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TMI Blog2022 (1) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... of Wardhaman Trade & Commerce Private Limited, being the Petitioner No. 1 abovenamed (""Demerged Company" and/or "Transferee Company"" or "Petitioner No. 1") with and into Namkit Coatex Private Limited, being the Petitioner No. 4 abovenamed (""Resulting Company"" or "Petitioner No. 4") on a going-concern basis whereby and whereunder from the the Appointed Date, viz. 01.04.2019 in the manner and on the terms and conditions stated in the said Scheme of Amalgamation and Arrangement ("Scheme"). 2. The Petition has now come up for a final hearing Counsel for the Petitioners submits as follows:- (a) The Scheme was approved unanimously by the respective Board of Directors of the Petitioner Companies at their meetings held on 01.11.2019. (b) The circumstances which justify and/or have necessitated the Scheme and the benefits of the same are, inter alia, as follows:- (i) Result in consolidation of similar business activities of investment and lending into a single entity, i.e., Transferee Company/Demerged Company thereby enabling Transferee Company/Demerged Company to harness and optimize synergies, reducing overheads, better services to existing clientele, operational efficiencies i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The exchange ratio of shares in consideration of the Amalgamation and Arrangement has been fixed on a fair and reasonable basis and on the basis of the Report thereon of Mr. Pranab Kumar Chakrabarty, Registered Valuer (IBBI/IPA-003/IP-N00088/2017-18/10826). (f) The shares of the all Petitioner Companies are not listed in any Stock exchange. (g) By an order dated 26.02.2020 in Company Application (CAA) No. 117/KB/2020, this Tribunal made the following directions with regard to meeting(s) of shareholders and creditors under Section 230(1):- Meeting(s) dispensed: Meeting(s) of the Equity Shareholders and unsecured creditors of the Petitioner Companies for considering the Scheme were dispensed with in view of all such shareholders and unsecured creditors having given their consent to the Scheme by way of affidavits. And further, as all Petitioner Companies had no secured creditors, no meeting of secured creditors was required to be held. (h) Consequently, the Petitioner(s) presented the instant petition for sanction of the Scheme. By an order dated 06.10.2020 the instant petition was admitted by this Tribunal and fixed for hearing on 20.11.2020 upon issuance of notices to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 232(3)(i) of the Companies Act, 2013 in regard to adjustment of fees upon clubbing of Authorized Share Capital(s) of the Transferor Company(ies) with the Authorized Share Capital of the Transferee Company in post-amalgamation. Paragraph No. 2(b) of the Rejoinder The petitioners companies undertakes to comply with the provisions of section 232(3)(i) of the Companies Act 2013. Further it is stated that Part-III of Clause 25 of the Scheme is in accordance with section 232(3)(i) of the Companies Act 2013. Paragraph No. 2(c) of RD affidavit- That the Transferee/Resulting Company should be directed to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it. Paragraph No. 2(c) of the Rejoinder The petitioners companies undertakes to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it. However Petitioner Companies states that stamp duty will be paid only after sanction of scheme and the Scheme becomes effective. Paragraph No. 2(d) of RD affidavit- In compliance of Accounting Standard-14 or IND-AS 103, as may be applicable, the Transferee Company shall pass such accounti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without specifying the nature thereof, although such specification is mandated in terms of the provisions of schedule III to the Companies Act 2013. As a result of said non-disclosures, no proper reading of the financial statements was possible to ascertain whether the material facts concerning financial position of the company were disclosed. Such material facts were also not disclosed before the this Tribunal by the company violating the provisions of section 230(2) of the Companies Act 2013. The officers of the company who were in default should get the offence compounded before the merger. In view of the provisions of section 441(3)(b) of the Companies Act 2013 intimation regarding the compounding, after the offence is compounded, is required to be given by the Company itself. Hence, once merged the company would get free from the statutory onus of intimating the Registrar of Companies in terms of the provisions of section 441(3)(b) of the Companies Act 2013. Paragraph No. 2(g) of the Rejoinder The Petitioner says that in audited accounts of Anticlock Vyapaar Private Limited for the year ended 31.03.2020 it is stated that in Notes - 7 it is stated that under the heading "Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that in the audited accounts of Mansa Dealer Private Limited for the year ended 31.03.2020 it is stated that in Notes - 9 it is stated that under the heading "Short Terms Loans and Advances amounting to Rs. 1212.30 Lacs is unsecured & Considered goods. Further it is stated that in "Notes to Account" point No. 9 inter-alia it is stated that the Current Assets, Loans and Advances are realisable in the ordinary course of business, at least equal to the amount at which they are stated. If notes is read with "Notes to Account" then material facts concerning the financial position of the company are disclosed. Further, Mansa Dealer Private Limited is very sound and the liability is negligible in comparison to the networth of the Company and earning per share of Mansa Dealer Private Limited for the year ended 31.03.2020 & 31.03.2019 is Rs. 15.98 and Rs. 24.21 per equity share respectively. However, if there is compliance, the Registrar of Companies, West Bengal can proceed against the director of the Company and transferee company after the scheme is sanctioned as per the applicable provisions of Companies Act. Paragraph No. 2(i) of RD affidavit- The Transferor Company, Mansa Dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate Limited, Transferee Company. However, he has not stated in the said mail/observations how he is interested/involved in the proposed Scheme. On receipt of the said observations/views, this Deponent has taken up the matter with Registrar of Companies, West Bengal for his examination and submit his representation/report in the matter, which is still awaited. In this regard, it is pertinent to refer to valued orders of this National Company Law Tribunal, Kolkata Bench in CPCAA) No. 144/KB/2020 connected with CA(CAA) No. 1527/KB/2019 and also in CP (CAA) No. 418/KB/2020 connected with CA(CAA) No. 1526/KB/2019 where Shri Ashok Kumar Jhunjhunwala, Advocate, High Court, Mumbai made his observations/objections on the financial statements/balance sheet of the respective petitioner Companies, this National Company Law Tribunal, Kolkata Bench passed order sanctioning the Scheme of Amalgamation overruling such objection of Shri Jhunjhunwala subject to rider that the Registrar of Companies, West Bengal shall look into the matter at his level and take appropriate action in case any violation of the Statutory provision is found. In view of this, this Tribunal may peruse the same and issue ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctively transferred to and vested without any further act or deed in the Transferee Company and accordingly, the same shall pursuant to Section 232(4) of the Companies Act, 2013 be Transferred to and vested in the Transferee company for all the estates and interests of the said Transferor Companies therein but subject nevertheless to all charges, now affecting the same; c) All the debts, properties, rights, permission, license, titles and interest of Demerged Undertaking of Demerged Company respectively to be transferred to and vested in Resulting Company without further act or deed, the same shall pursuant to Section 232(4) of the Companies Act, 2013 but subject nevertheless to all charges, now affecting the same; d) That all the liabilities and duties of the Transferor Companies respectively be transferred without any further act or deed to the Transferee Company and accordingly, the same shall pursuant to Section 232(4) of the Companies Act, 2013 be transferred to and become the liabilities and duties of the Transferee Company. e) That all the liabilities and duties of Demerged Undertaking of the Demerged Company be transferred without any further act or deed to the Result ..... 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