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TMI Blog2022 (1) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... or ORDER Balraj Joshi , Member ( T ) 1. The instant petition has been filed under Section 230(6) read with 232(3) of the Companies Act, 2013 ( Act ) for sanction of the Scheme of Arrangement for (a) Amalgamation of Anticlock Vyapaar Private Limited, being the Petitioner No. 2 abovenamed ( Transferor Company No. 1 or Petitioner No. 2 ) and Mansa Dealer Private Limited, being the Petitioner No. 3 abovenamed ( Transferor Company No. 2 or Petitioner No. 3 ) with Wardhaman Trade Commerce Private Limited, being the Petitioner No. 1 abovenamed ( Demerged Company or Transferee Company or Petitioner No. 1 ) and thereafter (b) de-merger of Investment Businesses ( Demerged Undertaking ) of Wardhaman Trade Commerce Private Limited, being the Petitioner No. 1 abovenamed ( Demerged Company and/or Transferee Company or Petitioner No. 1 ) with and into Namkit Coatex Private Limited, being the Petitioner No. 4 abovenamed ( Resulting Company or Petitioner No. 4 ) on a going-concern basis whereby and whereunder from the the Appointed Date, viz. 01.04.2019 in the manner and on the terms and conditions stated in the said Scheme of Amalgamation and Arrangement ( Scheme ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies as well as their respective shareholders and other stakeholders. (vii) Simplification of corporate structure by reducing the number of legal entities and reorganizing the legal entities in the group structure; (viii) Significant reduction in the multiplicity of legal and regulatory compliances required at present to be carried out; (c) The Statutory Auditors of respective Petitioner Companies have by their certificates dated 25.11.2019 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 and Arrangement has been fixed on a fair and reasonable basis and on the basis of the Report thereon of Mr. Pranab Kumar Chakrabarty, Registered Valuer (IBBI/IPA-003/IP-N00088/2017-18/10826). (f) The shares of the all Petitioner Companies are not listed in any Stock exchange. (g) By an order dated 26.02.2020 in Company Application (CAA) No. 117/KB/2020, this Tribunal made th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en dealt with by the Petitioner(s) by rejoinder/undertaking dated 02.02.2021. The observations of the RD and responses of the Petitioner(s) are summarized as under:- Paragraph No. 2(a) of RD affidavit- Transferee Company Wardhaman Trade Commerce Private Limited is an NBFC registered with Reserve bank of India. However, no 'No Objection' from the Reserve Bank of India in the matter has been provided yet. Paragraph No. 2(a) of the Rejoinder That already two notices to Reserve Bank of India (RBI) has been submitted and as asked for, necessary documents/information's has been submitted. But till date RBI has not issued NOC. Paragraph No. 2(b) of RD affidavit- That the Petitioner Transferee Company should comply with the provision of section 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. Paragraph No. 2(b) of the Rejoinder The petitioners companies undertakes to comply with the provisions of section 232(3)(i) of the Companies Act 2013. Further it is stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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(f) of the Rejoinder Under provisions of section 230(5) of the Companies Act 2013 and in terms of the order of this NCLT notices to all concerned authorities which are likely to be affected by the Amalgamation has been served. Copies of affidavit of service have been filed with This NCLT. Paragraph No. 2(g) of RD affidavit- The Transferor Company, Anticlock Vyapaar Private Limited has been refraining from making statutory disclosures in their financial statements. In the financial statement for 2019-20 sizeable short term loans and advances given was shown as ₹ 826.05 lakhs (out of total assets ₹ 1081.36 lakhs) but without specifying the nature thereof, although such specification is mandated in terms of the provisions of schedule III to the Companies Act 2013. As a result of said non-disclosures, no proper reading of the financial statements was possible to ascertain whether the material facts concerning financial position of the company were disclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a result of said non-disclosures, no proper reading of the financial statements was possible to ascertain whether the material facts concerning financial position of the company were disclosed. Such material facts were also not disclosed before the this Tribunal by the company violating the provisions of section 230(2) of the Companies Act 2013. The officers of the company who were in default should get the offence compounded before the merger. In view of the provisions of section 441(3)(b) of the Companies Act 2013 intimation regarding the compounding, after the offence is compounded, is required to be given by the Company itself. Hence, once merged the company would get free from the statutory onus of intimating the Registrar of Companies in terms of the provisions of section 441(3)(b) of the Companies Act 2013. Paragraph No. 2(h) of the Rejoinder The Petitioner submits that in the audited accounts of Mansa Dealer Private Limited for the year ended 31.03.2020 it is stated that in Notes - 9 it is stated that under the heading Short Terms Loans and Advances amounting to ₹ 1212.30 Lacs is unsecured Considered goods. Further it is stated that in Notes to Account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferee Company ) are NBFC. Further, demerged undertaking of Wardhaman Trade Commerce Private Limited will only include investment in Namkit Coatex Private Limited and as per applicable provisions of Reserve bank of India Act read with relevant circular/notification never allows inclusion of investment amount by NBFC in group companies due to which at the time of calculation of networth, equivalent amount of such investment in group companies are to be deducted. Paragraph No. 2(k) of RD affidavit- It is further submitted that on 18.01.2021, this deponent has received one mail along with few pages of unsigned attachments from Shri Ashok Kumar Jhunjhunwala Advocate, High Court, Mumbai wherein he has made some observations/views on Balance Sheet/Financial Statements in respect of financial years from 2004-05 to 2018-19 and other non-compliances of the Companies Act, 1956 in respect of Wardhaman Trade Commerce Private Limited, Transferee Company. However, he has not stated in the said mail/observations how he is interested/involved in the proposed Scheme. On receipt of the said observations/views, this Deponent has taken up the matter with Registrar of Companies, West Beng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the directives of this Tribunal. However no representation has been received from the Bank pursuant to the notice issued upon them. 8. Further, heard submissions made by the Ld. Counsel appearing for the Petitioner, Mr. Harihar Sahoo, Joint Director for and on behalf of RD, who appeared and were heard. Upon perusing the records and documents in the instant proceedings and considering the submissions, we allow the petition and make the following orders:- a) the Scheme of Amalgamation mentioned in paragraph 1 of the petition, being Annexure A hereto, be and is hereby sanctioned by this Tribunal to be binding with effect from 01.04.2019 ( Appointed Date ) on Transferor Companies, Demerged Company, Resulting Company and Transferee Company, their respective shareholders and creditors and all concerned; b) That the Transferor Companies with all their respective assets, properties, rights, powers, titles, and interest thereof be respectively transferred to and vested without any further act or deed in the Transferee Company and accordingly, the same shall pursuant to Section 232(4) of the Companies Act, 2013 be Transferred to and vested in the Transferee company for all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led in terms of the Scheme; k) That any person interested shall be at liberty to apply to this Tribunal in the above matter for any directions that may be necessary. l) The Transferor Companies, Demerged Company, Resulting Company and the Transferee Company shall each within thirty days of the date of the receipt of this order, cause a certified copy thereof to be delivered to the Registrar of Companies for registration and on such certified copies being so delivered, the Transferor Companies namely Mansa Dealer Private Limited and Anticlock Vyapaar Private Limited shall be dissolved without winding up with effect from the date or last of the dates of filing of the certified copies of the order (known as Effective Date) and the Registrar of Companies shall place all documents relating to the Transferor Companies and registered with him on the file kept by him in relation to the Transferee Company and the files relating to the said companies shall be consolidated accordingly. 9. The Petitioner(s) shall supply legible print out of the scheme and schedule of assets in acceptable form to the registry and the registry will append such printout, upon verification to the cer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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