Companies Act Case Law Miheer H. Mafatlal Vs Mafatlal Industries Ltd.

PETITIONER:
MIHEER H. MAFATLAL

Vs.

RESPONDENT:
MAFATLAL INDUSTRIES LTD.

DATE OF JUDGMENT: 11/09/1996

BENCH:
MAJMUDAR S.B. (J)
BENCH:
MAJMUDAR S.B. (J)
SINGH N.P. (J)

CITATION:
JT 1996 (8) 205
ACT:

 

HEADNOTE:

 

JUDGMENT:
J U D G M E N T
S.B. Majmudar, J.
Leave granted.
By consent of learned advocates of parties this appeal
was taken up for final hearing We have heard the learned
advocates of parties. The appeal is being disposed of by
this judgment.
This appeal by special leave arises out of the judgment
and order of a Division Bench of High Court of Gujarat in
Original Jurisdiction Appeal No. 16 of 1994 decided on 12th
July 1996. The Division Bench by the said impugned judgment
dismissed the appeal of the appellant and confirmed the
order of the learned Single Judge in Company Petition No. 22
of 1994 and sanctioned a Scheme of Amalgamation of two
Public Limited companies, namely, Mafatlal Industries
Limited (‘MIL’ for short) being the transferor-company was
to be amalgamated. The learned Single Judge granted
requisite sanction to the applicant transferee-company MIL
to amalgamate in it the transferor-company MFL under Section
391(2) of the Companies Act, 1956 (hereinafter referred to
as ‘the Act’). In order to appreciate the grievance of the
appellant who objected to the Scheme moved by the
respondent-company MIL, as ventilated before us by its
learned senior counsel Shri Shanti Bhushan, assisted by
learned counsel Shri M.J. Thakore, it will be necessary to
glance through a few relevant background facts.
Background Facts
The respondent-company MIL which was the petitioner
before the learned Single Judge has its registered office at
Ahmedabad in Gujarat State. It was incorporated on 20th
January 1913 under the name ‘The New Shorrock Spinning &
Manufacturing Co. Limited’ and its name was subsequently
changed to ‘Mafatlal Industries Limited’ as per the fresh
Certificates of Incorporation dated 24th January 1974
consequent upon change of name, as sanctioned by the
Registrar of Companies, Gujarat, Ahmedabad. The objects of
the transferee-company MIL as per its Memorandum of
Association, inter-alia, included activity of carrying on
all or any of the businesses such as cotton spinners and
doublers, wool, silk flax, jute and hemp spinners and
doublers, linen manufacturers, to work spinning and weaving
mills, cotton mills, jute mills and mills of any other
description. The Authorised Share Capital of respondent-
company was Rs. 100,00,000/- (Rupees on hundred crores only)
divided into 30,05,500 equity shares of each and 69,94,500
unclassified shares of Rs. 100/- each. The Subscribed Share
Capital of the respondent-company as on 31st March 1993 was
Rs. 26.30 crores (Rupees twenty six crores thirty lacs only)
divided into 26,90,000 equity shares of Rs. 100/- each.
The respondent-company commenced the business of
textiles and had been carrying on the same since
incorporation. The respondent-company is a large multi-
Division, multi-locational company carrying on diversified
activities including manufacturing and sale of textiles,
dyes intermediates and chemicals, professionals grade
connectors, plastic processing machineries and promoting
various companies through Project Promotion Division.
The MFL being transferor-company was incorporated on
20th April 1931 under the Baroda State Companies Act and had
been carrying on the business of manufacture and sale of
textile piece goods and chemicals. Its registered office was
situated at Mafatlal Centre, Nariman Point, Bombay. It was
engaged in the manufacture and sale of textiles and fluorine
based chemicals. There were three units of the Textiles
Division situated at (1) Vejalpur Road, Navsari, (2)
Mazagon, Bombay and (3) Lower Parel, Bombay and the unit of
the Chemicals Division was situated at Bhestan, District
Surat.
The Authorised Share Capital of the transferor-company
as on 31st March 1993 was Rs. 30 crores (Rupees thirty cores
only) divided into 30,00,000 ordinary shares of Rs. 100/-
each. The Subscribed Share Capital of the transferor-company
as on 31st March 1993 was Rs. 26,25,77,100/-(Rupees twenty
six crores twenty five lacs seventy seven thousand and one
hundred only) divided into 26,25771 ordinary shares of Rs.
100/- each. Subsequent to 31st March 1993 the transferor-
company had allotted further 1,00,000 ordinary shares of
Rs.100/- each at a premium of Rs. 200/- per share on
conversion of 1,00,000. Partly Convertible Debentures of the
face value of Rs. 2,000/- each issued to Financial
Institutions with effect from 1st February 1994 by the
transferor-company.
The transferor-company MFL is proposed to be
amalgamated with the respondent-company MFL under the
following circumstances and for the following reasons. :
(1) The proposed amalgamation will
pave the way for better, more
efficient and economical control in
the running of operations.
(2) Economics in administrative and
management costs will improve in
combined profitability.
(3) The amalgamated company will
have the benefit of the combined
reserves, manufacturing assets,
manpower and cashflows of the two
companies. The combined
technological, managerial and
financial resources are expected to
enhance the capability of the
amalgamated company to invest in
larger and sophisticated projects
to ensure rapid growth.
(4) The amalgamated company will
have a strong and large resource
base. With a strong resource base,
the risk bearing capacity of the
amalgamated company will be
substantial. Hitherto, with limited
resources and capacity,
opportunities which would otherwise
have been profitable to the group.
(5)”Exports” have been identified a
‘thrust’ area for both the
companies and response in time to
customers’ needs s considered to be
critical in this area of
operations. An amalgamated company
will be strategically better places
to reduce the response time.
Customers’ confidence in dealing
with such a mega company ensures
timely delivery of large orders.
(6) The amalgamated company will be
able to source and absorb new
technology and spend on Research
and Development, Market Surveys
etc. more comprehensively.
(7) More particularly in the
Textiles Division, with 5 operating
units at the company’s disposal,
the flexibility in operations will
be very much pronounced. The
Managers will not be inhibited by
capacity constraints and will have
the freedom of choosing from
various options.
(8) Both the companies have been
subject to the pressures of raw
material price fluctuations and of
adverse market conditions in their
respective product mix. Hence, the
amalgamation will neutralise the
adverse effects of contrary
business cycles. The operations of
one unit will be complementary to
the other and a stable
profitability will be achieved.
The directors of the respondent-company MIL and
transferor-company transferor-company MFL approved the
proposal for amalgamation of the MFL with MIL and pursuant
to the respective Resolutions passed by them the detailed
Scheme of Amalgamation was finalised. The directors of both
the companies were of the opinion that such amalgamation was
in the interest of both the companies.
It is pertinent to note at this stage that the
appellant who has objected to the amalgamation before the
High Court in the present proceedings so far as the
amalgamation of the transferee-company is concerned, is
himself one of the directors of the transferor-company being
MFL. So far as the transferor-company MFL is concerned as
its registered office is located at Bombay the corresponding
application on behalf of the transferor-company for
satisfaction this very Scheme of Amalgamation was moved in
the Bombay High Court. The appellant at this stage did not
object to this very Scheme for amalgamation on behalf of the
transferor-company of which he was one of the directors and
party to the Resolution approving the said amalgamation.
Learned Single Judge of the Bombay High Court sanctioned the
said Scheme of on behalf of transferor-company. It is not in
dispute between the parties that Bombay High Court had
already sanctioned this very Scheme on behalf of the
transferor-company.
As the registered office of the transferee-company is
located at Ahemdabad the respondent transferee-company had
approved the High Court of Gujarat for sanctioning this very
Scheme of Amalgamation on behalf of the transferee-company
and that application was moved on 8th February 1994. It is
at this stage that the appellant who was one of the
shareholders of the transferee-company filed his objections
to the Scheme of Amalgamation moved under Section 391 of the
Act. Earlier the learned single Judge directed convening of
meeting of equity shareholders of the respondent-company. In
the meeting of the equity shareholders convened pursuant to
the order of the High Court, overwhelming majority of the
equity shareholders approved the Scheme in the meeting of
22nd January 1994 convened at Premabhai Hall, Bhandra,
Ahmedabad. The said meeting was attended by 5522 members
present in person or by proxy, holding 20,48513 fully paid
equity shares of Rs. 100/- each aggregating to Rs.
20,48,51,300/-. At the said meeting, resolution was passed
without modification by the requisite majority as 5298
members holding 19,36,964 fully paid equity voted in favour
of the Scheme and 143 members holding 86,061 fully paid
meeting by requisite majority approved the proposed Scheme
of Amalgamation and report of the Chairman was submitted to
the High Court. Thereafter the respondent-company MIL filed
Company Petition No.22 of 1994 under Section 391(2) of the
Act. That application was ordered to be published in local
newspapers as well as in the Bombay edition of the said
newspaper. Notice was also issued to the Regional Director,
Company Law Board, Western Region, Bombay.
In response to the notice issued to the Central
Government under Section 394 A of the Act the learned
Additional Central Government Standing Counsel appeared
before the High Court and submitted to the orders of the
Court making it clear that the Capital Government is not to
make any representation in favour or against the proposed
Scheme.
Pursuant to the public advertisement only the present
appellant, the shareholder of transferee-company holders
40,567 shares in MIL filed affidavit opposing the Scheme of
Amalgamation and Arrangement between the respondent
transferee-company MIL and transferor-company MFL of which,
as noted earlier, he himself was one of the directors and
the High Court of Bombay which sanctioned this very Scheme
on behalf of the transferor-company had sanctioned the
Scheme without any objection being taken by the appellant at
that stage.
Nine objections were raised by the appellant against
the proposed Scheme of Amalgamation as shareholder of the
transferee-company. At this stage we may not mention all
these nine objections as ultimately only for objections have
survived for our consideration in the present proceedings
and to which we will make a detailed reference hereinafter.
Suffice it to state at this stage that after a prolonged
hearing the learned Single Judge S.D. Shah, J., over-ruled
these objections and by a detailed and exhaustive judgment
running over 254 pages covering various aspects of the
matters canvassed before him sanctioned the said Scheme
moved on behalf of the respondent transferee-company.
The Division Bench of the High Court to which the
appellant carried the matter in appeal confirmed the
aforesaid decision of the learned Single Judge by a well
considered judgment which also ran into 136 pages and that
is how the appellant, original objector, is before us in
this appeal.
Family History
In order to properly appreciate the grievance of the
appellant against the proposed Scheme and his role as an
objector it will be necessary to note the family history of
the appellant and tow of the directors of the respondent
transferee-company who have a common ancestor Mafatlal
Gagalbhai. The Family of Mafatlal Gagalbhai projects the
following picture :
Family Tree of Mafatlal Gagalbhai
Seth Mafatlal Gagalbhai
(Died on 19/071994)
Navinchandra Bhaubhai Prasnasukhlal
(Died 31/08/1995) (Died 30/09/1944) (Deceased)
(No issues)
Arvind Yogindra Rasesh
Hemant
(Died on 16/08/1971)
Atulya Pradeep
Miheer
(Born on 27/05/1958)
Padmanabh Hrishikesh
(Died on
29/07/1990)
As the aforesaid Family Tree shows, the appellant
Miheer is the son of cousin brother of Arvind Navinchandra
who is said to be at the helm of affairs of the transferee
company along with his son Hrishikesh. As seen from the
Family Tree the common ancestor Mafatlal Gagalbhai who was
himself a very astute businessman and entrepreneur had three
sons Pransukhlal, Navinchandra and Bhagubhai. The eldest son
Pransukhlal got out of the family prior to the death of
Mafatlal Gagalbhai and he died without leaving any issue.
Mafatlal Gagalbhai expired on 19th July 1944 and was
survived by his two sons Navinchandra and Bhagubhai. On 30th
September 1944, the said Bhagubhai died leaving him
surviving Hemant, then aged 9 as his only male issue. On
31st August 1955, Navinchandra Mafatlal died leaving him
surviving the three sons, Arvind Mafatlal, Yogindra Mafatlal
and Rajesh Mafatlal as his male issues. On 16th August 1971,
said Hemant expired leaving behind his only male issue,
present objector Miheer, then aged 13.
The said Mafatlal Gagalbhai started different business
undertakings and with passage of time, the family of said
Mafatlal consisting of Navinchandra and Bhagubhai expanded
their business undertakings. The said family held
controlling interest in different business concerns run
through public limited or private limited companies and the
members of the family were also partners in partnership
firms. The pattern which was maintained throughout was that
the two sons Navinchandra and Bhagubhai and their families
would respectively have an equal interest in companies or in
partnership firms. At the time of the death of the said
Bhagubhai the said Hemant was just 9 years of age. The
business of Mafatlal Group was therefore for all practical
purposes managed by the said Navinchandra. At the time of
the death of Navincandra the shareholding of the branch of
Heman Mafatlal in Mafatlal Group of Industries was equal to
aggregate shareholding of Arvind Mafatlal, Yogindra Mafatlal
and Rajesh Mafatlal. On the death of Navinchandra, the
Mafatlal Group was managed by Arvind Mafatlal, Yogindra
Mafatlal, Rajesh Mafatlal and late Heman Mafatlal. Arvind
Mafatlal was, however the eldest male member in the family
who was always looked upon by Yogindra, Rajesh and late
Hemant as an elder in the family and respected.
On 16th August 1971, Hemant Mafatlal died at the young
age of 36 years leaving behind him his widowed mother, his
wife, his son Miheer (then aged 13) and his two daughters
(then aged 11 and 6). At that time, the Mafatlal family,
i.e., the families of Navinchandra and Bhagubhai were
running 3 apex companies (1) Mafatlal Gagalbhai & Company
Private Limited, (2) Surat cotton Spinning and Weaving Mills
Private Limited and (3) Pransukhlal & Company Private
Limited.
It is the case of Miheer that when his father expired,
the New Shorrock Spinning and Manufacturing Co. Limited was
being controlled and managed by Mafatlal Gagalbhai & Co.
Limited in which his father and his family had 46.47% shares
vis-a-vis 43.66% shares held by the family of Navinchandra
Mafatlal. After the death of his father, when Miheer was
minor, it was decided to amalgamate Mafatlal Gagalbhai & Co.
Limited on 24th January 1974 and the name of the company was
changed to present name i.e. MIL.
According to the appellant Miheer in or around 1979,
there were certain disputes and differences amongst Arvind
Mafatlal, Yogindra Mafatlal and Rajesh Mafatlal and it was
felt that some arrangement should be worked out, whereby
there would be a separation and division of the family
business concerns amongst the four branches viz. Miheer
Branch known as MHM Group, family of Arvind Mafatlal known
as ANM Group, family of Yogindra Mafatlal known as RNM
Group. It is this further case that Shri C.C. Chokshi, a
reputed chartered accountant was requested to prepare a
Scheme for division of family business concerns. According
to the appellant, Shri C.C. Chokshi prepared Note dated 23rd
February 1979 making six suggestions for the division of
Mafatlal Group of Industries into four Groups as there were
four family groups. The appellant contends that as per the
aforesaid family arrangement the transferee-company, i.e.
MIL was agreed to be put his share and the other groups
which were holding shares in the said transferee-company
were to transfer their share-holdings in favour of the
appellant. The appellant contends that however because of
some family disputes the appellant fell from the grace of
Shri Arvind Mafatlal who was the eldest male member
monitoring all these industries belonging to all the groups
of the same family, and consequently the family arrangement
was not given effect to and that the transferee-company was
not handed over in management to the appellant. On the other
hand the case of the other group headed by Shri Arvind
Mafatlal was to the effect the said family arrangement of
1979 was given a go-by and the appellant himself agreed to
sell his share-holding in the transferee-company MIL in
favour of Arvind Mafatlal’s Group. Number of litigations
took place between the parties in the second half of 1980.
That on 6th April 1987 Arvind Mafatlal filed suit No.10 of
1987 in the High Court of Judicature at Bombay for a
declaration that there was a valid, subsisting and binding
contract to sell shares Rajesh Mafatlal, Yogindra Mafatlal,
the appellant herein, groups to Shri Arvind Mafatlal’s group
and for a direction that they should sell the shares at a
price to be determined by the arbitrator. In the said suit
the appellant Miheer filed a counter-claim praying that the
family arrangement of 1979 should be enforced and the share-
holding of Shri Arvind Mafatlal’s group and other groups in
the transferee-company MIL should be sold by way of specific
performance to the appellant. The aforesaid suit by Arvind
Mafatlal and the counter-claim by the appellant are pending
for adjudication in the High Court of Judicature at Bombay.
It is in the background of the aforesaid history of family
feud between these warring groups descended from the common
ancestor Shri Mafatlal Gagalbhai that the grievance voiced
by the appellant in these proceedings has to be
appreciated.
Rival Contentions
As noted earlier though a battle royal was fought
between the contesting parties before the learned Single
Judge wherein nine objections were raised for adjudication
by the appellant, at this stage, the dispute centered round
a limited number of contentions which were canvassed for our
consideration by learned senior counsel for the appellant.
Four-fold submissions for opposing the Scheme were canvassed
on behalf of the appellant before us by Shri Shanti Bhushan,
learned senior counsel. In the first place he contended that
the respondent-company while putting the scheme for approval
of the equity shareholders in their meeting did not disclose
the interest of the directors, namely, Shri Arvind Mafatlal
and Shri Hrishikesh Mafatlal belonging to the camp of Arvind
Mafatlal in the explanatory statement supporting the Scheme
and consequently the shareholders were misled and could not
come to an informed decision regarding the approval of the
said Scheme with the result that the approval by the
majority of equity shareholders to the said Scheme was got
vitiated (2) The Scheme as proposed was unfair to the
minority shareholders represented by the appellant and
consequently it ought to have been sanctioned by the Court;
(3) The Scheme was otherwise unfair to the equity
shareholders as the exchange ratio of equity shares of the
transferor and transferee companies was ex facie
unreasonable and unfair to the shareholders of the
transferee-company MIL in so far as it provides under the
Scheme that two equity shares of the transferee company will
be allotted against five equity shares of the transferor-
company at their respective face value of Rs. 100/- per
share; and (4) That the appellant represented a distinct
class of equity shareholders so far as the respondent
transferee-company is concerned and consequently separate
meeting so far as his group is concerned should have been
convened by the Company Court and as that has not been done
the Scheme is liable to be rejected.
As a corollary to the aforesaid contention Shri M.J.
Thakore, learned counsel appearing for the appellant in
addition submitted that voting pattern as adopted in the
meeting of equity shareholders which had approved the
Scheme by Majority, resulted in coercing the minority
represented by the appellant and that has rendered the
Scheme unfair and unreasonable and consequently it is
required to be rejected.
On the other hand learned senior counsel Shri Sorabjee
appearing for the respondent transferee-company contended
that there was no illegality either procedural or
substantive vitiating the Scheme and that there was no
suppression of relevant material from the shareholders when
the Scheme was put to vote. That the personal disputes
between the warring groups of the family, namely, Arvind
Mafatlal on the one hand the appellant on the other and
which were subject matter of the pending litigation in
Bombay High Court had nothing to do with the question of
sanctioning the Scheme for its better economic viability
with which the shareholders were concerned and that as the
transferor-company and the transferee-company were juristic
persons and corporate bodies, while considering the question
of approving the said Scheme such personal disputes between
the directors of the transferee-company and the director of
the transferor-company were completely irrelevant and were
out of consideration of the equity shareholders who were not
at all concerned with this type of internal feuds and in any
case non-disclosure of such disputes had no adverse effect
on the decision of the majority shareholders who had
approved the Scheme with a thumping majority of about 95%
and the appellant who was objecting to the Scheme was in
microscopic minority of 5% of the total voting strength. It
was also contended by learned senior counsel for the
respondent that it is wrong to assume that the transferee-
company was a family concern and was managed by families.
That Shri Arvind Mafatlal and Hrishkesh Mafatlal were only
two directors out of thirteen directors of respondent-
company. These eleven directors did not belong to his
family. That even shareholding of Arvind Mafatlal’s group in
the respondent-company was not substantial and on the
contrary about 40% shares were held by outside financial
institutions. Even otherwise there was no question of any
unfairness underlying the proposed Scheme or that in any way
it was unfair to the appellant who never cared even to
remain present personally at the time of the meeting of the
equity shareholders to put forward his objections and he
only sent proxies who had no right to speak at the meetings.
That therefore all these Court were an afterthought. It was
also contended that there was nothing wrong with the
exchange ratio as C.C. Chokshi & Co., a firm of reputed
chartered accountants, had considered all the pros and cons
underlying the Scheme and had suggested the exchange ratio
and such an expert opinion was endorsed by another financial
institution ICICI. That the appellant had not chosen to in
rebuttal by any other expert in the field who could have
suggested the exchange ratio differently. That the
appellant’s contention that exchange ratio should have been
one share of transferee company against six shares of the
transferor company was in the realm of mere conjecture and
ipse dixit. It was not supported by any expert opinion.
Consequently the High Court was justified in taking the view
both at the stage of learned Single Judge as well as in
appeal by the Division Bench that the exchange ration could
not be said to be unfair or unreasonable especially when by
an overwhelming majority the equity shareholders approved
the said Scheme along with said exchange ration and had no
objection to the allotment of two equity shares of the
transferee-company in exchange of for five equity shares of
transferee-company. It was also contended that the
appellant himself who was the director of the transferor-
company had approved the same exchange ratio while he acted
on behalf of the transferor-company. He was, therefore,
playing hid and seek when it came to the enforcement of the
very same exchange ratio at the end f the transferee-company
wherein he was not a director but only shareholder of merely
5% shares.
It was next contended that the appellant was also an
equity shareholder and so far as the other equity
shareholders were concerned they constitute the same class
as the appellant. That there was no inter se conflict
between the rest of the equity shareholders representing 95%
of the voting strength which approved the Scheme and the
appellant who represented dissenting 5% votes and
consequently there was no appellant was concerned. Even
otherwise such a separate meeting would not have made any
impact on the voting pattern projected by the equity
shareholders approving the said Scheme by overwhelming
majority. Repelling the additional contention canvassed by
learned counsel for the appellant it was submitted by Shri
Sorabjee learned senior counsel for the respondent that
there was no question of coercing any minority by the
majority as in the meeting of the equity shareholders the
appellant had not thought fit even to remain present
personally and had only got represented through proxy for
submitting his objection by voting against the Scheme
without having any right to address the meeting. Thus the
contention regarding alleged suppression by the majority was
purely an afterthought especially when in the meeting the
group of Arvind Mafatlal had not represented an absolute
majority and 40% of the voting was by financial institutions
who had no axe to grind against the appellant and who had
voted by keeping in view purely commercial and economic
interests of equity shareholders and had approved the Scheme
in that light, It was, therefore, submitted that the
contention raised on behalf of the appellant deserve to be
rejected and the appeal consequently also deserves to be
dismissed.
In view of the aforesaid rival contentions the
following points arise for our determination :
1. Whether the respondent-company was guilty of hiding the
special interest of its director Shri Arvind Mafatlal from
the shareholders while circulating the explanatory statement
supporting the Scheme and whether thereby the voting by the
equity shareholders got vitiated.
2. Whether the Scheme is unfair and unreasonable to the
minority shareholders represented by the appellant.
3. Whether the proposed Scheme of Amalgamation was unfair
and amounted to suppression of minority shareholders
represented by the appellant and hence liable to be
rejected.
4. Whether separate meeting of minority shareholders
represented by the appellant was required to be convened on
the basis that the appellant’s group represented a special
class of equity
shareholders.
5. Whether the exchange ratio of two equity shares of MIL
for five equity shares of MFL was ex facie unfair and
unreasonable to the equity shareholders of MIL and
consequently the Scheme of Amalgamation on that account was
liable to be rejected.
However before we deal with the aforesaid points for
determination seriatim, it will be necessary in view the
limited scope of the jurisdiction of the Company Court which
is called upon to sanction the Scheme of Amalgamation as per
the provisions of Section 391 read with Section 393 of the
Act.
Scope of interference by the Company Court in sanction
proceedings The relevant provisions of the Companies Act,
1956 are found in Chapter V of Part VI dealing with
‘Arbitration, Compromises, Arrangements and
Reconstructions’. In the present proceedings we will be
concerned with the Sections 391 and 393 of the Act. The
relevant provisions thereof read as under :
“391.(1) where a compromise or
arrangement is proposed –
(a) between a company and its
creditors or any class of them ; or
(b) between a company and its
members or any class of them ;
the Court may, on the application
of the Company or of any creditor
or member of the company, or in
the case of to company which is
being wound up, of the liquidator,
order a meeting of creditors or
class of creditors, or of the
members or class of members, held
and conducted in such manner as
the Court directs.
(2) 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, where
proxies are allowed under the rules
made under section 643, by proxy,
at the meeting, agree to any
compromise or arrangement, the
compromise or arrangement, shall,
if sanctioned by the Court, be
binding on all the creditors, all
the creditors of the class, all the
members, or all the members of the
class, as the case may be, and also
on the company, or, in the case of
a company which is being wound up,
on the liquidator and
contributories of the company :
Provided that no order sanctioning
any compromise or arrangement shall
be made by the Court unless the
Court is satisfied that the company
or any other person by whom an
application has been made under
sub-section (1) has disclosed to
the Court, by affidavit or
otherwise, all material facts
relating to the company, such as
the latest financial position of
the company, the latest auditor’s
report on the accounts of the
company, the pendency of any
investigation proceedings in
relation to the company under
sections 235 to 251, and the like.
393.(1) Where a meeting of
creditors or any class of
creditors, or of members or any
class of members, is called under
section 391, –
(a) with every notice calling the
meeting which is sent to a creditor
or member, there shall be sent also
a statement setting forth the
terms of the compromise or
arrangement and explaining its
effect : and in particular,
stating any material interests of
the directors, managing director,
managing agent, secretaries and
treasurers or manager of the
company, whether in their capacity
as such or as members or creditors
of the company or otherwise, and
the effect on those interests, of
the compromise or arrangement, if,
and in so far as, it is different
from the effect on the like
interests of other persons; and
(b) in every notice calling the
meeting which is given by
advertisement, there shall be
included either such a statement as
aforesaid or a notification of the
place at which and the manner in
which creditors or members entitled
to attend the meeting may obtain
copies of such a statements
aforesaid.”
The aforesaid provisions of the Act show that
compromise or arrangement can be proposed between a company
and its creditors or any class of them or between a company
and its members or any class of them. Such a compromise
would also take in its sweep any scheme of
amalgamation/merger or one company with another. When such a
scheme is put forward by a company for the sanction of the
Court in the first instance the Court has to direct holding
of meetings of creditors or class of creditors or members or
class of members who are concerned with such a scheme and
once the majority in number representing three-fourths in
value of creditors or class of creditors or members or class
of members, as the case may be, present or voting either in
person or by proxy at such a meeting accord their approval
to any compromise or arrangement thus put to vote, and once
binding to all creditors or class of creditors or members or
class of members, as the case may be, which would also
necessarily mean that even to dissenting creditors or class
of creditors or dissenting members or class of members such
sanctioned scheme even though approved by a majority of the
concerned creditors or members the Court has to be satisfied
that the company or any other person moving such an
application for sanction under sub-Section (2) of Section
391 has disclosed all the relevant matters mentioned in the
provision to sub-section (2) of that Section. So far as the
meetings of the creditors or members, or their respective
classes for whom the Scheme is proposed are concerned, it is
enjoined by Section 391(1) (a) that the requisite
information as contemplated by the said provision is also
required to be placed for consideration of the concerned
voters so that the parties concerned before whom the scheme
is placed for voting can take an informed and objective
decision whether to vote for the scheme or against it. On a
conjoint reading of the relevant provisions of Sections 391
and 393 it becomes at once clear that the Company Court
which is called upon to sanction such a scheme has not
merely to go by the ipse dixit of the majority of the
shareholders or creditors or their respective classes who
might have voted in favour of the scheme by requisite
majority but the Court has to consider the pros and cons of
the scheme with a view to finding out whether the scheme is
fair, just and reasonable and is not contrary to any
provisions of law and it does not violate any public policy.
This is implicit in the very concept of compromise or
arrangement which is required to receive the imprimatur of a
court of law. No court of law would ever countenance any
scheme of compromise or arrangement arrived at between the
parties and which might be supported by the requisite
majority if the Court finds that it is an unconscionable or
an illegal scheme or is otherwise unfair or unjust to the
class of shareholders or creditors for whom it is meant.
Consequently it cannot be said that a Company Court before
whom an application is moved for sanctioning such a scheme
which might have got requisite majority support of the
creditors or members or any class of them for whom the
scheme is mooted by the concerned company, has to act
merely as rubber stamp and must almost automatically put its
seal of approval on such a scheme. t is trite to say that
once the scheme gets sanctioned by the Court it would bind
even the dissenting minority shareholders or creditors.
Therefore, the fairness of the scheme qua them also has to
be kept in view by the Company Court its sanction. It is,
of course, true that so far as the Company Court is
concerned as per the statutory provisions of Sections 391
and 393 of the Act the question of voidability of the scheme
will have to be judged subject to the rider that a scheme
sanctioned by majority will remain binding to a dissenting
minority of creditors or members as the case may be, even
though they have not consented to such scheme and to that
extent absence of their consent will have to effect the
scheme. It can be postulated that even in case of such a
Scheme of Compromise and Arrangement put up for sanction of
a Company Court it will have to be seen whether the proposed
scheme is lawful and just and fair to the whole class of
creditors or members including the dissenting minority to
whom it is offered for approval and which has been approved
by such class of persons with requisite majority vote.
However further question remains whether the Court has
jurisdiction like an appellate authority to minutely
scrutinise the scheme and to arrive at an independent
conclusion whether the scheme should be permitted to go
through or not when the majority of the creditors or members
or their respective classes have approved the this aspect
the nature of compromise or arrangement between the company
and the creditors and members has to be kept in view. It is
the commercial wisdom of the parties to the scheme who have
taken an informed decision about the usefulness and
propriety of the scheme by supporting it by the requisite
majority vote that has to be kept in view by the Court. The
Court certainly would not act as a court of appeal and sit
in judgment over the informed view of the concerned parties
to the compromise as the same would be in the realm of
corporate and commercial wisdom of the concerned parties.
The Court has neither the expertise nor the jurisdiction to
delve deep into the commercial wisdom exercised by the
creditors and members of the company who have ratified the
Scheme by the requisite majority. Consequently the Company
Court’s jurisdiction to that extent is peripheral and
supervisory and not appellate. The Court acts like an umpire
in a game of cricket who has to see that both the teams play
their according to the rules and do not overstep the
limits. But subject to that how best the game is to be
played is left to the players and not to the umpire. The
supervisory jurisdiction of the Company Court can also be
called out from the provisions of Section 392 of the Act
which reads as under :
“392, (1) Where a High Court makes
an order under section 391
sanctioning a compromise or an
arrangement in respect of a
company, it –
(a) shall have power to supervise
the carrying out of the compromise
or arrangement ; and
(b) may, at the time of making such
order or at any time thereafter,
give such directions in regard to
any matter or make such
modifications in the compromise or
arrangement as it may consider
necessary for the proper working or
the compromise or arrangement.
(2) If the Court aforesaid is
satisfied that a compromise or
arrangement sanctioned under
section 391 cannot be worked
satisfactorily with or without
modifications, it may, either on
its own motion or on the
application of any person
interested in the affairs of the
company, and such an order shall be
deemed to be an order under section
433 of this Act.
(3) The provisions of this shall,
so far as may be, also apply to a
company in respect of which an
order has been made before the
commencement of this Act under
section 153 of the Indian Companies
Act, 1913 (7 of 1913), sanctioning
a compromise or an arrangement.”
Of course this Section deals with post-sanction
supervision. But the said provision itself clearly earmarks
the field in which the sanction of the Court operates. It is
obvious that the supervisor cannot ever be treated as the
author or a policy maker. Consequently the propriety and the
merits of the compromise or arrangement have to be judged by
the compromise or arrangement have to be judged by the
parties who as sui juris with their open eyes and fully
informed about the pros and cons of the Scheme arrive at
their own reasoned judgment and agree to be bound by such
compromise or arrangement. The Court cannot, therefore,
undertake the exercise of scrutinising the scheme placed for
its sanction with a view to finding out whether a better
scheme could have been adopted by the parties. This exercise
remains only for the parties and is in the realm of
commercial democracy permeating the activities of the
concerned creditors and members of the company who in their
best commercial economic interest by majority agree to give
green signal to such a compromise or arrangement. The
aforesaid statutory scheme which is clearly discernible from
the relevant provisions of the Act, as seen above, has been
subjected to a series of decisions of different High Courts
and this Court as well as by the Courts in England which had
also occasion to consider schemes under pari material
English Company Law. We will briefly refer to the relevant
decisions on the point. But before we do so we may also
usefully refer to the observations found in the oft-quoted
passage in Bucklay on the Companies Act 14th Edition.
They are as under :
“In exercising its power of
sanction the Court will see, first
that the provisions of the statute
have been complied with, second,
that the class was fairly
represented by those who attended
the meeting and that he statutory
majority are acting bona fide and
are not coercing the minority in
order to promote interest adverse
to those of the class whom they
purposed to represent, and thirdly,
that the arrangement is such as
intelligent and honest man, a
member of the class concerned and
acting in respect of his interest,
might reasonably approve.
The court does not sit merely to
see that the majority are acting
bona fide and thereupon to register
the decision of the meeting, but at
the same time, the court will be
slow to differ from the meeting,
unless either the class has not
been properly consulted, or the
meeting has not considered the
matter with a view to the interest
of the class which is empowered to
bind, or some blot is found in the
Scheme.”
In the case of Re. Alabama, New Orleans Texas and
Pacific Junction Railway Company reported in 1891 (1)
Chancery Division 213 the relevant observations regarding
the power and jurisdiction of the Company Court which is
called upon to sanction a scheme of arrangement or
compromise between the company and its creditors or
shareholders were made by Lindley, L.J. as under :
“What the court has to do is to
see, first of all, that the
provisions of that stature have
been complied with; and, secondly,
that the minority has been acting
bona fide. The court also has to
see that the minority is not being
overdone by a majority having
interests of its own clashing with
those of the minority whom they
seek to coerce. Further than that,
the Court has to look at the scheme
and see whether it is one as to
which persons acting honestly, and
viewing scheme laid before them in
the interests of those whom they
represent, take a view which can
reasonably be taken by businessman.
The court must look at the scheme,
and see whether the Act has been
complied with, whether the Act has
been complied with, whether the
majority are acting bona fide, and
whether they are coercing the
minority in order to promote
interests adverse to those of the
class whom they purport to
represent; and then see whether the
scheme is a reasonable on or
whether there is any reasonable
objection to it, or such an
objection to it as that any
reasonable man might say that he
could not approve it.”
To the Similar effect were the observations of Fry,
L.J., which read as under
“The next enquiry is Under what
circumstances is the court to
sanction a resolution which has
been passed approving of a
companies or arrangement ? I shall
not attempt to define what elements
my enter into the consideration of
the Court beyond this, that I do
not doubt for a moment that the
Court is bound to ascertain that
all the conditions required by the
statute have been complied with; it
is bound to be satisfied that the
proportion was made in good faith;
and, further, it must be so far
fair ad reasonable, as that an
intelligent and honest man, who is
a member of that class, and acting
alone in respect of his interest as
such a member, might approve of it.
What other circumstances the court
may take into consideration I will
not attempt to forecast.”
In Anglo-continental Supply Co. Ltd. Re. (1992) 2 Ch.
723, Asthury, J., a century later reiterated the very same
propositions as under :
“Before giving its sanction to a
scheme of arrangement the court
will see firstly that the
provisions of the statute have been
complied with; secondly that the
class was fairly represented by
those who attended the meeting and
that the statutory majority are
acting bona fide and are not
coercing the minority in order of
the class whom they purport to
represent; and, thirdly, that the
arrangement is such as a man of
business would reasonably approve.”
Learned Single Judge of the Calcutta High Court in the
case of Re. Mankam Investments Ltd. and others (1995) 4 Comp
LJ 330 (Cal.) relying on a catena of decisions of the
English Courts and Indian High Courts observed as under on
the power and jurisdiction of the company Court which is
called upon to sanction a scheme of merger and amalgamation
of companies.
“It is a matter for the
shareholders to consider
commercially whether amalgamation
or merge is beneficial or not. The
court is really not concerned with
the commercial decision of the
shareholders until and unless the
court feels that proposed merger is
manifestly unfair or is being
proposed unfairly and/or to defraud
the other shareholders. Whether the
merged companies will be ultimately
benefitted or of expenses is a
matter for the shareholders to
consider. If three there will be
some economies in the matter of
expenses is a matter for the
shareholders to consider,
certainly, there will be some
economies in the matter of
maintaining accounts, filing of
returns and various other matters.
However, the court is really not
concerned with the exact details of
the matter and if the shareholders
approved the scheme by the
requisite majority, then the court
only looks into the scheme as to
find out that it is not manifestly
unfair and/or is not intended to
defraud or do injustice to the
other shareholders.”
We may also in this connection profitably refer to the
judgment of this Court in the case of Hindustan Lever
Employees’ Union v. Hindustan Lever Ltd. and others 1995
Supp. (1) SCC 499 wherein a Bench of three learned judges
speaking through Sen, J. on behalf of himself and
Venkatachaliah, CJ., and with which decision Sahai, J.,
concurred Sahai, J., in his concurring judgment in the
aforesaid case has made the following pertinent observations
in this connection in paras 3 and 6 of the Report :
“But what was lost sight of was
that the jurisdiction of the Court
in sanctioning a claim of merger is
not to ascertain with mathematical
accuracy if the determination
satisfied the arithmetical test. A
company court does not exercise an
appellate jurisdiction ………..
Section 394 casts an obligation on
the court to be satisfied that the
scheme for amalgamation or merger
was not contrary to public
interest. The basic principle of
such satisfaction is none other
than the broad and general
principles inherent in any
compromise or settlement entered
between parties that it should not
be unfair or contrary to public
policy or unconscionable. In
amalgamation of companies, the
courts have evolved, the principle
“prudent business management test”
or that the scheme should not be a
device to evade law. But when the
court is concerned with a scheme of
merger with a subsidiary of foreign
company then test is not only
whether the scheme shall result in
maximising profits of the
shareholders or whether the
interest of employees was protected
but it has to ensure the merger
shall not result in impeding
promotion of industry or shall not
result in impeding promotion of
industry or shall obstruct growth
of national economy. Liberalised
economic policy is to achieve this
goal. The merger, therefore, should
not be contrary to this objective.
Reliance on English decisions Hoare
& Co. Ltd. Re 1933 All ER Rep 105,
Ch. D and Bugle Press Ltd. Re. 1961
Ch 270 that the power of the court
is to be satisfied have complied
with or that the classes were fully
represented and the arrangement was
such as man of business would
reasonably approve between two
private companies may be correct
and may normally be adhered to but
when the merger is with a
subsidiary of a foreign company
then economic interest of the
country may have to be given
precedence. The jurisdiction of the
court in this regard is
comprehensive.”
Sen, J. Speaking for himself and Venkatachaliah, CJ.,
also towed the line indicated by Sahai, J., about the
jurisdiction of the Company Court while sanctioning the
Scheme and made the following pertinent observations in
paragraph 84 at page 528 of the Report :
“An argument was also made that as
a result of the amalgamation, a
large share of the market will be
captured by HLL.
But there s nothing unlawful or
illegal about this. The Court will
decline to sanction a scheme of
merger, if any tax fraud or any
other illegality is involved. But
that is not the case here. A
company may, on its own, grow up to
capture a large share of the
market. But unless it is shown that
there is some illegality or fraud
involved in the scheme, the Court
cannot decline to sanction a scheme
of amalgamation. It has to be borne
in mind that this proposal of
amalgamation arose out of a sharp
decline in the business of TOMCO.
Dr Dhavan has argued that TOMCO is
not yet a sick company. That may be
right, but TOMCO at this rate will
become a sick Company, unless
something can be done to improve
its performance. In the last two
years, it has sold its investments
and other properties. If this
proposal of amalgamation is not
sanctioned, the consequence for
TOMCO may be very serious. The
shareholders, the employees the
creditors will all suffer. The
argument that the Company has large
cotton mills and jute mills in
India have become sick and are on
the verge of liquidation, even
though they have large assets. The
Scheme has been sanctioned almost
unanimously by the shareholders,
unsecured creditors and preference
shareholders of both the Companies.
There must exist very strong
reasons for withholding of sanction
may turn out to be disastrous for
60,000 shareholders of TOMCO and
also a large number of its
employees.
In view of the aforesaid settled legal position,
therefore, the scope and ambit of the jurisdiction of the
Company Court has clearly got earmarked. The following broad
contours of such jurisdiction have emerged :
1 The sanctioning court has to see to it that all the
requisite statutory procedure for supporting such a scheme
has been complied with and that the requisite meeting as
contemplated by Section 391(1) (a) have been held.
2. That the scheme put up for sanction of the Court is
backed up by the requisite majority vote as required by
Section 391 sub-section (2).
3. That the concerned meetings of the creditors or members
or any class of them had the relevant material to enable the
voters to arrive at an informed decision for approving the
scheme in question. That the majority decision of the
concerned class of voters is just fair to the class as whole
so as to legitimately blind even the dissenting members of
that class.
4. That all the necessary material indicated by Section
393(1)(a) is placed before the voters at the concerned
meetings as contemplated by Section 391 sub-Section (1).
5. That all the requisite material contemplated by the
provision of sub-Section (2) of Section 391 of the Act is
placed before the Court by the concerned applicant seeking
sanction for such a scheme and the Court gets satisfied
about the same.
6. That the proposed scheme of compromise and arrangement
is not found to be violative of any provision of law and is
not contrary to public policy. For ascertaining the real
purpose underlying the Scheme with a view of to satisfied on
this aspect, the Court, if necessary, can pierce the veil of
apparent corporate purpose underlying the scheme and can
judiciously X-ray the same.
7. That the Company Court has also to satisfy itself that
members or class of members or creditors or class of
creditors as the case may be, were acting bona fide and in
good faith and were not coercing the minority in order to
promote any interest adverse to that of the latter
comprising of the same class whom they purported to
represent.
8. That the scheme as a whole is also found to be just,
fair and reasonable from the point of view of prudent men of
business taking a commercial decision beneficial to the
class represented by them for whom the scheme is meant.
9. Once the aforesaid broad parameters about the
requirements of a scheme for getting sanction of the Court
are found to have been met, the Court will have no further
jurisdiction to sit in appeal over the commercial wisdom of
the majority of the class of persons who with their open
eyes have given their approval to the scheme even if in the
view of the Court there would be a better scheme for the
company and its members or creditors for whom the scheme is
framed. The Court cannot refuse to sanction such a scheme on
that ground as it would otherwise amount to the Court
exercising appellate jurisdiction over the scheme rather
than its supervisory jurisdiction.
The aforesaid parameters of the scope and ambit of the
jurisdiction of the Company Court which is called upon to
sanction a Scheme of Compromise and Arrangement are not
exhaustive but only broadly illustrative of the contours of
the Court’s jurisdiction.
In the light of the aforesaid settled legal position we
will now proceed to deal with the main points for
determination indicated hereinabove.
Point No. 1
So far as this point is concerned it was vehemently
contended by learned senior counsel Shri Shanti Bhushan that
the explanatory statement placed for consideration of the
meeting of equity shareholders was not a complete statement
and relevant material indicating the interest of the
director of MIL Shri Arvind Mafatlal was not placed before
the voters with the result that the majority vote supporting
the scheme got vitiated. The explanatory statement which
came to be circulated to the voters, namely, the equity
shareholders of the transferee-company MIL alleged as under
“It is proposed to amalgamate MF
with MIL so as to enable the
carrying on of the combined
business more economically and more
economically and advantageously.
Amalgamation of both the companies
would lead to substantial
operations. The amalgamation of
both the companies would give
improved capital structure which
would lend better flexibility in
capital gearing which would enable
the amalgamated company to raise
required finance at better terms. A
larger company would generate
terms, confidence in the investors
and with persons dealing with the
company and will afford access to
resources easily and at with MIL
will pave the way for better, more
efficient and economic control in
economy in the administrative and
management cost resulting in
improving profitability. The
amalgamated company will have a
strong and large resource funds.
The combined technological
Managerial and financial resources
would enhance the capability of the
amalgamated company to invest in
larger and sophisticated projects
to ensure rapid growth. The
amalgamated company’s Textiles
Division with five operative units
at its disposal will have
flexibility in its operations.”
So far as the aforesaid explanatory statement is
concerned it gives sufficient indication regarding the
pliability and usefulness of the proposed Scheme of
Amalgamation of transferor-company MFL with the transferee-
company MIL. However the special grievance of the appellant
voiced by his learned counsel is to the effect that the real
interest underlying the scheme of merger was that of the
director Shri Arvind Mafatlal and his group who were at this
helm of affairs of the transferee-company. Learned senior
counsel Shri Shanti Bhushan in this connection submitted
that under Section 393(1) (a) of the Act the company is
enjoined to mention in the statement material interest of
the director Shri Arvind Mafatlal in the Scheme which is of
a special nature as compared to the interest of other
shareholders compromise and arrangement on such special
interest of Shri Arvind Mafatlal and as that was not
mentioned in the explanatory statement along with which the
copy of the Scheme was circulated to the members the
majority vote became vitiated. New a mere look at Section
393(1)(a) shows that the special interest of the director
which is required t be brought home to the voters must
satisfy the following requirements of the Section before it
can treated to be relevant special interest of the director
which is required to be communicated to the voters :
1 The director’s interest must be a special interest
different from the interest of other members who are the
voters at the meeting.
2. The compromise or arrangement which is put to vote must
have an effect on such special interest of the director.
3. Such effect must be different from the effect of
compromise and arrangement on similar interest of other
persons who are called upon to vote at the meeting.
When we enquired of Shri Bhushan, learned senior
counsel for the appellant as to which special interest,
according to him, of director Arvind Mafatlal was required
to be communicated to the voters as per Section 393(1)(a),
he stated that there was a pending litigation between the
appellant on the one hand and Shri Arvind Mafatlal on the
other in Bombay High Court. That Shri Arvind Mafatlal had
sought a declaration in a pending suit against the appellant
that the latter was required to sell of his share-holding in
the transferee-company MIL to the plaintiff Arvind Mafatlal
who was director of MIL. In this very suit the appellant had
filed a counter-claim to the effect that Shri Arvind
Mafatlal and his group was required to transfer their share-
holding in the transferee-company in favour of the appellant
as per the Family Arrangement of 1979. Shri Shanti Bhushan
in this connection submitted that though the learned Single
Judge had taken the view that this type of special interest
of director Arvind Mafatlal was not relevant and germane to
the requirement of Section 393(1)(a), the Division Bench in
appeal had taken a contrary view and held that such a
special interest was required to be communicated to the
equity shareholders in their meeting as per the said
provision. In this connection our attention was invited by
Shri Shanti Bhushan to the observation of the Division Bench
of the High Court at page 325 of the paper book wherein the
Division Bench observed as under :
“Mihir H. Mafatlal was to get
exclusive control to MIL to the
exclusion of Arvind N. Mafatlal and
his two brothers. Under the
proposed family arrangement M. Fine
was to be hived off from MIL and
the control and management of the
M. Fine was to be held by Arvind N.
Mafatlal and that of MIL was to be
handed over to objector Mihir H.
Mafatlal. This family arrangement
has suffered rough weather. Suit
No. 1010 of 1987 was filed by
Arvind N. Mafatlal against Mihir H.
Mafatlal and others before the
Bombay high Court alleging that
another agreement subsequent to the
said family arrangement has come
into existence under which Mihir H.
Mafatlal and other brothers of
Arvind had agreed to transfer all
their holdings in MIL to A.N.
Mafatlal, drawing a curtain on the
family arrangement of 1979. The
said dispute and the outcome
thereof will have direct effect on
the respective interests of the
shares held by A.N. Mafatlal, Mihir
H. Mafatlal and other members of
the Mafatlal family, and trusts
under them.”
He also invited our attention to the observation of the
Division Bench at page 328 of the paper book to the effect
that having considered the rival contentions and closely
examined the scheme of Section 393, they were unable to
sustain the conclusion that the facts about the interests
under the alleged family arrangements and the effect of
proposed arrangement for amalgamation on such interests were
not required to be disclosed under section 393(1)(a).
In our view the aforesaid observations of the Division
Bench are not quite apposite in the light of the proposed
Scheme of Compromise and Arrangement which was sought to be
got sanctioned by the Court. On the other hand the learned
Single Judge was quite justified in taking the view that
this type of interest which was personal nature so far as
director Arvind Mafatlal on the one hand and appellant on
the other hand were concerned was not at all germane to the
question relating to sanctioning of the Scheme of Compromise
and Arrangement with which the Court was concerned. It is
obvious that when a Scheme of Compromise and Arrangement
which involves two companies, namely, the transferor-company
and the transferor-company and their shareholders and
creditors is on the anvil of scrutiny before the sanctioning
Court, the Court has to see that the interest of the class
of creditors or shareholders to whom the Scheme is offered
for approval is any way likely to be affected by the
suppression of special interest of the director in
connection with such a scheme which is on the anvil. Two
independent bodies which are represented by their
shareholders or creditors as a class, as the case may be
have to take commercial decisions strictly with a view to
seeing that the concerned Scheme of Compromise or
Arrangement is beneficial to the shareholders or creditors
as a class vis-a-vis the company which is a corporate entity
in so far as the company’s relations with these class of
creditors and shareholders are concerned. If the special
interest which the director has is in any way likely to be
affected by the Scheme and if non-disclosure of such an
interest is likely to affect the voting pattern of the class
of creditors or shareholders who are called upon to vote on
the scheme, then only such special interest of the director
is required to be communicated to the voters as per Section
393(1)(a). We fail to appreciate how the personal family
dispute between the appellant on the one hand and Arvind
Mafatlal, director of the transferee-company MIL on the
other regarding the right to hold shares in the company can
have any linkage or nexus with the Scheme of Amalgamation of
these two companies which was put to vote before the equity
shareholders. It is easy to visualize that if the suit filed
by Arvind Mafatlal against the appellant succeeds would
happen is that the appellant will have to sell his share-
holding which is only 5% in the transferee-company to the
plaintiff Arvind Mafatlal. That has nothing to do with the
equity shareholders as a class which was called upon to
decide whether the scheme of merging the transferor-company
MFL with the scheme of merging the transferor-company MFL
with the transferee-company was for the benefit of the
shareholders as a class. The equity shareholders of the
transferee-company had to decide in their commercial wisdom
whether it is worthwhile to have a larger body of
shareholders on account of the merger so that apart from the
share-holding of the transferee-company its objects would
also get diversified and its field of operation would be
enlarged with the prospect of hike in the dividend available
to these shareholders after the economic and industrial
activities of both the companies so amalgamated would get
elongated and whether the value of their shares in such
consolidated companies were likely to get a boost in the
stock market. This was the commercial decision which the
equity shareholders of the transferee-company had to take.
For taking this informed decision they were least concerned
whether 5% share-holding of appellant in the company
remained or did not remain with him in future. Consequently
f Arvind Mafatlal’s suit ultimately succeeded before the
Bombay High Court and the appellant lost in his counter-
claim that would have no effect whatsoever on the informed
decision which the equity shareholders were called upon to
take while approving the scheme in question.
Conversely if the appellant succeeded in his counter-
claim and director Arvind Mafatlal lost in his suit then all
that would happen is that Arvind Mafatlal will have to
transfer his share-holding and share-holding of his group in
favour of appellant so far as the transferee-company is
concerned. That future possibility would have no impact on
the decision making process which had to undertake at this
stage while approving the Scheme. Consequently such an
eventuality was totally irrelevant for being brought to the
notice of the equity shareholders before whom the scheme was
put to vote. While deciding whether transferor-company
should be merged with the transferee-company and the
transferee-company’s economic and industrial activity should
be permitted to be enlarged as a result of such merger the
equity shareholders were least concerned whether the
appellant would purchase in future the share of the present
director Arvind Mafatlal or vice versa. That was entirely
their personal dispute which was still not adjudicated upon
and its decision one way or the other had no impact on the
pattern of voting of the equity shareholders of the
respondent-company as a class of prudent businessmen and
investors so far as the Scheme was concerned. The Scheme of
Compromise and Arrangement which was put to vote was of such
a nature that it had no impact or effect on the personal
interest of the director Arvind Mafatlal in connection with
his present share-holding in the transferee-company.
Consequently it must be held that mention about such an
interest was outside the statutory requirements of Section
393(1)(a) as rightly held by the learned Singly Judge whose
view was erroneously upset by the Division Bench. However in
any case we are in entire agreement with the subsequent
reasoning of the Division Bench for approving the decision
of the learned Single Judge on this aspect, namely, that
such non-disclosure of interest had no impact on the voting
pattern adopted at the meeting by the equity shareholders
who are called upon to approve the scheme. It may also be
noted in this connection that the resolution of the equity
shareholders approving the Scheme of Amalgamation was passed
with overwhelming majority by members including through
proxies, present and voting. It projected the following
picture :
In favour Against Total
(i) No.of Members 5,298 143 5,441
(ii) No of valid 19,36,964 86061 20,23,025
votes
From the pattern of voting it became apparent that out
of 100% of the Share capital 75.75 per cent in value
participated of which 95.75 per cent voted in favour of the
proposed Scheme. Out of 95.75 per cent of the votes in
value, a paltry 8.43 per cent votes had been attributed to
Arvind Mafatlal group consisting of individuals and trust.
39.45 per cent were the votes attributable to financial
institutions which can be said to have no interest other
than their own interests as men of business in considering
the proposed Scheme. Over 23 per cent votes have been
attributed to public limited companies or private limited
companies which held the shares of MIL and in which Arvind
Mafatlal was also alleged to have interests. Thus non-
mentioning of the private dispute between Arvind Mafatlal
and objector in connection with the holding of shares in the
transferee-company had in fact no impact on the voting
pattern of equity shareholders including the financial
institutions which had nothing to do with this personal feud
between the warring groups. Consequently the non-mentioning
of the pending dispute between the appellant on the one hand
and Arvind Mafatlal on the other which was pending
adjudication in the Bombay High Court had in fact no impact
whatsoever on the result of the voting undertaken by the
equity shareholders in their class meeting. Thus the
requisite statutory majority of votes approving the scheme
could not have been adversely affected by the non-mentioning
of this pending litigation in the explanatory note even
assuming that the Division Bench was right in holding that
it was required to be informed to the voters as per the
requirements of Section 393(1)(a). In either view of the
matter, therefore, the non-mentioning of the pending
litigation between the director of the transferee-company
Arvind Mafatlal on the one hand and the appellant on the
other, had no vitiating effect on the majority decision of
the equity shareholders who approved Scheme with
overwhelming majority of 95.75 per cent of votes and when
the dissenting vote on behalf of the appellant’s group was
in microscopic minority of less than 5%. It is also
pertinent to note in this connection that the appellant who
being a party to the civil litigation before the Bombay High
Court and who was very much keen to get more share-holding
in transferee-company and who had already filed his counter-
claim for enforcing the family arrangement of 1979, had not
thought it fit to remain present in the meeting of equity
shareholders and on the contrary he got himself represented
through proxy who had no right to speak. Thus in substance
the appellant himself never though that information about
the pendency of the litigation between Arvind Mafatlal,
director of the respondent-company and himself was so
important that it was required to be brought to the voters
notice even though he had opportunity to do so by remaining
personally present in the meeting for that purpose. It,
therefore, clearly appears to be an afterthought when he put
forward such an objection for the sake of it at the time of
opposing the Scheme which was put for sanction of the Court.
It may also be kept in view that the explanatory
statement no way emphasised that it is the management of the
transferee-company by Shri Arvind Mafatlal which is going to
be better monitored and managed by him after the merger in
question. In other words management of the company is not at
all a germane consideration for the Scheme. Consequently
whether the management remains with Arvind Mafatlal or in
future may get changed and go in the hands of the appellant
is not a consideration which has any linkage or nexus with
Scheme. Consequently the interest of Arvind Mafatlal in the
share-holding or likely future impact thereon by the
litigation was de hors the Scheme in question and was not
required to be placed before the voters. The first point for
determination is, therefore, answered in the negative.
Point No. 2
So far as this point is concerned Shri Shanti Bhusan,
learned senior counsel for the appellant, submitted that in
modern days corporate bodies even though public limited
companies are mostly controlled by big, influential and
economically powerful families which have inherited
entrepreneurial skill and expertise from earlier generations
which had controlled such enterprise in past. That in the
present case also the director the respondent-company Shri
Arvind Mafatlal, the eldest male member of the family, had
descended from the common ancestor Mafatlal Gagalbhai who
had established this empire and which has further grown
with passage of years. That when such a powerful director
who is the eldest male member of the family is at the helm
of affairs the minority interest of the appellant who,
accordant to him was entitled to 50% share in the family
concerns as per the 1979 family settlement was likely to be
voted out and cornered by the influence of such a towering
personality as Arvind Mafatlal in the meeting of equity
shareholders. Therefore unfairness of the Scheme has to be
judged also from the point of view of its impact on the
minority shareholder who has a common ancestor Mafatlal
Gagalbhai and who is sought to be cornered and deprived of
his just share in the family concerns by the machinations of
Shri Arvind Mafatlal. The Court has, therefore, to see
whether the Scheme of Amalgamation which is sought to be put
through at the behest of the director of respondent-company
is fair to the minority group of the appellant who claims
50% share in the family concerns against the director of the
respondent-company Shri Arvind Mafatlal and his group. So
far as this submission is concerned Shri Sorabjee, learned
senior counsel for respondent joined issues and submitted
that factually there is no basis for such a contention as
respondent-company is not controlled by Shri Arvind Mafatlal
who is one of the directors along with his son Hrishikesh
but there are eleven outside directors and the share-holding
of Arvind Mafatlal and his group is not even 50% even
including the share-holding of other subsidiary companies in
which also Arvind Mafatlal and his group may be
shareholders. We find considerable force in the aforesaid
contention of learned senior counsel for the respondent. The
evidence produced in the case shows that out of total
majority vote of 95.75 per cent which supported the Scheme
at the meeting of equity shareholders even according to the
pattern disclosed by the appellant himself individual trust
controlled by Arvind Mafatlal and private companies
accounted to only 16% of the shares voted in the meeting,
about 44% of the shares were represented by financial
institutions, employees and public taken together and two
companies stated to be from Mafatlal group had only 15%
shares. Consequently it is too much to contend that the
voting pattern was dominated by the share-holding of Arvind
Mafatlal and his group when about 40% of the shares are held
by financial institutions which had nothing to do with the
internal feuds of director Arvind Mafatlal on the one hand
and the appellant-objector on the other. It could not be
said that the scheme as put to vote was in any way unfair to
appellant or that the majority shareholders acting as a
class had not behaved in a bona fide manner for protecting
the interest of the class as whole and were n any way
inimical to the appellant. While considering the question of
bona fides of the majority voters and whether they were
unfair to the appellant it has to be kept in view that bona
fides of the majority acting as a group has to be examined
vis-a-vis the Scheme in question and not the bona fides of
the person whose personal interest might be different from
the interests of the voters as a class. Bona fide of person
can only be relevant if it can be established with
reasonable certainty that he represents majority or is
controller of majority. Arvind Mafatlal cannot be visited
with such a charge. In this connection we may usefully refer
to a decision of English Court in the case of Hellenic and
general Trust Limited reported in 1976 (1) WLR 123. In that
case the court was concerned with a Scheme of Arrangement
whereunder all the ordinary shares of the company were to be
cancelled and new shares were to be issued to Hambros which
would make the company as wholly owned subsidiary of
Hambros. Holders of such cancelled shares were to be paid by
Hambros at 48 pennies. In short it was an arrangement for
taking over of the company by Hambros. 53% shares of the
Hellenic Company were held by another company MIT. MIT
itself was a wholly owned subsidiary company of Hambros.
This situation led the court to conclude that the subsidiary
company of Hambros which was holding such large number of
shares placed itself vis-a-vis Hambros in the position of
vendor and the lifted vail of transaction showed it to be
one of acquisition than of transaction showed it to be one
of acquisition than of amalgamation. The aforesaid decision
is a pointer to the fact that what was required to be
considered while sanctioning the scheme was bona fides of
the majority acting as a class and not of one single person.
It is, therefore, not possible to agree with the contention
of learned senior counsel for the appellant that the
majority had acted unfairly to the appellant and had not
protected his interest of minority shareholders falling in
the same class along with the majority. It is not contention
in favour of the Scheme the majority had acted with any
favour of the Scheme the majority had acted with any oblique
motive to fructify any adverse commercial interest qua him
and his group when it consisted of outsiders like financial
institutions or that there was any possibility of their
surrendering their economic interest in the Scheme at the
dictates of shareholder-director Arvind Mafatlal and his
group. It is also to be kept in view that the Board of
Directors of the respective companies, namely, the
transferor-company as well as the transferee-company had
approved the Scheme of Amalgamation before it was put to
vote. The appellant was himself was one of the directors of
the transferor-company who had no objection to the Scheme of
Amalgamation from the point of view of the transferor-
company. So far as the transferee-company is concerned
though appellant was not a director he was 5% shareholder
who did not think fit to personally remain present at the
time of voting and simply relied upon proxy. If he was
feeling that the Scheme was unfair to him or was not going
to protect his interest as shareholder in the respondent-
company nothing prevented him from remaining present and
voicing his grievance before the General Body of the equity
shareholders and to apprise them of the alleged pernicious
effect of the Scheme. It is, therefore, too late in the day
for him to contend that the Scheme was unfair to him and
that the family of Arvind Mafatlal has tried to dominate and
engineer any adverse pattern of voting at the meeting of
the equity shareholders.
In this connection we tried to know from Shri Shanti
Bhushan, learned senior counsel for the appellant as to how
the appellant felt that the Scheme was unfair to him. He
submitted that under the Scheme the transferor-company was
losing its identity an was getting merged in the transferee-
company. That in the pending litigation between the parties
in the Bombay High Court if the appellant succeeded in his
counter-claim he was likely to get larger share-holding in
the transferee-company and if that was not possible he could
have got the complete of the transferor-company as per the
family arrangement. Now once the transferor-company loses
its identify then his counter-claim was likely to be
infructuous as the subject-matter of the counter-claim will
stand withdrawn from the possible operation of the decree if
at all granted in his favour in the counter-claim. This
submission was countered by learned senior counsel for the
respondent by pointing out that it had no factual basis.
That as earlier noted in the suit pending in Bombay High
Court if Arvind Mafatlal succeeded then appellant will have
to transfer his even remaining 5% share-holding in
transferee-company in favour of Arvind Mafatlal. If on the
other hand the appellant succeeded in this counter-claim and
Arvind Mafatlal’s suit was dismissed then the appellant may
get the shares which are at present held by Arvind Mafatlal
and his group in the transferee-company. But there is no
question appellant getting any exclusive control of the
transferor-company. Therefore, impact of that litigation one
way or the other is going to be totally negative so far as
the existence of the transferor-company or otherwise is
concerned. We find considerable force in the contention of
learned counsel for the respondent. It is also pertinent to
note that if the appellant felt that the Scheme was unfair
inasmuch as he was likely to lose his future interest, if
any, and control, if any, in the transferor-company by its
merger and loss of identify on account of the Scheme it
passes one’s comprehension how he as sitting director of the
transferor-company approved of the Scheme did not object to
the Scheme and on the contrary was a party to the resolution
of the Board of Directors of transferor-company to propose
the Scheme of its amalgamation with the transferee company.
Not only that but even when that Scheme was put for sanction
before the Bombay High Court on behalf of the transferor-
company the appellant did not object meaning thereby
appellant had no objection to the transferor-company losing
its identity and getting merged in the transferee-company
pursuant to the proposed Scheme. the appellant’s own
conduct, therefore, belief his apprehension that the Scheme
as proposed was in any way unfair to him or that there were
any mala fide behind the Scheme attribute to Shri Arvind
Mafatlal who is the director of the transferee-company. The
second point for determination, therefore, also is found to
be factually not sustainable. It is, therefore, held that
the Scheme of Compromise and Arrangement is neither unfair
nor unreasonable to the minority shareholders represented by
the appellant.
Before parting with the discussion on this point it is
also worthwhile to note that apart from the pattern of
voting at the meeting of the equity shareholders, even the
share-holding pattern of the respondent-company belies the
submission put forward on behalf of the appellant that
Arvind Mafatlal’s group dominated the constitution of the
company and could control the decisions of the shareholders.
The evidence on record shows that the share-holding of
financial institutions and MHM group in MIL would work out
to 39.03%. Hence it cannot be said that Arvind Mafatlal is
at the helm of affairs of the respondent-company or in the
driver’s seat or that his family is the virtual master of
respondent-company. This is not a case where it can be urged
with any emphasis that the respondent-company is an alter
ego of Arvind Mafatlal who is one of the directors of the
company and that he could create a show of the Scheme being
apparently be beneficial to the shareholders but was in fact
concealing any convert and hidden device of augmenting his
personal interest and interest of his family which was
adverse to the interest of innocent investors and other
equity shareholders including the appellant. It is also
pertinent to note that financial institutions and statutory
corporations held substantive percentage of shares in
respondent-company. This class of shareholders who are
naturally well informed about the business requirements and
economic needs and the requirements of corporate finance
wholly approved the Scheme if it was contrary to the
interest of shareholders as class. Individual personal
interest of a minority shareholder like the appellant is
absolutely to of consideration when such class meeting
acting for the benefit to the whole class of equity
shareholders take up the consideration of the Scheme for its
approval Consequently it could not be said that the majority
shareholders had sacrificed the class interest of appellant
minority shareholders when they voted with overwhelming
majority in favour of the Scheme. Point No.2 is accordingly
answered in the negative. That takes us to the consideration
of Point No.3 for determination.
Point No.3
In a way the answer to point no.2 necessarily results
in negativing this point also. Even that apart we fail to
appreciate how the Scheme of Amalgamation can be said to be
unfair and amounting to suppression of minority shareholders
represented by the appellant. it has to be kept in view by
the proposed Scheme of Amalgamation the transferor-company
was getting merged in the transferee-company. Now even if it
is held that the appellant succeeds in his counter-claim in
the suit pending in Bombay High Court and if he is to get
the share-holding of Arvind Mafatlal and his group
transferred to him so far as transferee-company is
concerned, the transferee-company because of the
amalgamation will then be having more diversified activities
and if at all according to the appellant because of this
future success, if any, in the counter-claim he is going to
replace Arvind Mafatlal and his group in the management of
the respondent-company he would have larger field to operate
and larger company to mange. We fail to appreciate as to how
such a scheme from any point of view can amount to
suppression of appellant’s minority interest in the share-
holding of the company. This interest is not going to be in
any way adversely affected. If at all, his share-holding is
going to increase in the respondent-company is his counter-
claim succeeds. If his counter-claim fails he will have to
get out lock, stock and barrel from the respondent-company
and he will have to wash his hands off the same. In either
case the Scheme of Amalgamation will have no adverse impact
on the appellant’s interest in the respondent-company. On
the other hand the Scheme of Amalgamation is likely to have
a more beneficial effect on the appellant’s share-holding in
the respondent-company if he succeeds in his counter-claim
in Bombay High Court. It has to be kept in vies that the
question of bona fide of the majority shareholders or the
alleged suppression by them of the minority shareholders or
their attempt to suffocate their interest has to be judged
from the point of vie of the class s whole. Questions
whether the majority equity shareholders while acting on
behalf of the class as a whole had exhibited any adverse
interest against the appellant’s minority shareholders also
having similar interest as members of the same class, while
approving the Scheme or had acted with any oblique motive to
whittle down such a class interest of the minority. As we
have seen earlier no such situation ever existed both at the
time when the Scheme of Compromise and Arrangement was
cleared and proposed by the Board of Directors of both the
transferor and transferee companies and also at the stage
when the Scheme was put to vote before the meeting of equity
shareholders forming common class of which the appellant was
also a member though a minority member. Consequently point
no.3 will also have to be answered in the negative on the
same lines and for the same reasons on the basis of which
point no.2 is answered.
Point No.4
So far as this point is concerned the relevant provi
sions of the Companies Act to which we have made a reference
earlier indicate that the Court has to order under Section
391(1) a meeting of creditors or class of creditors or
members or class or class of members to whom the creditors
or members or class of members to whom the Scheme of
Compromise or Arrangement is offered by the company. The
present controversy centers round a meeting of members.
Members of the company are shareholders. Part IV of the
companies Act deals with ‘Share Capital and Debentures’.
Section 82 provides that ‘shares or other interest of any
member in a company shall be movable property, transferable
in the manner provided by the articles of the company’. As
per Section 86 the share capital of a company limited by
shares formed after the commencement of this Act, or issued
after such commencement, shall be of two kinds only, namely,
equity share capital and preferences share capital. So far
as the Articles of Association of respondent-company are
concerned they also contemplate two classes of
shareholders. No separate class of equity shareholders is
contemplated either by the Act or by the Articles of
Association of respondent-company. Appellant is admittedly
an equity shareholder. therefore, he would fall within the
same class of equity shareholders whose meeting was convened
by the orders of the Company Court. However it is vehemently
contended by learned counsel for the appellant that because
of the family arrangement of 1979 on which he relies he was
a special class of minority equity shareholder who had
separate rights against the director of the company and
whose special interest because of the pending litigation
between him and the director Shri Arvind Mafatlal was likely
to be adversely affected by the Scheme, therefore, a
separate meeting had to be convened as he represented a
class within the class of equity shareholders. It is
difficult to agree with this contention. Even though the
Companies Act or the Articles of Association do not provide
for such a class within the class of equity shareholders, in
a given contingency it may be contended by a group of
shareholders that because of their separate and conflicting
interests vis-a-vis other equity shareholders with whom they
formed a wider class, a separate meeting of such separately
interested shareholders should have been convened. But such
is not the case of the appellant. It is not his case that
his interest as an equity shareholder in respondent-company
is in any way conflicting with the general interest of the
equity shareholder in respondent-company is in any way
conflicting with the general interest of the equity
shareholders as a class. Consequently it could not be urged
by him with any emphasis that the General Body of equity
shareholders acting as a class while considering the
question of approval of the Scheme was likely to take
decision which would adversely affect the commercial
interest of the appellant as an equity shareholder. His
personal conflict of interests with the director was totally
foreign to the scope of class meeting which was convened to
consider the Scheme in question as we have seen earlier
while considering earlier points for determination. It is
also to be kept in view that the appellant would have urged
with some justification his contention for convening a
separate meeting representing for him and his group of
dissenting equity shareholders if it was his case that the
Scheme of Companies and Arrangement as offered to him and
his group was in any way different from the Scheme of
Compromise and Arrangement offered to other equity
shareholders who also belonged to the same class in the
wider sense of the term. On the express language f Section
391(1) it becomes clear that where a compromise or
arrangement is proposed between a company and its members or
any class of them a meeting of such members or class of them
has to be convened. This clearly presupposes that if the
Scheme of Arrangement or Compromise is offered to the
members as a class and no separate Scheme is offered to any
sub-class of members which has a separate interest and a
separate meeting of such a sub-class would at all survive.
Even otherwise it becomes obvious that as minority
shareholders if the appellant has to dissent from the Scheme
his dissent representing 5% equity share-holding would have
been visible both in a separate meeting, if any, of his sub-
class or in the composite meeting where also his 5% dissent
would get registered by appellant either remaining present n
person through proxy. Consequently when one and the same
scheme is offered to the entire class of equity shareholders
for their consideration and when commercial interest of the
appellant so far as the Scheme is concerned is in common
with other equity shareholders he would have a common cause
with them either to accept or to reject the Scheme from
commercial point of view. Consequently there was no
occasion for convening a separate class meeting of the
minority equity shareholders represented by the appellant
and his group as tried to be suggested. It is also to be
kept in vies that it is not he case of the appellant that
any different terms of compromise were offered to persons
holding equity shares who were covered by the family
arrangement of 1979 or otherwise. In fact the entire
proposal of the Scheme of Arrangement was one affecting
equally and in the like manner all the existing equity
connection it is profitable to refer to what the learned
author Palmer in this Treatise Company Law 24th Edition, he
say :
“What constitutes a class :
The Court does not itself consider
at this point what classes of
creditors or members should be made
parties to the scheme. This is for
the company to scheme purports to
achieve. The application for an
order for meetings is a preliminary
step the applicant taking the risk
that the classes which are fixed by
the judge, unusually on the
applicant’s request, are sufficient
for the ultimate purpose of the
section, the risk being that if in
the result, and we emphasis the
words ‘in the result’ they reveal
inadequacies, the scheme will not
be approved’. If e.g. rights of
ordinary shareholders are to be
altered, but those of preference
shares are not touched, a meeting
of ordinary shareholders will be
necessary but not of preference
shareholders. If there are
different groups within a class the
interests of which are different
from the rest of the class, or
which are to be treated differently
under the Scheme, such groups must
be treated as separate class for
the purpose of the scheme.
Moreover, when the Company has
decided what classes are necessary
parties to the scheme, it may
happen that one class will consist
of a small number of persons who
will all be willing to bound by the
scheme. In that case it is not the
practice to hold a meeting of that
class, but to make the class a
party to the scheme and to obtain
the consent of all its members to
be bound. It is however, necessary
for at least one class meeting to
be held in order to give the Court
jurisdiction under the Section.”
It is, therefore, obvious that unless a separate and
different type of Scheme of Compromise is offered to a sub-
class of a class of creditors or shareholders otherwise
equally circumscribed by the class no separate meeting of
such sub-class of the main class of members or creditors is
required to be convened. On the facts make out a case for
holding a separate meeting of dissenting minority equity
shareholders represented by him. The fourth point for
determination, therefore, is answered in the negative. That
takes us to the consideration of the last point for
determination placed for our consideration by the learned
senior counsel for appellant.
Point No.5
It was submitted that the exchange ratio of equity
shareholders so far as the transferee-company is concerned
works very unfairly and unreasonably to them. As per the
proposed Scheme 5 equity shares of transferor-company. So
far a this contention is concerned it has to be kept in view
that before formulating the proposed Scheme of Compromise
and Amalgamation and expert opinion was obtained by the
respondent-company as well as the transferor-company,
namely, MFL on whose Board of Directors appellant himself
was a member. M/s C.C. Chokshi & Co., a reputed firm of
Chartered Accountants, having considered all the relevant
aspects suggested the aforesaid exchange ration keeping in
view the valuation of shares of respective companies. It
must at once be stated that valuation of shares is a
technical and complex problem which can be appropriately
left to the consideration of experts in the field of
accountancy. Pennington in his ‘Principles of the Company
Law’ mentions four factors which had to be kept in mind in
the evaluation of shares :
“(1) Capital Cover,
(2) Yield
(3) Earning Capacity, and
(4) Marketability
For arriving at the fair of share,
three well known methods are
applied :
(1) The manageable profit basis
method (the Earnings Per Share
Method)
(2) The net worth method or the
beak value method, and
(3) The market value method,”
So many imponderables enter the exercise of valuation
of shares. M/s C.C. Chokshi & Co. considering all the
relevant aspects and obviously keeping in view the
accounting principles underlying the valuation of shares
suggested the said ratio which was found acceptable both by
the Board of Directors of the transferor-company. That the
appellant himself as a director of the transferor-company
gave green signal to the Scheme and to this very ratio of
exchange of shares. But Shri M.J. Thakore appearing for the
appellant submitted that from the point of view of the
transferor-company it was very profitable to have two shares
of transferee-company against five shares of transferor-
company. But the difficulty arises only from the point of
view of transferor-company shareholders. According to Shri
Thakore the proper exchange ratio would be one share f
transferee-company to six shares of transferor-company. It
is difficult to appreciate this contention of the appellant.
It has to be kept in view that appellant never bothered to
personally remain present in the meeting of equity
shareholders for pointing out the unfairness of this
exchange ratio to his brother equity share who were likely
to be affected by the very same ratio as the appellant. His
interest at least to that extent was entirely common and
appellant. His interest at least to that extent was entirely
common and parallel to that of other equity shareholders.
But he had no time to remain personally present. He sent his
proxy only to record his dissent vote which was in
microscopic minority of 5% as compared to 95% majority vote.
Not only that even before the Court he did not submit any
contrary expert opinion regarding the valuation of shares of
transferor and transferee companies for supporting his ipse
dixit that the correct ratio would be 6:1 so far as
transferor and transferee companies were concerned. Shri
Shanti Bhushan, learned senior counsel for the appellant
having realised this difficulty submitted that at least
these proceedings are continuation of proceedings before the
High Court, therefore, this Court may now in order to
satisfy itself send for the opinion of an expert. It is
difficult to agree. The appellant who was propounding this
theory of correct exchange ratio had nothing to offer in
support of his contention both before the learned Single
Judge as well as before the High Court. It has to be kept in
view that the matter was fiercely contested on all
permissible points before learned Single Judge. The
proceedings were pending before the High Court for more than
two years from 8th February 1994 till 12th July 1996 when
the Division Bench disposed of the appeal. For all these
years neither before the learned Single Judge nor before the
High Court in appeal the appellant thought it fit to request
the Court to either call for the of any other expert on
valuation of shares nor did he himself get such report for
placing for consideration of the Court in support of his
supposed better ratio. It has also to be kept in view that
which exchange ration is better is in the realm of
commercial decision of well informed equity shareholders. It
is not the Court to sit in appeal over this value judgment
of equity shareholders who are supposed to be men of the
world and reasonable persons who know their own benefit and
interest underlying any proposed scheme. With open eyes they
have okayed this ratio and the entire Scheme. 40% of the
majority shareholders were financial institutions who were
supposed to be well versed on the aspect of valuation of
shares. They had no objection to the exchange of 2 shares of
transferor-company for 5 shares of transferor company. As
stated earlier it was a sort of package duly considering all
imponderables and implicit factors which the shareholders
had to keep in view for deciding whether to approve the
Scheme of Amalgamation or not. The exchange ratio was only
one of the items. They thought it fit in their commercial
wisdom to accept the Scheme as whole along with the exchange
ratio presumably in expectation of better profits in years
to come when the amalgamated companies would operate and
when the amalgamated companies would operate and when there
would be, according to the shareholders, better prospects of
earning greater dividends. They willingly agreed to give in
exchange two shares of transferor-company for five shares of
transferor-company and made them available to the
shareholders of the transferor-company. The appellant was
representing only 5% dissenting shareholders and his
objection was almost a voice in the wilderness, which did
not appeal to the majority of his brother shareholders. Shri
Shanti Bhushan, learned senior counsel for the appellant in
this connection invited our attention to the observation of
the Division Bench in its judgement at page 375 wherein it
has been observed that “if one were to examine the
exactitude of exchange ratio that may be offered fairly on
the arithmetic scale by taking into consideration various
details, there is some force in what were suggested by Mr.
B.R. Shah on behalf of the appellant. However, keeping in
view the scope of enquiry which the court is required to
undertake and with those findings we are concerned, it will
not be permissible for us in law to undertake this exercise
in the facts and circumstances of present case in absence of
bona fides”. We fail to appreciate how this observation can
be of any avail to learned senior counsel for the appellant
as all that Court wanted to suggest was that even assuming
that some another exchange of ratio can be suggested to be
better one, it was for the equity shareholders who acted
bona fide in the interest of their class as a whole to
accept even a less favourable ratio considering other
benefits that may offset such less favourable ratio once an
amalgamation goes through. We wholly concur with this view.
In this connection we may also refer to a decision of
Moughm, J. in Re Hoare & Co. (No.2) case (1933) ALL ER 105
wherein it was laid down that where statutory majority had
accepted the offer the onus must rest on the applicants to
satisfy the court that the price offered is unfair. In this
connection following pertinent observations were made by the
learned Judge:
“The other conclusion I draw is
this X X X X X the court ought to
regard the scheme as a fair one as
much as it seems me impossible to
suppose that the court, in the
absence of any strong grounds, is
to be entitled to set up its own
view of fairness of the scheme in
opposition to so very large a
majority of shareholders who are
concerned. Accordingly, without
expressing a final opinion on the
matter because there may be special
circumstances in special cases, I
am unable to see that I have any
right to order otherwise in such a
case as I have before me, unless t
is affirmatively established that
notwithstanding the views of a very
large majority of shareholders, the
scheme is unfair.”
We may also refer to a decision of the Gujarat High
Court in Kamala Sugar Mills Limited 55 Company Cases P.308
dealing with an identical objection about the exchange ratio
adopted in the Scheme of Compromise and Arrangement. The
Court observed as under :
“Once the exchange ratio of the
shares of the transferee-company to
be allotted to the shareholders of
the transferor-company has been
worked out by a recognised firm of
chartered accountants who are
experts in the field of valuation
and if no mistake can be pointed
out in the said valuation, it is
not for the court to substitute its
exchange ratio, especially when the
same has been accepted without
demur by the overwhelming majority
of the shareholders of the two
companies or to say that the
shareholders in their collective
wisdom should not have accepted the
said exchange ratio on the ground
that it will be determined to their
interest.”
These observations in our view represent the correct
legal position on this aspect. We may also keep in view that
in the present case not only expert like M/s C.C., Chokshi &
Co. had suggested the ratio but another independent body
ICICI Security & Finance Company Limited reached the same
conclusion which was conveyed by its letter dated 10th
November 1993 to the company approving of the entire Scheme
along with the suggested ratio. A mere look at the report of
the Chartered Accountants M/s C.C. Chokshi & Co. shows that
various factors underlying the Scheme of Compromise and
Arrangement were taken into consideration while suggesting
the exchange ratio by the said reputed firm of chartered
accountants. The said opinion had taken into account the
fact that on amalgamation shares have to be cancelled.
Increase in share premium account in equity capital of the
MIL will have to be taken into account as a result of final
call made in respect of Bond 1992 issue. It has also taken
into account significant increase in the paid-up equity of
MIL as a result of issue of its Bond in the international
market. It has undertaken exercise ratio on the basis of
earning per share of the two companies by taking into
account five years’ working results of the two companies
making certain adjustments. Apart from taking into
consideration the past result of the two companies, the
chartered accountants have taken into account the
potentiality of the two companies to earn profit in future,
considering existing expansion and modernisation of
projected and planned expenditure by the MIL as well as
subsidiary and sister concern in hand. It has also taken
into account the market price of equity shares of past 24
months, declared dividend by the two companies, the overall
effect of security scan in the market price, realisable
investment and their market value. Taking into consideration
multifarious considerations detailed in the report, note was
also taken of the fact that MIL held substantial shares of
MFL, which shall have to be cancelled on the merger of MFL
with MIL. Two fully paid up equity shares of MIL of Rs. 100
each for every five unfair and unacceptable as the appellant
would like to have it.
Undeterred by this position Shri Thakore, learned
counsel for the appellant in support of his contention that
the exchange ratio was ex facie unfair to the shareholders
of the transferee-company, invited our attention to the
statement showing the working results of both the transferor
and transferee companies as found at Annexures M and N of
Vol. II of the Paper Book at pages 534 and 535. He submitted
that these statements showing the working results of the
company for the last five years ended 31st March 1993 showed
that the earning per equity share after depreciation and tax
so far as the respondent-company was concerned was Rs. 30/-
while earning of transferor-company Mafatlal Fine Spg. &
Mfg. Company Limited was only Rs. 7/- for the relevant five
years. He also invited our attention to the break-up value
of the shares of company on the basis of the Balance Sheet
as on 31st March 1993 so far as respondent-company was
concerned. Annexure ‘Q’ at page 538 showed value per equity
share of Rs. 100/- each at Rs. 1,515/- while so far as the
transferor-company was concerned the break-up value per
equity share was Rs. 259/-. That may be so. But as a package
deal when the Scheme as whole is examined and found to be
advantageous to the economic and commercial interest of
shareholders as a class only one or two item simpliciter for
deciding the exchange ratio cannot tilt the balance as so
many factors and aspects would enter that exercise. It was
undertaken by expert body of chartered accountants like M/s
C.C. Chokshi & Co. Before parting with discussion on this
point it would be apposite to refer to the decision of this
Court in Hindustan Lever Employees’ Union (supra). In
paragraph 41 of the Report of Justice Sen speaking for
himself and Venkatachaliah, CJ, and to which Sahai J.
concurred has observed that the problem of valuation in the
case of amalgamation of two companies has been dealt with by
Weinberg and Blank in the book ‘Take-overs and Mergers’ in
which it is stated that some or all of the 8 listed factors
will have to be taken into account in determining the final
share exchange ratio. The Court has also approved the
fixation of exchange ratio of the shares of the companies on
the basis of adoption of combination of two or more well-
known methods of valuation of shares out of many such
methods. In para 37 of the Report it has been observed that
the question is what method should be adopted for arriving
at a proper exchange ratio. The usual rule is that shares of
only on 27th August 1996. Therefore, ex facie his written
submissions are not required to be considered. However in
order to see that the appellant may not suffer on account of
non-consideration of these written submissions we have gone
through them and have considered them in the interest of
justice. But having repetition of the main contentions
canvassed before us during oral arguments by their learned
senior counsel Shri Shanti Bhushan and by their counsel
Shri M.J. Thakore. Some additional points also appear to
have been raised in the written submissions pertaining to
additional objections which were not pressed before us at
the time of oral hearing and, therefore, they obviously
cannot be considered in support of the contentions on which
the appeal was pressed before us. The written submissions in
connection with the points which were already pressed before
us are already dealt with by us while considering the main
points for determination in the earlier part of this
judgment and, therefore, it is not necessary to deal with
the same once again.
These were the only contentions canvassed in support of
the points for determination which have all been answered in
the negative. The inevitable result is that the appeal fails
and is dismissed. In the facts and circumstances of the
case, however, there will be no order as to costs.

 

 

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