Aadvik Infralogistics Private Limited And Ors. vs Sanmarg Infratech Private Limited

Sumita Purkayastha, Member (T)

The present petition has been filed by the companies above named for the purpose of the approval of the scheme of amalgamation, as contemplated between the companies and its shareholders and creditors by way of amalgamation of the Transferor/ Petitioner Company No. 1 to 11 with the Transferee/ Petitioner Company namely Aadvik Infralogistics Private Limited (Petitioner /Transferor Company No.1), Alco Emulsion (India) Private Limited (Petitioner /Transferor Company No. 2), Apis Consultancy Services Private Limited (Petitioner /Transferor Company No. 3), Aaron Conbuild Private Limited (Petitioner /Transferor Company No. 4) Banana Leaf Residency Services Private Limited (Petitioner /Transferor Company No. 5), Leroy Consultancy Services Private Limited (Petitioner /Transferor Company No. 6), Poorvi Infotech Private Limited (Petitioner /Transferor Company No. 7), Rachna Maintanance Services Private Limited (Petitioner /Transferor Company No. 8), Reyhan Hospitality Services Private Limited (Petitioner /Transferor Company No. 9), Rivera Hospitality Private Limited (Petitioner /Transferor Company No. 10), Siddhi Conbuild Private Limited (Petitioner /Transferor Company No. 11) (for brevity "Transferor Companies") and Sanmarg Infratech Private Limited (for brevity Transferee Company") under Section 230 to 232 and other applicable provisions of the Companies Act, 2013 (for brevity 'the Act') read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity 'the Rules') in relation to the Scheme of Amalgamation (hereinafter referred to as the 'SCHEME') proposed between the petitioners and the said Scheme is also annexed as (Annexure P-49) to the petition.

From the records, it is seen that the First Motion Application seeking directions for dispensing with the meetings of the Shareholders, Secured Creditors and Unsecured Creditors was filed before this Tribunal vide CA (CAA) No. 75(PB)/2017 and directions were issued by this Tribunal, wherein the meetings of the Shareholders, Secured Creditors and Unsecured Creditors of the Transferee and Transferor Company was directed to be dispensed with vide order dated 20.05.2019.

Under the circumstances, the Petitioner Companies filed their joint petition for sanction of the Scheme of Amalgamation before this Tribunal, subsequent to the order of dispensation of the meeting in relation to both the Transferor Company and Transferee Company. On 04.06.2019 this Tribunal ordered Notice in the Second Motion petition moved by the Petitioner Companies in connection with the scheme of amalgamation, to the (a) Central Government through Regional Director (Northern Region), Ministry of Corporate Affairs; (b) Registrar of Companies, NCT of Delhi & Haryana, Ministry of Corporate Affairs; (c) the Income Tax Department, along with full details of assessing officer and PAN Card numbers of the companies; (d) Official Liquidator and to other sectoral regulators and to such other Objector(s), if any.

It is seen from the records that the petitioners, have filed an affidavit on 11.07.2019 in relation to the compliance of the order passed by the Tribunal as noted above and a perusal of the same discloses that the petitioners have carried out the paper publication as directed by the Tribunal in one issue of the English Daily 'Business Standard' and the Hindi Daily 'Business Standard' (Delhi Edition) on 02.07.2019.

Further, in compliance with the directions issued by this Tribunal, a notice of the petition has also been served on the following authorities/ sectoral regulators:

i. The Central Government through the Regional Director (Northern Region), Ministry of Corporate Affairs;

ii. Office of the Registrar of Companies, Ministry of Corporate Affairs, NCT of Delhi & Haryana;

iii. Income Tax Department, New Delhi in the respective circle/wards, through DCIT (High Court Cell), Lawyer's Chamber, Block No.1, Room No. 428 & 429, Delhi High Court, New Delhi,

iv. Office of the Official Liquidator, Ministry of Corporate Affairs;

A copy of the covering letter duly acknowledged by the Office of the Deputy Commissioner of Income Tax, the Official Liquidator, the Regional Director and Registrar of Companies and a copy of Publication in the newspaper is attached with the affidavit.

That the Regional Director, Northern Region, MCA to whom notice was issued has filed an Affidavit on 07.08.2019 before this Tribunal, New Delhi and upon perusal of the same it is observed that the Regional Director has stated that "the Registrar of Companies vide Para 33 in its report has made an observation that the Transferee Company is required to comply with the provisions of Section 232(3)(i) of the Companies Act, 2013 in respect of fee payable on its revised authorised share capital." Further is was slated that the Transferee in its counter affidavit filed on 07.01.2020 stated that the proposed Scheme is not in contravention of Section 232 (3)(i) of the Companies Act 2013. The section clearly provides that where the transferor company is dissolved, the fee, if any, paid by the transferor company on its authorized capital shall be set-off against any fees payable by the transferee company on its authorized capital subsequent to the amalgamation, hence it, is certain that the Transferee Company is not required to pay any Stamp Duty and any fee on the increased Authorized Capital consequent to Merger of Transferor Company's Authorized Capital with the Transferee Company's existing Authorized Capital. It further stated that if any fee is need to be paid to the concerned Authorities for the increased Authorized Capital, then that fee will be paid by the Transferee Company". The Regional Director found the reply of the Companies to be satisfactory subject. Other than the above mentioned observation the Regional Director does not have any adverse observation/ remark against the Scheme of Amalgamation between the petitioner companies.

That the report of the Official Liquidator filed on 03.09.2019 has been placed on record which states that the Official Liquidator has not received any complaint against the proposed scheme of Amalgamation from any person/party interested in the scheme. The Official Liquidator is of the view that the affairs of the aforesaid Companies do not appear to have been conducted in a manner prejudicial to the interest of its members or to public interest as per the provisions of the Companies Act, 1956 or 2013, whichever is applicable. Hence, no objection has been raised in the report submitted by the Official Liquidator.

That the report of the Income Tax Department filed on 25.1.0.2019 has been placed on record which states that no scrutiny assessment or penalty proceedings has been initiated / completed in respect of both the Transferor Company No. 5 M/s. Banana Leaf Residency Services Put. Ltd. Further it was stated that no outstanding tax has to be paid, Hence, no objection has been raised in the report submitted by the Income Tax Department.

In view of the foregoing, upon considering the approval accorded by the members and creditors of the Petitioner Companies to the proposed Scheme and the affidavits filed by the Regional Director, Northern region, Ministry of Corporate Affairs, Official liquidator and submissions made by the Standing Counsel for the Income Tax Department, whereby no objections have been raised to the proposed Scheme or if raised has been met by filing undertaking, there appears no impediment to grant sanction to the Scheme. However, the Companies shall remain bound by the undertaking filed by either of them. Consequently, sanction is hereby granted under Sections 230-232 of the Companies Act, 2013. The Petitioners shall however remain bound to comply with the statutory requirements in accordance with law.

In view of absence of any other objections having been placed on record before this Tribunal and since all the requisite statutory compliances having been fulfilled, this Tribunal sanctions the scheme of amalgamation annexed as (Annexure P-49) with the Company Petition as well as the prayer made therein.

Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this court will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners.

While approving the Scheme as above, it is clarified that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other charges, if any payment in accordance with law or in respect to any permission/compliance with any other requirement which may be specifically required under any law.

THIS TRIBUNAL DO FURTHER ORDER:

That in terms of the Scheme:

A. All the property, rights and powers of the Transferor Companies be transferred without further act or deed to the Transferee company and accordingly the same shall pursuant to section 232 of the Act, be transferred to and vest in the Transferee company for all the estate and interest of the Transferor Company therein but subject nevertheless to all charges now affecting the same;

B. All the liabilities and duties of the Transferor Companies be transferred without further act or deed to the Transferee company and accordingly the same shall pursuant to section 232 of the Act, be transferred to and become the liabilities and duties of the Transferee company;

C. All proceedings now pending by or against the Transferor Companies be continued by or against the Transferee company;

D. All the employees of the Transferor Companies in service on date immediately preceding the date on which the scheme finally take effect shall become the employees of the Transferee company without any break or interruption in their service;

E. The Petitioner Companies are directed to file a copy of this Order along with a copy of the Scheme of Arrangement with the concerned Registrar of Companies, electronically, along with E-Form INC-28, in addition to the physical copy within 30 days from the date of receipt of copy of the Order from the Registry;

F. The Order of sanction to this Scheme shall be prepared by the Registry as per the relevant format provided under the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 notified on 14th December, 2016.

G. Any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary.

H. Accordingly, the Scheme stands sanctioned and CAA -84(PB)/2019 is allowed.