TMI Blog2022 (5) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 for Henry and Farad Private Limited (Transferee Company) and Hesel Engineering Private Limited (Transferor Company) - Application allowed. - CP ( CAA ) / 04 ( KOB ) / 2022 - - - Dated:- 21-4-2022 - Ashok Kumar Borah , Member ( J ) And Anil Kumar B. , Member ( T ) For the Appellant : Sumit Agarwal , CS ORDER Ashok Kumar Borah , Member ( J ) 1. This is a joint petition filed under Sections 230-232 of the Companies Act, 2013 by Hesel Engineering Private Limited (hereinafter referred to as the 'Transferor Company') and Henry and Farad Private Limited (hereinafter referred to as the 'Transferee Company'). The Transferor Company and the Transferee Company (collectively referred to as the Petitioner Companies) have sought the relief to sanction the Scheme of Amalgamation between them. 2. The brief facts are as follows:- i. The Transferor Company Hesel Engineering Private Limited was incorporated on 26.03.2009 and the Transferee Company Henry and Farad Private Limited was incorporated on 27.09.1995 under the Companies Act, 1956. Both Companies are unlisted private limited companies. ii. Both the companies are having similar objects com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudice to the generality of the aforesaid, the undertaking of the Transferor Company shall include all the movable and immovable assets, both tangible and intangible properties, land, buildings, letters of intent, industrial and other licenses, leases, tenancy and other rights, approvals, consents, powers, entitlements, permits, authorizations, quotas, trademarks, copyrights, logos, symbols, trade descriptions, goodwill, patents, intellectual property rights, designs and drawings, trade secrets, industrial property rights, easements, advantages, benefits, rights, of all agreements, schemes, consents and other interests, investments in shares and securities, authorized capital being right to issue shares for which valuable registration fee has been already paid to the Registrar and all inventories, raw materials, stock in trade, work-in progress, finished goods, equipments, goods in transit, advances of all kinds, deposits, book debts, receivables, outstanding monies, recoverable claims, agreements, arrangements, provisions and reserves, incentives, including without any limitation, privileges, liberties, rights and powers of all kinds, nature and description whatsoever in any m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third party or other person who is a party to any contract or arrangement by virtue of which such debts, liabilities, duties and obligations have arisen in order to give effect to the provisions of this Clause. 4.5 Merely by reason of the sanction of this Scheme, no claim or liability which has not been acknowledged or which has been in dispute shall be deemed to have been accepted or agreed upon by the Transferee Company. The Scheme does not purport to alter the nature or status or enforceability or validity of claims of any third party against the Transferor Company. 4.6 Upon Coming into Force of the Scheme, claims, contracts, rights, orders, decrees, conditions, obligations in favour of or against the Transferor Company will continue to be pursued or undertaken or challenged by the Transferee Company as the respective Transferor Company would have pursued or undertaken or challenged had there not been this Amalgamation, without any filing or recording whatsoever as if the Transferee Company were to be the claimant, applicant or petitioner as the case may be and wherever the Transferor Company is a party, without any further act, deed or thing, in pursuance of the Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board of Directors of the Transferee Company. Provided no utilization of such free reserves shall be made prior to the issuance of shares to the Eligible Shareholders of respective Transferor Company. SECTION - IV 4.12 Without prejudice to the generality of the above and upon the Coming into Force of the Scheme, all assets, properties, rights, entitlements, benefits, liabilities, contingent liabilities and obligations pertaining to Undertaking of the Transferor Company hereby transferred to and vested in the Transferee Company, shall belong to and be owned, controlled and managed by the Transferee Company, together with charges and encumbrances, if any, thereon. 4.13 Upon coming into force of the Scheme the items in the Balance Sheet of the Transferor Company which are not represented by any tangible or intangible asset shall be discarded by not carrying them to the books of the Transferee Company. 4.14 Where for any reasons, any part of the Scheme is not sanctioned or gets sanctioned with modifications, if any, the Scheme shall be construed accordingly and only that part of the Scheme that is not sanctioned shall not apply and other parts shall be construed, gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull force and effect against or in favour of the Transferee Company, as the case may be, and may be enforced by and/or against the Transferee Company as fully and effectively as if the Transferee Company was party thereto instead of Transferor Company. 5.4 Inter se contracts and arrangements, if any, between the Transferor Company and contracts and arrangements between the Transferor Company and the Transferee Company shall stand closed and effect thereof shall be given in the books of account by making contra entries as may be necessary in accordance with Generally Accepted Accounting Practices. 6. Position as to charges: 6.1 The transfer/vesting of the Undertaking of the Transferor Company as provided above shall be subject to existing charges/encumbrances/hypothecation/mortgage (if any as may be subsisting) over or in respect of the said assets or any part thereof. 6.2 The Scheme does not envisage any modification or dilution to the extent or operation or scope of any of the subsisting charges upon the properties of the Companies. 7. Accounting Policy Relating To Amalgamation is as follows: 7.1 The accounting of the Amalgamation under the Scheme shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred employees' provident fund and/or gratuity fund and/or superannuation fund and/or any other retirement fund shall be transferred and credited to the corresponding statutory and/or exempted retirement fund of the Transferee Company subject to approval of the concerned authorities; and 8.4 for the purpose of sub-clause 6.2 above, the Transferee Company shall stand substituted for the Transferor Company for all purposes whatsoever including the administration or operation of such funds according to the terms provided in the respective trust deeds governing such funds. It is the aim and the intent of this Scheme that all rights, duties, powers and responsibilities respectively of. the Transferor Company in relation to such funds shall become the rights, duties, powers and responsibilities of the Transferee Company. 9. Position of Authorised Capital of Transferee Company is as follows: 9.1 The Authorized Share Capital of the Transferee Company shall, upon Coming into Force of the Scheme, ipso facto, without any further act, deed or thing and without payment of any further registration fee or stamp duty for registration of such increase in authorised share capital, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee Company shall, subject to the provisions of this Scheme and without any subscription, agreement, application, action or deed, issue and allot to Eligible Shareholders of the respective Transferor Company 35 (Thirty Five) fully paid up equity share of Rs. 100/- (Rupees Hundred Only) each, credited as fully paid in the Capital of the Transferee Company against every 22 (Twenty Two) equity shares of Rs. 10/- (Rupees Ten Only) each held by the Eligible Shareholder in the Transferor Company. 10.2 For this purpose, the share exchange ratio has been arrived at in accordance with generally accepted valuation norms and the Share Valuation Report dated 16th March, 2020 done by Mr. P.R. Rajendran, Registered Valuer. 10.3 In respect of fractional entitlements of Eligible Shareholders of respective Transferor Company. the Transferee Company undertakes to settle the same in cash within 15 (Fifteen) days of the Record Date computed at the same Price per share of the respective Transferor Company on the basis of which the Share Exchange Ratio has been determined. 10.4 For this purpose, those shareholders whose names are found in the Register of Members of the Transferor Company o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solute in terms of the prayer (1) in the said Company Petitions. 14. For the aforesaid reasons, the Scheme is sanctioned, which shall be binding on the Members/Shareholders, Secured Creditors, Unsecured Creditors and employees of the Petitioner Companies. The appointed date of the Scheme is fixed as opening hours of 1st April 2019 for Henry and Farad Private Limited (Transferee Company) and Hesel Engineering Private Limited (Transferor Company). 15. The Petitioner Companies are directed to file a copy of this order along with a copy of the Scheme with the Registrar of Companies, Kerala, electronically in E-Form INC-28, in addition to producing a physical copy within 30 (thirty) days from the date of issue of the order by the Registry. 16. The Petitioner Companies have to lodge a copy of this order duly certified by the Deputy/Assistant Registrar of this Tribunal with the concerned Superintendent of Stamps, along with a copy of the Scheme for adjudication of stamp duty payable, if any on the same within 60 (sixty) days from the date of receipt of the certified copy of the Order. 17. All concerned regulatory authorities shall act on receipt of copy of this order along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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