TMI Blog2020 (9) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... n 60 days from the date of receipt of the certified copy of this order - The respective Petitioner Companies are directed to file certified copy of this order along with a copy of the sanctioned Scheme attached thereto, with the concerned Registrar of Companies, electronically, along with e-form INC 28 within 30 days of receipt of certified copy of this order. All concerned authorities to act on certified copy of this order along with the sanctioned Scheme, duly certified by Deputy/ Assistant Registrar of the National Company Law Tribunal, Mumbai Bench. - CP (CAA) 4051/MB/2019 IN CA (CAA) 3091/MB/2019 - - - Dated:- 17-1-2020 - Hon ble Suchitra Kanuparthi, Member (Judicial) And Hon ble V. Nallasenapathy, Member (Technical) For the Petitioner Companies: Mr. Nikhil Sakhardande, Advocate along with Ms. Jasmin Karkhanis, Mr. Himanshoo Tembe and Ms. Neeraja Balakrishnan i/b. AZB Partners, Advocates for the Petitioner Companies For the Regional Director: Ms. Rupa Sutar, Deputy Director ORDER Per : Suchitra Kanuparthi, Member (Judicial) 1. Heard the Learned Counsel appearing for the Petitioner Companies and the Officer of the Regional Director, Western Region ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hares to be issued by the Petitioner Company 2 as consideration to the shareholders of the Petitioner Company 1 will be listed. 5. The background, circumstances, rationale and benefits of the Scheme are that: (a) The Petitioner Company 1 is a multi-business corporate that is focused on people and service oriented businesses in the area of health and life care. The Petitioner Company 1 is engaged in the activity of making, holding and nurturing its investments in various businesses/ activities and also provides management consultancy services to group companies. A brief summary of some of the investments which the Petitioner Company 1 holds is set out below: (i) The Petitioner Company 1 has invested in the Petitioner Company 2 which was an equal joint venture between the Petitioner Company 1 and Life Healthcare International Proprietary Limited, South Africa ( Life Healthcare ). Pursuant to a share purchase agreement entered into amongst the Petitioner Company 3, Life Healthcare and the Petitioner Company 2, Life Healthcare sold its entire 49.70% equity stake held in the Petitioner Company 2 to the Petitioner Company 3 on June 21, 2019. The Petitioner Company 2 is engaged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gaged in the business of providing business and administrative support services to officials of various group companies of the Petitioner Company 1 at United Kingdom; (vii) The Petitioner Company 1 holds 100% of the share capital in Max Ateev Limited which is not pursuing any business/ commercial operations at the moment; and (viii) The Petitioner Company 1 holds 100% of the share capital in the Petitioner Company 4. (b) The Petitioner Company 3 is a portfolio company of Kohlberg Kravis Roberts Co. L.P. held through Kayak Investments Holding Pte. Ltd.; (c) The Petitioner Company 3 is engaged inter alia in the Healthcare Business (as defined in the Scheme) and in the business of providing consulting and advisory services and providing financial and strategic support to its group companies which includes its investment including holding investment in the following entities: (i) 100% investment in Infrahealth Pte Ltd., Singapore, (ii) 100% investment in Radiant Life Care Lucknow Private Limited, (iii) 100% investment in Radiant Life Care Foundation, (iv) investment in Neo Legno Capital Advisors LLP, and (v) investment in Radiant Life Care Mumbai Private Limited. The Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed that the activity of making, holding and nurturing investments in allied health and associated activities represented by companies (as more specifically listed in Schedule 1 of the Scheme) coupled with the Petitioner Company 1 s management consultancy services, including related employees, contracts, assets and liabilities, (collectively referred to as Allied Health and Associated Activities ), be demerged into a separate company which is the Petitioner Company 4, to be listed on the Stock Exchanges (as defined in the Scheme); (g) Accordingly, the Scheme provides for the demerger of the Demerged Undertaking 1 of the Petitioner Company 1 into the Petitioner Company 4, demerger of the Demerged Undertaking 2 of the Petitioner Company 3 into the Petitioner Company 2 and amalgamation of the Petitioner Company 1 (after demerger of the Demerged Undertaking 1) into the Petitioner Company 2, as set out in this Scheme. This results in the following benefits: (i) consolidation of the healthcare business of the Petitioner Company 3 with the Petitioner Company 2 and consolidation of residual listed the Petitioner Company 1 (remaining post demerger under Part III of the Scheme) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take to comply with all statutory requirements, if any, as required under the Companies Act, 2013 and the rules made thereunder. The said undertakings are accepted. 8. The Official Liquidator, High Court, Bombay has filed his report dated January 14, 2020 inter alia, stating that the affairs of the Petitioner Company 1 have been conducted in a proper manner and that the Petitioner Company 1 may be ordered to be dissolved by this Tribunal. 9. The Regional Director has filed his report dated December 20, 2019 ( Report ) with this Tribunal, inter alia, stating therein that this Tribunal may consider the observations made at serial no. IV (a) to (h) and pass such other order or orders as deemed fit and proper in the facts and circumstances of the case. The observations made by the Regional Director in paragraph IV (a) to (h) of the Report are, for sake of ready reference, reproduced hereunder: IV. The observations of the Regional Director on the proposed scheme to be considered by the Hon ble NCLT are as under: (a) In addition to compliance of AS-14 (IND AS-103) the Transferee Company shall pass such accounting entries which are necessary in connection with the scheme t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be in accordance with the provisions of Section 232(3)(i) of the Companies Act, 2013. (d) As regards Part II Clause-3.10(3.10.1 to 3.10.2) of the Scheme Alteration on Name Clause in Memorandum of Association Change of name of the Transferee Company 1. In this regards it is submitted that the same is subject to compliance with the provision of section 13 of the Companies Act, 2013. (e) Hon ble NCLT may kindly direct the petitioners to file an affidavit to the extent that the Scheme enclosed to Company Application Company Petition, are one and same and there is no discrepancy/any change/changes are made, for changes if any, liberty be given to central Government to file further report if any required; (f) The petitioner under provisions of section 230(5) of the Companies Act, 2013 have to serve notice to concerned authorities which are likely to be affected by Amalgamation. Further, the Approval of the scheme by this Hon ble Tribunal may not deter such authorities to deal with any of the issues arising after giving effect to the scheme. The decision of such Authorities is binding on the petitioner Company(s). (g) As regards Max India Limited the Transferor C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndertake that the fees, if any, payable by the Transferee Company 1 shall be paid in accordance with Section 232(3)(i) of the Companies Act, 2013. 14. So far as the observation in sub paragraph (d) of the Report is concerned, the Transferee Company 1 undertakes that the alteration of the name clause in the memorandum of association and change of name of the Transferee Company 1 shall be in compliance with Section 13 of the Companies Act, 2013. 15. So far as the observation in sub paragraph (e) of the Report is concerned, the Petitioner Companies confirm that the Scheme enclosed to the Company Scheme Application and the Scheme enclosed to the Company Scheme Petition are one and the same and there is no discrepancy or changes made to the Scheme. 16. So far as the observation in sub paragraph (f) of the Report is concerned, the Petitioner Companies submit that notices under Section 230(5) of the Companies Act, 2013 have been served upon the concerned regulatory authorities as directed by the Hon ble Tribunal vide its order dated September 17, 2019. The decision of the concerned regulatory authorities will be binding on the Petitioner Companies. 17. So far as the observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Directorate has already filed report dated 20-12-2019 to the Hon ble NCLT Bench. Further, this office has received letter from the Income Tax Department, Office of the Principal Commissioner of Income Tax, PR CIT 1, Jalandhar vide letter dated 23-12-2019. The said letter addressed to this Hon ble NCLT and copy to the Regional Directorate. The Income Tax Department stated in their letter that they have raised some specific queries to the assesse Company Max India Limited Pan: AAFCT2098H (Transferor Company- 1/ Amalgamating Company), by their various letters regarding the said composite scheme of the amalgamation and arrangements. The replies/clarification of the assesses on the certain issue is still awaited. A copy of the said letter dated 23-12-2009 is annexed hereto and marked as Annexure- A In this regard it is to submit that Petitioner Company have to undertake to comply with directions/requriements of the Income Tax Authority vide their aforesaid mentioned letter or Hon ble NCLT may pass appropriate orders as deem fit. 20. So far as the observation in point no. IV at page no. 8 and 9 of the Supplementary Report dated January 7, 2020 of the Regional Director i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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