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TMI Blog2020 (10) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... n in overheads, help in optimal utilization of various resources, and the increased asset base of the Transferee Company would benefit the Transferor Companies and the Transferee Company, and be in the interest of all the creditors including the creditors of the Transferor Companies. Hence the Composite Scheme of Amalgamation and Arrangement, as approved by the Boards of the Petitioner Companies, can be sanctioned, as prayed. The scheme is approved. - C.P. (CAA) No. 70/BB/2018 - - - Dated:- 21-5-2020 - Rajeswara Rao Vittanala, Member (J) And Ashutosh Chandra, Member (T) For the Appellant/Respondent: Mahaveer Jain, PCS, J. Elangovan and Ganesh R. Ghale, Advocate ORDER ASHUTOSH CHANDRA, MEMBER (T) 1. The instant Company Petition was filed jointly by the respective Petitioner Companies under Sections 230 to 232 of the Companies Act, 2013 and other applicable provisions of the Companies Act, 2013 R/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 by inter alia seeking that the Composite Scheme of Amalgamation and Arrangement be sanctioned by this Tribunal so as to be binding w.e.f. April 01, 2018 on all the Shareholders and Creditors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid up. Its main objects inter alia are to 'carry on all or any of the business of buyers, sellers, suppliers, growers, processors, traders, merchants, importers, exporters, indenters, brokers, agents, assemblers stockists and dealers, in gems and jewellery and silver utensils and ornaments and of all kinds of machinery items, etc. (3) M/s. Leora Real Estates Private Limited (hereinafter referred to as 'Petitioner No. 4 / Transferor Company No. 3') is a Private Limited Company incorporated on 04.04.2008 with the ROC, Karnataka bearing CIN: U70101KA2008PTC045936 and having its registered office at 25/1, Skip House, Museum Road, Bengaluru-560025. Its Authorised Share Capital as on 31.03.2018 is ₹ 1,00,000/- divided into 10,000 Equity Shares of ₹ 10/- each and the Issued, Subscribed and Paid-up Capital is ₹ 1,00,000/- divided into 10,000 Equity Shares of ₹ 10/- each fully paid up. Its main objects inter alia are to carry on the business of dealing in Real Estate, property development Estate Agency and without limiting the generality above, to acquire by purchase, exchange, rent or otherwise deal in lands, buildings, etc. (4) The Board of Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the Company is situated at 25/1, Skip House, Museum Road, Bengaluru-560025. Its Authorised Share Capital as on 31.03.2018 is ₹ 6,80,00,000/- divided into 68,00,000 Equity Shares of ₹ 10/- each and ₹ 3,00,00,000/- divided into 30,00,000 Preference Shares of ₹ 10/- each and the Issued, Subscribed and Paid-up Capital is ₹ 9,78,14,600/- divided into 67,81,460 Equity Shares of ₹ 10/- each fully paid up and 30,00,000 Non-cumulative Preference Shares of ₹ 10/-each. Its main objects inter alia are to construct, erect, build, repair, remodel, demolish, develop, improve, grade, curve, pave macadamize, cement and maintain buildings, structure houses, apartments, townships, multi storeyed complexes, etc. (6) The Board of Directors of the Transferee Company at their meeting held on 30th June, 2018 have approved and adopted the Scheme and inter alia resolved as under: CERTIFIED TRUE COPY OF THE RESOLUTION PASSED AT THE MEETING OF THE BOARD OF DIRECTORS OF GMR INFRATECH PRIVATE LIMITED HELD ON SATURDAY JUNE 30, 2018 NECTAAR CONFERENCE ROOM, NEW UDDAN BHAVAN, OPP: TERMINAL -3, NEW DELHI-110037 Approval of Scheme of Amalgamation and Arrangem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company. (d) The Transferee Company would have better financial viability and clearer focus, which would be in the interest of all the creditors including the creditors of the Transferor Companies. (8) M/s. B. Purushottam Co., Chartered Accountants, the Statutory Auditors of the Transferee Company and Transferor Company No. 1 vide Certificate dated 03.07.2018, has inter alia certified that the accounting treatment proposed in the above Composite Scheme of Arrangement is in conformity with the Accounting Standard provided under Section 133 of the Companies Act, 2013 and generally accepted accounting principles. The Authorised Representative of the Transferor and Transferee Companies vide an Affidavit has confirmed that pursuant to the provisions of Section 133 of the Companies Act, 2013, there is no change in the accounting treatment followed by aforementioned Companies that has filed the Composite Scheme of Arrangement amongst Petitioner Companies since July 3, 2018 as per latest audited Financial Statements. (9) As regards Consideration, it is stated in the Scheme that since the Transferor Companies are a wholly owned subsidiary Company of Transferee Company, the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2018 and also furnished copies of paper publication for having advertisement in 'Business Standard' English daily and 'Samyuktha Karnataka' Kannada daily on 02.02.2019 with regard to the notice of hearing Petition. 6. Pursuant to the notice issued, the Registrar of Companies, Karnataka vide letter bearing No. ROCB/Legal/C.P(CAA) No. 70/BB/2018 dated 22.04.2019 has submitted a report wherein it is inter alia observed that as per Section 232(6) of the Companies Act, 2013, the Scheme shall clearly indicate an appointed date from which it shall be effective, and the Scheme shall be deemed to be effective from that date and not at a subsequent date. Transferor Company has related party transactions during the year 2016-17 and 2017-18. Necessary compliance u/s 188 of the Companies Act 2013 may be called for to the satisfaction of the Tribunal before the approval of the Scheme. It is also observed that the Transferor Companies 1, 2 and 3 have not filed GNL-1 attaching the Scheme of Amalgamation. The Paid-up Share Capital of the Transferor Company No. 1 and Transferee Company are above ₹ 5 Crores and the Companies have not appointed the Whole Time Company Secre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (3) It is stated that E-form GNL-1 has been duly filed dated 12.04.2019. (4) Ideaspace Solutions Private Limited is having Ms. Aanchal Agarwal, as whole time Company Secretary with effect from April 24, 2019. In case there is any related non-compliance, the Company will comply with the provisions of Companies Act, 2013. (5) GMR Infratech Private Limited is having Mr. Yogesh Kumar as Whole Time Company Secretary with effect from June 30, 2016. In case there is any related non-compliance, the Company will comply with the provisions of Companies Act, 2013. 9. It is seen that PCS for the Transferee Company has filed a Memo dated 17.09.2019 wherein it is stated that they have filed compounding application for non-appointment of Company Secretary with the Registrar of Companies and also attached Form No. GNL-1 along with Paid Challan filed with ROC in respect of Transferor Company No. 1. 10. Official Liquidator has filed OLR No. 102/2019, OLR No. 103/2019 and OLR No. 104/2019 dated 16.09.2019 in C.P. (CM) No. 70/BB/2018 by inter alia stating that the Official Liquidator for scrutiny of the books of accounts and records of the Transferor Companies has engaged M/s. SBMY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Companies Act, 2013). As there is a delay of 931 days in appointing a whole-time Company Secretary, this application is being filed u/s 441 of the Companies Act, 2013, for the purpose of compounding the offence. 12. It is also stated that the penalty as per Section 383A of the Companies Act, 1956 and Section 203 of the Companies Act, 2013 works out to ₹ 28,04,000, being ₹ 2,01,000 each for the Company and its Directors under the old law; and ₹ 5,00,000 each for the Company and the Directors under the new law. 13. It is submitted that there was neither deliberate or intentional on the part of the Applicant nor mensrea in regard to the offence and thus the Applicants deserves to be excused. The delay in appointment of a whole-time Company Secretary was neither wilful nor wanton. The delay in appointment of a whole-time Company Secretary will not prejudice the interest of any members of the Company and others. This is the first and only occasion that the Applicants has committed a default in complying with the provisions of Section 383A of the Companies Act, 1956 and Section 203 of the Companies Act, 2013. It is thus prayed that they may be excused for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies would suffice for defaults under these provisions. We are therefore convinced, that in the facts and circumstances of the case, it would serve the interests of justice to levy a lump sum fees of ₹ 1,00,000 (Rupees one lakh only) on the Transferor Company for the entire period of default, and a further lump sum penalty of ₹ 10,000 (Rupees ten thousand only) each on all the Directors of the Company who were on its Board during the part/entire period of default committed under section 383A of the Companies Act, 1956 and section 203 of the Companies Act, 2013. On payment of such fee the defaults shall stand compounded within the meaning of section 441 of the Companies Act, 2013. 18. On a consideration of the facts of the case as mentioned in the preceding paragraphs, which are not elaborated here again to avoid duplication and repetition, we are satisfied that the procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with. It appears that the amalgamation will enable the Transferee Company to consolidate its business operations, promote growth of the Transferee Company, result in economy of scales and reduction in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies for registration in accordance with applicable rules and regulations; and (8) The Petitioner Companies will ensure compliance of their Affidavit and all provisions of the Companies Act 2013, as may be applicable, and will submit Quarterly/Annual Status of compliances through an Affidavit by Managing Director/ Director of the Company along with CA/ICWA/CS Certificate till the compliance is ensured; (9) The Appointed Date shall be 01st April, 2018; and (10) Transferor Companies or its Authorized Signatories are directed that after the completion of the process of amalgamation and arrangement to handover the possession of the Books of Accounts and other relevant documents of the Transferor Companies to the Transferee Company for the purpose of section 239 of the Companies Act, 2013; (11) Further, the Transferor Company No. 1 i.e. M/s. Ideaspace Solutions Private Limited is directed to pay the Compounding Fee of ₹ 1,00,000/- (Rupees One Lakh only), and all Directors during the period of default ₹ 10,000/- each (Rupees Ten Thousand each) as determined at para 17 of this order to be paid online to the account of Central Government in favour of Pay Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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