IX)
In reality, a `Disclosure’,
in respect of `any proceedings’, pertaining to a `Company’, which have an
`impact or material effect’ on the decision, is to be made,
apart from the `Disclosure’, to be made, in respect of any `pending
investigation’. In fact, the `proceedings’, ought to be in the `character’ or
`leading to an investigation’, which has a crucial bearing in the subject
matter in issue.
(X)
The `Tribunal’,
is to see that the `Scheme’ is not a `camouflage’, for a
purpose, other than `ostensible’ reason(s). Also, the `Tribunal’, is to find
out, whether a particular `Scheme’, is `opposed’ to `public policy’ or
`otherwise’, by `applying’ its `judicial mind’.
[1]
Advocate, Delhi High Court [LLB, ACS, BCOM(H)], Budhirajalawchambers@gmail.com
, +91-9654055315
[2] Company
Appeal (AT) (CH) No. 28 of 2021, NCLAT Chennai, Judgment dated 16/01/2023
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