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TMI Blog2019 (9) TMI 1468X X X X Extracts X X X X X X X X Extracts X X X X ..... mber (T) For the Appearing Parties : Aparna Purkayastha, Kumar M.N., Advocates and Central Government Standing Counsel ORDER DR. ASHOK KUMAR MISHRA, MEMBER (T) 1. This Company Petition was jointly filed by the Petitioner Companies under Section 230 and 232 of the Companies Act, 2013 seeking for the Scheme of Amalgamation to be sanctioned by this Hon'ble Tribunal so as to be binding on the Transferee Company and Transferor Companies and their respective shareholders. 2. Brief facts as mentioned in the Company Petition are as follows: i) The object of this Petition is to obtain sanction of this Hon'ble Tribunal to the Scheme of Amalgamation wherein South India Energy Consultants Private Limited (Transferor Company) is to be merged with Velcan Renewable Energy Private Limited (Transferee Company), and the Scheme be binding on their respective shareholders. ii) The Petition has been filed jointly by Petitioner Companies stating that the Transferee Company was incorporated on 31st March 2006 under the name and style of Velcan Renewable Energy Private Limited with Registrar of Companies, Karnataka. It bears CIN U40107KA2006PTC038890. The registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Station Road, Bangalore- 560024. vi) The main objects of the Transferor Company is inter alia to carry on the business of providing technical consultancy services in the line of energy production and distribution, supply of electricity, setting up of power plants, operating and managing power stations, steam turbines further provide consultancy on renewable energy sources and usages, installation of projects of electric power, and to provide financial, engineering and project consultancy services in India and abroad and the related services, etc. The detailed objects of the Transferor Company is given in the Memorandum of Association of the Company. vii)The latest authorised share capital of the Transferor Company is ₹ 35,00,00,000/-divided into 3,50,00,000 Equity Shares of ₹ 10/- each. The issued, subscribed and paid-up capital of the Transferee Company is ₹ 31,46,37,190/- divided into 3,14,63,719 Equity Shares of ₹ 10/- each fully paid-up. viii) The Board of Directors of the Transferor and Transferee Company at their respective meeting held on 20th November 2018 for approval of Scheme of Amalgamation under Section 230 to 232 of the Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Company and Transferee Company is more than 5 Crores as at 31.03.2018. Both Companies have not appointed a whole time Company Secretary, under Section 203 read with Rule 8A of the Companies Act, 2013, the Companies may be directed to file adjudication application before the Registrar of Companies under Section 454 of CA, 2013 for the entire period of default. d. Clubbing of authorised capital of the transferor company with transferee company is mentioned in Clause 12 of the Scheme which states that no payment of any extra stamp duty or fee shall be payable by the Transferee Company for increase in the authorised share capital to that extent. But, the Transferee Company has to comply with Section 232(3)(i) of the Companies Act, 2013 and pay the difference fee after setting up the fee already paid by the Transferor Company. Transferee Company shall give undertaking to that effect. e. There are no prosecutions, complaints, technical scrutiny/inspections pending in this office against the petitioner companies. The Petition may be decided on merits. 7. The Reserve Bank of India vide letter bearing FE.BG.FID.No.3882/21.06.814/2018-19 dated 21.03.2019 stating that as a regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire period of default. iv. Clubbing of authorised capital of the transferor company with transferee company is mentioned in Clause 12 of the Scheme which states that no payment of any extra stamp duty or fee shall be payable by the Transferee Company for increase in the authorised share capital to that extent. But, the Transferee Company has to comply with Section 232(3)(i) of the Companies Act, 2013 and pay the difference fee after setting up the fee already paid by the Transferor Company. Transferee Company shall give undertaking to that effect. 11. The Official Liquidator attached to the High Comrt of Karnataka has filed report OLR No.60/2019 dated 15.05.2019 making the following requests: a) That the Official Liquidator may be permitted to appoint a Chartered Accountant from the panel approved by the Hon'ble High Court of Karnataka for scrutiny of the books of account and records of Transferor Company and to submit reports on the affairs of the Company. b) That the Petitioner Company may be directed to pay the professional fees of the Chartered Accountant as may be mutually agreed and that in case the Chartered Accountant charges exorbitant fee which is not acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be raised by utilising the fees already paid by the Transferor Company. Accordingly an I.A. No. 287/2019 was filed seeking approval to amend clause 11 of the Scheme of Amalgamation which was allowed on July 02, 2019. 13. The Official Liquidator pursuant to the order dated 18.07.2019 of this Tribunal in OLR No. 60/2019 engaged M/s. Murugendrappa Co, Chartered Accountants having office at #652/B, 2nd Floor, Dr. Rajkumar Road, 2nd Stage Rajaji Nagar, Bengaluru-560 010 for scrutiny of the Books and accounts and records of the Transferor company. The Official Liquidator vide OLR No.108/2019 dated 17.09.2019 submitted the report of M/s.Murugendrappa Co, Chartered Accountants, on the affairs of the Transferor Company which is extracted as follows: a) We have obtained all the information and explanations, which to the best of our knowledge and belief were necessary for the purpose of our verification. b) In our opinion, proper books of accounts, statutory registers, minutes and other related records as required by law have been kept by the Company so far as appears from our examination. c) Based on our scrutiny as aforesaid we are of the opinion that the affairs of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state and interest of the Transferor Company therein but subject nevertheless to all the charges now affecting the same; and (3) All the liabilities including taxes and charges, if any, and duties of the Transferor Company relating to the undertaking be transferred without further act or deed to the Transferee Company and accordingly the same shall pursuant to section 232 of the Companies Act, 2013, be transferred to and become the liabilities and duties of the Transferee Company; and (4) The tax implications, if any, arising out of the scheme is subject to final decision of Concerned Tax Authorities and the decision of the Concerned Tax Authorities shall be binding; and (5) All the proceedings now pending by or against the Transferor Company relating to the undertaking be continued by or against the Transferee Company, if any; and (6) The Petitioner Companies shall within thirty days of the date of the receipt of this order cause a certified copy of this order along with a copy of scheme of Amalgamation to be delivered to the Registrar of Companies for registration in accordance with applicable rules and regulations; and (7) The Registrar of Companies before regist ..... 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