Ariadne Builders & Developers Privatelimited Vs

Harnam Singh Thakur, Member (Judicial)

This is a joint second motion company petition filed by the Petitioner Companies, namely, Ariadne Builders & Developers Private Limited (Transferor Company No. 1/Petitioner Company No.1) and Dae Real Estates Private Limited (Transferor Company No. 2/Petitioner Company No.2) and Liber Buildwell Private Limited (Transferor Company No. 3/Petitioner Company  No.3)  and  Mariabella  Builders  & Developers Private Limited (Transferor Company No. 4/Petitioner Company No.4) and Phoena Builders & Developers Private Limited (Transferor Company No. 5/Petitioner Company No.5) and Vibodh Developers Private Limited (Transferor Company No. 6/Petitioner Company No.6) with Raeks Estates Developers Private Limited (Transferee Company/Petitioner Company No. 7) in terms of Sections 230-232 of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.

The Petitioner Companies have prayed for sanctioning of the Scheme of Amalgamation between the respective companies. The said Scheme is attached as Annexure- P-1 of the petition.

The first motion application was filed before this Tribunal by Company Application No. CA (CAA) No. 56/Chd/Hry/2021 which was disposed of on 15.03.2022 wherein the meetings of Equity Shareholders, Secured and Unsecured Creditors of all the Applicant Companies, and Debenture Holders of Applicant Company No. 7 were dispensed with for the reasons recorded in the aforesaid order.

The main objectives, date of incorporation, authorized and paid-up share capital and the rationale of the Scheme have been discussed in detail in the order dated 15.03.2022.

In the second motion proceedings, certain directions were issued by this Tribunal by order dated 06.05.2022 and the same were complied by filing affidavit vide Diary No. 00470/01 dated 14.07.2022. The notice of hearing was published in “The Tribune” (English) and “Dainik Bhaskar” (Hindi) both Delhi NCR Edition on 28.06.2022 and the original copies of the newspapers are attached as Annexure-A1 of the aforesaid affidavit. It is also stated in the affidavit furnished by petitioner companies that copies of notices were served upon the (1) Central Government through the Regional Director (Northern Region), Ministry of Corporate Affairs; (2) Registrar of Companies, NCT of Delhi and Haryana; (3) Official Liquidator (attached to Punjab & Haryana High Court) and (4) the jurisdictional Income Tax Department, by way of speed post. Original postal receipts along with tracking reports are attached as Annexure A-2 of the aforesaid affidavit.

It is deposed by the authorized signatories of petitioner companies that neither the petitioner companies nor their counsels have received any objections relating to the present Scheme from any stakeholder or general public at large till date with respect to the present Scheme of Amalgamation. The aforesaid affidavit has been filed vide Diary No. 00470/04 dated 24.08.2022.

In response to the abovementioned notices, the statutory authorities have furnished their responses/no objection.

7.1 Registrar of Companies (RoC)/Regional Director (RD)

7.1.1 The Regional Director (RD) has filed its report along with the report of the Registrar of Companies by Diary No. 00470/2 dated 22.07.2022.

7.1.2 Para 10 of the Regional Director’s report sets out certain observations as made in the report of the Registrar of Companies, Delhi (Annexure-B of RD report) which interalia states that despite having no revenue from operations in the Transferor Company No. 3, 5, 6 and Transferee Company, they appear to be dormant u/s 455 of the Companies Act, 2013. The observations were duly communicated to petitioner companies by letter dated 12.07.2022 (Annexure-C of RD report). The petitioner companies have replied to the observations raised by the Registrar of Companies, Delhi by letter dated 13.07.2022 which are reproduced in Para 11 of the RD report. The Regional Director in Para 12 of its report has stated that the observations stand clarified after receiving the aforementioned reply of the Petitioner Companies.

7.1.3 Thus, the Regional Director’s Report has made no adverse observations to the proposed Scheme of Amalgamation.

7.2 Income Tax Department

7.2.1 The Income Tax Department has filed its reports by Diary No. 00470/6 dated 03.01.2023 stating that there is no outstanding demand and no income tax proceedings are pending in respect of the Transferor Companies. The Income Tax Departments have given their no objection to the proposed Scheme of Amalgamation.

7.2.2 Thus, the Income Tax Department’s Report has made no adverse observations to the proposed Scheme of Amalgamation.

7.3 Official Liquidator

7.3.1 The Official Liquidator filed its report by Diary No. 00470/3 dated 20.07.2022. The Official Liquidator in its report has reproduced the information on the incorporation of the Petitioner Companies, their capital structure, financial highlights, shareholding, etc. The Official Liquidator has also reproduced the extracts of Reports of the Statutory Auditors of the Petitioner Companies on the Financial Statements. It is also stated that pursuant to the Scheme of Amalgamation becoming effective, the Transferor Companies shall stand dissolved without being wound up or liquidated.

7.3.2 Thus, the Official Liquidator has made no adverse observations with regard to the proposed composite Scheme of Arrangement.

The certificate of the Statutory Auditors with respect to the Scheme between Petitioner Companies to the effect that the accounting treatment proposed in the Scheme is in compliance with applicable Indian Accounting Standards (Ind AS) as specified in Section 133 of the Act, read with rules thereunder and other Generally Accepted Accounting Principles is attached as Annexures- P-31 of the Petition.

We have heard the learned counsel for petitioner companies and learned counsel for the Income Tax Department and have perused the records carefully.

In the context of the above discussion, the Scheme contemplated between the petitioner companies, appears to be prima facie in compliance with all the requirements stipulated under the relevant Sections of the Companies Act, 2013. As the observations from the Statutory Authorities have been duly addressed by the Petitioner Companies and since all the requisite statutory compliances have been fulfilled, this Tribunal sanctions the Scheme of Amalgamation attached as Annexure - P-1 with the petition.

Notwithstanding the submission that no investigation is pending against the petitioner companies, if there is any deficiency found or, the violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit, in accordance with the 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 is due or required 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:

i. That 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 Sections 230 & 232 of the Companies Act, 2013, be transferred to and vested in the Transferee Company for all the estate and interest of the Transferor Companies but subject nevertheless to all charges now affecting the same;

ii. That  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 Sections 230 to 232 of the Companies Act, 2013, be transferred to and become the liabilities and duties of the Transferee Company;

iii. All benefits, entitlements, incentives and concessions under incentive schemes and policies that the Transferor Company are entitled to include under Customs, Excise, Service Tax, VAT, Sales Tax, GST and Entry Tax and Income Tax laws, subsidy receivables from Government, grant from any governmental authorities, direct tax benefit/exemptions/deductions, shall, to the extent statutorily available and along with associated obligations, stand transferred to and be available to the Transferee Company as if the Transferee Company was originally entitled to all such benefits, entitlements, incentives and concessions;

iv. All contracts of the Transferor Company which are subsisting or having effect immediately before the Effective Date, shall stand transferred to and vested in the Transferee Company and be in full force and effect in favour of the Transferee Company and may be enforced by or against it as fully and effectually as if, instead of the Transferor Company, the Transferee Company had been a party or beneficiary or obliged thereto;

v. All the employees of the Transferor Company shall be deemed to have become the employees and the staff of the Transferee Company with effect from the Appointed Date, and shall stand transferred to the Transferee Company without any interruption of service and on the terms and conditions no less favourable than those on which they are engaged by the Transferor Company, as on the Effective Date, including in relation to the level of remuneration and contractual and statutory benefits, incentive plans, terminal benefits, gratuity plans, provident plans and any other retirement benefits;

vi. That the Appointed Date for the scheme shall be 01.04.2021 as specified in the Scheme;

vii. That the proceedings, if any, now pending by or against the Transferor Companies be continued by or against the Transferee Company;

viii. That the employees of the Transferor Companies shall be transferred to the Transferee Company in terms of the 'Scheme'.

ix. That the Transferee Company shall, without further application, allot shares to the existing members of the Transferor Companies to which they are entitled under the said Scheme;

x. That the fee, if any, paid by the Transferor Companies on their authorized capital shall be set off against any fees payable by the Transferee Company on its authorized capital subsequent to the sanction of the ‘Scheme’; and

xi. That the Transferee Company shall file the revised memorandum and articles of association with the concerned Registrar of Companies and further make the requisite payments of the differential fee (if any) for the enhancement of authorized capital of the Transferee Company; after setting off the fees paid by the Transferor Companies; and

xii. That the Petitioner Companies shall, within 30 days after the date of receipt of this order, cause a certified copy of this order to be delivered to the concerned Registrar of Companies for registration and on such certified copy being so delivered, the Transferor Companies shall be dissolved without undergoing the process of winding up. The concerned Registrar of Companies shall place all documents relating to the Transferor Companies registered with him on the file relating to the said Transferee Company, and the files relating to the Companies and Transferee Company shall be consolidated accordingly, as the case may be.

As per the aforesaid directions, formal orders in Form No. CAA-7 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 be issued after the filing of the Schedule of Properties within three weeks from the date of receiving a certified copy of this order by the petitioners.

All the concerned Regulatory Authorities are to act on a copy of this order annexed with the Scheme duly authenticated by the Registrar of this Bench.

The Company Petition CP (CAA) No. 18/Chd/Hry/2022 is allowed and disposed of accordingly.