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TMI Blog2021 (8) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... j Jain and Yogesh Putney, Advocates JUDGMENT Ajay Kumar Vatsavayi, Member (J) 1. This is a joint Second Motion Petition under Sections 230 and 232 of the Companies Act, 2013 (for short to be referred hereinafter as the 'Act') filed by the Petitioner Companies in terms of Rule 15 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity, 'Rules') for the sanction of Scheme of Amalgamation (for brevity 'Scheme') of GRAND METAL RECYCLING PRIVATE LIMITED (Transferor Company 1/Petitioner Company 1/GMR), SUVRIDHI FINANCIAL SERVICES LIMITED (Petitioner Company 2/Applicant Company 2/SFS), SANJIVANI NONFERROUS TRADING PRIVATE LIMITED (Transferor Company 3/Petitioner Company 3/SNFT), RAMAYANA POLYMERS PRIVATE LIMITED (Transferor Company 4/Petitioner Company 4/RPL), FOREVER MULTIMEDIA PRIVATE LIMITED (Transferor Company 5/Petitioner Company 5//FMPL), CENTURY METAL RECYCLING LIMITED (Transferor Company 6/Petitioner Company 6/CMR) with GRAND METAL INDUSTRIES LIMITED (Transferee Company/Petitioner Company 7/GMI), jointly described as 'Petitioner Companies'. The joint petition is maintainable in terms of Rule 3(2) of the Rules. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies at NCT of Delhi and Haryana (c) Income Tax Department through the Nodal Officer - Principal Chief Commissioner of Income Tax, NWR, Aayakar Bhawan, Sector 17-E, Chandigarh by mentioning the PAN of the companies (d) Official Liquidator (attached to Punjab and Haryana High Court) or to such other Sectoral Regulator(s) who may govern the working of the respective companies involved in the Scheme along with copy of this petition by speed post immediately 7. The Petitioner Companies shall at least 7 days' before the date of hearing of the Company Petition file an affidavit of service regarding newspaper publication and service of notices on the authorities specified above including the sectoral regulator and objectors, if any. Objections, if any, to the Scheme contemplated by the authorities to whom notice has been given on or before the date of hearing fixed herein may be filed, failing which it will be considered that there is no objection to the approval of the Scheme on the part of the authorities by this Tribunal and subject to other condition being satisfied as may be applicable under the Companies Act, 2013 and relevant rules framed thereunder. 8. Registry shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Clause 9, 20 & 30 of the Scheme that if any suit, writ petition, appeal, revision or other proceedings of whatsoever nature (hereinafter called "the proceedings') by or against the Transferor Companies is pending, the same shall not abate, be discontinued or be in any way prejudicially affected by reason of the transfer of the business of the Transferor Companies or because of anything contained in the Scheme, but the proceedings may be continued, prosecuted and enforced by or against the Transferee Company in the same manner and to the same extent as it would or might have been continued, prosecuted and enforced by or against the Transferor Companies as if the Scheme had not been made. 9. The Scheme also takes care of the interest of employees. From the relevant clauses of the Scheme there seems to be no adverse impact on the service conditions of the employees of the Transferor Company. 10. We have heard the Learned Counsel for the Petitioners, Official Liquidator, Registrar of Companies, Regional Director, Northern Region and the Income Tax Department & have perused the records. 11. The Regional Director (RD) has filed its report vide vide Diary No. 02014/8 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2020 at MCA Portal as on 27.01.2021. 15. In response to the above report, the petitioner companies have filed counter vide Diary No. 02014/12, 02014/13, 02014/14, 02014/15, 02014/16, 02014/17, 02014/18 dated 23.04.2021 and also by Additional Affidavit vide Diary No. 02014/28 dated 23.04.2021. 16. It is stated that the adoption of common Appointed Date of 30.09.2019 shall not have any material changes in implementation of the proposed scheme of Arrangement since the effectiveness of the Scheme shall be in sequence as mentioned in Para 39.1 of the Scheme irrespective of the common Appointed Date for all three parts of the Scheme. It is also stated that the change of Appointed Date to September 30, 2019 shall not have any impact in the share exchange ratio as determined by the Registered Valuer since the latest available financials of all the companies i.e. for the period ended December 31, 2019 as on date of valuation, was considered for the valuation report submitted with this Tribunal and it was not based on the Appointed Dates of the Scheme. Accordingly, change of Appointed Date, if approved, shall not have any impact on the share exchange ratio provided in the Scheme and sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Diary No. 02014/27 dated 23.04.2021. 23. The Share Exchange Ratio under the 'Scheme' has been determined in accordance with the Report on Fair Exchange Ratio dated 06.06.2020, prepared by Mr. Niranjan Kumar, IBBI Registered Valuer - Securities and Financial Assets and the same has been annexed at Annexure A-64 of the application. It is represented by the learned counsel for the Applicants that based upon the above valuation report, the share exchange ratio as per the Scheme is as follows:- "a) To the equity shareholders of GRAND METAL RECYCLING PRIVATE LIMITED (GMR): "12 fully paid up equity shares of face value of ₹ 10 each of GMI shall be issued and allotted as fully paid up equity shares to the equity shareholders of GMR, for every 10 fully paid up equity shares of face value of ₹ 10 each held by them in GMR." b) To the equity shareholders of SUVRIDHI FINANCIAL SERVICES LIMITED (SFS): "137 fully paid up equity shares of face value of ₹ 10 each of GMI shall be issued and allotted as fully paid up equity shares to the equity shareholders of SFS, for every 1000 fully paid up equity shares of face value of ₹ 10 each held b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the process of winding up resulting in increase in the share capital of the Transferee Company. AND THIS TRIBUNAL DO FURTHER ORDER: i) That all the property, rights and powers of the Transferor Companies be transferred, without further act or deed, to the Transferee Company and accordingly, the same shall pursuant to sections 230 to 232 of the Companies Act, 2013, be transferred to and vested in the Transferee Company for all the estate and interest of the Transferor Companies but subject nevertheless to all charges now affecting the same; and ii) That all the liabilities and duties of the Transferor Companies be transferred, without further act or deed, to the Transferee Company and accordingly the same shall pursuant to Sections 230 to 232 of the Companies Act, 2013, be transferred to and become the liabilities and duties of the Transferee Company; and iii) That all the proceedings now pending by or against the Transferor Companies be continued by or against the Transferee Company; and iv) That the employees of the Transferor Companies shall be transferred to the Transferee Company in terms of the 'Scheme'; and v) That the Transferee Company do, without fur ..... 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