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Judgment
Balraj Joshi, Member (Technical)
This Court is congregated through hybrid mode.
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 (hereinafter referred as “Act”) for orders and directions with regard to meetings of shareholders and creditors in connection with the Scheme of Amalgamation of BSJ CONSULTANTSPRIVATE LIMITED being the Applicant No. 1 above named (“Transferor Company No 1” or “Applicant No.1”) and DREAMCOOL TRADECOM PRIVATE LIMITED being the Applicant No. 2 above named (“Transferor Company No 2” or “Applicant No.2”) and LINK VINIMAY PRIVATE LIMITED being the Applicant No. 3 above named (“Transferor Company No 3” or “Applicant No.3”) and SUNFLOWER ENCLAVE PRIVATE LIMITED being the Applicant No.4 above named (“Transferor Company No 4” or “Applicant No.4”) and TOBOCK TRADE & SALES PRIVATE LIMITED being the Applicant No.5 above named (“Transferor Company No 5” or “Applicant No.5 ” ) and VIEWCOOL COMMOTRADE PRIVATE LIMITED being the Applicant No. 6 above named (“Transferor Company No 6” or “Applicant No.6 ” ) and WISE COMMOTRADE PRIVATE LIMITED being the Applicant No. 7 above named (“Transferor Company No 7” or “Applicant No.7 ” ) with BRITE ASBESTOS & ENGINEERING PRIVATE LIMITED being the Applicant No.8 above named (“Transferee Company” or “Applicant No. 8”) whereby and where under the Transferor Companies are proposed to be amalgamated with the Transferee Company from the Appointed Date, April 01, 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 – Q in VOL III at Page No 464 to 503.
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 September 08, 2022 have passed resolution adopting the proposed Scheme of Amalgamation. A copy of the Board Resolution is annexed to the Company Application marked – ANNEXURE – R in VOL III at Page No 504 to 511.
It is submitted by Ld. counsel appearing for the Applicants that the Valuation Report dated 06-09-2022 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 – S in VOL III at Page No 512 to 534.
It is submitted by Ld. counsel appearing for the Applicants that the Transferee Company / Applicant No 8 is a Non-Banking Financial Company (NBFC) duly registered with Reserve Bank of India and is 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 AUGUST 31, 2022
EQUITY SHARE
HOLDERS
PREFERENCE SHARE
HOLDERS
SECURED CREDITORS
UNSECURED CREDITORS
TRANSFEROR COMPANY NO 1 / APPLICANT NO 1
13
NIL
NIL
1
TRANSFEROR COMPANY NO 2 / APPLICANT NO 2
4
NIL
NIL
NIL
TRANSFEROR COMPANY NO 3 / APPLICANT NO 3
8
NIL
NIL
NIL
TRANSFEROR COMPANY NO 4 / APPLICANT NO 4
9
NIL
NIL
NIL
TRANSFEROR COMPANY NO 5 / APPLICANT NO 5
11
NIL
NIL
1
TRANSFEROR COMPANY NO 6 / APPLICANT NO 6
3
NIL
NIL
NIL
TRANSFEROR COMPANY
NO 7 / APPLICANT NO 7
8
NIL
NIL
1
TRANSFEREE COMPANY / APPLICANT NO 8
6
NIL
NIL
NIL
It is submitted by Ld. counsel appearing for the Applicants that the Equity Shareholders of Applicant No1 have already given their consent to the Scheme by way of affidavits 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 – T in VOL – IV at Page No 535 to 593.
It is submitted by Ld. counsel appearing for the Applicants that the Equity Shareholders of 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 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 – TI in VOL – IV at Page No 594 to 610.
It is submitted by Ld. counsel appearing for the Applicants that the Equity Shareholders of 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 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 – T2 in VOL – IV at Page No 611 to 651.
It is submitted by Ld. counsel appearing for the Applicants that the Equity Shareholders of Applicant No 4 have already given their consent to the Scheme by way of affidavits 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 – T3 in VOL – IV at Page No 652 to 696.
It is submitted by Ld. counsel appearing for the Applicants that the Equity Shareholders of Applicant No 5 have already given their consent to the Scheme by way of affidavits 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 – T4 in VOL –V at Page No 697 to 748.
It is submitted by Ld. counsel appearing for the Applicants that the Equity Shareholders of Applicant No 6 have already given their consent to the Scheme by way of affidavits 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 – T5 in VOL –V at Page No 749 to 761.
It is submitted by Ld. counsel appearing for the Applicants that the Equity Shareholders of Applicant No 7 have already given their consent to the Scheme by way of affidavits 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 – T6 in VOL –V at Page No 762 to 801.
It is submitted by Ld. counsel appearing for the Applicants that the Equity Shareholders of Applicant No 8 have already given their consent to the Scheme by way of affidavits 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 – T7 in VOL –V at Page No 802 to 828.
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 Secured Creditors as on 31-08-2022 as evidenced by the statutory auditor’s certificate of the Company all of which are annexed to the Company Application marked – ANNEXURE – U in VOL – VI at Page No 829, ANNEXURE – U1 in VOL – VI at Page No 834, ANNEXURE – U2 in VOL – VI at Page No 835, ANNEXURE – U3 in VOL – VI at Page No 836, ANNEXURE – U4 in VOL – VI at Page No 837, ANNEXURE – U5 in VOL – VI at Page No 843, ANNEXURE – U6 in VOL – VI at Page No 844 and ANNEXURE – U7 in VOL – VI at Page No 849.
It is submitted by Ld. counsel appearing for the Applicants that 100% 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 – U in VOL – VI at Page No 829 to 833.
It is submitted by Ld. counsel appearing for the Applicants that 100% in value of Unsecured Creditors of the Applicant No.5 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 – U4 in VOL – VI at Page No 837 to 842.
It is submitted by Ld. counsel appearing for the Applicants that 100% in value of Unsecured Creditors of the Applicant No.7 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 – U6 in VOL – VI at Page No 844 to 848.
It is submitted by Ld. counsel appearing for the Applicants that there is no requirement of meeting of Unsecured Creditors of Applicant No 2 , Applicant No 3 , Applicant No 4 , Applicant No 6 and Applicant No 8 in view of NIL Unsecured Creditors as on 31-08-2022 as evidenced by the statutory auditor’s certificate of the Company all of which are annexed to the Company Application marked –ANNEXURE – U1 in VOL – VI at Page No 834, ANNEXURE – U2 in VOL – VI at Page No 835, ANNEXURE – U3 in VOL – VI at Page No 836, ANNEXURE – U5 in VOL – VI at Page No 843 and ANNEXURE – U7 in VOL – VI at Page No 849.
It is submitted by Ld. counsel appearing for the Applicants that the statutory auditor of the Applicant Companies have all by their certificate all dated September 10, 2022 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 – V in VOL VI at Page No 850 to 865.
Upon perusing the records and documents in the instant proceedings and considering the submissions made on behalf of the Applicant(s), 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 100 % 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 5 for considering the Scheme are dispensed with in view of consent by 100% in value of Unsecured creditors of Applicant No 5 having respectively given their consent to the Scheme by way of affidavits.
Meeting of Unsecured Creditors of Applicant No 7 for considering the Scheme are dispensed with in view of consent by 100 % in value of Unsecured creditors of Applicant No 7 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.
UNSECURED CREDITORS
Unsecured Creditors of Applicant No 2, Applicant No 3, Applicant No 4, Applicant No 6 and Applicant No 8 - 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 and 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 the service of notice and compliance of all directions within 7 days of serving the notice regarding service of notice.
The application being Company Application (CAA) No. 147 / KB / 2022 is disposed of accordingly.
The connected company petition be filed within Six weeks.
Urgent Certified copy of this order, if applied or, be supplied to the parties, subject to compliance with all requisite formalities.