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TMI Blog2021 (2) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited ( the Transferee Company ) and the Appointed Date of the Scheme is fixed as opening hours of 31st March, 2019 - application disposed off. - CP(CAA)/01/KOB/2020 - - - Dated:- 12-2-2021 - Shri Ashok Kumar Borah, Member (Judicial) Counsel for the Petitioners : Shri Anil D Nair, Advocate, Advocate ORDER This Company Petition CP(CAA)/01/KOB/2020 has been filed under Section 230 read with Section 232 of the Companies Act, 2013 for sanctioning the Scheme of Amalgamation of the Transferor Companies with the Transferee Company by 1) M/s. Commodity Online (India) Limited, 27/540, III Floor, EAK Towers, Main Avenue, Panampilly Nagar, Kochi- 682 036 (hereinafter referred to as the First Petitioner/Transferor Company No. 1 ), 2) Celebrus Capital Limited, 27/540, III Floor, EAK Towers, Main Avenue, Panampilly Nagar, Kochi- 682 036 (hereinafter referred to as the Second Petitioner/ Transferor Company No. 2) with M/s. Acumen Capital Market (India) Limited, 38/1431, S T Reddiar Building, Vekshanam Road, Ernakulam, Kerala 682 035 [hereinafter referred to as the Transferee Company].The Petitioners sought the following reliefs: - a. That the said Arrangement as embodied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vities in India. The business activities of the Transferor Companies and Transferee Company are similar and complement each other. In view of that, the Board of Directors of the Transferor Companies and the Transferee Company resolved that this scheme would be mutually beneficial in respect of the business and related activities in India and/or abroad, and to achieve greater infrastructure sharing, operational efficiencies and cost optimization. The Board of Directors of the Transferor Companies and the Transferee Company have considered and proposed the Scheme, where under the entire undertakings and businesses of the Transferor Companies would be transferred and vested with and into the Transferee Company pursuant to the provisions of Sections 230 to 232 and other relevant provisions of the Companies Act, 2013. Terms of the Scheme of Amalgamation 4. A brief summary of the terms of the Scheme of Amalgamation is as under: - i. The Appointed Date as per the Scheme is 31st March, 2019 or such other date this Tribunal may direct. ii. Vesting of the undertakings 5. Upon the coming into effect of the Scheme and with effect from the Appointed Date, the Undertaking, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations shall, pursuant to the sanction of the Scheme by the NCLT under and in accordance with the provisions of Section 230 to 232 and other applicable provisions, if any, of the Act, without any further act, instrument, deed, matter of thing, be transferred to and vested in or be deemed to have been transferred to and vested in the Transferee Company, along with any charge, encumbrance, lien or security thereon, and the same shall be assumed by the Transferee Company to the extent they are outstanding as on the Effective Date so as to become as and from the Appointed Date the liabilities of the Transferee Company on the same terms and conditions as were applicable to the Transferee Company shall meet, discharge and satisfy the same and further it shall not be necessary to obtain the consent of any third party or other person who is a party to any contract or arrangement by virtue of which such liabilities have been arisen in order to give effect to the provisions of this Clause; Where any such debts, loans raised, liabilities, duties and obligations of the Undertaking of the Transferor Companies as on Appointed Date have been discharged or satisfied by the Transferor Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term or condition of the liabilities transferred to the Transferee Company is modified by virtue of the Scheme except to the extent that such amendment is required statutorily or by necessary implication. 9. Inter Se Transaction Without prejudice to the provisions of the Scheme, with effect from the Appointed Date, all inter-party transactions between the Transferor Companies and the Transferee Company shall be considered as intra-party transactions for all purposes. 10. Contracts, Deeds etc Subject to the other provisions of the Scheme, all contracts, deeds, agreements, licenses, permits, registrations. approvals and other instruments, if any, of whatsoever nature to which the Transferor Companies are a party and subsisting or having effect on the Effective Date, shall be in full force and effect against or in favour of the Transferee Company, as the case may be, and may be enforced by or against the Transferee Company as fully and effectually as if, instead of the Transferor Companies, the Transferee Company had been a party thereto, notwithstanding the terms contained in such contracts, deeds, bonds, agreements, licenses, permits, registrations, approvals and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board of Directors of the Transferee Company or unless specifically permitted in the scheme alienate, charge, mortgage, encumber or otherwise deal with or dispose of their respective Undertaking or any part thereof, All the profits or income accruing or arising to the Transferor Companies or expenditure or losses arising or incurred or suffered by the Transferor Companies shall for all purposes be treated and deemed to be and accrue as the income or profits or losses or expenditure as the case maybe of Transferee Company; Any of the rights, powers, authorities and privileges attached or related or pertaining to and exercised by or available to the Transferor Companies shall be deemed to have been exercised by the Transferor Companies for and on behalf of and as agent for the Transferee Company. Similarly, any of the obligations, duties and commitments attached, related or pertaining to the Undertaking that have been undertaken or discharged by the Transferor Companies shall be deemed to have been undertaken or discharged for and on behalf of and as agent for the Transferee Company; The Transferor Companies shall not vary the terms and conditions of employment of any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the Transferee Company. 14. Staff, Workmen and Employees All the employees of the Transferor Companies on the Effective Date shall become the employees of the Transferee Company without any break or interruption in service and on the same terms and conditions on which they are engaged as on the Effective Date. Services of all such employees with the Transferor Companies as the case may be, up to the Effective Date shall be taken into account for the purpose of all retirement benefits to which they may be eligible in the Transferee Company on the Effective Date. The services of such employees shall not be treated as having been broken or interrupted for the purposes of Provident Fund or Gratuity or Superannuation or other statutory purposes and for all purposes will be reckoned from the date of their respective appointments by the Transferor Companies, as the case maybe. It is provided that as far as the Provident Fund, Gratuity Fund, Superannuation Fund or any other Special Fund created or existing for the benefit of the Staff, Workmen and other employees of the Transferor Companies are concerned, upon this Scheme becoming finally effective, the Transfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociation of the Transferee Company and shall rank pari passu in all respects with the existing equity shares in the Transferee Company save and except that they shall be eligible for dividend from the appointed date or if any dividend is paid for the period after the appointed date on the shares of the Transferor companies, then they shall be eligible for dividend from such date as may be specified by the Board of Directors of the Transferee Company; Approval of this Scheme by the Shareholders of the Transferee Company shall be deemed to be the due compliance of the provisions of Sections 42 and 62 and the other relevant and applicable provisions of the Act for the issue and allotment of the equity shares by the Transferee Company to the shareholders of the Transferor Companies as provided in this Scheme. 17. Increase in Authorized Capital of Transferee Company The Transferee Company has at present sufficient number of unissued Equity Shares in its authorized Share Capital. However, if necessary, the Transferee Company will increase its authorized Share Capital to facilitate allotment of its Shares to the Shareholders to the Transferor Companies 18. Accounting Trea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modification in the Scheme, as will best preserve for the parties to the Scheme, the benefits and obligations of the Scheme. 22. Cost, Charges and Expenses All costs, charges, taxes including duties, levies and all other expenses, if any (save as expressly otherwise agreed) of the Transferor Companies and the Transferee Company arising out of or incurred in connection with and implementing this Scheme and matters incidental thereto shall be borne by the Transferee Company. 23. Effect of Non-Receipt of Approvals In the event any of the approvals or conditions enumerated in the Scheme not being obtained or complied with, or for any other reason, the Scheme cannot be implemented, the Board of Directors of the Transferee Company and the Board of Directors of the Transferor Companies shall by mutual agreement waive such conditions as they consider appropriate to give effect, as far as possible, to this Scheme and failing such mutual agreement, or in case the Scheme is not sanctioned by this Tribunal, the Scheme shall become null and void and each party shall bear and pay their respective costs, charges and expenses in connection with the Scheme. 24. Conditionality o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regional Director, Ministry of Corporate Affairs has not objected to the proposed Amalgamation between the Petitioner Companies, this Bench is of the opinion that the Scheme placed before this Bench on 18.02.2020, can be sanctioned. Hence, this Tribunal Sanction the Scheme of Amalgamation of M/s. Commodity Online (India) Limited ( the 1st Transferor Company) and M/s. Celebrus Capital Limited ( the 2nd Transferor Company) with M/s. Acumen Capital Market (India) Limited ( the Transferee Company ) and the Appointed Date of the Scheme is fixed as opening hours of 31st March, 2019, with the following: - ORDER I. All concerned regulatory authorities shall act on receipt of a copy of this order along with the Scheme duly certified by the Deputy/Assistant Registrar of this Tribunal. II. The Petitioner Companies are directed to file a copy of this order along with a copy of the Scheme with the concerned Registrar of Companies, electronically in E-Form INC-28, in addition to producing physical copy within 30 (thirty) days from the date of issuance of the order by the Registry. III. The Transferee Company is directed to comply with the provisions of Section 232 (3) (i) of the Co ..... 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