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TMI Blog2021 (1) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferor Companies upon coming effect of the Scheme. The Applicant Companies have filed compliance affidavit vide Special Diary No. 135 dated 18.06.2020. The Provisional Balance Sheets of all the Applicant Companies as on 31.03.2020 along with the Board Resolutions in Osram Lighting Ltd (unsecured creditor in Applicant Company 2), DSM India Pvt Ltd (unsecured creditor in Applicant Company 2), Minda Industries Ltd (unsecured creditor in Applicant Company 6), Siemens Financial services Pvt Ltd(secured creditor in Applicant Company 9) and Mahadhyuta Automotive Pvt Ltd( unsecured creditor in Applicant Company 9) are all part and parcel of Special Diary No. 135 dated 18.06.2020. The Affidavit of Mr Rajat Kumar Singh (who has deposed the consent affidavit on behalf of M/s Bajaj Finance Ltd., a secured creditor in Applicant Company 4) clarifying that his name has wrongly being stated in the previous consent affidavit as Mr Rajat Singh is annexed as Annexure E with the above compliance. The statutory auditors of the Applicant Companies have furnished certificate at Annexures B-8, C-9, D-9, E-9, F-9, G-9, H-9, I-9, J-9 and K-8 respectively, stating that the accounting treatment proposed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 'Scheme') annexed as Annexure 'A' of the application. 2. It is stated that the Board of Directors of the Applicant Companies in their respective meetings held on 13.11.2019 and 14.11.2019 considered and unanimously approved the Scheme subject to sanctioning of the same by this Tribunal. The copy of the Board Resolutions of all the Applicant Companies are at Annexures 'B-4' (Colly), 'C-4' (Colly), 'D-4' (Colly), 'E-4' (Colly), 'F-4' (Colly), 'G-4' (Colly), 'H-4' (Colly), 'I-4' (Colly), 'J-4' (Colly) and 'K-4' (Colly), respectively. That Applicant Companies 1 to 10 have authorized Mr. Puneet Kumar Jakhodia to finalize and execute necessary certifications, confirmations, undertakings etc. that may be required to be provided on behalf of the Board in regard to the proposed 'Scheme'. The affidavit of Mr. Puneet Kumar Jakhodia, Authorised Signatory of Applicant Companies 1 to 10 has been filed in support of contents of joint application for seeking appropriate orders/directions for dispensing with the meetings of equity shareholders, unsecured creditors and secured creditors of all the Applicant Companies. 3. As per the Memorandum & Articles of Association, Annexure 'B-1 (Colly), t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "1. To buy, sell, exchange, alter or improve, built, manufacture, give on hire or hire-purchase agreement and deal in vehicles of any kind. 2. To construct, repair, alter, purchases, acquire, import, export, manipulate, improve, repair for market and otherwise deal in all the kinds of plants, machinery , parts, tubes, tyres, tools, accessories, utensils, substances, materials and things necessary or convenient for carrying of the above specified business or usually dealt in by persons engaged in the like trade or business." 8. As per the certificate of incorporation, the Applicant Company 2 was incorporated as a public limited company on 16.06.2003 under the provisions of Companies Act, 1956. The Corporate Identification Number (CIN) is U50101HR2003PLC083521. The registered office of the Applicant Company-2 is presently situated at Plot No. 123, Sector-3, IMT Manesar, Haryana 122050. 9. The Authorised, Issued, Subscribed and Paid-up Share Capital of the Applicant Company 2 as per the Audited Accounts for the financial year ended on 31.03.2019 is as follows: Particulars Amount In' Rs. AUTHORISED SHARE CAPITAL: 4,99,900 equity shares of ₹ 100 each 4,99,90,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As per the Memorandum & Articles of Association, Annexure 'E-1' (Colly), the main objects of Applicant Company 4 are as follows: - "To manufacture, design, fabricate, process, assemble, develop, undertake, buy, sell, import, export, hire, distribute, alter, repair, convert and otherwise deal in all kinds of plastic components, sheet metal components, tools, jigs, dyes, moulds, fixtures, gauges, values and appliances for all purposes including industry, agriculture and domestic." 15. As per the Certificate of Incorporation, the Applicant/Transferor Company 4 is an unlisted public limited company incorporated on 22.10.2002 under the provisions of Companies Act, 1956. The Corporate Identification Number of Applicant Company-4 is U25209HR2002PLC082542. The registered office of the Applicant Company-4 is presently situated at Plot No. 123, Sector-3, IMT Manesar, Haryana-122050. 16. The position of Authorized, Issued, Subscribed and Paid-up Share Capital of the Applicant Company 4 as per the Audited Accounts for the financial year ended on 31st March 2019 is as follows: - Particulars Amount In' Rs. AUTHORISED SHARE CAPITAL: 20,00,000 equity shares of ₹ 10 each 2,00,00,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l statements for the financial year ended on 31st March, 2019 and provisional financial statements of the Applicant Company-5 for the period 1st April, 2019 to 30th September, 2019 are annexed as Annexure F-2 and Annexure F-3 of the application respectively. 22. As per the Memorandum & Articles of Association, Annexure 'G-1' (Colly), the main objects of Applicant Company 6 are as follows: - 1. To manufacture, design, fabricate, process, assemble, develop, undertake, buy, sell, import, export, hire, distribute, alter, repair, convert & otherwise deal in all kinds of auto components made of plastic and sheet metal, automobile accessories and related hand tools & other tools, jigs, dyes, moulds, fixtures, gauges, values & equipments for automobile Industry. 2. To develop, manufacture, assemble, buy, sell, exchange, market, import, export, deal in all type of auto components. 23. As per the Certificate of Incorporation, the Applicant Company 6 is an unlisted public limited company incorporated on 21.05.1999 under the provisions of Companies Act, 1956. The Corporate Identification Number (CIN) of Applicant Company 6 is U34300HR1999PLC082781. The registered office of the Applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to in sub-clause(1) above. 27. As per the certificate of incorporation, the Applicant/Transferor Company 7 is an unlisted public limited company incorporated on 01/09/1997 under the provisions of Companies Act, 1956. The Corporate Identification Number (CIN) of Applicant Company 7 is U51311HR1997PLC082740. The registered office of the Applicant Company-7 is presently situated at Plot No. 123, Sector-3, IMT Manesar, Haryana 122050. 28. The Authorized, Issued, Subscribed and Paid-up Share Capital of the Applicant Company 7 as per the Audited Accounts for the financial year ended on 31st March 2019 is as follows: Particulars Amount In' Rs. AUTHORISED SHARE CAPITAL: 20,00,000 equity shares of ₹ 10 each 2,00,00,000/- Total 2,00,00,000/- ISSUED, SUBSCRIBED AND PAID UP CAPITAL: 19,79,850 equity shares of ₹ 10 each 1,97,98,500/- Total 1,97,98,500/- It is also stated that subsequent to 31.03.2019 and till the date of filling of this joint application there is no change in the share capital of the Applicant Company 7. 29. The certified true copy of the audited financial statements for the financial year ended on 31st March, 2019 and provisional fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Association, Annexure 'J-1', the main objects of Applicant Company 9 are as follows: 1. To manufacture, design, fabricate, process, develop, undertake, buy, sell, import, export, hire, distribute, alter, repair, convert & otherwise deal in all kinds of plastic components, sheet metal components, hand tools & other tools, jigs, dyes, moulds, fixtures, gauges, values, appliances for automobiles including home appliances & equipments for all purposes including industry, agriculture, domestic & elsewhere. 2. To act as representatives, buying, selling agents, authorised services centre, operators, stockists and distributors in India and abroad in respect of the above object. 35. As per the certificate of incorporation, the Applicant Company 9 is an unlisted public limited company incorporated on 06.07.1999 under the provisions of Companies Act, 1956. The Corporate Identification Number of Applicant Company 9 is U29130HR1999PLC083300. The registered office of the Applicant Company 9 is presently situated at Plot No. 123, Sector-3, IMT Manesar, Haryana-122050. 36. The Authorized, Issued, Subscribed and Paid-up Share Capital of the Applicant Company 9 as per the Audited Accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ARE CAPITAL: 1,22,00,000 equity shares of ₹ 10 each 12,20,00,000/- Total 12,20,00,000/- ISSUED, SUBSCRIBED AND PAID UP CAPITAL: 1,19,32,319 equity shares of ₹ 10 each 11,93,23,190/- Total 11,93,23,190/- It is also stated that subsequent to 31.03.2019 and till the date of filling of this joint application there is no change in the share capital of the Applicant Company 10. 41. The certified true copy of the audited financial statements for the financial year ended on 31st March, 2019 and provisional financial statements of the Applicant Company 10 for the period 1st April, 2019 to 30th September, 2019 are annexed as Annexure K-2 and Annexure K-3 of the application respectively. 42. The registered offices of all the Applicant Companies is situated in the State of Haryana, therefore, the matter falls within the territorial jurisdiction of this Tribunal. 43. It is submitted that no investigation or proceedings are pending under the provisions of the Companies Act, 2013 against any of the Applicant Companies. It is also stated that the "Scheme" does not provide for any corporate debt restructuring with any of the secured and unsecured creditors of the Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent, by way of consent affidavit. A certificate of M/s AJH & Co., Chartered Accountants certifying the number of secured creditor in the Applicant Company-2 as on 15th November, 2019 and respective consent affidavit are annexed as Annexure C-7 (Colly) of the application. 49. The Applicant Company-2 has 73 (Seventy three) unsecured creditors having an outstanding balance of ₹ 2,55,47,894 (Rupees Two crore fifty five lacs forty seven thousand eight hundred ninety four) as on 15th November, 2019. The 31 (Thirty one) unsecured creditors having an outstanding balance of ₹ 2,49,26,906 (Rupees Two crore forty nine lacs twenty six thousand nine hundred six) consisting 97.57% of unsecured creditors in value have given their consent, by way of consent affidavits. A certificate of M/s AJH & Co., Chartered Accountants, certifying the number of unsecured creditors in the Applicant Company-2 as on 15th November, 2019 and respective consent affidavits are annexed as Annexure C-8 (Colly) of the application. 50. The Applicant Company-3 has seven equity shareholders as on November 13, 2019. The said equity shareholders of the Applicant Company-3 have given their consents, by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re sixteen lacs thirteen thousand two hundred eighty eight) as on 15th February, 2020. The said secured creditors have given their consent, by way of consent affidavits. A certificate of M/s AJH & Co., Chartered Accountants, certifying the number of secured creditors in the Applicant Company-4 as on 15th November, 2019 and 15th February, 2020 and respective consent affidavits are annexed as Annexure E-7 (Colly) of the application. 55. The Applicant Company 4 has 60 (Sixty) unsecured creditors having an outstanding balance of ₹ 3,16,59,854 (Rupees Three crore sixteen lacs fifty nine thousand eight hundred fifty four) as on 15th November, 2019. The 29 (Twenty nine) unsecured creditors having an outstanding balance of ₹ 3,09,29,826 (Rupees Three crore nine lac twenty nine thousand eight hundred twenty six) consisting 97.69% of unsecured creditors in value have given their consent, by way of consent affidavits. A certificate of M/s AJH & Co., Chartered Accountants, certifying the number of unsecured creditors in the Applicant Company-4 as on 15th November, 2019 and respective consent affidavits are annexed as Annexure E-8 (Colly) of the application. 56. The Applicant Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Company-6 as on 15th November, 2019 and 15th February, 2020 is annexed as Annexure G-7 (Colly) of the application. 61. The Applicant Company-6 has 73 (Seventy three) unsecured creditors having an outstanding balance of ₹ 3,68,18,110 (Rupees Three crore sixty eight lacs eighteen thousand one hundred ten) as on 15th November, 2019. The 30 (Thirty) unsecured creditors having an outstanding balance of ₹ 3,62,96,839 (Rupees Three crore sixty two lacs ninety six thousand eight hundred thirty nine) consisting 98.58% of unsecured creditors in value have given their consent, by way of consent affidavits. A certificate of M/s AJH & Co., Chartered Accountants, certifying the number of unsecured creditors in the Applicant Company-6 as on 15th November, 2019 and respective consent affidavits are annexed as Annexure G-8 (Colly) of the application. 62. The Applicant Company-7 has seven equity shareholders as on November 14, 2019. The said equity shareholders of the Applicant Company-7 have given their consents, by way of affidavits, to the Scheme. The list of equity shareholders of the Applicant Company-7 along with their respective consent affidavits are annexed herewith and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holders of the Applicant Company-9 along with their respective consent affidavits are annexed as Annexure J-6 (Colly) of the application. 69. The Applicant Company-9 had 3 (Three) secured creditors having an outstanding balance of ₹ 1,46,92,653 (Rupees One crore forty six lacs ninety two thousand six hundred fifty three) as on 15th November, 2019. Out of these Three, one secured creditor had an outstanding balance of ₹ 79,11,906 (Rupees Seventy nine lacs eleven thousand nine hundred six) is paid fully on 15th February, 2020. The Applicant Company-9 had 2 (Two) secured creditors having an outstanding balance of ₹ 67,80,747 (Rupees sixty seven lacs eighty thousand seven hundred forty seven) as on 15th February, 2020. The 1 (One) secured creditor having an outstanding balance of ₹ 63,61,793 (Rupees Sixty three lacs sixty one thousand seven hundred ninety three) consisting 93.82% of secured creditors in value has given its consent, by way of consent affidavit. A certificate of M/s AJH & Co., Chartered Accountants, certifying the number of secured creditors in the Applicant Company-9 as on 15th November, 2019 and 15th February,2020 and respective consent affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, greater productivity and economical operations for future growth. (vii) The merger will provide for pooling of the managerial, technical and financial resources of the Transferor Companies which will help in increasing the competitiveness for the group. (viii) The merger will result in economies of scale, reduction in overheads including administrative, managerial and other expenditure, operational rationalization, organizational efficiency and optimal utilization of resources 74. We have heard the learned counsel for the Applicant Companies and perused the record carefully and the supporting documents/papers filed along with the Scheme contemplated between the applicant companies. 75. It could be seen that the Transferor Companies are directly or indirectly, wholly owned subsidiaries of the Transferee Company, accordingly, upon the Scheme becoming effective, all the equity shares held by the Transferee Company in the Transferor Companies either by itself or through its subsidiaries/nominess shall stand cancelled and extinguihed. Therefore, there will be no issue and allotment of shares as consideration by the Transferee Company to the shareholders of the Transferor C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit vide Special Diary No. 135 dated 18.06.2020. The Provisional Balance Sheets of all the Applicant Companies as on 31.03.2020 along with the Board Resolutions in Osram Lighting Ltd (unsecured creditor in Applicant Company 2), DSM India Pvt Ltd (unsecured creditor in Applicant Company 2), Minda Industries Ltd (unsecured creditor in Applicant Company 6), Siemens Financial services Pvt Ltd(secured creditor in Applicant Company 9) and Mahadhyuta Automotive Pvt Ltd( unsecured creditor in Applicant Company 9) are all part and parcel of Special Diary No. 135 dated 18.06.2020. The Affidavit of Mr Rajat Kumar Singh (who has deposed the consent affidavit on behalf of M/s Bajaj Finance Ltd., a secured creditor in Applicant Company 4) clarifying that his name has wrongly being stated in the previous consent affidavit as Mr Rajat Singh is annexed as Annexure E with the above compliance. 78. The authorized representative representing the applicant companies has submitted in response to the missing Board resolution / authority in case of Indian Bank, Secured Creditor in Transferor Company-9 as mentioned in direction (6-A) in the above order dated 26.05.2020 has placed reliance on Annexure J-7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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