TMI Blog2021 (2) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... o 232 of the Companies Act, 2013, seeking the following reliefs: i) For admission of the application filed by the applicants before the Hon ble Tribunal for being heard. ii) That appropriate orders and directions be passed by the Hon ble Bench for dispensing with the convening and holding separate meetings of Equity Shareholders of the Transferee Company and the Transferor Companies as all the Equity Shareholders of the Transferee Company and the Transferor Companies have given their written consents by way of affidavit adopting the Scheme of Amalgamation without any modification(s). iii) That appropriate orders and/directions be passed by the Hon ble Bench declaring that there is no requirement for holding of meeting of Secured Creditors of the B H Enterprises Pvt. Ltd. /Transferee Company as there are NIL Secured Creditors. iv) That appropriate orders and / directions be passed by the Hon ble Bench for dispensing with the meeting of Unsecured Creditors of B. H. Enterprises / Transferee Company as Unsecured Creditors representing more than 90% (in value) of the Transferee Company have given to their written consents by way of Affidavit adopting the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the aforesaid jurisdiction. 3. The object of the present application is to ultimately obtain sanction of the Hon ble Tribunal to the Scheme of Amalgamation whereby the Transferor Companies will be merged/amalgamated with the Transferee Company with transfer date or Appointed Date being 01st April, 2020. 4. The reasons / benefits that have necessitated and/or justified the said Scheme of Amalgamation are, inter alia as follows: a) The Transferor Companies is in similar line of business activities with the Transferee Company. The amalgamation will result in establishing a single company by consolidating the business of all Companies involved in the Scheme. The business of the Transferor Companies and the Transferee Company can be combined/adjusted and carried forward conveniently with combined strength; b) The amalgamation will enable the Transferee Company to consolidate its line of business by restructuring and re-organizing its business activities and Capital Structure; c) The amalgamation will result in economy of scale including reduction of overhead expenses relating to management and administration in better and more productive u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution on 08.09.2020 in their respective Board Meetings. A copy of the Resolution passed by the Board of Directors of the Transferee Company and the Transferor Companies, approving the Scheme of Amalgamation is also annexed with the application marked as Letter J . 8. It is stated that the assets of the applicant companies are sufficient to meet all their liabilities and the said scheme will not adversely affect the rights of any of the creditors of any of the applicant companies in any manner. Further, there will not be any reduction of capital of the Transferee Company upon coming into effect the Scheme as per Section 66 of the Companies Act, 2013 except cancellation of shares of Transferee Company due to inter / cross holding of shares resulting from this amalgamation. 9. It is stated that the present Scheme of Amalgamation does not contain or provide for Corporate Debt Restructuring and the Transferee Company as well as the Transferor Company No.3 have never issued or agreed to issue any debenture. 10. That the Transferor Company No.1 has issued Unsecured Optionally Fully Convertible Debentures: 25,000 zero interest Unsecured Fully Convertible D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Letter K . 15. That the total number of Equity Shareholders in Transferee Company / B. H. Enterprises is 12 as on 31.08.2020 and all the shareholders of the Transferee Company have given their written consents by way of Affidavit to the proposed Scheme of Amalgamation. Copy of the list of shareholders duly certified by the Statutory Auditors and Affidavit by all the Equity Shareholders of the Transferee Company is annexed with the application marked with Letter L . 16. Further, the total number of Equity Shareholders of the Transferor Company No.1 Kajalgaon Carbon Pvt. Ltd. is 6 as on 31.08.2020 and all the shareholders have given their written consent by way of Affidavit to the proposed Scheme of Amalgamation. Copy of the list of Equity Shareholders duly certified by the statutory auditor and Affidavit by all the equity shareholders of the Transferor Company No.1 is annexed with the application marked with Letter L1 . 17. Likewise, the total number of Equity Shareholders in the Transferor Company No.2 Subhag Power Pvt. Ltd. is 2 as on 31.08.2020 and all the shareholders have given their written consents by way of Affidavit to the proposed Scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. A statement showing list of Unsecured Creditors as on 31.08.2020 and the consent received from them and percentage of consent thereof is annexed separately next to the auditors certificate. A copy of the certificate from the statutory auditors of the company certifying the list of Secured and Unsecured Creditors as on 31.08.2020 together is also attached with the application marked as Letter M1 . 21. The Transferor Company No.2 Subhag Power Pvt. Ltd. has NIL Secured Creditors as on 31.08.2020 and there are 3(three) Unsecured Creditor amounting to ₹ 1,50,22,500.00 (Rupees One Crore Fifty lacs Twenty Two thousand Five hundred only) as on 31.08.2020. All the said Unsecured Creditor have given their consent by way of an Affidavit to the proposed scheme of Amalgamation. A certificate in this regard from the statutory auditor of the Transferor Company No.2 certifying NIL Secured Creditor and list of Unsecured Creditors as on 31.08.2020 along with the affidavit of the Unsecured Creditor is annexed with the application marked as Letter M2 . 22. That the Transferor Company No.3 Subhag Projects Pvt. Ltd. has no Secured Creditors as on 31.08.2020. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Companies come under the following Regulatory Authorities: (i) Regional Director, North Eastern Region, Ministry of Corporate Affairs (ii) The Registrar of Companies, Guwahati (iii) The Official Liquidator, Guwahati (vi) The Income Tax Authorities (v) Competition Commission of India, New Delhi 27. The applicants further submit that no one will be prejudiced, if an order is made and / or directions are given as prayed for. 28. Having heard the learned advocate, Mr. R. K. Agarwal for the Applicant Companies and by considering the consent affidavits filed on behalf of the shareholders, secured creditors as well as by the majority in debts value of unsecured creditors of the Applicant Companies to approve the proposed Company Scheme and by waiving their rights to participate in such meeting, the meetings of the Shareholders, Secured and Unsecured Creditors of the Applicant Companies are hereby dispensed with. 29. Therefore, in our view, the present Company Application deserves to be allowed. Accordingly, it is allowed in terms of the prayer clause and subject to following directions: (i) The Applicant Companies to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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