9911796707
TMI Blog2021 (8) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... tta Main Road, Bangalore - 560 029. Its Authorised Share Capital is Rs. 250,00,00,000 divided into 25,00,00,000 equity shares of Rs. 10/- each and issued, subscribed and paid up capital is Rs. 230,35,92,480/- divided into 23,03,59,248 equity shares of Rs. 10/- each. Its main objects inter alia, are to design, develop, import, procure, sell, provide, license and market in India and abroad, information technology services including but not limited to information technology consulting, desktop system management, etc. (2) A Draft Scheme of Arrangement of Petitioner No. 1 are formulated in pursuant to Section 230 to 232 and other applicable provisions, if any, of the Companies Act, 2013 subject to approval of shareholders and confirmation by the Hon'ble National Company Law Tribunal (NCLT) and other concerned authorities. Accordingly, the Board of Directors of the Petitioner Company No. 1 at their meeting held on 15th January 2021 approved the said scheme. (3) "Grand Ocean Managed Infrastructure Services Private Limited" the Resulting Company (hereinafter referred to as Petitioner No. 2) is an unlisted Private Company was incorporated on 8th January 2021. Its registered office i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effective. (9) The proposed Scheme is not prejudicial to the interest of any of the shareholders or creditors of the Demerged Company and the Resulting Company. Upon the scheme becoming effective and as consideration for the Scheme, the Resulting Company shall allot fully paid up equity shares to the equity shareholders of the Demerged Company, whose names appear in the register of members of the Demerged Company on the relevant record date. The allotment of shares shall be "1 (one) fully paid up equity share of Rs. 10 (Rupees Ten only) each of the Resulting company shall be issued and allotted for every 3 (three) fully paid up equity shares of Rs. 10 (Rupees Ten only) each held in the Demerged company". (10) The Petitioner Companies have filed C.A. (CAA) No. 05/BB/2021 before this Tribunal and the Tribunal, vide its Order dated 28.01.2021. The Tribunal, vide its Order dated 28.01.2021, directed to convene a meeting of the Equity Shareholders of the Petitioner Companies and unsecured Creditors of the Petitioner No. 1 Company by appointing Mr. Dushyanth Kumar, K as Chairperson and Mr. Sudheendra, P. Ghali, as Scrutinizer.. Accordingly, all the said meetings were duly held and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard, the Company has confirmed that 10,000 shared held by the Demerged Company shall be cancelled upon issuance of new shares. (6) The Demerged Company was required to spend Rs. 1,004 Millions and Rs. 1,052.3 Millions towards CSR for the financial years 2018-19 and 2019-20 respectively. Whereas the Company has spent only Rs. 217 Millions and Rs. 445 Millions for 2018-19 and 2019-20 respectively and not disclosed the reasons for the unspent amount of CSR of Rs. 76.06 Crores. (7) The shareholders of Demerged Company would be getting shares arising out of this demerger. Hence, the Demerged Company necessary undertaking with regard to compliance of RBI/FEMA Regulations shall be furnished before the Hon'ble NCLT. (8) As per the Auditors Report for the year 2019-20 and earlier there are huge disputed Income Tax, VAT, CST, ST, penalty for adjudication and certain amount has been paid by the company under protest by the Demerged Company. The Demerged Company shall file an undertaking before the Hon'ble NCLT stating that the dues payable will be taken care and be paid as and when demanded by the Statutory Authorities. The Resulting Company shall furnish an undertaking before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these financial years. The relevant portion of the Board's Reports (i.e., CSR Reports) for financial years 2017-18, 2018-19 and 2019-20 with relevant disclosures on the unspent CSR amounts have been enclosed and marked as Annexure A. Accordingly, there has been no non-compliance by the Demerged Company u/s. 135 of the Companies act, 2013, and the Demerged Company shall continue to comply with provisions of Section 135 of the Companies Act, 2013. (4) The shares of the Resulting Company would be issued to the shareholders of Demerged Company upon the Scheme becoming effective. As such, this share issuance would fall under automatic route and would not require RBI approval. The Applicable compliances as required under the Foreign Exchange Management Act, 1999 and ruled made thereunder (i.e. filing of Form FC GPR) would be undertaken by the Resulting Company subsequent to the Scheme being sanctioned by the Hon'ble Tribunal and Scheme coming into effect. An affidavit shall be filed with the Hon'ble Tribunal once the necessary compliances in this regard have been completed. (5) The Demerged Company undertakes that the dues payable will be taken care and be paid as and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The relevant details in this regard are enclosed herewith and marked as Annexure F. (9) The name of the Resulting Company was changed from 'Grand Ocean Managed Infrastructure Services Private Limited' with effect from May 24, 2021. The Resulting Company has made relevant filings in respect of name change to the jurisdictional Registrar of Companies (ROC) and afresh certificate of incorporation dated 21.05.2021 has been issued by the ROC in this regard. (10) It is hereby clarified and stated that 100% of the unsecured creditors who were present and voting in the meeting have voted in favour of the Scheme. This is also state in page 4 of the chairperson's report filed with the Hon'ble Tribunal. (11) The present shareholding pattern of the Resulting Company is as below: As per the Clause 14.1 of the Scheme, upon the Scheme becoming effective, the existing shareholding of the Demerged Company in the Resulting Company shall stand cancelled immediately following the issuance of the new equity shares to the shareholders of the Demerged Company. Pursuant to Clause 13 of the Scheme, the existing shareholders of the Demerged Company will be issued fresh equity share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture Services Private Limited' to 'Kyndryl Solutions Private Limited'. The Petitioner No. 2 further stated that the change of name will have no adverse impact on the shareholder and creditors of the Resulting Company and will have not hinder the scheme of Arrangement in any manner or form. The change of name of the Petitioner No. 2 is merely procedural in nature and will have no adverse impact of the parties to the Scheme of Arrangement or their respective stakeholders. 8. Heard Shri (sic) Sarkar, Learned Counsel for the Petitioner Company and Smt. Prema Hatti, learned Standing Counsel for the ROC/RD. We have carefully perused the pleadings of the Parties and the extant Provisions of Companies Act, 2013 and various Rules made thereunder and the Law on the issue. 9. Smt. Prema Hatti, learned Standing Counsel for the ROC/RD, has again pointed out various observations made in their Affidavits, as briefly stated supra, and submit that the Tribunal may consider the Scheme as per merits. 10. As facts narrated above, the instant Petition has been filed U/s. 230 and 232 of Companies Act, 2013 r/w. extant provisions of Rules, after duly following pre-requisite as prescribed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Scheme in question is comprehensive one complying with the provisions of Sections 230 to 232 of the Companies Act, 2013 and the Rules made thereunder and the Petition/Application is filed in accordance with law. It covers all the issues relating to legal proceedings, continuation of contracts, deeds, therefore, the Scheme in question prima facie eligible to be sanctioned, however, subject to compliance of various undertakings as mentioned in the Scheme and to follow/comply various observations made by the Statutory Authorities as detailed supra. It is also appears to be fair, reasonable and it is not detrimental against the Members or Creditors or contrary to public policy. Therefore, we are inclined to sanction the scheme, however, subject to complying with various conditions/undertakings, post sanctioning the Scheme. 14. In view of the above facts and circumstances of the case, C.P. (CAA) No. 17/BB/2021 is disposed of with the following directions: (1) The Scheme of Arrangement (which is enclosed to the instant Company petition) of IBM India Private Limited (Demerged Company) with Grand Ocean Managed Infrastructure Services Private Limited (Resulting Company) is provisionall ..... 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