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TMI Blog2019 (5) TMI 1840X X X X Extracts X X X X X X X X Extracts X X X X ..... their respective Shareholders, Creditors and Employees. 2. Brief facts leading to the filing of present case are as follows: I. In respect of Transferor Company-I: The Transferor Company-I viz., Pennar Engineered Building Systems Limited, was incorporated as a public limited company under the name and style 'Pennar Engineered Building Systems Limited' in the State of Telangana on 17 January 2008, vide Corporate Identity Number L45400TG2008PLC057182. The equity shares of the Transferor Company-I are listed on BSE Limited ('BSE') and the National Stock Exchange of India Limited ('NSE'). The Registered Office of the Transferor Company-I is situated at 9th Floor, DHFLVC Silicon Towers Kondapur Hyderabad - 500084 in the State of Telangana. The main objects of the Transferor Company-I is to carry on the business of selling buildings systems including pre-engineered buildings, prefabricated structures, pre-stressed concrete assemblies and structures, high rise metal buildings, framing systems, heavy steel and metal structures for use as warehouses, commercial buildings, factories, aircraft hangers, sports facilities, insulated cold chains etc. The authorised c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee Company, was originally incorporated as a public limited company under the name and style 'Pennar Steels Limited' in the State of Andhra Pradesh on 8th August, 1975, vide Corporate Identity Number L27109AP1975PLC001919. Subsequently, the name was changed to 'Pennar Industries Limited' and a fresh certificate of incorporation consequent upon change of name was issued by the Registrar of Companies, Andhra Pradesh on 30th September, 1998. The equity shares of the Transferee Company are listed on BSE Limited ('BSE') and the National Stock Exchange of India Limited ('NSE'). The Registered Office of the Transferee Company is situated at Floor No. 3, DHFLVC Silicon Towers, Kondapur, Hyderabad - 500084 in the State of Telangana. The main objects of the Transferee Company is to carry on the business as manufacturers and sellers of steel strips and sheets of all kinds, sizes, grades varieties, box strapping, stainless steel, strips and sheets, non-ferrous strips and sheets, tubes, doubled walled tubes, precision tubes, pipes, tin plates. Galvanized sheets and coils, colour coated strips and sheets, cold formed sections such as: door frames, window frames, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Transferor Company-II be held on 14.12.2018 at 05:00 PM and on 15.12.2018 at 05:00 PM respectively, at Hotel Raddison, Gachibowli, Miyapur Road, Chota Anjaiah Nagar, Hyderabad - 500032 and appointed Mr. G. Kalyan Chakravarthy, Advocate as Chairperson and Mr. K. V. Raman, Advocate as the Scrutinizer for convening the meeting of the Equity Shareholders and Mr. P. Anil Mukherjee, Advocate as Chairperson and Mr. Lalith Jogi, Advocate as the Scrutinizer for convening the meeting of the Unsecured Creditors of the Transferor Company-II; (iv) directed that a meeting of the Equity shareholders and Unsecured Creditors of the Transferee Company be held on 14.12.2018 at 02:30 PM and on 15.12.2018 at 02:30 PM respectively, at Hotel Raddison, Gachibowli, Miyapur Road, Chota Anjaiah Nagar, Hyderabad - 500032 and appointed Mr. D. Narendar Naik, Advocate as Chairperson and Mr. M.B Suneel, Company Secretary as the Scrutinizer for convening the meeting of the Equity Shareholders and Mr. Amir Ali Bhavani, Advocate as Chairperson and Mr. Rajeev Ratna Surya Vamshi, Advocate as the Scrutinizer for convening the meeting of the Unsecured Creditors of the Transferee Company. (v) directed the Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d representing 99.99% equity shares voted in favour of the Scheme and members present and representing 0.01% equity shares voted against the Scheme. 7. Similarly, a meeting of the equity shareholders of the Transferor Company-II was convened on 14.12.2019 at 05:00 PM at Hotel Raddison, Gachibowli, Miyapur Road, ChotaAnjaiah Nagar, Hyderabad - 500032 and Mr. G. Kalyan Chakravarthy, Chairperson, filed his report. From the report of the Chairperson, it is seen that the meeting was attended by 8 equity shareholders holding 75,48,607 equity shares constituting 83.87% of the total equity capital of the Transferor Company-II and all of them voted in favour of the Scheme. Thus, it is clear that 100% of the total members present voted in favour of the Scheme. 8. Similarly, a meeting of the equity shareholders of the Transferee Company was convened on 14.12.2019 at 02:30 PM at Hotel Raddison, Gachibowli, Miyapur Road, Chota Anjaiah Nagar, Hyderabad - 500032 and Mr. D. Narendar Naik, Chairperson, filed his report. From the report of the Chairperson, it is seen that the meeting was attended by 165 equity shareholders holding 6,95,16,420 equity shares constituting 57.76% of the total equity c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vened on 15.12.2019 at 02:30 AM at Hotel Raddison, Gachibowli, Miyapur Road, Chota Anjaiah Nagar, Hyderabad - 500032 and Mr. Amir Ali Bavani, Chairperson, filed his report. From the report of the Chairperson, it is seen that the meeting was attended by 59 unsecured creditors entitled to Rs. 111,69,66,381/-representing 42.38% of total value of the unsecured creditors of the Transferee Company and all of them voted in favour of the Scheme. Thus, it is clear that 100% of the total unsecured creditors present voted in favour of the Scheme. 12. The Petitioner Companies then filed the present Company Petitions i.e. CP(CAA)No. 42/230/HDB/2019; CP(CAA) NO. 44/230/HDB/2019 and CP(CAA) NO. 46/230/HDB/2019, before this Tribunal, seeking sanction of Scheme of Amalgamation of Pennar Engineered Building Systems Limited (Transferor Company-I) and Pennar Enviro Limited (Transferor Company-II) with Pennar Industries Limited (Transferee Company). 13. The Petitioner Companies have passed respective Board Resolutions on 10.11.2017 approving the Scheme of Amalgamation with the appointed date 01.04.2018. 14. The Shareholders and Unsecured Creditors of the Petitioner Companies have approved the Scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lugu Daily) at least ten days before the date of the hearing and issue notices to the statutory authorities viz., RD, ROC, OL & IT Department, BSE, NSE & SEBI. 17. In pursuance of the said Order, the Petitioner Companies have issued the paper advertisement in Business Standard (English Daily) and Andhra Bhoomi (Telugu Daily) informing the date of hearing of the Petition as 06.03.2019 and a copy of the aforesaid petitions were served along with notice upon the statutory authorities (viz., Income Tax Department, Registrar of Companies, Regional Director, Official Liquidator, BSE Limited, National Stock Exchange of India Limited and Securities and Exchange Board of India) with regard to the date of hearing of the Petition and to this effect filed respective memos dated 18.02.2019, with this Tribunal on 20.02.2019, bearing SR 1452, 1451 & 1453 respectively. 18. The Official Liquidator in his report dated 08.03.2019, reiterated the averments made in the Petitions and further stated that the Official Liquidator is of the Opinion that the affairs of the Company appears to have not been conducted in a manner prejudicial to the interest of the members or to public interest. 19. The Regio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 company has provided the details of shareholding pattern (i.e. list of non-NRIs, Foreign Portfolio Investors, Non Resident Indians non repatriable, Foreign Nationals. Hon'ble Tribunal may therefore, be pleased to direct the Petitioner Company to state whether they have complied/obtained the concerned Sectoral Regulator Approval i.e. FEMA/RBI. d) As per clause vii (c) of Annexure-B to the Independent Auditors Report attached to the Balance Sheet as at 31.03.2018 of Transferee Company, dispute is pending before the Excise Duty, Service Tax and Entry Tax. Hence, the Hon'ble Tribunal may be pleased to direct the Petitioner Company to give an undertaking to the effect that as and when the demand arises from the said authorities, Petitioner Company shall clear the demand. e) As per the Company Master Data obtained from MCA-Portal with respect to Transferor Company, there are five charges pending and the status of the said charges is shown as open. f) As per the Company Master Data obtained from MCA-Portal with respect to Transferor Company, there are two charges pending and the status of the said charges is shown as open. g) As per the Company Master Data obtained fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty under automatic route without any approval. Accordingly as per regulation 9 of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2017 once the Scheme of Amalgamation has been approved by the Hon'ble Tribunal the transferee company is allowed to issue shares to the shareholders of the transferor company resident outside India without seeking any approval upto 100% of the total paid-up equity share capital of the Transferee Company. Without prejudice to the above submission, the Petitioner herein undertakes that it will comply with all the provisions relating FEMA/RBI. g) That the Petitioner Companies undertake that the Transferee Company will subject to its legal rights will pay the statutory dues as and when the demand arise and becomes due for payment. h) That as per MCA Portal there are five charges still shown as pending. The charge which is shown as pending towards loan obtained from ICICI Bank was already repaid and NOC from other creditors to whom the Transferor Company-I owes were obtained and the National Company Law Tribunal was pleased to dispense with the meetings of the secured creditors. The Affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Affidavits stating that the Petitioner Companies in accordance with the directions of this Tribunal had served the notice of the meetings of the Equity Shareholders and Unsecured Creditors through Courier/email. It is further stated that the mode of delivery of service of notice of the meetings of the equity shareholders and unsecured creditors is "Courier and E-mail", which is specified as one of the alternatives of service of notice at Paragraph No. 22(u) appearing at page No. 9 of the common order dated 01.11.2018, passed by this Tribunal in CA(CAA)No. 928/230/HDB/2018; CA(CAA)No. 928/230/HDB/2018; and CA(CAA)No. 928/230/HDB/2018. As also the aforesaid modes of services of notice are permitted in terms of Sub-Rule 2 of Rule 6 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, for serving the notices on the Equity Shareholders and on the Unsecured Creditors of the Petitioner Companies. Further, the notices of the above said meetings were sent to all the statutory authorities and were also uploaded on the website of the Petitioner Companies, on the website of the BSE, NSE and SEBI. Further, the Petitioner Companies had issued the paper advertisement in B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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