2023 (3) TMI 1541 - Tri - Companies Law

Sanction of Scheme of Amalgamation is presented under sections 232 read with Section 230 of the Companies Act, 2013 - HELD THAT - The Petitioner Companies shall determine the Consideration under the Proposed Scheme on the basis of actual financial results of the Petitioner Companies as on appointed date i.e. 1.4.2023 and file the valuation report substantiating such consideration. In case, there is any change in the consideration under the scheme, the Petitioner Companies shall serve a copy of scheme afresh upon all noticee, highlighting the changes effected therein distinctively. That the Applicant Companies shall file affidavit of service in and compliance of serving the notices to all the Regulatory Authorities as stated above and do report to this Tribunal that the directions regarding the issue of notices have been duly complied with.

Summary

Issues:
1. Approval of Scheme of Amalgamation under Companies Act, 2013
2. Benefits and rationale of the proposed Scheme
3. Capital structure of Applicant Companies
4. Financial details of Applicant Companies
5. Consent of Equity Shareholders and dispensation of Equity Shareholders' meetings
6. Treatment of Secured and Unsecured Creditors
7. Notice requirements to various authorities
8. Submission of additional details by Applicant Companies
9. Valuation report and consideration under the Proposed Scheme
10. Compliance with directions and filing of affidavit of service

Detailed Analysis:

1. The judgment pertains to the approval of a Scheme of Amalgamation under sections 232 read with Section 230 of the Companies Act, 2013 for the merger of two companies engaged in providing shipping agency services in India. The Board of Directors of the Applicant Companies have approved the proposed Scheme, with the Appointed Date set as 1st April 2023.

2. The proposed Scheme is expected to bring several benefits, including the consolidation of businesses, reduction in regulatory compliances, streamlining of holding structure, ease of management, cost reduction, and leveraging synergies on consolidation. These benefits are crucial for the Applicant Companies, their Shareholders, Creditors, Employees, and other Stakeholders.

3. The capital structure of the Applicant Companies is detailed, including the Authorized, Issued, Subscribed, and Paid-up Capital of both the Transferor and Transferee Companies as on 31st March 2022. This information is essential for assessing the financial position of the companies involved.

4. Financial details of the Applicant Companies are provided, showcasing revenue and profit/loss before tax for the financial years up to 31st October 2022. This data is crucial for evaluating the financial health and performance of the companies.

5. The consent of Equity Shareholders has been obtained, and meetings of Equity Shareholders have been dispensed with. This is a significant step in the amalgamation process to ensure compliance with legal requirements and to streamline the approval process.

6. The treatment of Secured and Unsecured Creditors is addressed, with details of identified Unsecured Creditors provided for both companies. The judgment clarifies that the Scheme does not impact the rights of Creditors, and individual notices will be issued to Unsecured Creditors for representation within 30 days.

7. Detailed notice requirements to various authorities, including Central Government, Income Tax Authority, GST Authority, Ministry of Corporate Affairs, and other relevant Regulatory Authorities, are outlined. Compliance with these notice requirements is crucial for transparency and regulatory adherence.

8. The Applicant Companies are directed to submit additional details, including Corporate Guarantee, pending IBC cases, details of Letters of Credit, and other contingent liabilities. These details are essential for a comprehensive assessment of the Scheme.

9. A valuation report is required to determine the Consideration under the Proposed Scheme based on the financial results of the companies as of the appointed date. Any changes in consideration must be highlighted and communicated to all relevant parties.

10. Finally, compliance with directions, including serving notices to Regulatory Authorities, and filing an affidavit of service is mandated. This ensures that all procedural requirements are met, and the court is informed of the completion of necessary steps in the amalgamation process.