Mbs It Institute Pvt. Ltd vs Rof Infratech And Housing Pvt. Ltd

MBS IT Institute Pvt. Ltd. .Appellant

Versus

ROF Infratech and Housing Pvt. Ltd. Respondent

Present:

For Appellants: Shri Satwinder Singh and Shri N.P.S. Chawla, Advocates

For Respondent: Shri Naval Kishore Jha, Senior Advocate assisted by Shri C. Balooni, Advocate

ORDER

25.07.20 17 This appeal has been preferred by MBS IT Institute Private

Limited (hereinafter referred to as the 'Transferor Company') and ROF Infratech and

Housing Private Limited (hereinafter referred to as the 'Transferee Company')

against the order dated 281h April, 2017 passed by the National Company Law

Tribunal (hereinafter referred to as the 'Tribunal'), Principal Bench, New Delhi

whereby the Tribunal, while sanctioning the Scheme of Amalgamation amongst the

Transferor Company and the Transferee Company has given effect to the scheme

from the date of impugned order dated 28th April, 2017.

2. The, petition was filed by the Transferor Company - MBS IT Institute Private

Limited (1St Petitioner Company) and ROF Infratech and Housing Private Limited -

Transferee Company (2nd Petitioner Company) under Section 232 of the Companies

Act, 2013 for merger and amalgamation of Transferor Company with the Transferee

Company before the Hon'ble High Court of Delhi (under the erstwhile provisions). Subsequently, Hon'ble High Court of Delhi passed order on 18th May, 2015

dispensing with the meetings which has followed by Notice of Company Petition No.

333 of 2015 moved by the appellant u/s 391 & 394 of the Companies Act, 1956

read with relevant rules of the Companies (Court) Rules, 1959 in connection with

the scheme of amalgamation to the Regional Director and share depositors and

public issues which were also carried out in newspapers 'Financial Express' (in

English) and 'Jansatta' (in Hindi).

3. During the pendency of the joint petition provisions relating to compromises,

arrangements and amalgamation were contemplated under Section 230-232 and

notified on 15th December, 2016. In the meantime, after constitution of the

Tribunal, the matter was transferred to the Tribunal. The objections and affidavits

had already been filed against the scheme of amalgamation when the matter was

pending before the Hon'ble High Court of Delhi

4. The Tribunal heard the learned counsel for the appellant and considered the

representations made by the Regional Director, Northern Region, Ministry of

Corporate Affairs vide representation dated 7th January, 2016. On examination of

the said representation/ affidavit of the Regional Director, Northern Region, Ministry

of Corporate Affairs, New Delhi and taking into consideration letter dated 11th

August, 2015 of the Principal Commissioner of Income Tax, New Delhi the Tribunal

found that there is no demand outstanding against the amalgamation company.

The Tribunal while approving the scheme of amalgamation annexed as Annexure

A-i of the Company Petition as well as the prayer made therein at (a) and (b) of the

petition sanctioned the same and approved the scheme with the following orders:

"11. Subject to above, the scheme of amalgamation annexed as Annexure-

A-i, to the Company Petition as well as the prayer made therein in

prayer clauses (a) and (b) of the petition are sanctioned.

12. While approving the Scheme as above, we further clarify that this

order should not be construed as an order in any way granting

exemption from payment of stamp duty, taxes or any other charges,

if any, and payment in accordance with law or in respect to any

permission/ compliance with any other requirement which may be

specifically under any law.

THIS TRIBUNAL DO FURTHER ORDER

(1) That all property, rights and powers of the transferor company be

transferred without further act or deed to the transferee company and

accordingly the same shall pursuant to Section 232 of the Companies

Act, 2013 be transferred to and vest in the transferee company for all

the estate and interest of the transferor company therein but subject

nevertheless to all charges now affecting the same; and

(2) That all the liabilities and duties of the transferor company be

transferred without further act or deed to the transferee company and

accordingly the same shall pursuant to Section 232 of the Act, be

transferred to and become the liabilities and duties of the transferee

company; and

(3) That all proceedings now pending by or against the transferor,

company, be continued by or against the transferee company; and

(4) That the Transferee Company do without further application allot to such members of the Transferor Company, as have not given such notice of dissent, as is required by clause 15.1 of the SCHEME OF AMALGAMATION herein the shares in the transferee company to which they are entitled under the said SCHEME OF AMALGAMATION;

and

(5) That transferor company shall within thirty days of the date of the

receipt of this order cause a certified copy of this order to be delivered

to the Registrar of Companies for registration and on such certified

copy being so delivered the transferor company shall be dissolved

and the Registrar of Companies shall place all documents relating to

the transferor company and registered with him on the file kept by

him in relation to the transferee company and the files relating to the

said two companies shall be consolidated accordingly; and

(6) That any person interested shall be at liberty to apply to the Tribunal

in the above matter for ay directions that may be necessary."

5. The grievance of the appellant is that the Tribunal has given the modified

date effective from the date of impugned order dated 28.04.20 17 instead of

appointed date which is 18t April, 2014. The reliance has also been placed on

sub-section (6) of Section 232 of the Companies Act, 2013, which reads as

follows:

"232. Merger and amalgamation of companies.-- (1) Where an

application is made to the Tribunal under section 230 for

the sanctioning of a compromise or an arrangement

proposed between a company and any such persons as

are mentioned in that section, and it is shown to the

Tribunal--

x,c w xxxx

(6) The scheme under this section shall clearly indicate an

appointed date from which it shall be effective and the scheme shall be deemed to be effective from such date

and not at a date subsequent to the appointed date."

6. Learned counsel, appearing on behalf of the respondent - Regional

Director, Northern Region accepted that in terms of sub-section (6) of Section

232, Scheme should have been effected from the appointed date which is 1st

April, 2014. From the provisions of law, as quoted above, we also find that the

scheme under Section 232 clearly indicate the appointed date from which date

it is effective and the scheme would be deemed to be effective from such date and

not from the subsequent date.

7. Paragraph 5 of the Scheme has been approved by the Tribunal provides

the date of scheme coming into the effect as quoted below:

((5 Date of coming into effect:

The Scheme set out herein in its present form or with any

modifications(s) approved or imposed or directed by the Hon'ble

High Court of any other appropriate authority shall come into

legal operation from the Effective Date Appointed Date, but the

same shall become effective on and from the Effective Date."

8. At paragraph 4.3, "appointed date" has been shown as 1st April, 2014 or

such other date as may be fixed by the High Court of Delhi, as quoted below:

"4.3 "Appointed Date" means the First day of April, 2014 or such

other date as may be fixed by the Hon'ble High Court of Delhi."

9. The "effective date" has also been mentioned in the Scheme at paragraph

4.5, as quoted below:

"4.5 "Effective Date" means the later of the dates on which

certified copy of the order of the Hon'ble High Court of Delhi

sanctioning this Scheme is filed with the Registrar of

Companies, NCT of Delhi & Haryana by the Transferee

Company and the Transferor Company, as required under the

provisions of the Act. Any references in the Scheme to "upon the

Scheme becoming effective" or "effectiveness of the Scheme"

shall mean the "Effective Date"."

10. As the scheme at Annexure Al has been approved by the Tribunal and the

same stipulates 'appointed date' on 1St April, 2014 or from the date as may be fixed

by the Hon'ble High Court (now Tribunal), we are of the view that grounds should

be shown for postponing the date to a subsequent date, 'appointed date' 1st April,

2014 having mentioned in the scheme. In the present case the Tribunal has not

shown any ground to shift the 'appointed date' to the date of disposal except that

the case is three years old but such cannot be a ground to postpone the date from

1St April, 2014 to the date of judgment, on which the transferee company and the

transferor company has no control but is dependent on fortuitous circumstances

of the disposal of the case by the Hon'ble High Court / Tribunal, which has no

nexus with 'appointed date' as stipulated in the scheme.

11. For the reasons aforesaid, we are of the view that in the present dates

'appointed date' should have been allowed as per approved scheme i.e. 1st April,

2014. However, for the purpose of giving effect to the scheme the 'effective date'

should be treated and the 'effective date' will be the later of the dates on which

certified copy of the order of the Tribunal sanctioning the scheme is filed by the

transferee company and the transferor company with the Registrar of Companies, NCT of Delhi & Haryana, as required under the provisions of the Act and paragraph

4.5 of the scheme.

12. In view of the observations as made above, we have no other option but to

amend the part of the impugned order for approval of scheme dated 28th April, 2007

and order to treat Ist April, 2014 as the 'appointed date' and later on which certified

copy of the Tribunal sanctioning the scheme is filed by the transferee company and

the transferor company with the Registrar of Companies, NCT of Delhi & Haryana

be treated to be 'effective date'. The impugned order dated 28th April, 2017 passed

by the Tribunal in the matter of MBS IT Institute Put. Limited us. ROFlnfratech and

Housing Put. Limited stands modified to the extent above. The transferee company

and transferor company are allowed to approach Registrar of Companies, NCT of

Delhi & Haryana/ Regional Director, Northern Region, Ministry of Corporate Affairs

along with the Scheme approved by the Tribunal and as modified by the Appellate

Tribunal. The Competent Authority in its wisdom will do the needful in accordance

with law and the order of approval passed by the Tribunal as modified by this order

of the Appellate Tribunal. The appeal is disposed of with the aforesaid observations

and actions. However, in the facts and circumstances, there shall be no order as

to cost.

[Justice S.J. Mukhopadhaya] Chairperson

Balvinder SinghJ Member (Technical) /ns/