TMI Blog2022 (11) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... failing which it shall be presumed that the said secured creditor has No Objection to the amalgamation. - Company Appeal (AT) No. 82 of 2021 - - - Dated:- 28-11-2022 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant: Mr. Krishnendu Datta, Sr. Advocate with Ms. Versha Himmat Singh, Mr. Gaurav Gadodia, Advocates. CS Ashish O. Lalpuria For the Respondent : Mr. Nitin Kumar, Mr. Gagan Gulati, Advocates JUDGMENT Justice Anant Bijay Singh; The present Appeal has been filed by the Appellant being aggrieved and dissatisfied by the order dated 17.02.2021 passed by the National Company Law Tribunal (Mumbai Bench-IV) in CA (CAA)/1157/MB-IV/2020 whereby and whereunder the Tribunal directed the Transferee Company i.e. Lasa Supergenerics Limited to obtain consent from the sole Secured Creditor before the final date of hearing. 2. The facts giving rise to this Appeal are as follows: i) The Applicant companies had filed a joint application on 09.12.2020 for appropriate directions to a Scheme of /amalgamation before the Tribunal for sanctioning a Scheme of Amalgamation under Section 230-232 of the Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee company. The Amalgamated Company will have greater efficiency in overall business including economies of scale, cash flow management of the amalgamated entity and unfettered access to cash flow generated by the combined business which can be deployed more efficiently for the purpose of development of businesses of the companies and their growth opportunities, eliminate inter corporate dependencies, minimize the administrative compliances, etc. resulting in maximisation of shareholders value. iv) The Amalgamation will result in cost saving for the Transferor Company and the Transferee Company as they are engaged in the related and interdependent activity which is expected to result in higher net worth and cost savings for the Amalgamated Company. (vi) The Amalgamated Company will have the benefit of the combined resources of the Transferor Company and the Transferee Company i.e., market share, scale, efficiency, combined net-worth, combined employee base, reserves, investments, and other assets, manpower, consolidated pool of finances, including optimization of borrowing costs and administrative compliances related thereto, larger size, consolidation of operations, mitigating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the secured creditor, directed the Appellant to obtain NOC from the Secured Creditor before the final date of hearing which is the subject matter of challenge in the present Appeal. The Relevant para 16 of the Impugned Order is as follows: 16. The Learned Authorised Representative submits that there are no Secured Creditors in the Transferor Company. The Learned Authorised Representative further submits that the Transferee Company has I (One) Secured Creditor with a total outstanding of Rs. 19,54,06,031/- (Rupees Nineteen Crore Fifty-Four Lakh Six Thousand Thirty One Only) as on 31.10.2020. Since the present scheme is in accordance with the provisions of section 230(1) (b) of the Companies Act 2013 and does not involve an arrangement with the creditors and there will be no diminution of the liability, the meeting of Secured creditor of Transferee Company be dispensed with. However, the Bench directs that consent from Secured Creditor be obtained before the final date of hearing. Submissions on behalf of the Appellant 3. The Ld. Sr. Counsel for the Appellant during the course of argument and in his memo of Appeal along with written submissions submitted that The Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Company Law Tribunal, Mumbai vide Judgment dated 15th April, 2021. C.A.(CAA)/ 53/MB/2021 in the case of Gujarat Enviro Protection and Infrastructure Private Limited delivered by the National Company Law Tribunal, Mumbai, vide Judgment dated 15th April, 2021. C.A.(CAA)/1153/MB.IV/2021 in the matter of Bluebell Vanijya Private Limited delivered by the Hon'ble National Company Law Tribunal, Mumbai vide Judgment dated 16th February, 2021. C.A.(CAA)/1169/MB.IV/2020 in the matter of Poonam Roofing Products Private Limited delivered by the Hon ble National Company Law Tribunal, Mumbai vide Judgment dated 17th February, 2021. 6. It is further submitted that in view of the aforesaid cases, the Hon'ble Tribunal observed that the scheme did not involve any arrangement with creditors and that there will be no diminution of the liability towards the said secured creditors, thus the meeting of the secured creditor was dispensed with directions of individual notice to be served upon the secured creditors enclosing a copy of the scheme and with clear indication therein that objections if any, shall be filed before the Tribunal within thirty days from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment dated 28th June, 2021 passed by this very Bench in the case of Mohit Agro Commodities Processing Pvt. Ltd in Company Appeal (AT) No. 59 of 2021, wherein this Tribunal held in paragraphs 19, 20 and 21 which read as hereunder: 19. We find force in the contention of the Learned Counsel appearing for the Appellants that there are no Creditors in the subsidiary Companies and that the Transferee Company is the only Shareholder of the Transferor Company . 20. This Tribunal has placed reliance in DLF Phase IV, Commercial Developers Limited and Ors. in Company Appeal (AT) No. 180 of 2019 and observed that the scheme would not prejudicially affect the Creditors or Shareholders of the Appellant Company when an Application is filed by the Transferor Company or Transferee Company , a separate Application is not necessary and dispensed with the meeting of the equity Shareholders and Creditors of the Appellant Company. At the cost of repetition, keeping in view that the financial position of the Transferee Company is highly positive, the merger does not involve any compromise/arrangement with any Creditor of the Company, that there would be a positive net worth and Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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