TMI Blog2020 (9) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... ars to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy - Since all the requisite statutory compliances have been fulfilled, the Scheme is sanctioned. The Scheme is sanctioned, and the Appointed Date of the Scheme is fixed as opening hours of 1stMarch 2020 - application allowed. - CP (CAA) No.931/MB.II/2020 CA (CAA) No.981/MB.II/2020 - - - Dated:- 27-7-2020 - Mr Rajasekhar V.K. : Member (Judicial) And Mr V. Nallasenapathy : Member (Technical) For the Petitioners : Mr Janak Dwarkadas Mr Gaurav Joshi, Senior Advocates, a/w Mr Mehul Shah, Mr Peshwan Jehangir, Mr Himanshu Vidhani, Mr Aman Yagnik, Mr Rushabh Gala Ms Pratiksha Basarkar i/b Khaitan Co, Advocates For the Regional Director (WR) : Ms Rupa Sutar, Deputy Director ORDER Per : Rajasekhar V.K., Member (Judicial) 1. The Bench is convened by videoconference today. 2. Heard Learned Senior Counsel for the Petitioner Companies. No objector has come before the Tribunal to oppose the Petition and nor has any party controvertedany averments made in the Petition. 3. The sanction of this Tribunal is sought under sections 230 to 232 read with s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders of the companies and is not prejudicial to the interests of the concerned shareholders, creditors or the public at large. 7. Learned Senior Counsel for the Petitioner Companies further submits that the Petition had been filed in consonance with the Order dated 1stMay,2020 passed by this Tribunal in CA (CAA) No.981/2020. 8. Learned Senior Counsel for the Petitioner Companies states that the Petitioner Companies have complied with all requirements as per the directions of this Tribunal and has filed necessary compliance reports/ affidavits of compliance before this Tribunal. 9. Learned Senior Counsel for the Petitioner Companies states thatcertain debt securities (i.e., notes) issued by Transferor Company-1 and guaranteed by Second Petitioner Company are listed on the Singapore Stock Exchange. The shares of the Transferor Company-1 are wholly owned by the First Petitioner Company. The shares of the First Petitioner Company are wholly owned by the Second Petitioner Company and its nominees. The shares of the First Petitioner Company are not listed on any stock exchange. The equity shares of the Second Petitioner Company are listed on BSE Limited and National Stock Exchan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act in meetings duly held in terms of section 230(1) read with subsection (3) to (5) of section 230 of the Act and the Minutes thereof are duly placed before the Tribunal. (d) Hon ble NCLT may kindly direct the petitioners to file an affidavit to the extent that the Scheme enclosed to Company Application and Company Petition, are one and the same and there is no discrepancy or changes made. For changes if any, liberty be given to Central Government to file further report if any required; (e) The Petitioners under provisions of section 230(5) of the Companies Act, 2013 have to serve notices to concerned authorities which are likely to be affected by Amalgamation. Further, the approval of the scheme by this 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). (f) Petitioner Company have to undertake to comply with section 232(3)(i) of Companies Act, 2013, where the transferor company is dissolved, the fee, if any, paid by the transferor company on its authorised capital shall be set-off against any fees payable by the transfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above the Hon ble NCLT may pass appropriate orders/orders as deem fit; (k) As regards the complaints indicated at para 21 above, under the head- Status of Complaint as per MCA Portal Screen Shot and MCA eServices, it is submitted that the petitioners be directed to mention the current position regarding complaints redressed by the company and to file an undertaking accordingly. 11. In response to the observations of the Regional Director as mentioned in his Report, an affidavit dated 26thJuly 2020 has been filed by the Petitioner Companies with this Tribunal on 26thJuly 2020, inter aliastating as under: (a) As far as the observation made in paragraph IV (a) of the Report of the Regional Director is concerned, the Petitioner Companieshave undertakentopass such accounting entries which are necessary in connection with the Scheme to comply with such accounting standards notified under Section 133 of the Companies Act, 2013 as may be applicable to the Petitioner Companies (including Ind AS-103 and Ind AS-8). (b) As far as the observation made in paragraph IV (b) of the Report of the Regional Director is concerned, the Petitioner Companies submitted that the Appointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot contain any provisions for clubbing of authorised capital of the First Petitioner Company with that of the Second Petitioner Company. (g) As far as the observation made in paragraph IV (g) of the Report of the Regional Director is concerned, the Petitioner Companies submitted that Transferor Company-1 is a foreign company incorporated pursuant to and in accordance with the General Corporation Law of the State of Delaware and does not fall within the jurisdiction of this Tribunal. The Petitioner Companies further submitted that similar approvals, as may be applicable, will be obtained by the Transferor Company-1 in accordance with the applicable laws of United States of America. (h) As far as the observation made in paragraph IV (h) of the Report of the Regional Director is concerned, the Petitioner Companies submitted thatsince Transferor Company-1 is situated in the state of Delaware, United States of America,the FEMA Regulations/RBI Guidelines, as may be applicable, will be complied with. (i) As far as the observations made in paragraph IV (i) of the Report of the Regional Director are concerned, the Petitioner Companies submitted that the Scheme provides for amalgama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d up capital. Accordingly, the First Petitioner Company submitted that paid-up capital of the First Petitioner Company matches with the records of Ministry of Corporate Affairs, Registrar of Companies. The Second Petitioner Company stated that after approval of the Scheme by the Board of Directors, the Second Petitioner Company has made allotment of equity shares(i) pursuant to the Employee Stock Option Scheme; and (ii) on rights basis to its existing shareholders and has filed relevant form PAS-3 with RoC for updating of paid-up capital. Accordingly, the Second Petitioner Company submitted that the paid-up capital of the Second Petitioner Company matches with the records of Ministry of Corporate Affairs, Registrar of Companies. (k) As far as the observation made in paragraph IV (k) of the Report of the Regional Director is concerned,the Petitioner Companies have undertaken to update the status of complaints on the MCA portal and comply with necessary requirements as required by the Registrar of Companies. 12. The observations of the Regional Director (Western Region), Ministry of Corporate Affairs, Mumbai, mentioned in para 10 above, have been clarified by the Petitioner Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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