Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.K. Sikri and Ashok Bhushan, JJ. dismissed an appeal filed against the judgment of the Division Bench of the Madras High Court whereby it held it had no jurisdiction to adjudicate the dispute in question.

In short, the real essence of the dispute was that the plaintiffs, resident nationals of Dubai, had filed a derivative action on behalf of a company incorporated in Dubai. They held 34% shareholding in the said company, whereas the defendants held 66% of the shares. The defendants also held around 6.16% shares in Star Health and Allied Insurance Co. Ltd., a company incorporated in Chennai, India. According to the plaintiffs, these shares actually belonged to the company registered in Dubai mentioned above. Since Star Health was incorporated in Chennai, the plaintiffs instituted a suit in Madras High Court to protect an declare the beneficial interest of the Dubai company in the said 6.16% shares. A Single Judge of the High Court admitted the suit; however, on appeal by the defendants, the Division Bench held that it had no territorial jurisdiction to adjudicate in the matter. Aggrieved thus, the plaintiffs filed the instant appeal.

On perusal of the facts, the Supreme Court noted that the plaintiffs made certain averments to the said Dubai Company being the real owners of the shares held by the defendants in the Indian Company, which was denied by the defendants. In reality, it was a dispute between the plaintiffs and defendants, all of who were residents of Dubai. Even the company whose beneficial interest was claimed was incorporated in Dubai. The Court held inter alia, that merely because the dispute is about shares issued by an Indian Company would not lead to the conclusion that cause of action has arisen in India. As a consequence, the Madras High Court has no territorial jurisdiction to adjudicate the matter. Accordingly, the judgment impugned was upheld and the appeal was dismissed. [Ahmed Abdulla Ahmed Al Ghurair v. Star Health and Allied Insurance Company Ltd.,2018 SCC OnLine SC 2554, decided on 26-11-2018]

Legislation UpdatesRules & Regulations

GSR .–In exercise of the powers conferred by Section 234 read with Section 469 of the Companies Act, 2013, the Central Government, in consultation with the Reserve Bank of India, hereby makes the following rules to amend the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, namely:-

1. (1) These rules may be called the Companies (Compromises, Arrangements and Amalgamations) Amendment Rules, 2017.

    (2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, (hereinafter referred to as the principal rules) after Rule 25 the following rule shall be inserted, namely:-

25A. Merger or amalgamation of a foreign company with a Company and vice versa. – (1) A foreign company incorporated outside India may merge with an Indian company after obtaining prior approval of Reserve Bank of India and after complying with the provisions of Sections 230 to 232 of the Act and these rules.

(2) (a) A company may merge with a foreign company incorporated in any of the jurisdictions specified in Annexure B after obtaining prior approval of the Reserve Bank of India and after complying with provisions of Sections 230 to 232 of the Act and these rules.

(b) The transferee company shall ensure that valuation is conducted by valuers who are members of a recognised professional body in the jurisdiction of the transferee company and further that such valuation is in accordance with internationally accepted principles on accounting and valuation. A declaration to this effect shall be attached with the application made to Reserve Bank of India for obtaining its approval under clause (a) of this sub-rule.

(3) The concerned company shall file an application before the Tribunal as per provisions of Section 230 to Section 232 of the Act and these rules after obtaining approvals specified in sub-rule (1) and sub-rule (2), as the case may be.

Explanation 1. For the purposes of this rule the term “company” means a company as defined in clause (20) of Section 2 of the Act and the term “foreign company” means a company or body corporate incorporated outside India whether having a place of business in India or not:

Explanation 2. For the purposes of this rule, it is clarified that no amendment shall be made in this rule without consultation of the Reserve Bank of India.”

3. In the principal rules after Annexure A the following Annexure shall be inserted namely:-

Annexure B

Jurisdictions referred to in clause (a) of sub-rule (2) of Rule 25A

Jurisdictions –

(i) whose securities market regulator is a signatory to International Organization of Securities Commission’s Multilateral Memorandum of Understanding (Appendix A Signatories) or a signatory to bilateral Memorandum of Understanding with SEBI, or

(ii) whose central bank is a member of Bank for International Settlements (BIS), and

(iii) a jurisdiction, which is not identified in the public statement of Financial Action Task Force (FATF) as:

(a) a jurisdiction having a strategic Anti-Money Laundering or Combating the Financing of Terrorism deficiencies to which counter measures apply; or

(b) a jurisdiction that has not made sufficient progress in addressing the deficiencies or has not committed to an action plan developed with the Financial Action Task Force to address the deficiencies.”

Note: The principal rules were published in the Gazette of India, extraordinary, Part II, Section 3, sub-section (i) vide number G.S.R 1134(E), dated the 14th December, 2016.

[F. No. 1/37/2013 CL.V]

Ministry of Corporate Affairs