TMI Blog2021 (12) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... th Kajalgaon Carbon Private Limited (herein referred as Transferor Company No. 1 ) and Subhag Power Private Limited (herein referred as Transferor Company No. 2 ) and Subhag Projects Private Limited (herein referred as Transferor Company No. 3) and their respective Shareholders and Creditors [ Scheme for short] with effect from the Appointed Date as mentioned in the Scheme. 2. The Rationale of the proposed company Scheme is stated as under: 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 restricting and re-organizing its business activities and Capital Structure; c. The amalgamation will result in economy of scale including reduction in overhead expenses relating to management and administration in better and more productive utilization of various r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Unsecured Creditors of the B.H ENTERPRISES / Transferee Company as Unsecured Creditors representing more than 90% (in value) of the Transferee Company have given their written consents by way of Affidavit adopting the Scheme of Amalgamation without any modification(s). iv. That appropriate orders and/ directions be passed declaring that there is no requirement for holding of meeting of Secured Creditors of the KAJALGAON CARBON / Transferor Company No. 1, SUBHAG POWER / Transferor Company No. 2 and SUBHAG PROJECTS / Transferor Company No. 3 as there are NIL Secured Creditors. v. That appropriate orders and/ directions be passed for dispensing with the meeting of Unsecured Creditors of the KAJALGAON CARBON / Transferor Company No. 1 as Unsecured Creditors representing more than 90% (in value) of the KAJALGAON CARBON / Transferor Company No. 1 have given their written consent by way of Affidavit adopting the Scheme of Amalgamation without any modification(s). vi. That appropriate orders and/ directions be passed for dispensing with the convening and holding separate meetings of Unsecured Creditor of the SUBHAG POWER / Transferor Company No. 2 as all the Unsecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , failing which it would be presumed that they have no objections to make on the proposed Company Scheme/proposal. Such notices shall be sent forthwith by registered post or by speed post or by courier or by hand delivery at the office of the above authorities as required by sub-rule (2) of Rule 8 of the Companies (CAA) Rules, 2016. The aforesaid authorities who desire to make any representation under sub-section (5) of Section 230, shall send the same to the Tribunal with copy of such representations shall simultaneously be served upon the Applicant Companies within a period of 30 (Thirty) days from the date of receipt of such notice, failing which it would be deemed that they have no representations to make on the proposed arrangement/ proposal. Para 30: The Applicant Companies shall also serve notice upon other sectoral regulators as may be applicable to the Applicant Companies pursuant to section 230 (5) of the Companies Act, 2013 and as per rule 8 of the Companies (Compromises, Arrangements Amalgamations) Rules, 2016. If no response is received by the Tribunal from such sectoral regulators within 30 days of the date of receipt of the notice, it will be presumed that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promise and amalgamation under Section 230-232 of the Act, 2013 as per the decision of the Hon ble Supreme Court, of Arun Kumar Jagatramka-vs- Jindal Steel [MANU/SC/0182/2021]. Para 6: That the deponent states that the office of the transferee company is situated in the rented premises of Sri K.C. Das, in a plot bearing Dag No. 1105, Patta No. 731, of Mouza Ulubari, Village-Noonmati, in the district of Kamrup (M), Guwahati, Assam. There is no system of identification of land by block number or Plot No. under the jurisdiction of Kamrup (M), Guwahati. A particular place is identified by house no. being allotted by the Guwahati Municipal Corporation (GMC). Para 7: That the deponent further states that no liquidation proceedings are pending against any of the companies before any authorities, Court, Tribunal etc. Para 8: That none of the promoters is declared as ineligible for adopting resolution under the Scheme of Amalgamation. 9. Again pursuant to order dated 04.08.2021, the Petitioners vide affidavit dated 16.09.2021 have made the following clarifications: Para 4: That this Hon ble Tribunal vide order dated 04.08.2021 had directed to open website of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferor Company 1. b) Shareholders of Transferor Company 2 will be issued 123 equity shares of ₹ 10 each of Transferee Company credited as fully paid up, for every 100 equity shares of ₹ 10 each held by them in Transferor Company 2. c) Shareholders of Transferor Company 3 will be issued 63 equity shares of ₹ 10 each of Transferee Company credited as fully paid up, for every 500 equity shares of ₹ 10 each held by them in Transferor Company 3. Para 6: That the appointed date of the Scheme is the 1st Day of April, 2020. Para 11: That as per Clause 11 of Part-IV of Scheme, upon the scheme becoming effective and with effect from the Appointed Date, the authorized share capital of the Transferor Companies shall stand transferred to and be amalgamated with the authorized share capital of the Transferee Company. Para 12: That the Hon ble, Guwahati Bench in Para 28 of its order dated 20.01.2021 said that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable Accounting Standards such as AS-5 or IND-AS-8 etc. (e) The Hon ble Tribunal may kindly seek the undertaking that this scheme is approved by the requisite majority of members and creditors as per section 230(6) of the Companies Act, 2013 in meeting duly held in terms of Section 230(1) read with sub-section (3) to (5) of Section 230 of the said Act and the Minutes thereof are duly placed on record. (f) The Hon ble Tribunal may kindly direct the Petitioners to file an affidavit to the extent that the Scheme enclosed to the Company Application and Company Petition are one and same and there is no discrepancy or no change is made. (g) The Petitioners under provisions of Section 230(5) of the Companies Act, 2013 have to serve notices to concerned authorities which are likely to be affected by the Amalgamation or arrangement. Further, the approval of the Scheme by the Hon ble Tribunal may not deter such authorities to deal with any of the issues arising after giving effect to the scheme. The decision of such authorities shall be binding on the Petitioner Company(s) concerned. 12. In the light of the above given facts and circumstances of the present company scheme p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; and iv. All proceedings now pending by or against the Transferor Companies, if any, be continued by or against the Transferee Company: and v. All employees of the Transferor Companies will become employees of the Transferee Company without any break or interruption of service; 15. The legal fees and expenses of the office of the Official Liquidator are quantified at ₹ 10,000/- (Rupees Ten Thousand only) in respect of the Transferor Companies. The said fees to the Official Liquidator shall be paid by the Transferee Company within four weeks from the date of issuance of certified copy of the Order by the Tribunal. 16. The legal fees and expenses of the office of the Regional Director are quantified at ₹ 25,000/- (Rupees Twenty Five Thousand) in respect of the Petitioner Companies. The said fees to the Regional Director shall be paid by the Transferee Company within four weeks from the date of issuance of certified copy of the Order by the Tribunal. 17. Filing and issuance of drawn up orders are dispensed with. All concerned authorities to act on a copy of this order along with the Scheme of Amalgamation duly authenticated by the Registrar of this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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