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TMI Blog2019 (12) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... d creditors in the petitioner companies. Hence, question of convening their meeting did not arise. In view of the above, this Bench, vide its order dated 24th June, 2019 (passed in the above stated company application) had dispensed with meetings of the Equity Shareholders of both companies (transfer and transferee companies) and further issued direction for convening the holding the meetings of Unsecured Creditors of both the petitioner companies. The same was held (in compliance of this Court order) on 30.08.2019, at the registered office of the petitioner no. 1 company, transferor company. It is reported that in the aforesaid meeting, the Unsecured Creditors having more than value of debt of Rs. 57,630/- have attended and voted unanimously in favour of sanction of the proposed company Scheme of amalgamation. 4. It is further informed that another meeting of the Unsecured Creditors of the Petitioner Company No.2 was duly convened and held on 30.08.2019 at the registered office of petitioner no.2 company, wherein twenty one Unsecured Creditors either in person or through proxy having value of debt of Rs. 37,03,305/-have attended the said meeting unanimously in favour of the propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited (Transferee Company). While expressing so and giving implied no objection to sanction the proposed company scheme, he made certain comments to be replied properly by the company and to be considered by this Bench while sanctioning the Scheme, which are reproduced as under; c That, the Regional Director further submits that capital clause of the transferee company shall be amended through this scheme. As per Clause No. 10 of the Scheme, the authorized share capital of the petitioner Transferor Company amounting to Rs. 80,00,000/- will be added in the authorized share capital of the petitioner transferee company and the consolidated authorized share capital of the transferee company will be arrived to Rs,2,05,00,000/- In this regard Section 232 (3) (i) of the Companies Act, 2013 is reproduced as under: (i) where the transferor company is dissolved, the fee, if any, paid by the transferor company on its authorised capital shall be set-off against any fees payable by the transferee company on its authorised capital subsequent to the amalgamation; and" In view of the above, the petitioner transferee company will be required to pay the difference of amount of fees any which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Scheme, the authorised share capital of the Transferee Company shall stand enhanced to an amount of Rs. 2,05,00,000/- (Rupees Two Crores Five Lakhs Only) divided into 20,50,000 equity shares of Rs. 10 each and the capital clause being Claus V of the Memorandum of Association of the Transferee Company shall on the effective date stand substituted to read as follows: "The authorised share capital of the Company is Rs. 2,05,00,000/- (Rupees Two Crores Five lakhs Only) consisting of 20,50,000 Twenty Lakhs Fifty Thousands) equity shares of Rs. 10/- (Rupees Ten Only) each. In this regard, Section 232(3)(i) of the Companies Act, 2013 is provided that "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 transferee company on its authorized capital subsequent to the capital to amalgamation". As such the NCLT may kindly direct the petitioner companies to place the fact on record". 9. In addition to the above, the OL also filed and offered its report and offered its comments on the merits of the proposed company Scheme for consideration of this Bench. The OL, in its rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary expenses made by the Central Government towards preparation and also filing report and has submitted that company should be directed to comply with provision of Section 232(5) of Companies Act, 2013, in respect of filing of a certified copy of order of sanction of the scheme with the Registrar of Companies. 12. Thus, it is found that the OL in its report has expressed no any adverse comment(s) / or serious objections to oppose the approval / sanction of the proposed company scheme of amalgamation. 13. It is also evident that the RD also made no serious comments / observations in opposition of the proposed company scheme although he has made certain observation to be replied by the company and to be considered by this court while approving the proposed company scheme. 14. In response to the above mentioned observations of RD and OL, the petitioner companies have filed reply affidavit of Mr. Girishbhai Chunilal Pandya, the authorized representative of the Applicant Transferee Company, dated 23rd November, 2019, and gave necessary assurance and undertaking, for making compliance of all statutory provisions, same are stated as under; i With regards to observation containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g into higher returns on Investment and Capital. In view of the aforesaid advantages, the Board of Directors of the Applicant Companies have considered the proposed Scheme of Amalgamation under Provision 230-232 and any other relevant Provision of the Companies Act, 2013. 16. In addition to the above, the petitioner companies have provided the relevant particulars and status of the petitioners, i.e. transferor and transferee company, in the present company petition / company application, which are described as under; i. That ESSEN MULTIPACK LIMITED (CIN: U25209GJ1994PLC022139) is the Applicant Company incorporated under the Companies Act, 1956. The Registrar of Companies issued Certificates of Incorporation to the Applicant Company on 27th May, 1994. I beg to Annex a copy of the Memorandum and Articles of Association of the Company at Annexure-A to this Application. ii. It is informed that as per the latest audited Balance Sheet of the applicant company as at 31.03.2018 the Authorized Capital, Issued, Subscribed and Paid Up Capital of the applicant company is as follows: Particulars (Amount in Rs.) Authorized Capital & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and latest Financial Statement as on 31st December, 2018, are annexed with the present company petition. viii The objects for which the applicant company was incorporated are set out in the Memorandum and Articles of Association of the transferor company are annexed with the present company petition. ix. It is stated that the main object of the Memorandum of Association of the Company also contain the object clause for entering into amalgamation with any other Company whether by sale or purchase or otherwise. 17. Therefore, on the basis of the above referred enabling provisions made in the Memorandum of Association of both companies, the proposed company scheme of amalgamation has been formulated and is filed for sanction before this Court. 18. In addition to the above, the petitioner companies have also described about the salient features of the proposed company Scheme, which seems to take care of the paramount interest of its shareholders, creditors, employees of the company as well as the statutory compliances with regard to the liabilities of the Income Tax and other Tax, Loan, etc. It is also stated that the appointed date of Scheme shall be 1st January, 2019. 19. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he scheme with a view to be satisfied on this aspect, the court, if necessary, can pierce the veil of apparent corporate purpose underlying the scheme and can judiciously X-ray the same. g. That the Company Court has also to satisfy itself that members or class of members or class of creditors, as the case may be, were acting bona fide and in good faith and were not coercing the minority in order to promote any interest adverse to that of the latter comprising the same class whom they purported to represent. h. That the scheme as a whole is also found to be just, fair and reasonable from the point of view of prudent men of business taking a commercial decision beneficial to the class represented by them for whom the scheme is meant. i. Once the above said parameters about the requirements of a scheme for getting sanction of the court are found to have been met, the court will have no further jurisdiction to sit in appeal over the commercial wisdom of the majority of the class of persons who with their open eyes have given their approval of the scheme even if in the view of the court there would be a better scheme for the company and its members or creditors for whom the schem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears to be detrimental to the public interest at large. Therefore, the proposed scheme of amalgamation of Essen Polymers Private Limited with Essen Multipack Limited deserves to be sanctioned. Therefore, the present Company Petition is hereby allowed in terms of its prayer clause but with and subject to compliance of following conditions and directions. i) The legal fees and expenses of the office of the Regional Director are quantified at INR 25,000/- in respect of the Petitioner Companies. The said fees to the Regional Director shall be paid by the Transferee Company within four weeks from the date of issuance of certified copy of the Order by the Tribunal. ii) The legal fees and expenses of the office of the Official Liquidator are quantified at INR 10,000/- in respect of Petitioner Company No. 1. The said fees to the Official Liquidator shall be paid by the Transferee Company within four weeks from the date of issuance of certified copy of the Order by the Tribunal. iii) Filing and issuance of drawn up orders are dispensed with. All concerned authorities to act on a copy of this order along with the Scheme of Amalgamation duly authenticated by the Registrar of this Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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