In The Matter Of Jaibhikshu Infrastructure Private Limited And Others

Jinan K.R., J

This Application has been filed by the Applicant Companies, namely, (1) Five Star Sales Private Limited, (2) Flora Tradelink Private Limited, (3) Jaybee Infrastructure Private Limited and (4) Dhanshree Infrastructure Private Limited [hereinafter referred to as the Transferor Companies] with Jaibhikshu Infrastructure Private Limited [hereinafter referred to as the Transferee Company] under Section 230-232 of the Companies Act, 2013 and their respective shareholders for obtaining sanction of this Tribunal regarding Scheme of Amalgamation proposed to be made between the Transferor Companies and Transferee Company and their respective shareholders. A copy of the Scheme of Amalgamation has been annexed with the application as Annexure P.

The object of this application is to ultimately obtain sanction of this Tribunal to a Scheme of Amalgamation proposed to be made between the applicant companies and their respective shareholders under the Scheme of Arrangement whereby and whereunder:-

(i) The applicant companies belong to the same management. There are common shareholders and common directors in the Transferor Companies and Transferee Company.

(ii) The proposed Scheme will result in economies of scale, reduction in overheads and other expenses, reduction in administrative and procedural work, elimination of duplication of work, better and more productive and effective utilisation of the combined resources of all the companies.

(iii) The business of all the Companies will be carried on more economically and profitably under the Scheme.

(iv) The said Scheme will contribute in furthering and fulfilling the objects of the Companies concerned and in the growth, expansion and development of their business.

Ld. Counsel for the applicant companies submitted that the assets of the applicant companies are sufficient to meet all their liabilities and the said scheme will not adversely affect the rights of any of the creditors of any of the applicant companies in any manner whatsoever.

It appears from the records the that there are no proceedings pending under Sections 235 to 251 of the Companies Act, 1956 and Sections 210, 213 to 216, 219, 220, 222 to 225 of the Companies Act, 2013 against any of the applicant companies.

It is stated in the application that the Board of Directors of the applicant companies have at their Board Meetings held on 20/5/2019 by a resolution passed unanimously approved the Scheme of Amalgamation. Copy of the Board Resolution of the applicant companies are annexed with the application as Annexure Q.

It reveals from the record that the copy of valuation Report for exchange ratio of shares of the Transferor Companies and Transferee Company is annexed with the application as Annexure S.

The applicant no. 1 has 7 (Seven) Equity Shareholders and 3 (Three) unsecured creditors. The applicant no. 2 has 4 (Four) Equity Shareholders and 2 (two) unsecured creditors. The applicant no. 3 has 4 (Four) Equity Shareholders and 2 (two) unsecured creditors. The applicant no. 4 has 5 (Five) Equity Shareholders and 5 (Five) unsecured creditors. The applicant no. 5 has 4 (Four) Equity Shareholders and 6 (Six) unsecured creditors. All the shareholders and unsecured Creditors of all applicants have given their consent to the Scheme of Amalgamation by way of affidavit and the said affidavits of consent are annexed to the application.

The List of Shareholders along with the certificate of the Chartered Accountant certifying the list of Shareholders of the applicant companies are annexed to the application.

The List of Secured Creditors and Unsecured Creditors alongwith the certificate of the Chartered Accountant certifying the List of Secured Creditors and Unsecured Creditors of applicant nos. 1, 2, 3, 4 and 5 are annexed to the application.

All the applicants have filed their respective Memorandum and Articles of Association as well as the last audited balance sheet for the year ended 31st March, 2019.

Heard Ld. Counsel for the applicants. In view of absence of any objection and since all the requisite compliance has been fulfilled, the following order is passed:-

ORDER

i. The holding of meeting of the Equity Shareholders of the applicant no. 1, applicant no. 2, applicant no. 3, applicant no. 4 and applicant no. 5 are dispensed with as they have given their consent and their affidavit of consent have been placed on record.

ii. Since there are no Secured Creditors of the Applicant Companies, as certified by the respective Statutory Auditors of the Applicant Companies, convening and holding of separate meetings of the Secured Creditors of the Applicant Companies, does not arise.

iii. As the Unsecured Creditors of the Applicant Companies have given their 'no objection' in writing by way of an affidavit agreeing to the Scheme of Amalgamation and also consented to waive the holding and convening of the meetings of the Creditors of the Applicant Companies, the requirements of convening and holding of separate meetings of the Unsecured Creditors of the Applicant Companies, to ascertain the wishes of the Unsecured creditors of the Applicant Companies concerned for the Scheme of Amalgamation, are dispensed with;

iv. The petitioner companies shall serve notice of the petition on the following authorities, namely,

(a) Central government through Regional Director, Eastern Region, Ministry of Corporate Affairs,

(b) Registrar of Companies, West Bengal,

(c) The Income Tax Department of the office having jurisdiction over the respective petitioner companies,

(d) Although the applicants have submitted that such arrangement does not come within the purview of the provisions of Competition Act, 2013 relating to combination, however, as required by the Competition Commission of India vide its letter No. NCLT/20(4)/2019/CD/455 dated 24th May 2019, the Scheme is to be submitted to CCI. Accordingly, the applicant companies are directed to serve notice of the petition to the Competition Commission of India.

(e) The Official Liquidator and such other relevant and sectoral regulators/authorities, if applicable, which are likely to be affected by the proposed Scheme of Arrangement 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 for filing their representations, if any, on the petition. Notice along with the copy of the application and other related documents with PAN Numbers of the Applicant Companies should be served upon the Chief Commissioner of Income Tax Department by e mail and Speed Post or by Messenger. Petitioner Companies are also directed to mention their respective PAN Number everywhere.

v. The Applicants shall file affidavit within 14 days of serving the notice regarding the service of notice.

vi. If no such representation is received by the Tribunal within the said period, it shall be presumed that such authorities have no representation to make on the Scheme of Amalgamation.

vii. The Company Petition for confirmation and sanction of the Scheme to be filed within six weeks from the date of the order.

The application being CA (CAA) No. 903/KB/2019 is disposed of accordingly.

Urgent certified copies of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.