TMI Blog2022 (4) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... feror Company No. 2 or Petitioner No. 3 ) with ETC Electric Private Limited being the Petitioner No. 1 above named ( Transferee Company or Petitioner No. 1 ) whereby and where under the Transferor Companies are proposed to be amalgamated with the Transferee Company from the Appointed Date, viz. 1st April, 2019 in the manner and on the terms and conditions stated in the said Scheme of Amalgamation ( Scheme ). 3. The Petition has now come up for final hearing Ld. Authorized Representative 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 15/12/2019 respectively. (b) The circumstances which justify and/or have necessitated the Scheme and the benefits of the same are, inter alia, as follows:- i. Simplification of corporate structure by reducing the number of legal entities and reorganizing the legal entities in the group structure; ii. Significant reduction in the multiplicity of legal and regulatory compliance required at present to be carried out by Transferor Companies; iii. Elimination of duplication in administrative costs and mul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners. The Scheme has been made bona fide and is in the interest of all concerned. 4. Pursuant to the said advertisements and notices the Regional Director, Ministry of Corporate Affairs, Kolkata ( RD ), Official Liquidator, High Court, Calcutta have filed their representations before this Tribunal. 5. The Official Liquidator has filed his report dated 22nd July, 2021 and concluded as under:-That the Official Liquidator on the basis of information submitted by the Petitioner Companies is of the view that the affairs of the aforesaid Transferor Companies do not appear to have been conducted in a manner prejudicial to the interest of its members or to the public interest as per the provisions of the Companies Act, 1956/the Companies Act, 2013 whichever is applicable. 6. The RD has filed his reply affidavit dated 13th January, 2021 ( RD affidavit ) which has been dealt with by the Petitioner in their rejoinder affidavit dated 14th January, 2022 and supplementary rejoinder dated 17th March, 2022 to the reply filed by the RD. The observations of the RD and responses of the Petitioner(s) are summarized as under:- Paragraph No. 2 (a) of RD affidavit: It is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner Companies on 15/12/2019 when the accounts for year ended 31/03/2020 of the petitioners companies was not audited. However, it is stated that the Scheme of Amalgamation with appointed date as 01/04/2019 is not against the public interest. Further, if required the appointed date may be changed to 01/04/2021 or any such date as may be deem fit and proper by Hon'ble National Company Law Tribunal, Kolkata Bench. Paragraph No. 2 (c) of RD affidavit:(C). Petitioner company should undertake to comply with the provisions of section 232(3)(i) of the Companies Act, 2013 through appropriate affirmation. Paragraph 5(c) of Rejoinder: With reference to para 2 (c), it is stated that the petitioners' companies undertake to comply with the provisions of section 232(3)(i) of the Companies Act 2013. Further, Part-B of Clause 25 of the Scheme relating to authorised capital is in accordance with section 232(3)(i) of the Companies Act 2013. Paragraph No. 2 (d) of RD affidavit: That the Transferee Company should be directed to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it. Paragraph 5(d) of Rejoinder: Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is stated that the Scheme enclosed to the Company Application and Company Petition are one and same and there is no discrepancy and no change. Paragraph No. 2 (h) of RD affidavit: 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) conceded. Paragraph 5(h) of Rejoinder: With reference to para 2 (h), it is stated that under provisions of section 230(5) of the Companies Act 2013 and in terms of the order of Hon'ble NCLT twice notices to all concerned statutory authorities which are likely to be affected by the Amalgamation has been served and till have received no communication. Further the Transferee Company undertakes that even after the sanction of scheme, the Transferee Company will be liable for all liabilities including of all Transferor Companies. The Petitioner Companies undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its business activities. Paragraph No. 2(j) of RD affidavit: The Transferor Company, Shambhudeo Securities Private Limited, is a Non-Banking Financial Company. Its latest financial statement as at 31.03.2021 exhibits that more than 50% of its total assets were financial assets and more than 50% of its income was financial income as follows:- The company is an NBFC, but functioning without Registration Certificate from the Reserve Bank of India under section 45IA of the Reserve Bank of India Act 1934, as it appears since the Auditor has surprisingly stated in the Auditors' Report that the company is not required to be registered with RBI as NBFC. The said material fact that the company is an NBFC functioning without necessary registration with RBI has not been also disclosed in the scheme, contrary to the provisions of section 230(2)(a) of the Companies Act 2013. Paragraph 4 of Supplementary Rejoinder: With reference to para 2 (j), that the Shambhudeo Securities Private Limited Shambhudeo / Transferor Company No. 2 ) is not a Non-Banking Financial Company and accordingly not registered as NBFC with Reserve Bank of India. Further it is an associate of Proctor Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reserve Bank of India Act then the Directors of the Transferor Company liable for breaching the applicable provisions of the Reserve Bank of India Act shall continue to be liable irrespective of the sanction of the Scheme. 9. Further, heard submissions made by the Ld. Authorized Representative appearing for the Petitioner and Mr. Sanjay Sardar, Deputy Director from the office of the Regional Director (ER), MCA. Upon perusing the records and documents in the instant proceedings and considering the submissions, we allow the petition and make the following orders:- a) The Scheme of Amalgamation mentioned in paragraph 1 of the petition, being Annexure A is hereby sanctioned by this Tribunal with the Appointed Date fixed as 1st April, 2019 so as to be binding on Transferor Companies and Transferee Company, their respective shareholders and creditors and all concerned; b) All the property, rights and powers of the Transferor Companies, including those described in the Schedule of Assets herein, be transferred from the said Appointed Date, without further act or deed, to the Transferee Company and, accordingly, the same shall pursuant to Section 232(4) of the Companies Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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