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TMI Blog2020 (9) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... within 60 days from the receipt of the Order. - C.P.(CAA)/3420/MB/2019 IN C.A.(CAA)/ 904 /MB/2019 - - - Dated:- 17-1-2020 - Hon ble Smt. Suchitra Kanuparthi, Member (Judicial) And Hon ble Sh. V. Nallasenapathy, Member (Technical) For the Petitioner : Advocate Shruti Kelji-Pednekar Advocate Ameya Lambhate Advocate Sunila Chavan For the Objector : Ms. Sharda Srivastava ORDER Per: V. Nallasenapathy, Member (Technical) 1. Heard the Learned Counsel for the Petitioner Companies. M/s. Expat Engineering (India) Limited, the unsecured creditor (hereinafter referred to as the Objector ) of Ashdan Developers Private Limited ( Transferee Company ) in Company Scheme Application No. 904 of 2019 has come before the Tribunal to oppose the Scheme of Merger by Absorption by way of Affidavit. In the said Affidavit, the Objector has raised objections that the proposed Scheme entails transfer of all the liabilities of Transferor Company to the Transferee Company which can severally affect the rights of Objector in executing the Award dated 19 February, 2019 passed by Sole Arbitrator Justice S. R. Sathe (Retd.) at Pune against the Transferee Company and recovering a sum of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legations made by the Objector are not tenable in nature as far as this petition is concerned. 2. The sanction of the Hon ble Tribunal is sought under Section 230 to 232 of the Companies Act, 2013 to the Scheme of Merger by Absorption of Solitaire Metropolis Private Limited by Ashdan Developers Private Limited and their respective shareholders (hereinafter referred to as Scheme ). 3. The Petitioner Companies have approved the said Scheme by passing Board Resolutions at their respective meetings held for the same on 31 January 2019, and has thereafter approached the Tribunal for sanctioning of the Scheme through the captioned Petition. 4. The Appointed Date of the Scheme is 01 April, 2018. 5. The Learned Counsel for the Petitioner Companies states that the Companies involved in the Scheme are group companies and are part of the same group i.e. Solitaire Group. The Counsel for the Petitioner Companies further stated that the objective of the Scheme is to consolidate group entities of Solitaire Group thereby creating a single entity which would carry on business which is in line with the strategy of Solitaire Group and would be advantageous and beneficial to the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to comply with other applicable Accounting Standards such as AS-5 (IND AS-8) etc. (b) As per Definition of the Scheme, Appointed Date for the purpose of this Scheme means 01 April 2018 and Effective Date means the date on which the Scheme shall be deemed to be effective from Appointed Date; In this regard, it is submitted that Section 232 (6) of the Companies Act, 2013 states that the scheme under this section shall clearly indicate an appointed date from which it shall be effective and the scheme shall be deemed to be effective from such date and not at a date subsequent to the appointed date. However, this aspect may be decided by the Hon'ble Tribunal taking into account its inherent powers. Further, the petitioners may be asked to comply with the requirements as clarified vide circular no. F. No. 7/12/2019/CL-I dated 21.08.2019 issued by the Ministry of Corporate Affairs. (c) Petitioner Company have to undertake to comply with Section 232(3)(i) of Companies Act, 2013, where the transferor company is dissolved, the fee, if any paid by the transferor company on its authorized capital shall be set-off against any fees payable by the transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Report of the Regional Director is concerned, the Petitioner Companies vide their reply affidavit dated 10 January, 2020, have stated that the provisions of Real Estate Regulation and Development Act, 2016 with Maharashtra Rules and Regulations 2017 are not applicable to the First Petitioner Company as there are no real estate projects being developed by them. As far as the Second Petitioner Company is concerned, the notice was served upon MahaRERA on 29 August 2019 which is annexed as Annexure F to the Affidavit of Service filed on 13 September, 2019. Further, pursuant to Para 2 of Circular No.24/2019 dated 04 June, 2019 issued by MahaRERA, an exception is carved out in the matter of merger and/or amalgamations wherein if transfer amongst group entities is proposed, then it is not termed as transfer under Section 47(vi) of Income Tax Act, 1961 and therefore, approval of RERA is not mandatory as per Section 15 of the RERA Act. Further, the Second Petitioner Company have also undertaken to comply with the provisions of the RERA Act, 2016 with applicable Rules and Regulations, as and when applicable. 13. As far as the observation in paragraph IV (e) of the Report of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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