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TMI Blog2022 (4) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner Companies filed First Motion Application bearing CA(CAA) No. 37/BB/2020 ("First Motion Application") before this Tribunal seeking to dispense with the meetings of Equity Shareholders of the Applicant Company No. 1 & 2 and direct to convene the meetings of Secured and Unsecured Creditors of Applicant Company No. 1 & 2 for considering the Scheme of Amalgamation. Based on such Application moved under section 230-232 of the Companies Act, 2013 necessary directions were issued vide order dated 14.10.2020 wherein the meetings of Equity Shareholders of Applicant Company No. 1852 were dispensed with and meeting of the Secured and Unsecured Creditors of Applicant Company No. 1852 are directed to convene the meeting. Accordingly, Shri Naman Jhabakh was appointed as the Chairperson and Shri Gnanesh was appointed as the Scrutinizer. Details of the first motion order dated 14.10.2020 are as under: 3. The Chairperson's report of the secured and unsecured creditors of the meeting held on 11.12.2020 has attached to the Petition. It is stated in the report of the Chairman that the authorized representative of the secured creditor of the Applicant Company No. 1 i.e., M/s. Hero Fincorp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed signatory of the Petitioner Companies has caused paper publications dated 16.04.2021 and same has been filed vide diary No. 1418 dated 20.04.2021. Further, copies of proof of service of notice to the aforesaid statutory authorities i.e., the Registrar of Companies, Karnataka, the Regional Director, Hyderabad, the Official Liquidator, the, Secretary Competition Commission of India, Principal Commissioner of Income Tax, Joint Development Commissioner, Special Economic Zones, Reserve Bank of India, Karnataka Industrial Area Development Board is in the Affidavit for Service filed vide diary No. 1418 dated 20.04.2021. It is deposed that no objection has been received by the Petitioner Company from any person or authority/department to the Scheme. 6. The main objects, date of incorporation, authorized, issued and paid-up share capital of the Petitioner Companies, rationale of the Scheme and interest of employees have been discussed in detail in first motion order passed on 14.10.2020. 7. The Board Resolution approving the Scheme by the Transferor and Transferee Company is annexed at Annexure-F of the Petition. 8. It is further submitted that the Certificates of Statutory Auditors o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited, Clix Finance India Private Limited and Hero Fincorp Limited. The Transferee Company has five open charges to the total Rs. 22.50 crores with Tata Capital Financial Services Limited and RBL Bank Limited. However, NOC has not been obtained from the Banks for approval of the merger and hence, both the Companies may be advised to furnish the same before the Hon'ble NCLT, before approval of the Scheme. d) As per Scrutinizer's report of the Transferor Company, the meeting of secured creditor was conducted on 11.12.2020. The Authorized representative of secured creditor of the company "Hero Crop Limited" had been physically present at the meeting and however, the Board Resolution authorising him to represent the meeting is/was not in order and hence considering invalid although casted vote not favouring the resolution. Hence, the resolution was not duly passed by the secured creditors even after considering the invalid votes. Hence, necessary clarification may be obtained by the Hon'ble NCLT in this regard. e) As per Scrutinizers report of Transferee Company, the meeting of the secured creditor was conducted on 11.12.2020. As per certificate from the Statutory Audito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, if any, actually payable on the fresh issue of equity shares being issued as consideration to the shareholders of Transferor Company to the Registrar of Companies/Ministry of Corporate Affairs as per the provisions of the Companies Act, 2013. (iii) Regarding Observation No. 2(c) of RD report and Point No. 3 & 4 of the ROC report, it is stated that Transferor Company has no dues pending with Clix Finance India Private Limited and Hero Fincorp Limited as on today's date. No due certificate from Clix Finance India Private Limited and Hero Fincorp Limited. Further, the Transferor Company does not have any loan payable to/open charge with RBL Bank Limited. On December 2020, all the secured creditors of Transferee Company were paid in full. A certificate from statutory auditor of Transferee Company confirming that the balances payable to the secured creditor has been paid in full as on 10 December 2020. (iv) Regarding Observation No. 2(d) of RD report and Point No. 5 of the ROC report, it is stated that Hero Fincorp Limited was the sole secured creditor of Transferor Company as on the date of meeting. Though personnel from Hero Fincorp Limited had been physically present at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferee Company with related parties are in the ordinary course of business and on an arm's length basis. All the Related Party Transactions are in compliance with the provisions of Section 188 of the Companies Act, 2013. (ix) Regarding Observation No. 2(i) of RD report and Point No. 10 of the ROC report, it is stated that Transferee Company hereby undertakes to file the necessary Compounding Application under section 441 of the Companies Act, 2013 in relation to non-appointment of a qualified Company Secretary till 31 July 2019, as per the requirement of Section 203 of the Companies Act, 2013. (x) Regarding Observation No. 2(j) of RD report and Point No. 11 of the ROC report, it is clarified that due to the circumstances of the outbreak of corona virus prevailing in the country at that point in time, there was an immense impact on the business of Petitioner Companies because of which it was envisaged that the Scheme of Amalgamation of Brown House Baking Private Limited with Samar Retail Private Limited would not bring in operational and economic efficiencies. The Board of Directors of Petitioner Companies had passed necessary Resolutions for withdrawal of the Scheme of Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e files relating to Transferor and Transferee Companies shall be consolidated accordingly, as the case may be; and (ii) That the Transferee Company shall deposit an amount of Rs. 75,000/- with the Pay 85 Accounts Office, Chennai in respect of the Regional Director, South East Region, Ministry of Corporate Affairs, Hyderabad and Rs. 25,000/- in favour of The Prime Minister's National Relief Fund, within a period of four weeks from the date of receipt of certified copy of this Order; and (iii) That any person interested shall be at liberty to apply this Tribunal in the above matter for any directions that may be necessary. (iv) The approval/sanctioning of the Scheme shall not be construed as an exemption from any of the provisions under the Income Tax Act, 1961 or the Companies Act, 2013 and that the authorities under both the Acts, are at liberty to take appropriate action, in accordance with law, if so advised. 20. As per the directions, Form No. CAA-7 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, formal orders be issued on the petitioner company on filing of the Schedule Property i.e., (i) freehold property of the Transferor Company and (ii) le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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