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TMI Blog2024 (2) TMI 1444X X X X Extracts X X X X X X X X Extracts X X X X ..... hi i/b Hemant Sethi Co., Tushar Wagh, Deputy Director and Gaurav Jaiswal ORDER LAKSHMI GURUNG, MEMBER (J) 1. The sanction of this Tribunal is sought under Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 and the Rules framed thereunder for sanction of the Scheme of Amalgamation of Oberoi Constructions Limited (First Petitioner Company or Transferor Company 1) and Oberoi Mall Limited (Second Petitioner Company or Transferor Company 2) and Evenstar Hotels Private Limited (Third Petitioner Company or Transferor Company 3) with Oberoi Realty Limited (Transferee Company) and their respective shareholders (modified Scheme). 2. The Boards of the Petitioner Companies approved the Original Scheme of Amalgamation by passing their respective Resolutions on 09.08.2022 which are annexed to the Joint Company Scheme Petition ( Petition ). 3. Learned Counsel appearing on behalf of the Petitioner Companies submits that a Company Application No. 335 of 2023 was for amendment in the Original Scheme. By virtue of amendment, it is submitted that the Petitioner Companies do not intend to merge the Fourth Petitioner Company with the Transferee Company/Fifth Petitioner Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable properties. Transferor Company 3 is engaged primarily in the business of hospitality. The Transferee Company is engaged primarily in the business of real estate development and hospitality. 11. The Learned Counsel submitted the Rationale for the Scheme as under: a. Simplification of overall group structure and creating efficiencies through amalgamation; b. Create enhanced value for the stakeholders of the Transferee Company and a clear strategic road map towards improved performance outlook and increased investor confidence; c. Optimal utilization of existing resources through consolidation of operations into a single legal entity; d. Provide an opportunity to leverage and pool manpower of the respective companies; e. Derive operational and financial synergies through prudent financial management and cost reduction; and f. Better administration, reduction/rationalization in costs, focused operational efforts and elimination of duplication. 12. Consideration: Learned Counsel for the Applicant Companies further submit that the Transferor Company 1, Transferor Company 2, and Transferor Company 3 are wholly owned subsidiaries of the Transferee Company and the entire share capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 14th March 2023. Relevant extract from the Regional Director's report and the response of the Petitioner Companies thereto are reproduced below: Sr. No. Observations from the Report Response of the Petitioner Companies a) That on examination of the report of the Registrar of Companies, Mumbai dated 24/02/2023 for Petitioner Companies (Annexed as Annexure A1) that the Petitioner Companies falls within the jurisdiction of ROC, Mumbai. It is submitted that no complaint and /or representation regarding the proposed scheme of Amalgamation has been received against the Petitioner Companies. Further, the Petitioner Companies has filed Financial Statements up to 31/03/2022. The ROC has further submitted that in his report dated 24/02/2023 which are as under :- i. That the ROC Mumbai in his report dated 24/02/2023 has also stated that No Inspection, Investigations Prosecutions under CA, 2013 are pending against the Petitioner Companies. ii. That one inquiry against the company namely Oberoi Construction Limited is pending and inquiry follow up action is going on against the company namely Oberoi Realty Limited. As per records available at this office, Inquiry/Technical Scrutiny is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased authorized capital subsequent to amalgamation. d. No objection certificate should be obtained from Real Estate Regulatory Authority. e. All Transferor and Transferee Companies may be filed GNL-1 instead of Form GNL-2. f. Composite notice in CAA-3 is required to be issued to SEBI and stock exchange. g. Interest of creditors should be protected. The Petitioner Companies submits that: i. There is no inquiry, investigations, inspections, prosecutions, technical scrutiny, or complaints that are pending against/ not replied by the Petitioner Companies. ii. The First Petitioner Company has not received any inquiry/ technical scrutiny from Registrar of Companies. Further, the First Petitioner Company will comply with the directions of Registrar of Companies on any inquiry/ technical scrutiny as and when received, if any. The Fifth Petitioner Company has replied to the inquiry from Registrar of Companies. Further, the Fifth Petitioner Company will comply with the directions of Registrar of Companies on the inquiry as and when received, if any. The Petitioner Companies undertakes to comply with notice u/s. 206(4)/ order, prosecutions, adjudications which may be taken by the ROC, Mumbai, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espective real estate projects in favour of the Transferee Company. Enclosed herewith are the acknowledgement copies of the notices served to Maharashtra Real Estate Regulatory Authority as Annexure C1 and Annexure C2. e) the Petitioner Companies have separately filed Forms GNL-1 on 14 March 2023 and Forms GNL-2 on 22 December 2022 as mentioned in point a above. f) the Petitioner Companies have issued notices to SEBI and Stock Exchange on 22 December 2022 (as per directions in application admission order) and on 28 February 2023 (as per directions in petition admission order) and affidavits of service to this effect were filed with the National Company Law Tribunal, Mumbai Bench by the Petitioner Companies. Enclosed herewith are the acknowledgement copies of the notices served to SEBI and Stock Exchange as Annexure D1 to Annexure D4. g) the interest of creditors will be protected. b) Transferee company should undertake to comply with the provisions of section 232(3)(i) of the Companies Act, 2013 through appropriate affirmation in respect of fees payable by Transferee Company for increase of share capital on account of merger of transfer of companies. The Petitioner Companies submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be effective, in the manner described in the Clause 4 of this Scheme; Effective Date means the last of the dates on which the certified copies of the Order(s) of the NCLT sanctioning the Scheme of Amalgamation ( Order(s) ) is filed with the respective Registrar of Companies by the Transferor Companies and the Transferee Company. All the references in this Scheme to the words Scheme taking effect or upon the Scheme becoming effective shall be with reference to the Effective Date; It is submitted that the Petitioners may be asked to comply with the requirements as clarified vide circular no. F. No. 7/12/2019/CL-I dated 21.08.2019 issued by the Ministry of Corporate Affairs. The Petitioner Companies submit that the Appointed Date is 1 April 2022 as per the Scheme. The Petitioner Companies further submits that the Petitioner Companies will comply with the requirements as to Appointed Date and Effective Date, as clarified vide circular no. F. No. 7/12/2019/CL-1 dated 21.08.2019 issued by the Ministry of Corporate Affairs. g) Petitioner Companies shall undertake to comply with the directions of Income tax department, if any The Petitioner Companies submit that the Petitioner Companies w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder and to file Form BEN-2 for declaring name of the significant beneficial owner with concerned ROC. So far as the observation in paragraph 2(k) of the Report of the Regional Director is concerned, the Petitioner Companies submits that Form BEN-2 have been filed vide SRN No. H78317633 dated 23 July 2019 for the First Petitioner Company, vide SRN No. H78318490 dated 23 July 2019 for the Second Petitioner Company, vide SRN No. H78259389 dated 23 July 2019 for the Third Petitioner Company and vide SRN No. H78318227 dated 23 July 2019 for the Fourth Petitioner Company. Enclosed herewith are the said Forms BEN-2 along with their challan copies as Annexure E1 to Annexure E4. However, the Fourth Petitioner Company will not be a party to the modified Scheme i.e., the Fourth Petitioner Company will not merge with the Fifth Petitioner Company and shall be exiting the scheme. 17. The supplementary report of the Regional Director was filed on 22.01.2024 making certain observation and the Petitioner Companies had responded on 29.01.2024. The relevant paragraphs are reproduced below: Sr. No. Observations from the Supplementary Report Response of the Petitioner Companies a) Further M/s Oberoi C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feree Company. Hon'ble Tribunal may, if found fit, require the company to consider the other categories of employees for absorption. 20. During the hearing of the matter on 23.01.2024, this Tribunal sought clarification regarding the following: i) reasons for withdrawal of Fourth Petitioner Company from the Scheme, ii) transfer of only the permanent employees of the Transferor Companies, and iii) undertaking to be given in respect of pending inquiry. Thereafter, an Additional Affidavit was filed on 30.01.2024. The Petitioner Companies' response regarding undertaking for inquiry is already reproduced in Para 17 above. As regards the OL report wherein transfer of permanent employees was questioned and reasons for withdrawal by Fourth Petitioner Company, it is submitted as follows: 6. The response of the relevant Petitioner Companies to the aforesaid observations from the OL Report are as under:- a) The First Petitioner Company, the Second Petitioner Company and the Third Petitioner Company hereby undertakes that the setting off of fees paid on their respective Authorised Share Capital shall be in accordance with the provisions of section 232(3)(i) of the Companies Act, 2013. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon by them. In any case, the period cannot exceed 45 days from the date agreed upon by them. The Petitioner Companies filed an additional affidavit on 15.03.2023 stating that the unsecured creditor has a credit balance of Rs. 18,09,970 as on 30.06.2022 which when compared to the total outstanding liabilities of the First Petitioner Company constitutes a mere 0.0092% of the total outstanding debt. It is further submitted that the said unsecured creditor has not taken any steps for claiming or recovering the amount for the past 5 years and therefore, the claim is not maintainable and barred by limitation. 23. On considering the facts, we note that the First Petitioner Company has acknowledged debt of Rs. 18,09,970 as on 30.06.2022 payable to M/s. AMI Constructions which shows that the First Petitioner Company has admitted the debt payable to the said unsecured creditor. Therefore, the contention that the claim is not maintainable and barred by limitation is rejected in view of section 18 of the Limitation Act, 1963 as the said amount is acknowledged in the books of the First Petitioner Company year after year, which is evidenced by way of notice being served on the said unsecure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies and the report of the Official Liquidator and the reply of the Petitioner Companies thereto, there appears to be no impediment in sanctioning the present Scheme. 30. Consequently, sanction is hereby granted to the Scheme under Sections 230 to 232 of the Companies Act, 2013, subject to the compliance with the directions given in Paragraph 23 above, with the following directions: a) All the Transferor Companies shall be dissolved without winding up. b) While approving the Scheme, we clarify that this Order should not, in any way, be construed as an Order granting exemption from payment of stamp duty, taxes or other charges, if any, and payment in accordance with law or in respect of any permission or compliance with other requirements which may be specifically required under any law. c) All the employees of the Transferor Companies in service, on the date immediately preceding the date on which the Scheme takes effect i.e. the Effective Date, shall become the employees of the Transferee Company on such date, without any break or interruption in service and upon terms and conditions not less favourable than those subsisting in the concerned Transferor Company on the said da ..... 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