9911796707
TMI Blog2017 (8) TMI 1739X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal. The registered office of the 'Transferee-Company' is situated in Mumbai in the State of Maharashtra and for that Petitioner Company has filed CA No. 619/2016 for grant of exemption to the 'Transferee-Company' from filing the necessary petition in the jurisdictional court of Maharashtra for the reasons stated therein. 2. The Petitioner Company was originally incorporated on 03.05.2002 with the Registrar of Companies, Tamil Nadu vide Certificate of Incorporation Annexure P-2 (colly). The alteration of provision of the Memorandum and Articles of Association with respect to the objects of the company was made on 06.03.2009, The registered office of the company was transferred from Tamil Nadu to the State of Haryana for which certificate was issued on 12.03.2010 by the Registrar of Companies, NCT of Delhi and Haryana at page 60 of the Paper Book. The name of the company was changed to the present name of the Transferor-Company vide certificate dated 13.12.2010 issued by the Registrar of Companies, NCT of Delhi and Haryana. The current address of the Petitioner Company was also reported to the Registrar of Companies to be effective from 25.05.2015. With th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed and Fully Paid Up Rupees 28,87,281 (Twenty eight lac eighty seven thousand two hundred eighty one only) equity shares of Rs. 10/-(Rupees ten only) (fully paid-up 2,88,72,810 (Rupees two crore eighty eight lac seventy two thousand eight hundred ten only) Total 2,88,72,810 (Rupees two crore eighty eight lac seventy two thousand eight hundred ten only) 8. It is stated that there has been no material change in the share capital structure of the 'Transferee-Company' subsequent to 26.08.2016 The details of the assets and liabilities of the 'Transferee-Company' has also been described. The tabulated information in respect of both the companies shows that the current assets of both the companies are much more than the current liabilities. The Appointed Date as per the proposed 'Scheme' is 26.08.2016. It is stated that since the Appointed Date till the date of filing of the Second Motion Petition there has not been any substantial change in the financial position of the companies except those arising out of the normal course of business. 9. The First Motion Petition CP No. 199/2016 (O & M) filed before the Hon'ble Punjab and Haryana High Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable than those on which they are engaged by the Transferor Company and without any interruption or break in service as a result of the 'Scheme' etc. 13. It is further stated that the 'Scheme' provides for merger of the entire business of the Petitioner Company with the 'Transferee-Company', The 'Scheme' would expand the portfolio of innovative products and services, the 'Transferee-Company' will be a pre-eminent leader in delivering therapy and procedural innovations to address the major disease impacting patients and healthcare costs around the world. With the combined synergies of the Petitioner Company and the Transferee-Company', the 'Transferee-Company' will be able to provide a broader array of complementary therapies and solutions that can be packaged to drive more value and efficiency in healthcare systems. The 'Scheme' shall enable pooling, and more efficient utilization of resources and ensure greater economies of scale, leading to reduction in overheads and other expenses and improvement in various operating parameters. Additionally, the reduction of the number of entities within the group and managerial over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less favorable than those on which they are engaged by the Transferor Company. v) Since the 'Transferee-Company' holds entire, Issued, subscribed and paid up capital of the Transferor Company, and the Transferor Company is the wholly owned subsidiary of the 'Transferee-Company', the share capital held by the 'Transferee-Company' in the Transferor Company (including the beneficial ownership of 1(one) share held through a nominee shareholder) shall stand cancelled upon the 'Scheme' becoming effective under its Clause 11. The cancellation and extinguishment of the equity share capital of the Transferor Company as per said Clause 11 amounts to capital reduction, and shall be effected as a part of this 'Scheme' itself and not under a separate procedure in terms of Sections 100 to 104 of the Act or such other provision as may be applicable from time to time, and the order of this Tribunal sanctioning the 'Scheme' shall be deemed to be an order under Section 102 of the Act or such other provision as may be applicable from time to time confirming such reduction. 15. It has also been highlighted that with coming into force of the 'Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dator. The notice was also directed to be published in the 'Indian Express' English and 'Jansatta' Hindi both Delhi/NCR Editions and the official gazette of Government of Haryana. It was also directed that the notice to be uploaded on the website of Official Liquidator. 20. The reports of the Official Liquidator and that of Mr. Mahesh Kumar, Regional Director Incharge, Northern Region, Ministry of Corporate Affairs by way of affidavit have been filed in response to the notice served upon the concerned statutory authorities. 21. I have heard learned counsel for the petitioner, the Official Liquidator for himself and also representing the Regional Director and perused the record quite carefully. The petitioner has also attached the certificate Annexure P-11 from the Chartered Accountant verifying that the petitioner/Transferor-Company is wholly owned subsidiary of the Transferee-Company'. Annexure P-12 is the copy of certificate from the Chartered Accountant affirming the positive net worth and aggregate of assets of both the companies to be more than sufficient to meet their combined aggregate liabilities. 22. Affidavit dated 25.01.2017 of the Authorized Repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in the letter dated 17.05.2017 Annexure A-2 of A.D. Bank, it is, however, undertaken in the affidavit that the Petitioner Company shall comply with the applicable RBI regulations for transfer of such loan and any incidental matter thereto pursuant to the sanction of the 'Scheme' This undertaking is taken on record The Petitioner Company shall remain bound by it. 24. In terms of proviso to sub-section (7) of Section 230 and proviso to sub-section (3) of Section 232 of the Companies Act, 2013 the petitioner-company has also filed certificate from its auditor Annexure A-1 with the affidavit dated 18.05.2017 to the effect that the accounting treatment as specified in Clause 9.1 to 9.3 of the 'Scheme' is in compliance with the applicable accounting standards specified by the Central Government pursuant to Section 133 of the Act read with General Circular No. 15/2013, dated 13.09.2013 issued by the Ministry of Corporate Affairs. 25. It is stated in the affidavit of Regional Director, Ministry of Corporate Affairs that notice of the petition was sent to the Income Tax Department for specific comments and the petitioner-company served copy of the petition on the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... external commercial borrowing. The loan amount is subsisting. It is undertaken that on the 'Scheme' of merger becoming effective the 'Transferee-Company' would be having sufficient funds to honour this liability. With regard to the delay in payment of statutory dues it is stated that some of these have not been deposited on account of the dispute pending with regard to such amounts it is reaffirmed that there would be sufficient funds to honour this liability post merger. It is further stated that the 'Transferee-Company' shah comply with all the guidelines, requirements and directions issued by the Reserve Bank of India upon receiving an intimation about the approval of the 'Scheme' under FEMA. It is directed that the aforesaid undertaking shall be binding and form part of this order. 30. Now coming to the prayer made in CA No. 619/2016 for granting exemption to the 'Transferee-Company' for filing the Company Petition for approval of the 'Scheme before the jurisdictional Tribunal in Maharashtra. The notice of this application was issued to the Official Liquidator for 07.02.2017 by the Hon'ble High Court when the matter was listed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of any shares of the Transferee-Company, therefore the capital structure of the Transferee-Company remains unaltered. iv) That the entire shareholding of the Petitioner Subsidiary Company would stand cancelled. v) That Scheme does not involve any compromise or arrangement with the Shareholders or Creditors of the Transferee-Company. vi) The Scheme provides for the transfer of all assets and liabilities of the Petitioner Subsidiary Company to the Transferee Holding Company. vii) That the net worth of the Transferee Company is positive; that it has an excess of assets over liabilities. viii) That the net worth of the Petitioner Subsidiary Company is positive; that it has an excess of assets over liabilities. 32. It was observed in that case that upon amalgamation of the Petitioner Subsidiary Company, with the Holding Transferee Company, no reorganization of the share capital of the Transferee Company is involved. The Scheme if sanctioned, would not be detrimental to the interests of the members or creditors of the Transferee Company or to the public interest at large. Further, the Regional Director has not made any observations in his affidavit to this effect. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
