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TMI Blog2021 (2) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... ree Company].The Petitioners sought the following reliefs: - a. "That the said Arrangement as embodied in the Scheme of Amalgamation between Commodity Online (India) Limited (Transferor Company No. 1) and Celebrus Capital Limited (Transferor Company No. 2) and Acumen Capital Market (India) Limited ( Transferee Company )be sanctioned under Sections 230 to 232 of the Companies Act, 2013 by this Bench with or without modification and declare the same to be binding on the Transferor Companies and the Transferee Company and also their respective members/shareholders and Creditors and all other agencies, Departments and Authorities of the Central, State and any other local authorities; b. That liberty be reserved to the Petitioner Companies and all other persons interested in this petition to apply to this Bench as and when occasion may arise for any direction that may be necessary;" 2. The facts in brief are as under: - The First Petitioner Company filed a Company Application No. CA(CAA) No. 14/KOB/2019 and the Second Petitioner Company filed a Company Application No. CA(CAA) No. 12/KOB/2019 to dispense with the meeting of the Equity Shareholders and Creditors in connection with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Scheme and with effect from the Appointed Date, the Undertaking, as defined in the Scheme, pursuant to the sanction of the Scheme by this Tribunal and in accordance with the provisions of Sections 230 to 232 and other applicable provisions, of the Act, shall stand transferred to and be vested in or be deemed to have been transferred to and be vested in the Transferee Company, as a going concern without any further act, instrument, deed, matter or thing to be made, done or executed so as to become, as and from the Appointed Date, the Undertaking of the Transferee Company by virtue of and in the manner provided in the Scheme. 6. Transfer of Assets All assets and properties of the Transferor Companies as on the Appointed Date, whether or not included in the books of the respective Transferor Companies, and all assets and properties which are acquired by the Transferor Companies on or after the Appointed Date but prior to the Effective Date, including interests in the subsidiary companies and all licenses, permissions, grants, tax deferrals, and such other payments or refunds as set out in detail in the Scheme, shall be deemed to be and shall become the assets and properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been discharged or satisfied by the Transferor Companies after the Appointed Date and prior to the Effective Date, such discharge or satisfaction shall be deemed to be for and on account of the Transferee Company; Loans, advances and other obligations, if any; due or which may at any time in future become due between the Transferor Companies and the Transferee Company shall, ipso facto, stand discharged and come to an end and there shall be no liability in that behalf on any party and appropriate effect shall be given in the books of accounts and records of the Transferee Company. 8. Encumbrances All the existing securities, mortgages, charges, encumbrances or liens, if any, as on the Appointed Date and created by the Transferor Company after the Appointed Date, over the assets comprised in the undertaking or any part thereof transferred to the Transferee Company by virtue of the Scheme and in so far as such Encumbrances secure or relate to liabilities of the Transferor Companies, the same shall, after the Effective Date, continue to relate and attach to such assets or any part thereof to which they are related or attached prior to the Effective Date and as are transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registrations, approvals and other instruments; The Transferee Company shall enter into and/or issue and/or execute deeds, writings or confirmations or enter into any tripartite arrangements, confirmations or novation, to which the Transferor Companies will, if necessary, also be party in order to give formal effect to the provisions of the Scheme, if so required. Further, the Transferee Company shall be deemed to be authorized to execute any such deeds, writings or confirmations on behalf of the Transferor Companies and to implement or carry out all the formalities required on the part of the Transferor Companies to give effect to the provisions of the Scheme. 11. Legal Proceedings If any suit, appeal or other proceedings of whatever nature by or against the Transferor Companies are pending, including those arising on account of taxation laws and other allied laws, the same shall not abate or be discontinued or in any way be prejudicially affected by reason of the amalgamation or by anything contained in this Scheme, but the said suit, appeal or other legal proceedings may be continued, prosecuted and enforced by or against the Transferee Company, in the same manner and to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any of their respective employees except in the ordinary course of business with or without the prior consent or the Transferee Company or pursuant to any pre-existing obligation undertaken by the Transferor Companies as the case maybe, prior to the Appointed Date; The Transferor Companies shall not take, enter into, perform or undertake, as applicable any material decision(s) in relation to its business and operations other than decisions already taken prior to approval of the Scheme by the respective Board of Directors, any agreement or transaction, and any new business, or discontinue any existing business or change the capacity of facilities, or such other matters as the Transferee Company may notify from time to time save and except in the case of ordinary course of business or specifically permitted by this Scheme or with the consent of the Board of Directors of the Transferee Company. 13. Treatment of Taxes All taxes, levies, CESS, etc. (whether direct or indirect) that might have been paid by the Transferor Companies (whether before or after the Appointed Date) during the period when the merger has not become effective for any tax liability that arises after the Appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand substituted for the Transferor Companies for all the purposes. 15. Saving of Concluded Transactions Subject to the terms of the Scheme, the transfer and vesting of the Undertaking of the Transferor Companies under Clause 3 of the Scheme shall not affect any transactions or proceedings already concluded by the Transferor Companies on or before the Appointed Date or concluded between the Appointed Date and the Effective Date (both days inclusive), to the end and intent that the Transferee Company accepts and adopts all acts, deeds and things made, done and executed by the Transferor Companies as acts, deeds and things made, done and executed by or on behalf of the Transferee Company. 16. Issue of Shares by the Transferee Company Upon the Scheme becoming finally effective, in consideration of the transfer and vesting of the undertaking of the Transferor Companies in terms of this Scheme, the shares of Transferor Companies held by the Transferee Company pursuant to this Scheme or otherwise shall get extinguished. Every other equity shareholder of the Transferor Companies on the record date shall without any further act or deed, be entitled to and be allotted equity shares of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he requirements of Accounting Standards (AS) 14 and other applicable Accounting Standards, in terms of Section 133 of the Companies Act, 2013 for the purpose of accounting for the manner; The Transferee Company shall, upon the Scheme becoming effective, record the assets, liabilities and reserves of the Transferor Companies in the Books of Accounts of the Transferee Company at the existing carrying amounts and in the same form. The investment made in the Share Capital of the Transferor Companies by the Transferee Company shall stand cancelled. 19. Dissolution of Transferor Company On the coming into effect of the Scheme, the Transferor Companies shall stand dissolved without winding-up, and the Board of Directors and any committees thereof of the Transferor Companies shall without any further act, instrument or deed be and stand dissolved. 20. Modification or Amendments to the Scheme The Transferee Company and the Transferor Companies by their respective Board of Directors, shareholders or any person(s) or committee authorized/appointed by them, take any necessary steps desirable or proper to resolve any doubts, difficulties or questions arising out of the scheme or connected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requisite consents, approvals or permissions of any Appropriate Authority(ies), which by law may be necessary for the implementation of this Scheme; II. The approval by the requisite majority of the shareholders and/or creditors (as may be required and/or to the extent not dispensed with by the Appropriate Authority(ies) of the Transferor Companies and the Transferee Company, as required under Applicable Law(s); III. Approval by the National Company Law Tribunal; IV. The certified copy of the order of the National Company Law Tribunal sanctioning the Scheme being filed with the Registrar of Companies by the Transferee Company and the Transferor Companies; V. Compliance by the Transferor Companies and the Transferee Company of all the necessary and applicable provisions of its Applicable Law; VI. Compliance with such other conditions as may be imposed by the National Company Law Tribunal or other Government Authority. 25,. The Board of Directors of the Transferor Companies and the Transferee Company at their respective Board Meetings conducted on 27.09.2019 passed resolutions and unanimously approved the said Scheme of Amalgamation. 26. The ROC in its report filed on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as applicable under the provisions of the Acts and Rules framed thereunder. IV. The Petitioner Companies have to lodge a copy of this order duly certified by the Deputy/Assistant Registrar of this Tribunal with the concerned Superintendent of Stamps, along with a copy of the Scheme for adjudication of stamp duty payable, if any, on the same, within 60 (sixty) days from the date of receipt of the certified copy of the Order. V. The Transferee Company is directed to file the amended Memorandum of Association (MOA) and Articles of Association (AoA) with the Registrar of Companies, Kerala and strictly comply with the provision of Section 232(3)(i) of the Companies Act, 2013. VI. Let the Registrar of this Tribunal draw up necessary order in Form No. CAA 7 of the Companies (Compromises, Arrangements and Amalgamation) Rules 2016, with such necessary variations. The schedule of properties shall be furnished by the Transferor Company to the Registrar of the Tribunal in accordance with Form CAA. 7 of Companies (Compromises, Arrangements and Amalgamation) Rules 2016, within 4 weeks of receipt of this order. VII. Any concerned authorities are at liberty to approach this Tribunal for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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