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TMI Blog2020 (3) TMI 1382X X X X Extracts X X X X X X X X Extracts X X X X ..... of name of the petitioner companies shall be subject to the confirmation by Registrar of Companies for availability of such names. The reduction of the Share Capital of the Resulting Company as envisaged under Clause 12 of the Scheme is allowed. Petition allowed - decided in favor of petitioner. - C.P. (CAA) No. 4/NCLT/AHM/2020 IN C.A. (CAA) No. 103/NCLT/AHM/2020 - - - Dated:- 17-3-2020 - Hon'ble Ms. Manorama Kumari, Member (J) And Hon'ble Mr. Chockolingam Thirunavukkarasu, Member (T) Appearance: Swati Soparlkar, Adv. ORDER Per: Ms. Manorama Kumari, Member (Judicial) l. The instant joint application is filed by the petitioner companies Under section 230-232 r/w 66 of the Companies Act, 2013. Seeking sanction of the scheme of arrangements in the nature of demerger between Deep Industries Ltd Deep CH4 Ltd.as well as the restructure of the equity share capital of the CH4 Ltd. 2. It is a matter of record and also submitted by the petitioner that both companies dealing through the same group of the management. The Board of Directors of both this companies envisages the rationale and benefit for the scheme are as under:- Deep primarily operate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atio of Equity Shares, being just and reasonable was provided by M/s Walker Chandiok Co. LLP. Chartered Accountants. The Statutory Auditors of both the companies have confirmed the compliance of applicable accounting standards for the accounting treatment proposed under the said scheme. 3. Deep Industries Limited, the De-merged Company being a listed public limited company, the approval was first obtained from the Audit Committee on 26th May 2018 and thereafter the same was placed before the respective Board of Directors of all the companies. The resolutions dated 26th May 2018 were passed by the Board of Directors of both the Petitioner Companies. The Scheme was thereafter presented to concerned stock exchanges and the observation letters dated 29th August 2018 were respectively obtained from BSE Limited and National Stock Exchange of India Limited. 4. In response to the said petitioner companies had filed the proceedings before this Tribunal in form of joint application being CA (CAA) No. 103 of 2018. Vide the said application, directions were sought to convene separate meetings of Equity Shareholders, Secured Creditors and Unsecured Creditors of Deep Industries Limited, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 9th January 2020 together with the copy of the scheme of arrangement and the explanatory assessment as well as request the disclosure. The notice on convening of meetings were also published in the English daily Indian Express and Gujarat Daily Sandesh on 29 September 2018. The petitioner has also filed an affidavit in compliance of the direction so made by this Bench The aforesaid meeting were duly convened in respect of the Deep Industries Ltd on 30.10.2018 and the Chairman was appointed for the said meeting who has also filed the report of the meeting by way of an affidavit on 27.11.2018. It is to be mentioned herein that the meetings of the secured creditors of the petitioner demerged company were required to be adjourned from time to time for lack of Coram and was finally convened on 26.12.2019 by appointing a chairman for the said meeting. 7. (i) Perusal of the Chairman's report confirms the cumulative approval of the scheme by requisite majority of 99.99% in value of the Equity Shareholders, who exercised their right to vote through different modes made available, viz. postal ballot, remote e voting and voting by physical ballots at the meeting. Further, the numbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further directed to issue notice of hearing of the petition to the Statutory Authorities which viz. (i) Central Govt. through Regional Director- North Western Region, (ii) Registrar of Companies, and (iii) Income Tax authorities, at least before 10 days of the date of hearing of the petition. 10. Pursuant to the directions, notices were duly served by the petitioner companies on the statutory authorities viz. (i) Central Govt. through Regional Director- North Western Region, (ii) Registrar of Companies, and (iii) Income Tax authorities, on or before 13th February 2020 and publications were duly made in the newspapers- Ahmedabad editions on 12th February 2020. The affidavit of service and publication dated 19th February 2020 confirming the same has been placed on record. Since the proposed Scheme involves only De-merger, no notice was required to be served upon the Official Liquidator. 11. On receipt of the notice a representation in form of the common affidavit received from the Regional Director on 1.11.2018 to which the petitioner have filed an affidavit in reply on 19.02.2020 in response to the representation so received by the RD. i. It has been submitted that Para 2 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and payment of fees be followed. It has been submitted by the petitioners that vide respective clauses 11.3 and 11.4.3 of the Scheme it is already clarified that approval granted to the Scheme by the concerned parties shall also be considered the requisite approval to the proposed alterations in the Memorandum and Articles of Association of the Resulting Company and the same is permissible in law under the accepted principle of Single Window Clearance. In view of the same, it has been further submitted that no further procedural compliance of the provisions of the Companies Act, shall be necessary for the same. Upon the sanction of the scheme as a whole, the said proposals shall stand granted. The petitioner companies have undertaken to pay requisite fees, if applicable. It has been clarified that upon scheme being sanctioned, the Petitioner Companies shall undertake the requisite procedure for confirming availability of Names, so proposed to be altered, by the petitioner companies. (i) Vide para 2 (h) of the affidavit, it has been observed by the Regional Director that part of the share capital of the Petitioner Demerged Company is held by the Non Resident Indians/Foreign Nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been clarified that upon scheme being effective, the petitioner Resulting Company shall undertake the requisite procedure for obtaining the requisite licenses and permissions from the concerned regulatory authority. It is further pointed out that as directed vide the order dated 19th September 2018, Notice under Sec. 230 (5) for the present proceeding was served upon The Directorate General of Hydrocarbons, Ministry of Petroleum and Natural Gas, Government of India, on 5th October 2018. However, the said authority has not filed any representation with the Hon'ble Tribunal. No response is received by the Petitioner companies also. In view of the same, it may be presumed that the said regulatory authority has no objection to the proposed Scheme and no further directions are required to be given to the petitioner companies. (ix) Vide para 2(m) of the representation by the Regional Director, it has been observed that the petitioner Demerged Company has not filed the Annual Return and Balance Sheet as on 31 March 2018. In this regard it has been clarified that the said company had made good the said lapse by filing the same on 24 October 2018 and 22 December 2018 respectively. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usal of the Scheme and the documents produced on record, it appears that all the requirements of section 230 and 232 of the Companies Act, 2013 are satisfied and the Scheme is not prejudice to the interest of shareholder(s) and creditor(s) as well as in the public interest 15. As a result, the petition being C P (CAA) No. 4 of 2020 is hereby allowed. The Scheme which is at Annexure- 'F' to the petition is hereby sanctioned and it is declared that the same shall be binding on the petitioner companies, their shareholders, secured creditors and unsecured creditors and all concerned under the scheme. The proposed amendments of the Memorandum of Association of the Petitioner De-merged Company and the Resulting Company with regard to changes in the Authorised Capital and the Objects Clause of the Petitioner companies as envisaged under Clause Il are hereby granted. The change of name of the petitioner companies shall be subject to the confirmation by Registrar of Companies for availability of such names. The reduction of the Share Capital of the Resulting Company as envisaged under Clause 12 of the Scheme is allowed. 16. The amount to be paid to the Office of the Regional D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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