2019 (1) TMI 1828 - Tri - Companies Law

Approval of Scheme of Merger by Absorption - Sections 230 to 232 read with Section 66 of the Companies Act, 2013 - HELD THAT - From the material on record, the Scheme appears to be fair and reasonable and is not violation of any provisions of law and is not contrary to public policy. None of the parties concerned have come forwarded to oppose the Scheme of Merger - Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition filed by the Transferor Company are made absolute in terms of prayer clause (a) to (c) of Company Scheme Petition. The scheme is approved.

Issues Involved:

1. Approval of the Scheme of Merger by Absorption.
2. Compliance with statutory requirements and directions of the National Company Law Tribunal (NCLT).
3. Observations and compliance with the Regional Director's report.
4. Report of the Official Liquidator.
5. Fairness and reasonableness of the Scheme.
6. Lodging and filing of the order and Scheme with relevant authorities.
7. Payment of costs to the Regional Director and Official Liquidator.

Issue-wise Detailed Analysis:

1. Approval of the Scheme of Merger by Absorption:
The Tribunal was approached for the sanction of a Scheme of Merger by Absorption under Sections 230 to 232 read with Section 66 of the Companies Act, 2013. The merger involved Shankar Resources Private Limited (Transferor Company) and Coffee Day Resorts (MSM) Private Limited (Transferee Company). The Scheme was approved by the Board of Directors of the Petitioner Company on 11th July 2018. The Tribunal noted that no objections were raised against the Scheme.

2. Compliance with statutory requirements and directions of the NCLT:
The Petitioner Company complied with all statutory requirements and directions of the NCLT, Mumbai Bench. Necessary affidavits of compliance were filed, and undertakings to comply with any further statutory requirements under the Companies Act, 2013, were accepted by the Tribunal.

3. Observations and compliance with the Regional Director's report:
The Regional Director's report dated 10th January 2019 included several observations:
- Notices under Section 230(5) were served to relevant authorities.
- Compliance with accounting standards (IND AS-103, AS-5/IND AS-8) was ensured.
- An undertaking was provided that the Scheme enclosed to the Company Application and Petition were identical.
- The appointed date of the Scheme was confirmed as 1st April 2018.
- The notarization of the affidavit was found compliant with the law.
- The Scheme was subject to approval by the NCLT Bengaluru Bench.
- Compliance with Section 232(3)(i) regarding fees on authorized capital was ensured.
- The final order would be submitted to the Reserve Bank of India (RBI).
- The clause regarding Reserve & Surplus was clarified to be redundant and not implemented.

4. Report of the Official Liquidator:
The Official Liquidator's report dated 30th October 2018 stated that the affairs of the Transferor Company were not conducted prejudicially to the interest of members or the public. The Transferor Company was ordered to be dissolved without winding up.

5. Fairness and reasonableness of the Scheme:
The Tribunal found the Scheme to be fair, reasonable, and not in violation of any legal provisions or public policy. No opposition to the Scheme was recorded.

6. Lodging and filing of the order and Scheme with relevant authorities:
The Petitioner Company was directed to lodge a copy of the order and the Scheme with the Superintendent of Stamps within 60 days and file the same with the Registrar of Companies electronically and physically within 30 days.

7. Payment of costs to the Regional Director and Official Liquidator:
The Petitioner Company was ordered to pay costs of ?25,000 each to the Regional Director, Western Region, Mumbai, and the Official Liquidator, High Court, Bombay, within four weeks from the receipt of the order.

Conclusion:
The Tribunal accepted the clarifications and undertakings provided by the Petitioner Company, sanctioned the Scheme of Merger, and directed compliance with all procedural requirements and payment of costs. All concerned regulatory authorities were instructed to act on the certified copy of the order.

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