TMI Blog2022 (4) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable provisions of the Companies Act, 2013 ( Act ) and in the matter of Scheme of Arrangement Scheme of Amalgamation (Merger by absorption) and Arrangement involving amalgamation of Sanspri Foods Investments Private Limited ( First Petitioner Company ), and Amarkantak Foods Private Limited ( Second Petitioner Company ) into Desai Foods Private Limited, ( Third Petitioner Company ) and their respective Shareholders ('Scheme'). 4. The Learned Counsel for the Petitioner Companies submits that the First Petitioner Company is engaged in the business of food products and also holds shares in the Third Applicant Company engaged in the business of manufacturing and marketing of foods products. Second Petitioner Company is primarily engaged in the business of Manufacturing and Processing of Food and Food Products and the Third Petitioner Company is primarily engaged in the business of manufacturing and marketing of its food products viz. Pickles, Papads, Pastes, Gerkins etc. under the Brands Mother Recipe, Dabee, Elmac, Spread on. 5. The rationale for the Scheme of Arrangement is set out below: The Amalgamation of Transferor Company 1 and Transferor Company 2 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 1st April 2020. Effective Date means the date on which the authenticated copies or certified copies of the Orders of the NCLT, Mumbai Bench sanctioning the Scheme are filed with Registrar of Companies, Pune, Maharashtra. Record Date means such date fixed by the Board of the Transferee Company for the purpose of determining the shareholders of the Transferor Company 1 to whom shares of the Transferee Company shall be allotted pursuant to amalgamation under this Scheme. In this regard it is submitted that Section 232(6) of the Companies Act, 2013 states that the scheme under this section shall clearly indicate an appointed date from which it shall be effective and the scheme shall be deemed to be effective from such date and not at a date subsequent to the appointed date. However, this aspect may be decided by the Hon'ble Tribunal taking into account its inherent powers. Further, the Petitioners may be asked to comply with the requirements and clarified vide circular no. F. No. 7/12/2019/CL-dated 21.08.2019 issued by the Ministry of Corporate Affairs. c) The Hon'ble Tribunal may kindly seek the undertaking that this Scheme is approved by the requisit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme shall be deemed to be the consent of its shareholders for the purpose of effecting the above reduction in the share capital. The consent of the NCLT to this scheme shall be deemed to be the confirmation required under Section 66 for reduction in share capital of the company. The said reduction will come to effect by operation of law without any further act or deed by the Transferee Company. In this regard it is submitted that the Petitioner Company shall also comply the provisions of Section 66 and other relevant provisions of the Companies Act, 2013. i) As per Clause 13(13.1 13.2) of the Scheme (Accounting Treatment for Amalgamation). Upon the Scheme becoming effective and with effect from the Appointed Date, the Amalgamation of the Transferor Companies with Transferee Company shall be accounted as per the below method: The Transferee Company shall account for the amalgamation of the Transferor Companies on the basis of 'Pooling of Interest' method as stated in Accounting Standard 14-Accounting for Amalgamations. In this regards it is stated that in Indian Accounting Standard (Ind AS) 103--prescribes application of pooling of Interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings of the Equity Shareholders of the Petitioner Companies were dispensed with in pursuance of Order of this Tribunal dated 25th March 2021 in view of the consent affidavits received from all the Equity Shareholders of all the Petitioner Companies in this regard. Further the present Scheme is an arrangement between the Applicant Companies and their shareholders as contemplated under section 230(1)(b) of the Companies Act, 2013 and there is no compromise or arrangement with Creditors as no sacrifice is called for. The rights of the Creditors are not affected as all the Creditors would be paid off in the ordinary course of business. In view thereof the meetings of the Creditors in the Applicant Companies were also dispensed with by this Tribunal by its Order dated 25th March 2021 on an undertaking to issue individual notices upon all Creditors which have been complied with. d) As far as the observation made in paragraph III(d) of the Report of Regional Director is concerned the Petitioner Companies undertake that the Scheme enclosed to the Company Scheme Application the Company Petition is one and the same there is no discrepancy and no changes between the two. e) As far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital effected in pursuance of the order of the Tribunal under this section. i) As far as the observation made in paragraph III(i) of the Report of Regional Director is concerned, the Petitioner Companies submit that the Transferee Company shall account for the amalgamation of the Transferor Companies on the basis of 'Pooling of Interest' method as stated in Accounting Standard 14-Accounting for Amalgamations. Further, the Petitioner Companies confirm and undertake, that the amount credited to Capital Reserves on Amalgamation shall not be available for distribution. j) As far as the observation made in paragraph III(j) of the Report of Regional Director is concerned, the Petitioner Companies submit that there shall be no amendment to the Object Clauses of the Memorandum of Association of the Transferee Company by virtue of the Scheme save the change in Clause V of the Memorandum of Association of the Transferee Company which shall be amended in relation to consolidation of authorized capital pursuant to section 232(3)(i) the Petitioner Companies submit that the fees payable or stamp duty payable, if any, by the Transferee Company shall be in accordance with the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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