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TMI Blog2021 (7) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... f the MULTIPLEX VYAPAAR PRIVATE LIMITED being the Petitioner No. 2 above named ( Demerged Company or Petitioner No. 2 ) will be demerged by transferring and vesting of the same in ARGENTIUM INTERNATIONAL PRIVATE LIMITED being the Petitioner No. 1 above named ( Resulting Company or Petitioner No. 1 ) from the Appointed Date, 01st April, 2019 and amalgamation of VARSHA TRADECOM PRIVATE LIMITED being the Petitioner No. 3 above named ( Transferor Company or Petitioner No. 3 ) with ARGENTIUM INTERNATIONAL PRIVATE LIMITED being the Petitioner No. 1 above named ( Transferee Company or Petitioner No. 1 ) whereby and where under the Transferor Company are proposed to be amalgamated with the Transferee Company from the Appointed Date, 01st April, 2019 in the manner and on the terms and conditions stated in the said Composite Scheme of Arrangement ( Scheme ). 2. The Petition has now come up for final hearing. Counsel for the Applicants submits as follows:- (a) The Scheme was approved by the respective Board of Directors of the Petitioner Companies at their meetings held on 16th March 2020. (b) The circumstances which justify and/or have necessitated the Scheme and the bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner Companies have by their certificates dated 20-05-2020 confirmed that the accounting treatment in the Scheme is in conformity with the accounting standards prescribed under Section 133 of the Companies Act, 2013. (d) No proceedings are pending under Sections 210 to 227 of the Companies Act, 2013 against the Petitioner(s). (e) The exchange ratio of shares in consideration of the Amalgamation has been fixed on a fair and reasonable basis and on the basis of the Report thereon of ANIL KUMAR GUPTA, IBBI, Registered Valuer. (f) The shares of the Petitioner Companies are not listed on the specify stock exchanges. (g) By an order dated 05TH OCTOBER, 2020 in Company Application (CAA) No. 650/KB/2020, this Tribunal made the following directions with regard to meeting(s) of shareholders and creditors under Section 230(1) [read with Section 232(1) of the Act]:- (i) Meeting(s) dispensed: Meeting(s) of the Equity Shareholders of Petitioner Companies, Secured Creditors of Petitioner Company No. 3 and Unsecured Creditors of Petitioner Company No. 2 for considering the Scheme were dispensed with in view of all shareholders and over 90% in value of Secure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices the Regional Director, Ministry of Corporate Affairs, Kolkata ( RD ), Official Liquidator, High Court have filed their representations before this Tribunal. 4. The Official Liquidator has filed his report dated 18/03/2021 and concluded as under:- At Para 8 That the Official Liquidator has not received any complaint against the proposed Scheme of Amalgamation from any person/party interested in the Scheme in any manner till the date of filing of this Report. At Para 10 That the Official Liquidator on the basis of information submitted by the Petitioner Companies is of the view that the affairs of the aforesaid Transferor Company do not appear to have been conducted in a manner prejudicial to the interest of its members or to public interest as per the provisions of the Companies Act, 1956/the Companies Act, 2013 whichever is applicable. 5. The RD has filed his reply affidavit dated 25th March, 2021 ( RD affidavit ) which has been dealt with by the Petitioner(s) by their Rejoinder affidavit dated 26th March, 2021 ( Rejoinder ). The observations of the RD and responses of the Petitioner(s) are summarized as under:- Paragraph No. 2(a) of RD Affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through appropriate affirmation. Paragraph No. (c) of Rejoinder The Transferee Company undertakes that it shall comply with the provisions of Sec. 232(3)(i) of the Companies Act, 2013 in regard to adjustment of fees upon clubbing of Authorized Share Capital(s) of the Transferor Company (ies) with the Authorized Share Capital of the Transferee Company in post-amalgamation and shall file a detailed statement thereof with the Registrar of Companies at the time of filing of INC - 28. Paragraph No. 2(d) of RD Affidavit That the Transferee Company should be directed to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it. Paragraph No. (d) of Rejoinder The Transferee Company undertakes that it shall pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it. Paragraph No. 2(e) of RD Affidavit In compliance of Accounting Standard-14 or IND-AS 103, as may be applicable, the Transferee Company shall pass such accounting entries which are necessary in connection with the scheme to comply with other applicable Accounting Standards such as AS-5 or IND AS-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... malgamation or arrangement. Further, the approval of the scheme by the Hon'ble Tribunal may not deter such authorities to deal with any of the issues arising after giving effect to the scheme. The decision of such authorities shall be binding on the Petitioner Company(s) concerned. Paragraph No. 2(i) of RD Affidavit The Petitioner Companies have complied with the directions contained in the order passed by the Hon'ble National Company Law Tribunal, Kolkata Bench and have effected service upon all Regulatory Authorities as directed in the order passed by the said Tribunal in their order at the dispensation stage and also at the time of second motion stage and have filed affidavit of compliance. The Petitioner Companies agree that decision of any authorities post sanctioning shall be binding on Transferee Company. Paragraph No. (j) of Rejoinder It is submitted that as per instructions of the Ministry of Corporate Affairs, New Delhi, a copy of the scheme was forwarded to the Income tax Department on 03/12/2020 with a request to forward their comments/observations/objections, if any. However, the same is still awaited. Paragraph No. (k) of Rejoinder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ULTING COMPANY; d. That all the proceedings and/or suit appeals now pending by or against or in relation to NON CURRENT INVESTMENT - SHARE DIVISION of MULTIPLEX VYAPAAR PRIVATE LIMITED - DEMERGED COMPANY shall be continued by or against ARGENTIUM INTERNATIONAL PRIVATE LIMITED - RESULTING COMPANY; IN RELATIONTOAMALGAMATION e. All the properties, rights and interest of VARSHA TRADECOM PRIVATE LIMITED - TRANSFEROR COMPANY be transferred to and vested in without further act or deed in ARGENTIUM INTERNATIONAL PRIVATE LIMITED - TRANSFEREE COMPANY and accordingly the same shall pursuant to Section 232 of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 be transferred to and vested in ARGENTIUM INTERNATIONAL PRIVATE LIMITED - TRANSFEREE COMPANY for all the estate and interest of VARSHA TRADECOM PRIVATE LIMITED - TRANSFEROR COMPANY but subject nevertheless to all charges, now affecting the same; f. All the liabilities and duties in relation to VARSHA TRADECOM PRIVATE LIMITED - TRANSFEROR COMPANY be transferred without further act or deed to ARGENTIUM INTERNATIONAL PRIVATE LIMITED - TRANSFEREE COMPANY and accordingly the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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