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Judgment
Balraj Joshi, Member (Technical)
The Company Petition being CP (CAA) No. 143/KB/2021 was disposed of by this National Company Law Tribunal, Kolkata Bench by an order dated 11th March, 2022, sanctioning the scheme of amalgamation of Yezdi Decor Private Limited (1st Transferor Company) and De Gros International Limited (2nd Transferor Company) with Krantz Hermitage Private Limited (Transferee Company).
It has been brought to the notice of this Tribunal by an application being Misc. Application No. 19/KB/2022 that in the said order dated 11th March, 2022 at Paragraph 5 submissions made in the affidavit of the Regional Director dated 26th November, 2021 and corresponding submissions of the petitioner made in the Rejoinder dated 27th December, 2021 are recorded. The petitioners point out that there are errors in the paragraph 5(a), 5(b), 5(c), 5 (i) and 5(j) of the order dated 11th March, 2022. Paragraphs 5(a), 5(b), 5(c), 5 (i) and 5(j) of the order dated 11th March, 2022 vis-à-vis the Rejoinder , which The Petitioners submit that paragraph 5(a), 5(b), 5(c), 5 (i) and 5(j) of the order dated 11th March, 2022 should be read as follows:-
Paragraph 5(a):-
Paragraph No. 2(a) of RD Affidavit:
“…………………..that on examination of the report of the Registrar of Companies, West Bengal, it appears that no complaint and/or representation regarding the proposed Scheme of Amalgamation has been received against the Petitioner Companies, Further, as per available records all the petitioner companies are updated in filing their Statutory Returns. Further it is also submitted that the Transferor Company namely M/s De Gros International Limited has not filed MGT-14 for the financial year 2018 and 2019 under section 179(3)(g) r.w. 117 of the Companies Act, 2013. Copy of the report of ROC,WB marked as Annexure-I is enclosed herewith for perusal and ready reference.”
Paragraph No. 5 of Rejoinder:
“……………..It is agreed that the petitioner companies are updated in filing their statutory returns. Further the management of the said Transferor Company M/s De Gros International Limited is responsible for non-filing of form MGT-14 for the financial year 2018-19 which may be dealt with according to provisions of the Act”
Paragraph 5(b) :-
“Paragraph No. 2(b) and 2(c) of RD Affidavit:
“(b) Petitioner company should undertake to comply with the provisions of section 232(3)(i) of the Companies Act, 2013 through appropriate affirmation.
(c) That the Transferee Company should be directed to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it.”
Paragraph No. 6 of Rejoinder:
“…………….The petitioner companies undertakes to comply with the provisions of Section 232(3)(i) of the Companies Act, 2013 and further undertakes to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies, if any”
Paragraph 5(c) :-
“Paragraph No. 2(d) of RD Affidavit:
“(d) In compliance of Accounting Standard-14 or IND-AS 103, as may be applicable, the Transferee Company shall pass such accounting entries which are necessary in connection with the scheme to comply with other applicable Accounting Standards such as AS-5 or IND AS-8 etc.”
Paragraph No. 7 of Rejoinder:
“…………….The transferee company undertakes to pass necessary
accounting entries in connection with the scheme to comply with other applicable Accounting Standards.”
Paragraph 5(i):-
“Paragraph No. 2(j) of RD Affidavit:
“………………..the Transferor Company, M/a De Gros International Limited, did not file Form MOT-14 in respect of any resolution under section 179(3) of the Companies Act, 2013 for approval of the Financial Statement and Board's report for the financial years from 31/03/2015 to 31/03/2019 which is a serious omission in statutory duties of the company. The Company should file the said pending statutory documents with Registrar of Companies in prescribed manner before the merger, since once merged, the status of the company in MCA portal would no more be ACTIVE and hence the Company would become free from the responsibility of filing the pending statutory documents. This would result in the MCA portal continuing with the contravening gap in filing beside toss of filing fee to the Government”
Paragraph No. 13 of Rejoinder:
“…………….The management of the said Transferor Company M/s De Gros International Limited is responsible for non-filing of form MGT-14 for the financial year 31.03.2015 to 31.03.2019 which may be dealt with according to provisions of the Act.”
Paragraph 5(j):-
“Paragraph No. 2(k) of RD Affidavit:
“………………..M/s De Gros International Limited, TransferorCompany and being an unlisted public company, did not file Form PAS 6 regarding Reconciliation of Share Capital Audit Report (Half yearly) in Pursuant to sub-rule (8) of rule 9A Companies (Prospectus and Allotment of Securities Rules, 2014 in respect of period as at 30/09/2019, 31/03/2020, 30/09/2020, 31/03/2021 and 30/09/2021 which is a serious omission in statutory duties of the company. The Company should file the said pending statutory documents with Registrar of Companies in prescribed manner before the merger, since once merged, the status of the company in MCA portal would no more be ACTIVE and hence the Company would become free from the responsibility of filing the pending statutory documents”
Paragraph No. 14 of Rejoinder:
“…………….The management of the said Transferor Company M/s De Gros International Limited is responsible for non-filing of form PAS-6 for the periods 30.09.2019, 31.03.2020, 30.09.2020, 31.03.2021 and 30.09.2021, which may be dealt with according to provisions of the Act.”
In view of the submissions made by the applicants, this Tribunal is satisfied that these modifications sought for by the applicants are bona fide. Hence the present application is allowed. Paragraph 5(a), 5(b), 5(c), 5 (i) and 5(j) of the order dated 11th March, 2022 be replaced with the following paragraphs.
Paragraph 5(a):-
Paragraph No. 2(a) of RD Affidavit:
“…………………..that on examination of the report of the Registrar of Companies, West Bengal, it appears that no complaint and/or representation regarding the proposed Scheme of Amalgamation has been received against the Petitioner Companies, Further, as per available records all the petitioner companies are updated in filing their Statutory Returns. Further it is also submitted that the Transferor Company namely M/s De Gros International Limited has not filed MGT-14 for the financial year 2018 and 2019 under section 179(3)(g) r.w. 117 of the Companies Act, 2013. Copy of the report of ROC,WB marked as Annexure-I is enclosed herewith for perusal and ready reference.”
Paragraph No. 5 of Rejoinder:
“……………..It is agreed that the petitioner companies are updated in filing their statutory returns. Further the management of the said Transferor Company M/s De Gros International Limited is responsible for non-filing of form MGT-14 for the financial year 2018-19 which may be dealt with according to provisions of the Act”
Paragraph 5(b) :-
“Paragraph No. 2(b) and 2(c) of RD Affidavit:
“(b) Petitioner company should undertake to comply with the provisions of section 232(3)(i) of the Companies Act, 2013 through appropriate affirmation.
(c) That the Transferee Company should be directed to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it.”
Paragraph No. 6 of Rejoinder:
“…………….The petitioner companies undertakes to comply with the provisions of Section 232(3)(i) of the Companies Act, 2013 and further undertakes to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies, if any”
Paragraph 5(c) :-
“Paragraph No. 2(d) of RD Affidavit:
“(d) In compliance of Accounting Standard-14 or IND-AS 103, as may be applicable, the Transferee Company shall pass such accounting entries which are necessary in connection with the scheme to comply with other applicable Accounting Standards such as AS-5 or IND AS-8 etc.”
Paragraph No. 7 of Rejoinder:
“…………….The transferee company undertakes to pass necessary accounting entries in connection with the scheme to comply with other applicable Accounting Standards.”
Paragraph 5(i):-
“Paragraph No. 2(j) of RD Affidavit:
“………………..the Transferor Company, M/a De Gros International Limited, did not file Form MOT-14 in respect of any resolution under section 179(3) of the Companies Act, 2013 for approval of the Financial Statement and Board's report for the financial years from 31/03/2015 to 31/03/2019 which is a serious omission in statutory duties of the company. The Company should file the said pending statutory documents with Registrar of Companies in prescribed manner before the merger, since once merged, the status of the company in MCA portal would no more be ACTIVE and hence the Company would become free from the responsibility of filing the pending statutory documents. This would result in the MCA portal continuing with the contravening gap in filing beside toss of filing fee to the Government”
Paragraph No. 13 of Rejoinder:
“…………….The management of the said Transferor Company M/s De Gros International Limited is responsible for non-filing of form MGT-14 for the financial year 31.03.2015 to 31.03.2019 which may be dealt with according to provisions of the Act.”
Paragraph 5(j):-
“Paragraph No. 2(k) of RD Affidavit:
“………………..M/s De Gros International Limited, Transferor Company and being an unlisted public company, did not file Form PAS 6 regarding Reconciliation of Share Capital Audit Report (Half yearly) in Pursuant to sub-rule (8) of rule 9A Companies (Prospectus and Allotment of Securities Rules, 2014 in respect of period as at 30/09/2019, 31/03/2020, 30/09/2020, 31/03/2021 and 30/09/2021 which is a serious omission in statutory duties of the company. The Company should file the said pending statutory documents with Registrar of Companies in prescribed manner before the merger, since once merged, the status of the company in MCA portal would no more be ACTIVE and hence the Company would become free from the responsibility of filing the pending statutory documents”
Paragraph No. 14 of Rejoinder:
“…………….The management of the said Transferor Company M/s De Gros International Limited is responsible for non-filing of form PAS-6 for the periods 30.09.2019, 31.03.2020, 30.09.2020, 31.03.2021 and 30.09.2021, which may be dealt with according to provisions of the Act.”
The rest of the order shall remain the same.
Misc. Application No. 19/KB/2022 is disposed of accordingly.
Time for filing certified copy of the Order dated 11th March, 2022 is extended till 15th December, 2022.
Urgent Photostat certified copy of this order, if applied or, be supplied to the parties, subject to compliance with all requisite formalities.