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Judgment
Jinan K.R., J
This application has been filed by the Applicant Companies viz. Aristo Financial Consultants Private Limited, the Applicant No. 1 [hereinafter referred to as the "Transferor Company No. 1"], Fastgrow Merchandise Private Limited, the Applicant No. 2 [hereinafter referred to as the "Transferor Company No. 2"], Jindal Barter Private Limited, the Applicant No. 3 [hereinafter referred to as the "Transferor Company No. 3"], Lifestyle Suppliers Private Limited, the Applicant No. 4 [hereinafter referred to as the "Transferor Company No. 4"], Pratibha Investment Consultancy Private Limited, the Applicant No. 5 [hereinafter referred to as the "Transferor Company No. 5"], Vijaylakshmi Commercial Private Limited, the Applicant No. 6 [hereinafter referred to as the "Transferor Company No. 6"], Fast-n-Perfect Tracon Private Limited, the Applicant No. 7 [hereinafter referred to as the "Transferor Company No. 7"], and Amol Fabtrade Private Limited, the Applicant No. 8 [hereinafter referred to as the "Transferee Company"] under Sections 230 to 232 of the Companies Act, 2013 read with the relevant rules, for obtaining sanction of the Tribunal for the Scheme of Amalgamation [hereinafter referred to as the "said Scheme"] whereby the Undertaking of the Transferor Companies shall be transferred to and vested in the Transferee Company as a going concern so as to become as and from the Appointed Date, the undertaking with all estates, assets, properties, rights, title and interest of the Transferee Company on the terms and conditions as proposed in the said Scheme. A copy of the proposed Scheme of Amalgamation is annexed to the application and marked as Annexure "9".
It is stated in the application that upon Amalgamation under the proposed Scheme, there shall be drastic reduction of expenses and centralized management. Further, the Amalgamation will provide synergic benefits and advantages.
It is further stated that the strategically combining the resources under one roof with same management shall enhance the goodwill and will strengthen the strategic position in the market with additional secondary advantage of reduction in expenditure and centralizing the business under one roof.
It is further stated that there are multiple synergic benefits and advantages of the Amalgamation of the Transferor Companies with the Transferee Company, and that upon the scheme becoming effective, the Transferor Companies shall be dissolved without being wound up.
It is stated that the Board of Directors of the Applicant No. 1 to 7 (Transferor Companies) and the Applicant No. 8 (Transferee Company) have at their respective Board Meetings held on 9th January, 2019 have passed resolution approving the Scheme of Amalgamation of the Transferor Companies with the Transferee Company. The copies of Board Resolutions are annexed to the application and marked as Annexures "1-C" to "8-C", respectively.
Report on Exchange Ratio on Equity Shares (Valuation Report) is filed vide supplementary affidavit on 17th July, 2019.
It is stated that the Applicant no. 1 is having 10 (Ten) Equity Shareholders, the Applicant no. 2 is having 10 (Ten) Equity Shareholders, the Applicant no. 3 is having 10 (Ten) Equity Shareholders, the Applicant no. 4 is having 10 (Ten) Equity Shareholders, the Applicant no. 5 is having 4 (Four) Equity Shareholders, the Applicant no. 6 is having 13 (Thirteen) Equity Shareholders, the Applicant no. 7 is having 9 (Nine) Equity Shareholders, and the Applicant no. 8 is having 12 (Twelve) Equity Shareholders. The list of Equity Shareholders in the Applicant Companies certified by their respective Chartered Accountant as on 31.12.2018 are annexed with the application and marked as Annexures "1-D" to "8-D". Each and every shareholder of the Applicant Companies have considered the proposed scheme of amalgamation and on such consideration have given their consent in writing by way of an individual Affidavit agreeing to the scheme and also consented to waive the holding and convening of the meetings of the shareholders of the Applicant Companies concerned. Original 'no objection' affidavits as received from all the shareholders of the Applicants have been annexed and marked as Annexures "1-E" to "8-E" to the Application.
The Applicant no. 1 to Applicant no. 5, Applicant No. 7 and Applicant No. 8 are having no secured or unsecured creditors. The Applicant No. 6 is having no secured creditor and only 1 (one) unsecured creditor. The copies of the CA Certificates of secured and unsecured creditors of the applicants as on 31.03.2018 are annexed with the application and marked as Annexures "1-F" to "8-F". Consent in the form of Affidavit of one and only. The one and only unsecured creditor of the Applicant No. 6 has considered the proposed scheme of amalgamation and on such consideration has given its consent in writing by way of an Affidavit (Board Resolution) agreeing to the scheme and also consented to waive the holding and convening of the meeting of the unsecured creditors of the Applicant No. 6 Company. Original 'no objection' affidavit/BR as received from the aforesaid creditor of the Applicant No. 6 is annexed and marked as Annexure "6-G" to the Application.
It is further stated that the Accounting Standards certificate as required under Section 133 of the Companies Act, 2013 read with Rule 7 of the Companies (Accounts) Rules, 2014 is annexed with the application and marked as Annexure "10".
The Applicant Companies have filed their last audited balance sheets for the year ended on 31st March, 2018 as well as their respective Memorandum and Articles of Associations annexed and marked as (Annexures "1-A", "1-B", "2-A", "2-B", "3-A", "3-B", M-A", "4-B", "5-A", "5-B", "6-A", "6-B", "7-A", "7-B", "8-A", "8-B").
Heard Ld. Pr. CS for the applicants and having perused the application and the concerned documents annexed to the application including the said Scheme, the following orders are passed herein:
a. In view of the consents given in affidavit by all the equity shareholders of Transferor Companies and Transferee Company, meeting of the equity shareholders of the Transferor Companies and the Transferee Company are hereby dispensed with.
b. In view of the fact that there are nil secured and unsecured creditors of the Transferee Company, the question of holding separate meetings of the secured and unsecured creditors of the Transferee Company does not rise, hence dispensed with.
c. In view of the fact that there are nil secured and unsecured creditors of the Transferor Co. No. 1, Transferor Co. No. 2, Transferor Co. No. 3, Transferor Co. No. 4, Transferor Co. No. 5 and Transferor Co. No. 7, the question of holding separate meetings of the secured and unsecured creditors of the aforementioned Transferor Companies does not rise, hence dispensed with.
d. The holding of meeting of the one and only unsecured creditor of Transferor Co. No. 6 is hereby dispensed with since the said unsecured creditor of the Transferor Co. No. 6 has given its unconditional consent by way of a separate Affidavit for waiving the holding of the meetings, which has been placed on record.
e. The Applicant Companies shall serve notice to the following authorities, viz.:
i. Central Government, through Regional Director, Eastern Region, Ministry of Corporate Affairs, Kolkata;
ii. Registrar of Companies, West Bengal;
iii. Official Liquidator, High Court, Calcutta;
iv. Income Tax Department of the Office having jurisdiction over the respective Applicant companies;
v. Reserve Bank of India;
vi. Competition Commission of India Pursuant to Section 230 [5] of the Companies Act, 2013 read with Rule 8 of the Companies [Compromises, Arrangements and Amalgamations] Rules, 2016, with suitable changes in notice relating to waiver of meetings and such other relevant and sectoral regulators/authorities, if applicable, which are likely to be affected by the proposed said Scheme by sending the same by hand delivery, through special messenger or by registered post or speed post within 7 days from the date of this order filing their representations, if any on the petition. Notice along with the copy of the application and other related documents along with PAN of the Applicant Companies should be served upon the Chief Commissioner of Income Tax Department by e-mail and Speed Post or by Messenger. Applicant Companies are also directed to mention their respective PAN number everywhere.
f. The notice shall specify that representations, if any should be filed before this Tribunal within 30 days of the date of receipt of the notice with a copy of such representations being sent simultaneously to the Petitioners and/or their Authorized Representatives. If no such representations are received by the Tribunal within the said period, it shall be presumed that such authorities have no representations to make on the Scheme of Amalgamation.
g. All Applicant Companies at least 7 days before the date of hearing of the petition shall file affidavit of service of notices on the Authorities specified above including the Sectoral Regulators.
h. The authorized representative of the Applicant Companies shall furnish an affidavit of compliance of all directions contained. The applicants are directed to file confirmation petition within four weeks from the date of order.
i. That the Transferee Company and the Transferor Companies shall affirm by way of affidavit that no investigation or proceedings under the Companies Act 1956 or Companies Act 2013, have been instituted or are pending in relation to the Transferee Company and the Transferor Companies.
The application being C.A.(CAA) No. 723/KB/2019 is disposed of accordingly.
There shall be no order as to costs.
Urgent certified copies of this Order, if applied for, be supplied to the parties upon compliance of all requisite formalities.