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TMI Blog2017 (12) TMI 1877X X X X Extracts X X X X X X X X Extracts X X X X ..... For Regional Director : S. Ramakantha , Joint Director For the Official Liquidator : Mr. Santosh Dalvi, Assistant from the office of Official Liquidator ORDER PER: B.S.V. PRAKASH KUMAR, MEMBER (J) 1. Heard the leamed counsel for the Petitioner Companies. No objector has come before the Tribunal to oppose the Petitions and nor any party has controverted any averments made in the Petitions. 2. The sanction of the Tribunal is sought under Sections 230 to 232 of the Companies Act, 2013, Scheme of Amalgamation of Dimexon (India) Holding Private Limited ('the Transferor Company,) and Dimexon Diamonds Limited ('the Transferee Company') and their respective Shareholders. 3. The leamed Counsel for the Petitioners submit that the Transferor Company is engaged in the business of an investment holding company. The Transferee Company is engaged in the business of import, manufacturing and export of rough polished diamonds. 4. The Rational for the Scheme is that it will result in the following benefits : a. Simplified corporate structure and improved management. b. Greater integration and greater financial strength and flexibility for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid up capital of Transferee Company) and fees payable by the Transferee Company shall be in accordance with the provisions of Section 232(j)(l) o/ the Companies Act, 2013. (e) As regards Part-l (Share Capital) Clause-2.1 of the Scheme , it is submitted that on perusal of the share holding pattern of M/s Dimexon (India) Holding Private Limited the Transferor Company indicates 99.99% of the share are held by M/s Dimexon International Holding BV Netherlands further, the said company along with Mr. Rajiv P Mehta holds 100 shares constituting 0.00013% of holdings. In this regard it is submitted that as M/s Dimexon International Holding BV Netherland the shareholders of M/s Dimexon (India) Holding Private Limited are receiving cash consideration amounting to Rs. 100,00,00,000/- (Rupees one Hundred Crores only) M/s Dimexon Diamonds Limited, the Transferee Company has to issue shares. Accordingly , the Transferee Company to comply with RBI and FEMA Guidelines as applicable; (f) Since the cash consideration to be paid to M/s Dimexon International Holding BY Netherlands company, the share price per share arrived should be minimum of fair price determined as per FEMA guidelines . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as observations made in paragraph IV (g) of the Report of Regional Director is concerned, the Petitioner Companies submits that the present petition is filed under sections 230 to 232 of the Companies Act, 2013 and therefore solvency certificate as required under section 233 of the Companies Act, 2013 is not applicable in the present case. 12. The Registrar of Company has filed his Report to the Regional Director and has made the following observations which have been captured in paragraph 11 of Regional Directors' report : (i) The main objects of the transferor company are not similar to the main objects of the transferee company and hence the amalgamation cannot be allowed for want of enabling main objects of the transferee company to carry out NBFC activity and reflecting the finance/ NBFC activity as part of transferee 's name. (ii) Solvency Certificate etc. is required to be fled u/s. 233(1)(c) read with Section 233(12) of the Companies Act, 2013 as the scheme is between holding company its wholly owned subsidiary company. (iii) Merger record dote should be the Appointed date instead of future determination by Board of Director as referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not accept public deposits will be treated as Non Deposit taking and are not required to register themselves with RBI. 15. The Counsel for Petitioners further invite our attention to audit report of M/s Chaitanya C Dalal Co. Chartered Accountants who have also in their audit report dated 30th March 2017 for the financial year 2016-17 observed that the Transferee Company is a core investment Company where in more than 90% of the net assets are in form of Investment in in equity shares and loans in Group Companies. The auditors have further observed that since asset size of the Company is less than 100 Crores and it is not Systemically Important Core Company, defined in clause (h) of sub-paragraph (1) of paragraph 3 of the Core Investment Companies, as defined in clause (h) of sub-paragraph (1) of paragraph 3 of the core Investment companies (Reserve Bank ) Directions, 2011 as on 31st December 2016, hence it is exempted from registration under section 451A of the Reserve Bank of India Act, 1934 vide Notification No. DNBS . PD220/CGM(US)2011 dated January 5, 2011 and also does not require registration as Core Investment Company with Reserve Bank of India under Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectors of the petitioner Companies. The Counsel for Petitioners further submit that as per explanation to section 230 of the Companies Act 2013 it is clearly stated that for removal of doubts. it is hereby declared that the provisions of section 66 shall not apply to the reduction of share capital effected in pursuance of the order of the Tribunal under this section. Further the Scheme has been unanimously approved by the shareholders of the Transferor and Transferee Company. 20. In so far as observations made in paragraph 11 (viii) of the Regional Director pertaining to ROC's observations is concerned, the Counsel for petitioners submit that the Transferee Company shall comply with Accounting Standard (AS-14 Purchase Method) as stated in the Companies (Accounting Standards Rules 2006 read with General Circular No 8/2014 dated 4th April 2014 issued by the Ministry of Corporate affairs and any amendments thereto). 21. The observations made by the Regional Director and the Registrar of Companies have been explained by the petitioner Companies in paragraphs 7 to 11, 13 to 20 above. The clarifications and undertakings given by the petitioner Companies are hereby accepted, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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