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Judgment
Ch. Mohd. Sharief Tariq, J
Under consideration is the CAA- 14/ND/2019 filed under Sections 230 to 232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. The present petition has been filed by the Petitioner Companies named above for the purpose of the approval of the Scheme of Amalgamation, as contemplated between the Companies and its Shareholders by way of Amalgamation of Transferor Companies with the Transferee Company. As per the Scheme of Amalgamation (in short, 'Scheme'), Abhilasa Dealmark Private Limited" (hereinafter referred to as 'Transferor Company No. 1'), Inway Vincom Private Limited" (hereinafter referred to as Transferor Company No. 2), "Magnetic Dealcom Private Limited" (hereinafter referred to as Transferor Company No. 3"), "Sarthak Conbuild Private Limited" (hereinafter referred to as Transferor Company No. 4) is proposed to be merged with "Kyanite Buildcon Private Limited" (hereinafter referred to as 'Transferee Company) as a going concern.
The Transferor Company No. 1 viz., Abhilasa Dealmark Private Limited is a private Company limited by shares, was incorporated on 10.02.2011, under the Companies Act, 1956. The Transferor Company No. 1 was registered with the Registrar of Companies, Kolkata as a private limited Company and vide Order dated 01.09.2017 passed by the Regional Director, Eastern Region at Kolkata, the Registered Office has been shifted from State of West Bengal to NCT of Delhi, and its Registered Office is at L-2F, Sheikh Sarai, New Delhi-110017. Its Corporate Identification Number (hereinafter referred as CIN) is U51909DL2011PTC324905.
The Transferor Company No. 2 viz., Inway Vincom Private Limited is a private Company limited by shares, was incorporated on 14.03.2011, under the Companies Act, 1956. The Transferor Company No. 2 vide Order dated 01.09.2017, passed by the Regional Director, Eastern Region at Kolkata the Registered Office has been shifted from State of West Bengal to NCT of Delhi and its Registered Office is at L-2F, Sheikh Sarai, New Delhi-110017. Its CIN is U52190DL2011PTC324909.
The Transferor Company No. 3 viz., Magnetic Dealcom Private Limited is a private Company limited by shares, was incorporated on 14.03.2011, under the Companies Act, 1956. The Transferor Company No. 3 was registered with the Registrar of Companies, Kolkata as a private limited Company and vide Order dated 06.10.2017, passed by the Regional Director, Eastern Region at Kolkata, the Registered Office has been shifted from State of West Bengal to NCT of Delhi, and is having its Registered Office at L-2F, Sheikh Sarai, New Delhi-110017, its CIN is U5241490DL2011PTC326570.
The Transferor Company No. 4 viz., Sarthak Conbuild Private Limited is a private Company limited by shares, was incorporated on 12.02.2011, under the Companies Act, 1956. The Transferor Company No. 4 is having its Registered Office Shop No. -17, CSC, Pocket A, Sukdev Vihar, New Delhi-110025 and its CIN is U45400DL2011PTC213961.
The Transferee Company viz., Kyanite Buildcon Private Limited was incorporated on 09.05.2011 under the Companies Act, 1956. The Transferee Company is having its Registered Office at 127, Pocket- B, Sukhdev Vihar, New Delhi-110025 and its CIN is U70109DL2011PTC218817.
The Transferor Company No. 1 is engaged in the business as buyers, sellers, traders etc., The details of the main objects are set out in the Memorandum of Association (in short 'MOA') of the Transferor Company No. 1.
The Transferor Company No. 2 is engaged in the business of traders, buyers, sellers, importers, exporters, suppliers, commission agents, brokers, merchants, sub- agents etc. The details of the main objects are set out in the MOA of the Transferor Company No. 2.
The Transferor Company No. 3 is engaged in the business of traders, buyers, sellers, importers, exporters, suppliers, commission agents, brokers, merchants, sub- agents etc. The details of the main objects are set out in the MOA of the Transferor Company No. 3.
The Transferor Company No. 4 is engaged in the business of builders, colonizers, Land Lords or Proprietors, occupiers, Lessers, Managers, Contractors with the kind of all kinds of buildings etc. The details of the main objects are set out in the MOA of the Transferor Company No. 4.
The Transferee Company is engaged in the business of rendering services in India or abroad in relation to buying, selling, renting, designing real estate, and to provide advice, consultancy etc. The details of the main objects are set out in the MOA of the Transferee Company.
The Counsel appearing for the Petitioner Companies has submitted that the Transferor Companies and the Transferee Company belong to the same group and there are synergies in the business operations of the Transferor Companies and the Transferee Company. The rationale and circumstances that have necessitated the present Scheme is that, the amalgamation will facilitate adequate resource mobilization to sustain growth, will enable better leverage of facilities, infrastructure and human resources and better administration also it will help in augmenting and strengthening core business of the Transferee Company and will result in enhancing the shareholder's value. Further, it will result in reduction of overhead, administrative, managerial, and other expenditure in order to bring about operational rationalization, organizational efficiency, and optimum utilization of various resources.
The Boards of the Transferor Company Nos. 1 and 3 have approved the present Scheme vide their Resolutions on 04.12.2017. The Boards of the Transferor Company Nos. 2 and 4 have approved the present Scheme vide their Resolution on 05.12.2017.
It is seen from the records that vide Order dated 19.01.2018; the meetings of the Equity Shareholders, Secured, and Unsecured Creditors were dispensed with on the basis of their affidavits. In short, the Petitioner Companies have complied with all directions given in the Order.
The Regional Director, Northern Region (in short, 'RD'), Ministry of Corporate Affairs has filed report and raised certain objections. However, on examination of the rejoinder and the undertaking given. The RD has record satisfaction.
The Income Tax department (in short 'ITD'), has filed its report and has submitted that there are no pending proceedings against the Petitioner Companies and there are no cash deposits during post demonetization period. Further, it is submitted by the ITD that there is no objection with regard to the Scheme.
The Official Liquidator (in short 'OL') in his Report dated 14.06.2018, submitted that on the basis of the information provided by the Petitioner Companies, the affairs of the 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, 2013 / 1956.
The clause 7 of Part 2 of the Scheme provides that all the staff, workmen and other employees in the service of the Transferor Companies shall immediately before the transfer of the Undertaking as defined in the Scheme become the staff, workmen and other employees of the Transferee Company on the basis that their services shall continue and shall not be regarded as in any way interrupted by reason of transfer of the Undertaking. Further, the terms and conditions of service and benefits applicable shall not be in any way less favorable to them than those applicable to them immediately before the transfer of Undertaking.
The Clause 10.7 and 10.8 of Part 2 of the Scheme provides for share exchange ratio which is determined by the Board of Directors of the Transferor Companies and the Transferee Company based on the Valuation Report dated 11.10.2017, provided by Chartered Accountant firm viz., M/s. B. Lugani & Associates on the basis of net assets of the Transferor Companies and Transferee Company. It was decided that every member of the Transferor Companies holding fully paid-up equity shares of the Transferor Companies shall receive as follows:
Sl. No.
For every 1 Equity Share of Transferor Companies
Equity Share of Transferee Company
1
Abhilasa Dealmark Private Limited
101.8
2
Inway Vincom Private Limited
62.21
3
Magnetic Dealcom Private Limited
103.61
4
Sarthak Conbuild Private Limited
51.98
Clause 11 of Part 2 of the Scheme provides that the Accounting Treatment shall be done as per the "Pooling of Interests Method" as prescribed in the Accounting Standards -14, contained in the Companies (Indian Accounting) Rules 2015 notified under Section 133 of the Companies Act, 2013.
On Becoming the Scheme effective, if there arises any need of amending MOA/Articles of association the same may be done and the required form may be files with the Registrar of Companies for information.
There is no additional requirement for any modification and the Scheme of Amalgamation appears to be fair and reasonable and is not contrary to public policy and not violative of any provisions of law. All the statutory compliances have been made under Sections 230 to 232 of the Companies Act, 2013.
Taking into consideration the above facts, the Company Petition is allowed and the Scheme of Amalgamation annexed with the Petition is hereby Sanctioned. The Scheme approved shall be binding on the Shareholders, Creditors and Employees of the Companies involved in this Scheme. The Appointed date of the Scheme is 01.04.2017
While approving the Scheme as above, it is further clarified that this Order will not be construed as an Order granting exemption from payment of stamp duty or taxes or any other charges, if payable, as per the relevant provisions of law or from any applicable permissions that may have to be obtained or, even compliances that may have to be made as per the mandate of law.
The Petitioner Companies to the said Scheme or other person (s) interested shall be at liberty to apply to this Bench for any direction that may be necessary with regard to the working of the said Scheme.
A certified copy of this Order shall be filed with the concerned Registrar of Companies ('Roc') within 30 days of the receipt of this Order.
The Transferor Companies shall be dissolved without winding up from the date of the filing of the certified copy of this Order with the concerned RoC.
Upon receiving the certified copy of this Order, the RoC concerned is directed to place all documents relating to the Transferor Companies with that of the Transferee Company and the files relating to the Transferor Companies shall be consolidated with the files and records of the Transferee Companies.
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.
Accordingly, the Scheme stands sanctioned and CAA-14/ND/2019 stand/disposed of.