2020 (9) TMI 655 - Tri - Companies Law

Sanction of Scheme of Amalgamation (Merger by Absorption) - Section 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 violative 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 No C.P.(CAA) 3217/MB/2019 filed by the Petitioner Companies has been made absolute in terms of prayer clause (a) to (c) of the Company Scheme Petition. Petitioner Companies are directed to lodge a copy of this order and the Scheme duly certified by the Deputy/ Assistant Registrar, National Company Law Tribunal, Mumbai Bench, Mumbai with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same within 60 working days from the date of the receipt of the certified copy of the Order, for the purpose of adjudication of stamp duty payable - Petitioner Companies are further directed to lodge a copy of this order along with the copy of the Scheme with the concerned Registrar of Companies, electronically, along with e-form INC-28 in addition to the physical copy within 30 days from the date of issuance of the certified copy of the Order by the Registry, duly certified by the Deputy Registrar or the Assistant Registrar, as the case may be, of the National Company Law Tribunal, Mumbai Bench. The Scheme is sanctioned, and the appointed date of the Scheme is fixed as 1st April,2019 for Transferor Company 1 and 1st June, 2019 for Transferor Company 2.

Issues Involved:
1. Sanction of the Scheme of Amalgamation under Sections 230 to 232 of the Companies Act, 2013.
2. Compliance with statutory requirements and directions of the Tribunal.
3. Observations and compliance with the Report of the Regional Director.
4. Observations and compliance with the Report of the Official Liquidator.
5. Fixing of the appointed date for the Scheme.
6. Directions for lodging the order and Scheme with the concerned authorities.

Issue-wise Detailed Analysis:

1. Sanction of the Scheme of Amalgamation under Sections 230 to 232 of the Companies Act, 2013:
The Tribunal was approached for the sanction of the Scheme of Amalgamation (Merger by Absorption) involving Tech Mahindra Growth Factories Limited (Transferor Company 1), Dynacommerce India Private Limited (Transferor Company 2), and Tech Mahindra Limited (Transferee Company). The Scheme aimed to consolidate entities, achieve greater efficiency, reduce overheads, and provide better opportunities for employees, ultimately enhancing shareholder value. The Scheme was approved by the Board of Directors of the Petitioner Companies in their respective meetings.

2. Compliance with statutory requirements and directions of the Tribunal:
The Counsel for the Petitioner Companies confirmed compliance with all directions passed in the Company Scheme Application No. C.A.(CAA)/2208/MB/2019 and Company Scheme Petition C.P.(CAA)/3217/MB/2019. Necessary affidavits of compliance were filed, and undertakings to comply with all statutory requirements under the Companies Act, 1956/2013 were accepted by the Tribunal.

3. Observations and compliance with the Report of the Regional Director:
The Regional Director's Report dated 17th December 2019 raised several observations:
- Compliance with AS-14 (IND AS-103) and other applicable Accounting Standards.
- Confirmation of the appointed dates as 1st April 2019 for Transferor Company 1 and 1st June 2019 for Transferor Company 2.
- Compliance with Section 232(3)(i) of the Companies Act, 2013 regarding the set-off of fees on authorized capital.
- Clarification on discrepancies in the paid-up capital of the Transferee Company and filing of GNL-1 forms.

The Petitioner Companies provided satisfactory responses and undertook to comply with all observations. The Regional Director's supplementary report dated 28th January 2020 found the replies satisfactory.

4. Observations and compliance with the Report of the Official Liquidator:
The Official Liquidator's report dated 30th December 2019 stated that the affairs of Transferor Company 1 were not conducted prejudicially to the interest of members or the public. It recommended the dissolution of Transferor Company 1 without winding up.

5. Fixing of the appointed date for the Scheme:
The appointed date for the Scheme was fixed as 1st April 2019 for Transferor Company 1 and 1st June 2019 for Transferor Company 2. The Scheme was to take effect from these dates upon approval by the respective benches of the National Company Law Tribunal.

6. Directions for lodging the order and Scheme with the concerned authorities:
The Petitioner Companies were directed to lodge a copy of the order and the Scheme with the concerned Superintendent of Stamps within 60 working days and the Registrar of Companies electronically and physically within 30 days. All concerned regulatory authorities were instructed to act on the certified copy of the order and Scheme.

Conclusion:
The Scheme of Amalgamation was found to be fair, reasonable, and not violative of any law or public policy. With all requisite statutory compliances fulfilled, the Company Scheme Petition No C.P.(CAA) 3217/MB/2019 was made absolute, and the Scheme was sanctioned.

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