Vfl Mercantile Pvt. Ltd. & Anr vs Nil
- CitationCompany Appeal (AT) No. 63 of 2020
Ratio decidendi
The rule this decision rests on
The appeal is not maintainable where the Tribunal bench below is divided in opinion on the very question raised, since under Rule 60 of the National Company Law Tribunal Rules, 2016 such a divergence requires the matter to be referred to the President for constitution of a Bench, and the appeal against the interim position cannot proceed in the meantime. Where the question for decision has been referred for constitution of a larger Bench under Rule 60(3) following equal division of the members, the appellant may, if no Bench has yet been constituted, bring the matter to the notice of the President through the Registrar, rather than pursue an appeal on that same question.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
VFL Mercantile Pvt. Ltd. & Anr. .......Appellants
Vs
NIL .......Respondent
Present:
For Appellants:-Ms. Shilpi Chowdhary and Mr. Jasdeep Singh Dhillon, Advocates
For Respondent:-None
ORDER
13.03.2020- It transpires that in CP (CAA) No. 108/NCLT/AHM/2019
in CA (CAA) No. 143/230-232/NCLT/AHM/2018, CA(CAA) No.
110/NCLT/AHM/2019 in CA (CAA) NO. 145/230-232/NCLT/AHM/2018, CP
(CAA) No. 109 of 2019 in CA (CAA) No. 63/230-232/ NCLT/AHM/2018 and
CP(CAA) No. 111/NCLT/AHM/2019 in CA (CAA) No. 146/230-
232/NCLT/AHM/2018 on 18th December, 2019, the Hon'ble Member
(Judicial) at Para 27 had observed the following:-
"It is further declared that the present Composite Scheme of
Arrangement for Amalgamation of M/s. Raj Ratan Infracon Pvt. Ltd.
(Transferor company No. 1), M/s Vijay Creations Pvt. Ltd.
(Transferor Company No. 2), M/s VFL Mercantile Pvt. Ltd.
(Transferor Company No. 3), with M/s Vishal Fashions Pvt. LTd.
(Transferee Company) stands approved and sanctioned and is
having binding effect on all concerned, i.e., its shareholders, secured
and unsecured creditors, coming under the Scheme."
and ultimately disposed of the Company Petitions. It is also brought to the
notice of this Tribunal that in CP (CAA) No. 108, 110, 109 and 111 of 2019 in
CA (CAA) 143, 145, 63 and 146 of 2018. The Hon'ble Member (Technical) of
the National Company Law Tribunal, Ahmadabad, Bench at Para 2 had
observed the following:-
"2. It is also observed from the records available at MCA Portal that:-
a. M/s. VFL Mercantile Pvt. Ltd. is originally incorporated as M/s
MSL Management Consultants & Services Limited in the
Jurisdiction of ROC- Hyderabad on 14.03.2000
b. Status of the Company is changed from public company to
Private Limited Company vide dated 18.04.2006.
c. Thereafter the name of the Company is changed from M/s MSL
Management Consultants & Services Pvt. Ltd. to M/s VFL
Mercantile Pvt. Ltd. on 30.12.2008.
d. Later on M/s VFL Mercantile Pvt. Ltd. is converted into M/s.
VFL Mercantile LLP on 08.03.2016.
e. Further, also shifted its registered office from ROC Hyderabad
to ROC Ahmadabad on 27.10.2017.
f. Thereafter the said company again converted from LLP to Pvt.
Company on 08.02.2019.
Therefore, it is submitted by the Regional Director, North Western
Region Ministry of Corporate Affairs that the Hon'ble NCLT may
please not consider amalgamation of M/s. VFL Mercantile LLP
into the transferee Company.
Observations made by the Regional Director are correct and their
submissions not to allow a LLP to merge with a company needs
to be accepted as because M/s VFL Mercantile Company is a LLP
as on the appointed date of amalgamation and this Tribunal is
having no discretion to allow a LLP to amalgamate with other
Company. Moreover, the conduct of the company during the
period from 14.03.2000 to 08.02.2019 is taken on record as
observed from the MCA site, number of changes have taken place
i.e. from Public Company to Pvt. Ltd. Company, the name change,
then converted to LLP, Shifting the Regd. Office and again from
LLP to Pvt. Company, then application of merger. Hence, I concur
the view of the Regional Director and M/s. VFL Mercantile LLP is
not to be allowed to be amalgamated with the transferring
companies now: however, the VFL Mercantile LLP converted into
a Pvt. Ltd. Company on 08.02.2019, may file a fresh petition for
amalgamation with appointed date of amalgamation only on or
after 08.02.2019, when it has become a company".
Furthermore, the Hon'ble Member (Technical) of the National Company
Law Tribunal, Ahmadabad, Bench in CP (CAA) No. 108, 110, 109 and 111 of
2019 in CA (CAA) No. 143, 145, 63 and 146 of 2018 on 18.12.2019 had
observed the following: -
"If the Hon'ble Member(J) is of the opinion that the
LLP is to be amalgamated with the Transferee
Company, as applied then the petition along with
related papers is required to be referred to the President. NCLT Delhi for constitution of a Bench to
decide. Whether a LLP can be amalgamated into a
company under Section 232 of Companies Act,
inspire of the disagreement of the Regional Director,
North Western Region, MCA."
In this connection, this Tribunal makes pertinent mention of Rule, 60 of
the National Company Law Tribunal, Rules 2016 which reads as under:
"60. Matters relating to the judgements or orders of the Tribunal.
-
(1) Once the final text of the judgment has been approved and
adopted, the judgment shall be signed and dated by the
President or the concerned Members or Member and the
Registrar, and the Registrar, and shall contain the names of the
Members who have taken part in the decision.
(2) Any Member differing as to the grounds upon which the
judgement was based or some of its conclusions, or dissenting
from the judgment, may append a separate or dissenting opinion.
(3) In case the members who have heard the case are equally
divided in passing the order or judgment, then the President shall
constitute a Bench as referred in sub-section (5) of section 419 of
the Act."
In view of the aforesaid Rule 60 of the National Company Law Tribunal Rules,
2016, and also because of the divergence of opinion between the two Hon'ble
Members of the NCLT, Ahmadabad, Bench, the matter now is said to be pending
before the Office of the Registry of the NCLT, Ahmadabad, Bench for constitution
of a Bench to decide the subject matter in issue. Whether a LLP can be amalgamated into a company under Section 232 of Companies Act, inspite of
the disagreement of the Regional Director, North Western Region, MCA?.
Viewed in that perspective, this Tribunal is of the considered opinion that the
Present Appeal filed by the Appellant is per se not Maintainable in the eye of
Law. When this legal position is brought attention of the Learned Counsel for
the Appellant, at this stage, he sought permission from this Tribunal to
withdraw the instant Appeal. Acceding to his request, the Present Appeal is
dismissed as withdrawn, without costs. It is made clear in the event of Bench
not being constituted till date, then it is open to the Appellant to move the
Registrar of National Company Law Tribunal, Principal Bench, New Delhi for
brining to the notice of the Hon'ble President of the National Company Law
Tribunal, New Delhi, in the subject matter issue, within one week from today
and to seek remedy for redressal of its grievance's at an early date.
(Justice Venugopal M.) Member (Judicial)
(V.P. Singh) Member (Technical)
(Shreesha Merla) Member (Technical)
SC/NN
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free