TMI Blog2021 (12) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... above named ( Transferee Company or Petitioner No. 1 ) from the Appointed Date, 01st April, 2020 in the manner and on the terms and conditions stated in the said Scheme of Amalgamation ( Scheme ). 2. The Petition has now come up for final hearing. Counsel for the Applicants submits as follows:- (a) The Scheme was approved by the respective Board of Directors of the Petitioner Companies at their meetings held on 14th August, 2020. (b) The circumstances which justify and/or have necessitated the Scheme and the benefits of the same are, inter alia, as follows:- a) Apart from pursuing its main object, the TRANSFEROR COMPANY was deployed its funds in various investable instruments and the TRANSFEREE COMPANY is engaged in manufacturing activities, inter alia, it deployed its surplus fund in other investable instruments. Therefore the business of the TRANSFEROR COMPANY 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 amalgam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shares of the Petitioner Companies are not listed on the specify stock exchanges. (f) By an order dated 06TH January, 2021 in Company Application being C.A.(CAA) No. 992/KB/2020, this Tribunal made the following directions with regard to meeting(s) of shareholders and creditors under Section 230(1) [read with Section 232(1) of the Act]:- (i) Meeting(s) dispensed: Meeting(s) of the Equity Shareholders of all the Petitioner Companies were dispensed with in view of consent given in affidavit form by all the shareholders of the Petitioner Companies, Meeting (s) of Unsecured Creditors of all the Petitioner Companies were dispensed with in view of consent given by Unsecured Creditors above 90% in value of all the Petitioner Companies and Meeting of Secured Creditors of Petitioner Company No. 1 was dispensed with in view of consent given in affidavit form by Secured Creditors of Petitioner No. 1. (ii) Meeting(s) directed to be held: No meeting was directed to be held. (iii) No requirement of Meeting(s): NIL Secured Creditors of Petitioner No. 2 as verified by Auditors Certificate. (g) Consequently, the Petitioner(s) presented the instant petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that on examination of the report of the Registrar of Companies, West Bengal it appears that no complaint and/or representation regarding the proposed Scheme of Amalgamation has been received against the petitioner Companies. Further, as per available records, the petitioner companies are updated in filing their Financial Statements and Annual Return. However, the registrar Of Companies West Bengal in his said report stated that two cases bearing No. C/318761/2009 and C/20370/2010 for violation of Section 211(1) and Section 234 of the Companies Act, 1956 respectively are pending before 10th Metropolitan Magistrate, Calcutta against the 'Transferee Company namely M/s. Bajaj Polyblends Private Limited. (Copy of the said report of ROC, WB marked as Annexure-I is enclosed herewith for perusal and ready reference) Paragraph No. 2(a) of Rejoinder No adverse comments made by the Registrar of Companies, West Bengal. Hence no comments are offered. However the Cases referred to by the Registrar of Companies are against the Transferee Company which can continue even after the sanction of the Scheme as the Transferee Company continues to exists. Paragraph No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 to 228 being Annexure H and I. All the Secured Creditors of Petitioner No. 1 have given their consent to the proposed Scheme of Amalgamation by way of affidavits. The affidavit of Consents are annexed to the Company Application at Page No. 229 being Annexure J. All the Unsecured Creditors of Petitioner No. 1 have given their consent to the proposed Scheme of Amalgamation by way of affidavits. The affidavit of Consents are annexed to the Company Application at Page No. 229 to 252 being Annexure J. The Petitioner No. 2 had NIL Secured Creditors verified by auditors certificate which is annexed to the Company Application at Page No. 253 being Annexure K. All the Unsecured Creditors of Petitioner No. 2 have given their consent to the proposed Scheme of Amalgamation by way of affidavits. The affidavit of Consents are annexed to the Company Application at Page No. 253 to 268 being Annexure K. The Hon'ble Tribunal has also considered the same while passing orders at the time of Company Application. Hence the Scheme has the requisite approval of the Shareholders and Creditors. Paragraph No. 2(f) of RD Affidavit The Hon'ble Tribunal may kindly di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies Act, 2013 for approval of the Financial Statement and Board's report for the year 2016-17 and 2017-18 which is a serious omission in statutory duties of the company. The Company should file the said pending statutory documents with Registrar of Companies in prescribed manner before the merger, since once merged, the status of the company in MCA portal would no more be ACTIVE and hence the Company would become free from the responsibility of filing the pending statutory documents. This would result in the MCA portal continuing with the contravening gap in filing beside loss of filing fee to the Government. Paragraph No. 2(i) of Rejoinder The Board of Directors of the Transferor Company have passed resolution adopting the accounts and have filed form with the Registrar of Companies, West Bengal. However there was omission in filing MGT-14 forms with the Registrar of Companies for the Financial Year 2016-2017 and 2017-2018. The filing of Form No. MGT-14 is upon the Directors and not that of the Company. Default is that of the Directors and not that of the Company. The Directors are personally liable. Hence the non filing of the Forms should not come in way of san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in para 2(c) of the rejoinder received on 17/09/2021 that the petitioner Companies shall pay applicable stamp duty on the transfer of the Immovable properties from the Transferor Companies to it, Hon'ble Tribunal may peruse the same and issue order as deemed fit and proper. Paragraph No. 2(d) of RD Rejoinder In regard to para 2(d) of the earlier representation and in view of undertaking given in para 2(d) of the rejoinder received on 17/09/2021 regarding compliance Accounting Standard-14 or IND-AS of 103, as may be applicable to it and shall pass such Accounting entries which are necessary in connection with the Scheme to comply with other applicable Accounting Standard such AS-5 or IND AS-8, Hon'ble Tribunal may pass order as deemed fit and proper. Paragraph No. 2(e) of RD Rejoinder In regard to para 2(e) of the earlier representation and in view of clarification made in Para 2(e) of the rejoinder received on 17/09/2021 that on the basis of written consent given in form of affidavit, the Hon'ble Tribunal vide order dated 06/01/2021 had dispensed with the meeting of the equity shareholders and secured and unsecured of the respective Petitioner compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies Act, 2013 the MCA portal will continue to host the records of a non-compliant company since once merged, the status of the said company in MCA portal would no more be active and the Company would become free from the responsibility of filing the pending statutory documents. Hon'ble Tribunal may peruse the same and issue order as deemed fit and proper. 7. The violations pointed out by the Regional Director(ER) in his Report are all technical in nature and are compoundable. The regulatory authorities have not found the Scheme itself to be violative of any statute. Technical violations such as the ones pointed out by the Regional Director (ER) would not be enough to withhold sanction of Scheme itself. Therefore, while we are inclined to accord sanction to the Scheme, such sanction shall not stand in the way of any action to which the Petitioner Companies may be liable in accordance with law. We leave it to the authorities concerned to see if there has been any violation of provisions of law by the Petitioner Companies and to take action as may be deemed appropriate under the law against the Transferee/Resulting Company. 8. We have heard the learned Counsel for the P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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