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TMI Blog2022 (5) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... r Polyfeb Limited being the Petitioner No. 3 abovenamed ( Transferor Company or Petitioner No. 3 ); Pioneer Protec Limited being the Petitioner No. 4 abovenamed ( Transferor Company or Petitioner No. 4 ) with Badridas Investment Company Limited; being the Petitioner No. 5 abovenamed ( Transferee Company or Petitioner No. 5 ) whereby and whereunder the Transferor Companies are proposed to be amalgamated with the Transferee Company from the Appointed Date, viz the first day of April of financial year on which the certified copy of order of the National Company Law Tribunal at Kolkata will be passed in the manner and on the terms and conditions stated in the said Scheme of Amalgamation ( Scheme ). 2. The Petition has now come up for final hearing. Counsel for the Applicants submits as follows:- (a) The Scheme was approved unanimously by the respective Board of Directors of the Petitioner Nos. 1 to 5 at their meetings held on 24th August, 2019 respectively. (b) The circumstances which justify and/or have necessitated the Scheme and the benefits of the same are, inter alia, as follows:- (i) The Transferor Companies and the Transferee Company are engaged in non-ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n compliance with Securities and Exchange Board of India ( SEBI ) Circular dated 10th March, 2017 on Schemes of Arrangement, as amended from to time ( SEBI Circular ), the said Petitioner(s) duly filed the Scheme with the said Stock Exchange for their approval to the same on 30th September, 2019. No reply has been received from the Calcutta Stock Exchange till date. (h) By an order dated January 27, 2020 as modified by the order dated February 18, 2020, passed by this Hon'ble Tribunal, in CA (CAA) No. 98/KB/2020, separate meetings of the shareholders of the applicant companies and the meetings of the unsecured creditors of applicant Nos. 3 and 5 were directed to be convened and a Chairperson and a Scrutinizer were appointed in this regard and the requirement of convening and holding the meetings of the secured creditors of the Applicant Companies and unsecured creditors of applicant company Nos. 1, 2 and 4 had been dispensed with as there were no creditors. (i) E-voting facility and postal ballot was duly opened with Central Depository Services Limited (CDSL India) from March 8, 2020 to April 9, 2020 in terms of the order dated January 27, 2020 as modified by the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved such notices on the Central Government through the Regional Director, Eastern Region Ministry of Corporate affairs, Kolkata; Registrar of Companies, West Bengal, Official Liquidator, Calcutta High Court and Income Tax Authorities, Calcutta Stock Exchange, Reserve Bank of India and Chief Commissioner of Income Tax on 3rd December, 2021 and the same were delivered on 6th and 7th December, 2021. The Petitioners have also published such advertisements once each in the Financial Express , an English newspaper and Aajkaal , a Bengali newspaper in their respective issues dated 6th December, 2021. An affidavit of compliance in this regard has also been filed by them on 17th December, 2021. (l) All statutory formalities requisite for obtaining sanction of the Scheme have been duly complied with by the Petitioners. The Scheme has been made bona fide and is in the interest of all concerned. 3. Pursuant to the said advertisements and notices the Regional Director, Ministry of Corporate Affairs, Kolkata ( RD ) have filed their representations before this Tribunal. 4. The RD has filed his reply affidavit dated April 06, 2022 ( RD affidavit ) which has been dealt with by the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly has all ingredients of 'pooling of interest'. Hence in terms of Accounting Standard 14 the said difference should be adjusted with reserves. Paragraph No. 3(d) of the Rejoinder states that the petitioners shall adjust the difference against the reserves. (e) Paragraph No. 2(e) of RD Affidavit states that the Transferor Company, JSM Investment Limited being a listed company presently has no Whole Time Company Secretary since 30/09/2020. Hence before completion of adjudication proceedings under section 454 of the Companies Act, 2013 the merger may be kept in abeyance. Paragraph No. 3(e) of the Rejoinder states that the Transferor Company had a company secretary on its rolls at the time of filing of the Company Application. However, subsequently due to low turnover and the pandemic situation, the Company did not have a company secretary. The transferee company has company secretary and upon merger, the said company secretary of the transferee company shall be also become the company secretary of the transferor company. (f) Paragraph No. 2(f) of RD Affidavit states that the petitioner company should undertake to comply with the provisions of section 232(3)(i) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and holding the meetings of the secured creditors of the Applicant Companies and unsecured creditors of applicant company Nos. 1, 2 and 4 had been dispensed with as there were no creditors. E-voting facility and postal ballot was duly opened with Central Depository Services Limited (CDSL India) from March 8, 2020 to April 9, 2020 in terms of the order dated January 27, 2020 as modified by the order dated February 18, 2020. However, due to nation-wide lockdown announced on March 23, 2020, it became impossible to hold the physical meetings scheduled to be held at the registered offices of the applicant companies on April 16, 2020. In such circumstances, the applicants filed an application being COMP.APPL/1047(KB) 2020, inter alia, praying for directions upon the Scrutinizer to submit her report and on perusal of the same, if it is found that adequate shareholders of each applicant company have voted with respect to the scheme, to dispense with holding of the physical meetings and directing the Learned Chairperson to also submit his report on the basis of the e-voting and to dispense holding of meeting of the creditors of all the applicant companies as applicant company Nos. 1, 2, 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, it is hereby stated that the approval of the Scheme by this Hon'ble Tribunal shall not deter any of the 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 companies. (l) Paragraph No. 2(1) of RD Affidavit states that as per the instruction of the Ministry of Corporate Affairs, New Delhi, a copy of the scheme was forwarded to the Income Tax Department on 2/3/2020. Paragraph No. 3(1) of the Rejoinder states that the same is a matter of record and maybe considered by such Hon'ble Tribunal. 5. Heard submissions made by the Ld. Counsel appearing for the Petitioners and the RD. 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 with effect from the first day of April of financial year on which the certified copy of order of the National Company Law Tribunal at Kolkata will be passed ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Transferor Companies 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 shall be dissolved with effect from the date or last of the dates of filing of the certified copies of the order, as aforesaid (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. 6. The Petitioner(s) shall supply legible print out of the scheme and schedule of assets in acceptable form to the department and the department will append such printout, upon verification to the certified copy of the order. 7. Company Petition (CAA) No. 171/KB/2021 is disposed of accordingly. 8. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties, subject to compliance with all requisite formalities. Order signed on 21st of April, 2022. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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