2020 (10) TMI 696 - Tri - Companies Law

Sanction of Amalgamation Scheme - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT - From the material on record, the Scheme appears to be fair and reasonable and is not in violation of any provisions of Law and is not contrary to public policy - Since all the requisite statutory compliances have been fulfilled, Joint Company Petition filed by Petitioner Companies are made absolute in terms of prayer clause (a) thereof. The Scheme is hereby sanctioned, and the Appointed Date of the Scheme is fixed as 1st August 2018. The Transferor Company is ordered to be dissolved without winding up - Application allowed.

Issues Involved:
1. Approval of the Scheme of Amalgamation under Sections 230 to 232 of the Companies Act, 2013.
2. Compliance with statutory requirements and directions of the National Company Law Tribunal (NCLT).
3. Observations and objections raised by the Regional Director (RD) and Registrar of Companies (RoC).
4. Pending investigations, inspections, or legal proceedings against the companies.
5. Compliance with specific provisions of the Companies Act, 2013, including accounting standards, filing requirements, and appointments.
6. Sanction of the Scheme and dissolution of the Transferor Company.

Detailed Analysis:

1. Approval of the Scheme of Amalgamation:
The Tribunal was convened via videoconference, and it was noted that no objector opposed the Scheme. The sanction was sought for the amalgamation of Orbicon Land Developers Private Limited (Transferor Company) with Bramhacorp Limited (Transferee Company) and their respective shareholders. The Transferor Company is a 100% subsidiary of the Transferee Company. The Scheme was approved by the Board Resolutions of both companies on 13th June 2019.

2. Compliance with Statutory Requirements and Directions of NCLT:
The Petitioners confirmed compliance with all requirements as per the directions of the NCLT and undertook to comply with all statutory requirements under the Companies Act, 2013. The business activities of both companies were detailed, and the benefits of the amalgamation were outlined, including cost savings, synergies, and administrative efficiencies.

3. Observations and Objections Raised by the RD and RoC:
The RD filed a report stating that the Scheme was not prejudicial to the interest of shareholders and public, subject to certain observations:
- Compliance with AS-14 (Ind AS-103) and other applicable accounting standards.
- Clarification on the "Appointed Date" and "Effective Date" as per Section 232(6) of the Companies Act, 2013.
- Compliance with Section 232(3)(i) regarding the combination of authorized capital.
- Filing of an affidavit confirming no discrepancies in the Scheme.
- Serving notices to concerned authorities as per Section 230(5).
- Obtaining NoC from RERA as both companies are engaged in construction and real estate development.

The Petitioner Companies filed an affidavit addressing these observations, confirming compliance with accounting standards, and clarifying the appointed date. They also confirmed that no discrepancies existed in the Scheme and undertook to file necessary documents with RERA.

4. Pending Investigations, Inspections, or Legal Proceedings:
The RoC highlighted pending prosecutions against Bramhacorp Limited under Sections 92 and 137 of the Companies Act, 2013, and non-filing of balance sheets for certain financial years. The Petitioner Companies provided clarifications and evidence of compliance, including filing of financial statements and appointment of a woman director as required under Section 149.

5. Compliance with Specific Provisions of the Companies Act, 2013:
The Petitioner Companies addressed the RD's and RoC's observations regarding compliance with Sections 92, 137, 140(2), and 149 of the Companies Act, 2013. They provided evidence of filing necessary forms and appointing a woman director. They also clarified that the resignation of the statutory auditor did not require filing of Form ADT-3 as it was the auditor's obligation.

6. Sanction of the Scheme and Dissolution of the Transferor Company:
The Official Liquidator confirmed that the affairs of the Transferor Company were conducted properly and the Scheme was not prejudicial to public interest. The Tribunal found the Scheme to be fair, reasonable, and compliant with the law. The Scheme was sanctioned with the appointed date fixed as 1st August 2018, and the Transferor Company was ordered to be dissolved without winding up.

The Petitioner Companies were directed to lodge a certified copy of the order with the Superintendent of Stamps and the Registrar of Companies within specified timeframes. All concerned regulatory authorities were instructed to act on the certified copy of the order and the Scheme.

Conclusion:
The Tribunal approved the Scheme of Amalgamation, ensuring compliance with all statutory requirements and addressing all observations and objections raised by the RD and RoC. The Transferor Company was dissolved without winding up, and necessary directions were issued for filing and compliance with regulatory authorities.

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