9911796707
TMI Blog2021 (9) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... Henry Farad Private Limited (Transferee Company) in the matter of CA (CAA) No.2/KOB/2021 seeking the following reliefs: - I. To amend the Scheme of Amalgamation II. To amend the reliefs sought in the application 2. The Scheme of Amalgamation by way of absorption acquiring the transferor Company was filed showing the appointed date as 1st April,2019 which was passed vide Board Resolution dated 20.03.2021. As per Circular of the Ministry of Corporate Affairs dated 21st August, 2019, if the appointed date is chosen as a specific calendar date, it may precede the date of filing of the application for the scheme of merger/ amalgamation in NCLT. However, if the appointed date is significantly antedated beyond the Year from the date of filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief sought is only in relation to Meeting of Unsecured Creditors. The Secured Creditors holding 91.86% of the Secured Debt has agreed and confirmed by way of affidavit to the proposed schemes. The Equity Shareholders holding 95.52% of the Total Share Capital in the Company, has agreed, consented and confirmed by way of affidavit to the proposed Scheme. The proposed Scheme of Amalgamation does not restructure or vary the debt obligations of the Transferee Company towards their respective creditors in any manner and there is no requirement of filing the Creditors Responsibility Statement along with the present Scheme of Amalgamation. The Scheme do not involve any waiver of loan, interest or restructuring of Corporate or Operational Debt in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amalgamation during the period March, 2020. Due to the pandemic situation, the Applicant could not approach the National Company Law Tribunal in time and the period of filing was prolonged and the Appointed Date got significantly ante-dated. It is further stated that it was decided and resolved the commitments and assurances to its stakeholders to consolidate the business of the Transferor and Transferee Companies under one umbrella as a single entity by way of the proposed merger with appointed Date as 1st April, 2019. Based on this assurance the Financial Creditors of the Companies have extended the credit facilities and was renewing the yearly due facilities only upon the basis of completion of the proposed merger. Therefore, the appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not adversely affected in any manner in the proposed Scheme of Amalgamation. It is also stated that no investigation proceedings are pending against the Transferee Company under the provisions of the Companies Act, 2013. 7. We have heard the learned PCS who appeared through video conferencing and have gone through the Ministry of Corporate Affairs (MCA) Circular dated 21st August 2019 (Ref: General Circular No. 09/2019) in which a clarification is given with regard to appointed date as contemplated under Section 232(6) of the Companies Act 2013. The circular reads thus: - Clarification under section 232(6) of the Companies Act, 2013 Section 232(6) of the Act states that the scheme shall be deemed to be effective from the 'appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon by the parties to the scheme. This event would have to be indicated in the scheme itself upon occurrence of which the scheme would become effective. However, in case of such event-based date being a date subsequent to the date of filing the order with the Registrar under section 232(5), the company shall file an intimation of the same with the Registrar within 30 days of such scheme coming into force. 8. A scheme of arrangement approved between or among companies is required to comply with the provisions of Sections 230-232 of the Act. On a perusal of the aforesaid circular, it is clear that the companies may choose the "appointed date" of the merger/amalgamation based on occurrence of an event, which is relevant to the merger between ..... X X X X Extracts X X X X X X X X Extracts X X X X
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