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Judgment
Balraj Joshi, Member (Technical):
This Court is congregated through hybrid mode.
The instant application has been filed by the Applicant Companies in the first stage of the proceedings under Sections 230 to 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 Manoj Mercantile Credit Private Limited, (Applicant No. I/ Transferor Company 1); New Age Import Private Limited, (Applicant No. II/ Transferor Company 2); Aakarashak Properties & Holding Private Limited, (Applicant No. III/ Transferor Company 3); Ektaa Steel & Credit Private Limited, (Applicant No. IV/ Transferor Company 4); Srivaru Poly Packs Private Limited, (Applicant No. V/ Demerged Company), Srivaru Agro Private Limited, (Applicant No. VI/ Transferee Company), read with the relevant rules, whereby and whereunder the Transferor Companies are proposed to be amalgamated with the Transferee Company from the Appointed Date i.e. 1st day of financial year in which the Amalgamation becomes effective or such other date as may be fixed or approved by the Appropriate Authority for Part II of the Scheme, 2nd day of financial year in which the Amalgamation becomes effective or such other date as may be fixed or approved by the Appropriate Authority after giving effect to Part II of the Scheme, for Part III of the Scheme, further, the Grains Business Undertaking is proposed to be demerged from the Demerged Company into the Transferee Company on a going concern basis from the Effective Date meaning the last of the dates on which the conditions specified in Clause 34 of Part V of the Scheme of Amalgamation have been fulfilled and the order of the NCLT at Kolkata sanctioning the Scheme has been filed with the Registrar of Companies by Demerged Company, Transferor Companies and the Transferee Company, in the manner and on terms and conditions stated in the said Scheme of Amalgamation (“Scheme”). The Copy of the Scheme of amalgamation duly approved by the Board of Directors of the applicant companies is annexed to the company application being Annexure – M on page no. 375-427.
It is submitted by the Ld. Counsel appearing for the Applicants that the shares of the Applicant Companies are not listed on the stock exchanges. Further, the Applicant Companies have the following classes of creditors as on 31.08.2022 and shareholders as on 31.08.2022: -
PARTICULARS
AS ON 31.08.2022
EQUITY
SHAREHOLDERS
SECURED
CREDITORS
UNSECURED
CREDITORS
Transferor Company No. 1/Applicant Company No. 1
4
Nil
3
Transferor Company No. 2/Applicant Company No. 2
6
Nil
8
Transferor Company No. 3/Applicant Company No. 3
5
Nil
2
Transferor Company No.
4/Applicant Company No. 4
5
Nil
2
Demerged Company/Applicant
Company No. 5
2
Nil
5
Transferee Company
/Applicant Company No. 6
2
Nil
2
Ld. Counsel for the Applicant Companies submits that each and every shareholder and Class of creditors of the Applicant Companies have considered the said Scheme and have given their consent in the form of affidavit to the Scheme and for waiver of meeting of the shareholders in the form of affidavit.
PARTICULARS
AS ON 31.08.2022
EQUITY
SHAREHOLDERS
SECURED
CREDITORS
UNSECURED
CREDITORS
Transferor Company No. 1/Applicant Company No. 1
4
NIL
3
Consent- 100%
Consent-
99.91%
6
NIL
8
Transferor Company No. 2/Applicant Company No. 2
Consent- 100%
Consent-
97.29%
Transferor Company No. 3/Applicant Company No. 3
5
NIL
2
Consent- 100%
Consent-
94.69%
Transferor Company No. 4/Applicant Company No. 4
5
NIL
2
Consent- 100%
Consent- 100%
Demerged Company/Applicant Company No. 5
2
NIL
5
Consent- 100%
Consent-
97.68%
Transferee Company /Applicant Company No. 6
2
NIL
2
Consent- 100%
Consent-
93.75%
Directions are sought accordingly for dispensing with meetings of the shareholders and the creditors of the applicant companies.
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. Meeting Dispensed:
i. Meeting of the shareholders of the Transferor Companies, the Demerged Company and the Transferee Company, are hereby dispensed with, in view of the consents given by all the shareholders of the Transferor Companies, the Demerged Company and the Transferee Company.
ii. In view of the fact that there are NIL secured creditors of the Transferor Companies, the Demerged Company and the Transferee Company, the question of holding meeting of the secured creditors of the Transferor Companies does not arise.
iii. Meeting of the Unsecured Creditors of the Applicant Company Nos. 1, 2, 3, 4, 5 and 6 is dispensed with in view of the fact that 99.91% of the unsecured creditor(s) in value of the Transferor Company 1, 97.29% of the unsecured creditor(s) in value of the Transferor Company 2, 94.69% of the unsecured creditor(s) in value of the Transferor Company 3, 100% of the unsecured creditor(s) in value of the Transferor Company 4, 97.68% of the unsecured creditor(s) in value of the Demerged Company and 93.75% of the unsecured creditor(s) in value of the Transferee Company have given their written consent.
B. Let the notice be served by the Applicant Companies as per the requirement of sub-section (5) of Section 230 of the Companies Act, 2013 along with a copy of the Scheme and statement disclosing necessary details upon: -
i. Central Government, through Regional Director, Eastern Region, Ministry of Corporate Affairs, Kolkata;
ii. Reserve Bank of India, through Regional Director, Department of Non-Banking Supervision;
iii. Registrar of Companies, West Bengal;
iv. Official Liquidator, High Court, Calcutta;
v. Concerned Income Tax Assessing Officer along with the Chief Commissioner of Income Tax with PAN Numbers of the Applicant Companies having jurisdiction over the Transferee Companies by sending the same by hand delivery, by speed post and by electronic mail;
C. The Applicant Companies shall file affidavit of service, to report to this Tribunal that the directions regarding the issuance of notices have been duly complied with.
D. The notice shall specify that representations, if any, should be filed before the Tribunal within 45 days of the date of receipt of the notice with a copy of such representation being sent simultaneously to the Applicant Companies and/or their Authorised Representatives in advance.
E. If no such requirements are 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;
F. That an affidavit of Compliance of all the conditions laid down herein along with original proof of service to all authorities to be filed jointly by the Transferor Companies, the Demerged Company and the Transferee Company.
G. Liberty is given to file joint application by the Transferee, Demerged and Transferor Companies in accordance with Rule 15 of the Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 within a period of 45 days as mentioned in Section 230(5) of the Companies Act, 2013.
H. If consent affidavits/letters of the members and unsecured creditors annexed with the application are found to be false/dubious at any stage, then necessary actions for committing fraud under Section 447 and 448 of the Companies Act, 2013 shall be initiated against the Transferee and Transferor Companies and all its directors for punishment under Section 449 of the Companies Act, 2013.
Hence, the application being C.A. (CAA) No. 159/KB/2022 is allowed and disposed of accordingly.
Urgent certified copies of this Order, if applied for, be supplied to the parties upon compliance of all requisite formalities.