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Judgment
Rohit Kapoor, Member (Judicial)
This Court is congregated through hybrid mode.
The instant application has been filed in the first stage of the proceedings under Sub-section 1 of the Section 230 read with Sub-section 1 of the Section 232 of the Companies Act, 2013 (hereinafter referred as “Act”) for orders and directions with regard to meetings of shareholders and creditors in connection with the Scheme of Amalgamation of BHAGWATI CAPITAL MARKETS PRIVATE LIMITED being the Applicant No. 1 above named (“Transferor Company No 1” or “Applicant No.1”) and BHAGWATI EXIM PRIVATE LIMITED being the Applicant No. 2 above named (“Transferor Company No 2” or “Applicant No.2”) with BHAGWATI TRANSLINK PRIVATE LIMITED being the Applicant No.3 above named (“Transferee Company” or “Applicant No. 3”) whereby and where under the Transferor Companies are proposed to be amalgamated with the Transferee Company from the Appointed Date, 01st April,2022 in the manner and on the terms and conditions stated in the said Scheme of Amalgamation (hereinafter referred as “Scheme”). A copy of the said Scheme is annexed to the Company Application marked –ANNEXURE – D in VOL II at Page No 236 to 263.
It is submitted by Ld. counsel appearing for the Applicants that the Appointed Date as per the Scheme is 01st April,2022.
It is submitted by Ld. counsel appearing for the Applicants that the Board of Directors of the Applicant Companies have at their respective meeting held on 12TH September,2022 have passed resolution adopting the proposed Scheme of Amalgamation. A copy of the Board Resolution is annexed to the Company Application marked – ANNEXURE – E in VOL II at Page No 264 to 266.
It is submitted by Ld. counsel appearing for the Applicants that the Valuation Report dated 10-09-2022 recommending the Swap Ratio has been prepared by CA MUKESH BANKA, IBBI Registered Valuer. A copy of the said Report is annexed to the Company Application marked – ANNEXURE – F in VOL II at Page No 267 to 276.
It is submitted by Ld. counsel appearing for the Applicant(s) that all Applicant Companies are NBFC Company duly registered with Reserve Bank of India and are holding a valid Certificate of Registration issued by the said Bank.
It is submitted by Ld. counsel appearing for the Applicants that, the Applicants have the following classes of shareholders and creditors: -
PARTICULARS
AS ON 31ST AUGUST, 2022
EQUITY
PREFEREN
SECURED
UNSECURED
SHARE
CE SHARE
CREDITORS
CREDITORS
HOLDERS
HOLDERS
TRANSFEROR
3
NIL
NIL
4
COMPANY NO 1 /
APPLICANT NO 1
TRANSFEROR
3
NIL
NIL
4
COMPANY NO 2 /
APPLICANT NO 2
TRANSFEREE
/
4
NIL
NIL
5
COMPANY
APPLICANT NO 3
It is submitted by Ld. counsel appearing for the Applicants that the Applicant No1 is a Wholly Owned subsidiary of Bhagwati Impex Private Limited (CIN: U51109WB1985PTC039689) and accordingly an affidavit by the holding company of Applicant No1 representing 100% have already given their consent to the Scheme all of which are annexed to the Company Application. The list of equity shareholders as on 31-08-2022 duly certified by the statutory auditor together affidavit of consent is all collectively annexed to the Company Application marked – ANNEXURE – G in VOL – II at Page No 277 to 283.
It is submitted by Ld. counsel appearing for the Applicants that the Applicant No 2 is a Wholly Owned subsidiary of Bhagwati Impex Private Limited (CIN: U51109WB1985PTC039689) and accordingly an affidavit by the holding company of Applicant No 2 representing 100% have already given their consent to the Scheme all of which are annexed to the Company Application. The list of equity shareholders as on 31-08-2022 duly certified by the statutory auditor together affidavit of consent is all collectively annexed to the Company Application marked – ANNEXURE – GI in VOL – II at Page No 284 to 290.
It is submitted by Ld. counsel appearing for the Applicants that the Applicant No 3 is a Wholly Owned subsidiary of Bhagwati Impex Private Limited (CIN: U51109WB1985PTC039689) and accordingly an affidavit by the holding company of Applicant No 3 representing 100% have already given their consent to the Scheme all of which are annexed to the Company Application. The list of equity shareholders as on 31-08-2022 duly certified by the statutory auditor together affidavit of consent is all collectively annexed to the Company Application marked – ANNEXURE – G2 in VOL – II at Page No 291 to 297.
It is submitted by Ld. counsel appearing for the Applicants that there is no requirement of meeting of Secured Creditors of Applicant Companies in view of NIL Creditors evidenced by the statutory auditor’s certificate of the Company all of which are annexed to the Company Application marked – ANNEXURE – H in VOL – III at Page No 298 to 299, ANNEXURE – H1 in VOL – II at Page No 306 to 307, and ANNEXURE – H2 in VOL – II at Page No 314 to 315.
It is submitted by Ld. counsel appearing for the Applicants that 99.95% in value of Unsecured Creditors of the Applicant No.1 have already given their consent to the Scheme by way of affidavits all of which are annexed to the Company Application. The list of Unsecured Creditors as on 31-08-2022 duly certified by the statutory auditor together affidavit of consent is all collectively annexed to the Company Application marked – ANNEXURE – H in VOL – II at Page No 298 to 305.
It is submitted by Ld. counsel appearing for the Applicants that 98.84% in value of Unsecured Creditors of the Applicant No.2 have already given their consent to the Scheme by way of affidavits all of which are annexed to the Company Application. The list of Unsecured Creditors as on 31-08-2022 duly certified by the statutory auditor together affidavit of consent is all collectively annexed to the Company Application marked – ANNEXURE – H1 in VOL – II at Page No 306 to 313.
It is submitted by Ld. counsel appearing for the Applicants that 99.96% in value of Unsecured Creditors of the Applicant No.3 have already given their consent to the Scheme by way of affidavits all of which are annexed to the Company Application. The list of Unsecured Creditors as on 31-08-2022 duly certified by the statutory auditor together affidavit of consent is all collectively annexed to the Company Application marked – ANNEXURE – H2 in VOL – II at Page No 314 to 327.
It is submitted by Ld. counsel appearing for the Applicants that the statutory auditor of the Applicant Companies have all by their certificate confirmed that the accounting treatment proposed in the Scheme of Amalgamation is in conformity with the Accounting Standards prescribed under Section 133 of the Companies Act, 2013 and Rules made there under. Copy of the said certificate is annexed to the Company Application marked – ANNEXURE – I in VOL II at Page No 328 to 330.
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:
EQUITY SHAREHOLDERS
Meeting of Equity Shareholders of the Applicant Companies for considering the Scheme are dispensed with in view of shareholder representing 100% in value of shares of Applicant Companies having respectively given their consent to the Scheme by way of affidavits.
UNSECURED CREDITORS
Meeting of Unsecured Creditors of Applicant No 1 for considering the Scheme are dispensed with in view of consent by 99.95 % in value of Unsecured creditors of Applicant No 1 having respectively given their consent to the Scheme by way of affidavits.
Meeting of Unsecured Creditors of Applicant No 2 for considering the Scheme are dispensed with in view of consent by 98.84 % in value of Unsecured creditors of Applicant No 2 having respectively given their consent to the Scheme by way of affidavits.
Meeting of Unsecured Creditors of Applicant No 3 for considering the Scheme are dispensed with in view of consent by 99.96 % in value of Unsecured creditors of Applicant No 3 having respectively given their consent to the Scheme by way of affidavits.
(b) No Requirement of Meetings
SECURED CREDITORS
Secured Creditors of Applicant Companies - NIL Creditors verified by auditor’s certificate.
(c) Meetings to be held
No meetings are required to be held
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 :
(a) Regional Director, Eastern Region, Ministry of Corporate Affairs, Kolkata;
(b) Registrar of Companies, West Bengal, Kolkata
(c) Reserve Bank of India, Kolkata Regional Office
(d) Official Liquidator; High Court Calcutta
(e) Income Tax Department having jurisdiction over the Applicants by sending the same by hand delivery through special messenger,
by post and also 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 Authorized Representative of the said Applicants. 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 Amalgamation. 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. CAA 3 of the said Rules with necessary variations, incorporating the directions herein.
The Applicants to file an affidavit proving service of notice and compliance of all directions contained herein at least a week before the meetings to be held.
The application being Company Application (CAA) No. 136 / KB / 2022 is disposed of accordingly.
Urgent Certified copy of this order, if applied or, be supplied to the parties, subject to compliance with all requisite formalities.