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TMI Blog2015 (3) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... ransferee company as the validity of the contract is for a specific period. In any case, the employees other than the permanent employees are automatically covered under the Scheme as all the contracts entered into by the Transferor companies which are valid as on the effective date shall be binding on the Transferee company and therefore, this becomes an automatic absorption of all the employees other than permanent employees by the Transferee company. Further submitted that the proposed Scheme does not envisages any compromise or agreement with the Secured Creditors and/or Unsecured Creditors of the Transferee company. The Transferee company shall continue to exist and carry on its commercial activities even after the Scheme is made effective. It was submitted that Clause 19 of the Scheme relates to the Change in the Name of the Company on approval of the Scheme by this Court. The petitioner companies undertake to comply with the relevant provisions of the new Companies Act, 2013 and rules thereto for Change in the Name of the Transferee company upon Scheme coming into effect. It was submitted that as the petitioner Transferee company is still engaged in the business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporated. Sava Private Limited, Second Transferor Company in Company Petition No.64 of 2014 was incorporated on 17/09/2009, as a Private Limited Company in the name of Sava Infotech Private Limited, thereafter its name was changed to Sava Private Limited under which it stands incorporated and vide a special resolution the registered office of the Company was shifted from the State of Maharashtra to the State of Gujarat vide a certificate dated 10/05/2013 u/s. 8(3) of the Companies Act, 1956. Anagha Pharma Private Limited, the Transferee Company in Company Petition No.65 of 2014 was incorporated on 25/10/2004, as a Private Limited Company in the name of Anagha Pharma Private Limited under which it stands incorporated and vide a special resolution the registered office of the Company was shifted from the state of Maharashtra to the State of Gujarat vide a certificate dated 10/05/2013 u/s. 18(3) of the Companies Act, 1956. The respective petitions give the details of share capital of all the three petitioner companies in the respective petitions. 3.1 Both the Transferor Companies Sava Healthcare Limited and Sava Private Limited are subsidiaries of the Transferee Company viz. Anagha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed to be convened for the purpose of seeking the approval from all the concerned parties to the proposed scheme. Pursuant to the directions issued with regard to the conduct of the meetings, after the due service of individual notice to all the Secured and Unsecured Creditors, as well as after giving public notice, the said meetings were duly convened on 24th February 2014. the proposed scheme was considered at the said meetings and it was approved unanimously at the meeting of the Secured Creditors viz. 100% in number and 100% in value by the Secured Creditors present and voting and the proposed scheme was approved by requisite statutory majority at the meeting of the Unsecured Creditors viz. 86.67% in number and 94.36% in value by the Unsecured Creditors of the Company present and voting at the meeting. The Chairman s report dated 4th March 2014 for both the meetings is placed on record confirming the result of these meetings; 5.1 Similarly, in case of Sava Private Limited by order dated 8th January, 2014, passed in the Company Application No. 8 of 2014, meeting of the Equity Shareholders of the Transferor Company was dispensed with in view of the written consent letters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. Common affidavit dated 28th August, 2014, came to be filed by one Mr. Shambhu Kumar Agarwal, the Regional Director. In that common affidavit, the said authority made certain comments and observations. 6.3 In response to the aforesaid common affidavit, one Mr. Anand Choudhary, authorised signatory of all the three companies has filed a common additional affidavit and has dealt with the observations and comments of the Regional Director. 7. Proceeding to consider observations and comments of the Regional Director and the response of the petitioner companies in its additional affidavit mentioned above. 7.1 The first observation of the Regional Director is regarding accounting entries/adjustments as envisaged vide Clause 18 of the Scheme. It has been contended by the Regional Director that as per Clause 15 of the Scheme it is proposed that the equity shares shall be issued at a premium and due to which Securities Premium Account will be created in the books of the petitioner Transferee Company which is in fact Amalgamation Reserve Account. It has also been contended that the excess of assets over liabilities shall be treated as Amalgamation Reserve Account arising on amal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effective date shall be binding on the Transferee company and therefore, this becomes an automatic absorption of all the employees other than permanent employees by the Transferee company. The Clause 4.9(b) and 10 of the Scheme clearly envisages that all the agreement/contracts shall continue in full force and effect in favour of the Transferee company and therefore, it is not required to amend Clause 12 of the Scheme. It was further submitted that the Transferee company undertakes to absorb all the employees of both the Transferor companies upon Scheme coming into effect. Hence, the observations made by the Regional Director is clarified and answered and therefore, there is no need to amend any clause of the Scheme. 7.3 The third observation is in respect of placing on record the details with respect to convening of the meetings of the Secured Creditors and Unsecured Creditors of the Transferee company. 7.3.1 It was submitted that the proposed Scheme does not envisages any compromise or agreement with the Secured Creditors and/or Unsecured Creditors of the Transferee company. The Transferee company shall continue to exist and carry on its commercial activities even after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Name of the Transferee company upon Scheme coming into effect. 7.6 The sixth observation is regarding the activities carried out by the Company are ultra vires of the Memorandum of Association and the Company should be covered in the category of NBFC as the Company's income during the Financial Year 2011-12 is mainly generated from sources such as interest and dividend income which is an investment activity. 7.6.1 It was submitted that the total revenue of the Transferee company as on 31st March, 2013 is to the tune of ₹ 35.80 crores comprising of ₹ 28.74 crores is from other income including dividend income from the wholly owned subsidiary companies for the year ending on 31st March, 2013. Thus more than 75% of the total income has been derived out of sale of pharmaceutical products only and accordingly it cannot be considered that substantial income has been received from the business of NBFC. The said fact is very much evident and is reflected from the Audited Balance Sheet as on 31st March, 2013 of the Transferee company in the section of the notes to and forming part of Financial Statements for the year, which is placed on record as Annexure B-1 to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gional Director is in its affidavit vide paragraph 2(m) has observed that the proposed Scheme of Amalgamation is not prejudicial to the interest of the shareholders of the petitioner companies and the public at large. 8. Notices of the petitioner of the Transferor Companies were served upon the Official Liquidator. The Official Liquidator filed his report dated 13th October, 2014. Therein, the Official Liquidator has raised three issues viz. (a) The Appointed Date as proposed under the Scheme, (b) all the employees of the Transferor Companies to be transferred to the Transferee Company and (c) Mismatch of the amount of Authorised Share Capital in the MCA data and the Audited Balance Sheet as on 31.03.2013 of Sava Private Limited. 8.1 The two issues with respect to (a) The Appointed Date as proposed under the Scheme and (b) all the employees of the Transferor Companies to be transferred to the Transferee Company are the same which are raised by the Regional Director and answered by the Petitioners as noted in the foregoing paragraphs. 8.2 The third issue raised by the Official Liquidator is regarding mismatch of the amount of Authorised Share Capital in the MCA data and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wards professional charges to learned Additional Solicitor General ₹ 7,500/- in respect of each of the three petitions. The official liquidator shall be paid cost of ₹ 7,500/- in each of the two petitions by the transferor companies being Company Petition Nos. 63 of 2014 and 64 of 2014. 12. The petitioner companies are further directed to lodge a copy of this order, the schedules of immovable assets of all the transferor companies as on the date of this order and the Scheme duly authenticated by the Registrar, High Court of Gujarat, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty, if any, on the same within 60 days from the date of the order. 13. The petitioner companies are directed to file a copy of this order alongwith a copy of the Scheme with the concerned Registrar of Companies, electronically, along with Employee-Form 21 in addition to physical copy as per relevant provisions of the Act. 14. Filing and issuance of drawn up order is hereby dispensed with. All the authorities to act on a copy of this order along with the Scheme duly authenticated by the Registrar, High Court of Gujarat. The Registrar, High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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