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TMI Blog2021 (12) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuant to Section 230(5) of the Companies Act, 2013 read with Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - Application disposed off. - CA(CAA)/02/KOB/2021 and CA(CAA)/03/KOB/2021 - - - Dated:- 3-12-2021 - Hon ble Shri Ashok Kumar Borah, Member (Judicial) And Hon ble Shri Anil Kumar B., Member (Technical) For the Applicants : Shri Sumit Agarwal, PCS ORDER 1. Under consideration are two Company Application Nos. CA(CAA)/02/KOB/2021and CA(CAA)/03/KOB/2021. These Applications have been filed under Section 230 and 232 of the Companies Act, 2013 read with Rule 4 of the Companies (Compromises, Arrangements and Amalgamations), Rules 2016 framed thereunder read with Rule 34 of NCLT Rules, 2016. 2. The Scheme of Amalgamation by way of absorption acquiring the Transferor Company was originally filed on 21.04.2021 showing the appointed date as 1st April 2019. Since the applications have been filed more than two years after the Appointed Date mentioned in the Applications, vide Order dated 8th July 2021 the applicants were directed to make submissions in accordance with the General Circular No.09/2019 dated 21.08.2019 issued by the Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) that this Tribunal may deem fit and in the circumstances of this case. 4. Both the companies are having similar objects complementary to each other, such as to carry on the business of operation and maintenance service of all types in Engineering field. 5. According to the Applicants, the proposed scheme of Amalgamation between the Transferor Company and Transferee Company would enable the Transferee Company to position itself with an improved size and enable efficient utilization of the resources. The specific advantage arising from the Scheme of Amalgamation is that the net worth of the Transferee Company will substantially increase thereby enabling the Transferee Company to leverage its resources and assets in a more efficient and advantageous manner paving way for quicker business growth and benefiting the shareholders of the Transferor company and the Transferee Company. The Scheme proposes that the Transferor Company be merged into and amalgamated with the Transferee Company, by dissolution without winding up of the Transferor Company pursuant to Section 230 to 232 of the Companies Act, 2013 and other relevant provisions of the Act. The Scheme also proposes the vesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Valuer on 16.03.2020 as required under Section 230 of the Companies Act, 2013, which has also been produced. 14. The Statutory Auditors reports dated 10.03.2021and 15.04.2021 in respect of Hesel Engineering Private Limited (Transferor Company) and Henry and Farad Private Limited (Transferee Company) respectively certifying that the Accounting Standards proposed in the Scheme is in conformity with the Accounting Standards prescribed under Section 133 of the Companies Act, 2013 on the basis of examination carried out by them with respect to the proposed Scheme for merger of Hesel Engineering Private Ltd (Transferor Company) with Henry and Farad Private Ltd (Transferee Company)have also been produced. 15. The Applicants stated that the Appointed date as per the Scheme of Amalgamation is 1st April 2019. 16. Hesel Engineering Private Ltd (Transferor Company) (a) There are three Members/Shareholders in the Transferor Company Hesel Engineering Private Ltd. Separate affidavits sworn to by these three Members/Shareholders (100%) of the Transferor Company, expressing their consent to the Scheme of amalgamation have been produced. (b) There are two Secured Creditors, vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. 19. As stated in earlier paragraphs, above 95% of the Shareholders and above 90% of the Secured Creditors of both the Applicant Companies have been supporting and agreeing to the Scheme of Merger by way of their consent affidavits. 20. As such,we are of the view that calling of the meetings of the Members/ Shareholders and Secured Creditors of the Transferor Company and Transferee Company as envisaged under Section 230 of the Companies Act, 2013 is not necessary and will not serve any purpose, if called. 21. Even though consent affidavits have not been submitted from the Unsecured Creditors of both the Applicant Companies agreeing to the Scheme of Amalgamation between the Transferor Company and Transferee Company, the Applicants have prayed for the dispensation of the Meeting of Unsecured Creditors also under the ambit of Rule 11 of the NCLT Rules, 2016 read with Rule 24(2) of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. In this regard, the Applicants stated that the proposed Scheme of Amalgamation does not restructure or vary the debt obligations of the Transferee Company or the Transferor Company in any manner and therefore, it was not requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also gone through the Valuation Report with respect to the net worth of the Companies and the statement submitted by the Applicant Companies pertaining to the amount payable by the Companies to its Unsecured Creditors, which show as follows: Name of the Company Net worth of the Company (Rs.) Amount payable to the Unsecured Creditors (Rs.) Hesel Engineering Pvt Ltd 6,32,03,685 3,62,47,275 Henry and Farad Pvt Ltd 6,69,74,211 18,39,76,676 Total 13,01,77,896 22,02, 23,951 25. In view of the fact that the net worth post effectiveness of the Scheme of Amalgamation is not positive in respect of the Applicant Companies with regard to its liability to the Unsecured Creditors, we examined the proposition and express our considered view that in the interest of all Unsecured Creditors and other stake holders as well as both the Transferor and Tansferee Companies, the case laws placed before us are insignificant and hence the prayer to dispense with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... housand only) in addition to his incidental expenses. F. The Individual notices of the said meeting shall be sent by the Transferor Company and Transferee Company through registered post or speed post or through courier or through e-mail 30 days in advance before the scheduled date of meeting indicating the day, date, place and time as aforesaid together with a copy of Scheme of Merger, a copy of explanatory statement, as required under the Companies Act. 2013. G. The Transferor Company and Transferee Company shall publish advertisement with a gap of at least 30 clear days before the aforesaid meeting, indicating the day, date, place and time as aforesaid in the English Newspaper Daily Financial Express and Malayalam Newspaper Daily Janayugam stating the Scheme of Amalgamation, the Explanatory Statement required to be furnished pursuant to Section 50 of the Companies Act. 2013 stating that the form of proxy will be provided free of charge at the registered office of the transferor Company as well as the Transferee company. H. Voting shall be allowed on the proposed Scheme by voting in person, by proxy, through postal ballot or through electronic means, as may be applicable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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