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TMI Blog2021 (12) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... ular No.09/2019 dated 21.08.2019 issued by the Ministry of Corporate Affairs. Accordingly, the applicants filed CA(CA)/77/KOB/2021 and CA(CA)/78/KOB/2021 seeking to amend the prayers in both the CA(CAA)s without making any modification in the Appointed Date. As per the aforesaid Circular of MCA, "where 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, the appointed date is significantly antedated beyond a year from the date of filing, the justification for the same would have to be specifically brought out in the scheme and it should not be against the public interest". The applicants stated in the aforesaid CAs that they had commenced the procedures of the proposed Scheme of Amalgamation during the period March 2020, but, due to the pandemic situation, they could not approach this Tribunal on time and the period of filing prolonged and the Appointed Date got significantly ante dated. They had also stated that the Scheme of Amalgamation with Appointed Date as 1st April 2019 is in the best interests of all the stakeholders, equity shareholders, secured and other cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The Scheme also proposes the vesting of the entire undertaking of the Transferor Company with the Transferee Company, which will result in consolidation of the business activities carried on by the Transferor Company and the Transferee Company as one single entity. 6. The Scheme of Merger and Board Resolutions passed separately by both the Applicant Companies on 22.02.2020 approving the Scheme of Merger between the Transferor Company and Transferee Company have been produced. The amended Scheme of Merger and Amalgamation was also approved on 26.07.2021 by the respective Boards of both the Companies namely, Hesel Engineering Private Ltd and Henry and Farad Private Ltd. Both the Company Applications are pertaining to the same Scheme and hence are taken together to pass a common order. 7. The Registered Office of the Applicant Companies is situated in the State of Kerala and therefore they are within the jurisdiction of this Tribunal. 8. From the certificate of incorporation filed, it is evident that the Transferor Company was incorporated on 26.03.2009 under the name and style of Hesel Engineering Private Limited and the Transferee Company was incorporated on 27.09.1995 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Creditors, viz: (1) Federal Bank Ltd and (2) Sundaram Finance Limited aggregating an outstanding amount to the extent of Rs. 1,33,69,184.99 in the Transferor Company. Separate affidavits sworn to by these two Secured Creditors (100%) expressing their consent to the Scheme of Amalgamation have been produced. (c) There are 185 Unsecured Creditors aggregating an outstanding amount to the extent of Rs. 3,62,47,275.58 in the Transferor Company. No affidavit with regard to the consent or dispensation of meeting in relation to the Scheme of Amalgamation between the Transferor Company and Transferee Company has been produced. 17. Henry and Farad Private Ltd (Transferee Company) (a) There are 33 (thirty three) Members/Shareholders in the Transferee Company M/s. Henry and Farad Private Limited aggregating 3,13,500 equity shares. Separate affidavits sworn to by two Members/Shareholders of the Transferee Company holding (i) 25,037 equity shares constituting 7.98% and (ii) 2,74,440 equity shares constituting 87.54%, thus expressing 95.52% consent to the Scheme of Merger have been produced. (b) There are Eleven Secured Creditors in the Transferee Company aggregating an outstanding amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Creditors Responsibility Statement. The Applicants have also stated that the Scheme do not involve any waiver of loan, interest or restructuring rather it provides for the debts, liabilities and obligations comprised in the Undertaking of the Transferor Company shall also be and stand transferred to or be deemed to have been transferred, without any further act, instrument or deed to the Transferee Company.According to the Applicants, the Unsecured Creditors are fluctuating body on day-to-day basis and their interests are not adversely affected in any manner in the proposed Scheme of Amalgamation.To support the dispensation of the Meeting of the Unsecured Creditorsof the Transferor Company and Transferee Company,the learned PCS for the Applicants Shri Sumit Agarwal has relied upon thefollowing case laws: (a) Geojit Investment Services Limited (Transferor Company) with Geojit Financial Services Limited (CA(CAA)/17 & 18/KOB/2019).NCLT-KOCHI. (b) Jupiter Alloys & Steel (India) Ltd. v. Jupiter Wagons Limited (TANo.11/ 2017) (2017 SCC Online NCLT 14022). (c) DLF Phase-IV Commercial Developers Ltd.&Ors. V. DLF Limited(CA(CAA)No.39/chd/Hry/2018). (d) DLF Phase-IV Commercial Dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Creditors and Unsecured Creditors or dispensing with the same as well as issue of notices including paper publication which are as follows: A. In relation to the Transferor Company (Hesel Engineering Pvt Ltd): (i) With respect to Equity Shareholders, the holding of meeting is dispensed with as there are three Shareholders and consent letters given by them by way of affidavit have been placed on record. (ii) The meeting of Secured Creditors is dispensed with as there are two Secured Creditors and consent letters given by them by way of affidavit have been placed on record. B. In relation to the Transferee Company (Henry and Farad Pvt Ltd) (i) With respect to Equity Shareholders, the holding of meeting is dispensed with as there are 33 (thirty three) Members/Shareholders in the Transferee Company and separate affidavits sworn to by two Members/Shareholders, who hold (i) 25,037 equity shares constituting 7.98% and (ii) 2,74,440 equity shares constituting 87.54%, thus expressing 95.52% consent to the Scheme of Merger have been placed on record. (ii) The meeting of Secured Creditors is also dispensed with as there are eleven Secured Creditors in the Transferee Company aggre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etings are not feasible, the meetings of the Unsecured Creditors as aforesaid may be conducted through Video Conferencing or any other audio-visual means capable of being recorded. The raw unedited footage shall be preserved for verification. J. The Transferor Company and Transferee Company further furnish copy of the Scheme free of charge by them to every unsecured creditor of the Companies entitled to attend the meeting. K. The authorized representative of the Applicant Companies shall furnish an affidavit of service of notice of meeting and publication of advertisement and compliance of all directions contained herein at least a week before the proposed meeting. L. All the aforesaid directions are to be complied by the Applicants strictly in accordance with the applicable law including forms and formats contained in the Companies (Compromises, Arrangements, Amalgamations) Rules, 2016 as well as the provisions of the Companies Act, 2013 by the them. 26. Both the applicant companies serve notice upon the Regional Director, Ministry of Corporate Affairs, Registrar of Companies, Income Tax Department within whose jurisdiction the assessments of the Applicant Companies are made, th ..... 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