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Judgment
Bidisha Banerjee, Member (Judicial)
The instant application has been filed in the first stage of the proceedings under Section 230 (1) read with section 232(1) of the Companies Act, 2013 (“Act”) for order and directions with regard to meeting of shareholders and creditors in connection with the Scheme of Arrangement between Evergoing Logistics Private Limited (ELPL/ Demerged Company / Applicant 1) and AKP Reality Private Limited (AKP/ Resulting Company / Applicant 2) and their respective shareholders and creditors. The Scheme provides for the Demerger from the Appointed Date, i.e. 01 February 2023 in the manner and on the terms and conditions stated in the said Scheme of Arrangement annexed with the Application as “Annexure-23”.
It is submitted by Ld. Counsel appearing for the Applicants that the Board of Directors of the Applicant Companies has approved the said Scheme of Arrangement on 20 March 2023. The same is annexed in the application and marked as Annexure “A-26” on Page No. 252- 255.
It is submitted by Ld. Counsel appearing for the Applicants that the shares of the Applicant Companies are not listed on the any of stock exchanges. Further, the Applicant Companies have the following classes of Shareholders, Creditors and Debenture-holders: -
a) Equity Shareholders as on 01.03.2023: -
S.No.
Company
Equity Shareholders as on 01.03.2023
Consent from Shareholders
Percentage
1.
ELPL (Applicant
Company1)
5
A-5 (Vol. 1)
Pg. No. (76-90)
100%
2.
AKP (Applicant Company2)
2
A-16 (Vol. 2)
Pg. No. (144-
149)
100%
b) Secured Creditors as on 01.03.2023:-
S.No.
Company
Secured Creditors as on 01.03.2023
Consent from Secured Creditors
Percentage
1.
ELPL (Applicant
Company1)
Nil
-NA-
-NA-
2.
AKP (Applicant
Company2)
Nil
-NA-
-NA-
c) Unsecured Creditors as on 01.03.2023:-.
S.No.
Company
Unsecured Creditors as on 01.03.2023
Consent from Unsecured Creditors
Percentage
1.
ELPL (Applicant Company1)
4
A-8 (Vol. 1)
Pg. No. (96-
107)
100%
2.
AKP (Applicant Company2)
1
A-19 (Vol. 2)
Pg. No. (155-
157)
100%
d) Debenture-holders as on 01.03.2023:-
S.No.
Company
Debenture- holders as on 01.03.2023
Consent from Debenture holders
Percentage
1.
ELPL (Applicant
Company1)
Nil
-NA-
-NA-
2.
AKP (Applicant
Company2)
Nil
-NA-
-NA-
It is further submitted that all the Equity shareholders of the Demerged and Resulting Company, holding 100% of the shares of the respective Companies, have already given their consent to the Scheme by way of affidavits which are annexed to the application. The same are annexed in the application and marked as Annexure “A-5” on Page No. 76-90 and Annexure “A-16” on Page No. 144- 149 respectively.
It is further submitted that Unsecured Creditors of the Demerged and Resulting Company representing 100% in value of the said Unsecured Creditors have already given their consent to the Scheme by way of affidavits which are annexed to the application. The same are annexed in the application and marked as Annexure “A-8” on Page No. 96-107 and Annexure “A-19” on Page No. 155- 157 respectively.
The applicant has duly complied with Section 133 of the Companies Act, 1956 regarding compliance of accounting standards from the Statutory Auditor of the company. The proposed accounting treatment in course of the proposed amalgamation is in compliance with the applicable Accounting Standards prescribed under the said Act. Certificate of the Chartered Accountant has been duly disclosed and forms a part of the application. The same is annexed as Annexure “A-28” to the said application, annexed on Page No 260.
Directions are sought accordingly for dispensing with meetings of the shareholders of the Demerged and Resulting Company who have already given their consent to the Scheme.
Directions are also sought accordingly for dispensing with meetings of the Secured Creditors of the ELPL / Demerged Company/ Applicant Company No. 1 and AKP / Resulting Company/ Applicant Company No. 2, in view of NIL secured Creditors verified by auditor’s certificate.
Directions are also sought accordingly for dispensing with meetings of the Unsecured Creditors of the ELPL / Demerged Company/ Applicant Company No. 1 and AKP / Resulting Company/ Applicant Company No. 2, who have already given their consent to the Scheme.
Directions are also sought accordingly for dispensing with meetings of the Debenture holders of the ELPL / Demerged Company/ Applicant Company No. 1 and AKP / Resulting Company/ Applicant Company No. 2, in view of NIL Debenture holders as verified by auditor’s certificate.
Upon perusing the records and documents in the instant proceedings and considering the submissions made on behalf of the Applicants, we allow the instant application and make the following orders:-
a) Meetings dispensed: Meetings of the Equity Shareholders and Unsecured Creditors of Applicant Companies are dispensed with under Section 230(1) read with Section 232(1) of the Act. Meeting of the Secured Creditors and Debenture holders of Applicant Companies are not required to be held in view of NIL Secured Creditors and NIL Debenture holders.
b) Meetings to be held | Date and Times: No meeting is required to be convened.
c) To serve a notice under section 230(5) of the Companies Act, 2013 along with all accompanying documents, including a copy of the aforesaid Scheme and statement under the provisions of the Companies Act, 2013 shall also be served on the Regional Director, Eastern Region, Ministry of Corporate Affairs, Kolkata; Registrar of Companies with whom the Applicant(s) are registered; and Income Tax Department having jurisdiction over the Applicant(s), by sending the same by hand delivery through special messenger or registered post or by post and by email within two weeks from the date of receiving this order. The notice shall specify that representation, if any, should be filed before this Tribunal within 30 days from the date of receipt of the notice with a copy of such representation being simultaneously sent to the Authorised Representative of the said Applicant Companies. If no such representation is received by the Tribunal within such period, it shall be presumed that such authorities have no representation to make on the said Scheme of Arrangement. Such notice shall be sent pursuant to Section 230(5) of the Companies Act, 2013 read with Rule 8(2) of the Companies (Compromises, Arrangements and Amalgamations) Rules 2016 in Form No. CAA3 of the said Rules with necessary variations, incorporating the directions herein.
d) The Applicant Companies shall file an affidavit of service, to report to this Tribunal that the directions regarding the issuance of notices have been duly complied with.
The application being Company Application (CAA) No.105/KB/2023 is disposed of accordingly.
Urgent Certified copy of this order, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.