2022 (4) TMI 210 - Tri - Companies Law

Tribunal approves Amalgamation Scheme for multiple companies under Companies Act, 2013

The Tribunal sanctioned the Scheme of Amalgamation under Sections 230(6) and 232(3) of the Companies Act, 2013, involving multiple companies with Planet ... Sanction of Scheme of Amalgamation - Appointed Date - Transfer of assets and liabilities by virtue of amalgamation - Continuation of pending proceedings by or against transferee - Filing of schedule of assets and statutory filings post sanction - Payment of applicable stamp duty on transfer of immovable property - Adjustment of fees on clubbing of authorized share capital - Statutory compliance with Section 230(6) and Section 232(3) of the Companies Act, 2013Sanction of Scheme of Amalgamation - Appointed Date - Statutory compliance with Section 230(6) and Section 232(3) of the Companies Act, 2013 - The Scheme of Amalgamation between the transferor companies and Planet Commodities Private Limited is sanctioned and made binding with effect from 1st April, 2019. - HELD THAT: - The Tribunal examined the petition filed under the Companies Act seeking sanction of the Scheme and the attendant corporate approvals, auditors' certificates and valuation report. Having considered the affidavits of compliance, the report of the Official Liquidator and the representations filed by the Regional Director with the rejoinder by the petitioners addressing the concerns raised, the Tribunal concluded that statutory formalities had been complied with and that the Scheme was bona fide and in the interest of all concerned. The Tribunal accordingly sanctioned the Scheme to operate with effect from the appointed date 1st April, 2019. [Paras 5]Scheme sanctioned and ordered to be binding with effect from 1st April, 2019.Transfer of assets and liabilities by virtue of amalgamation - Continuation of pending proceedings by or against transferee - All properties, rights, liabilities and pending proceedings of the transferor companies stand transferred to and vested in Planet Commodities Private Limited, and pending suits or proceedings shall be continued by or against the transferee. - HELD THAT: - Pursuant to the sanction, the Tribunal directed that all estates, rights and interests of the transferor companies be transferred to and vested in the transferee without further act or deed, subject to existing charges. It further directed that all liabilities and duties transfer to the transferee and that any pending suits, appeals or proceedings by or against the transferor companies shall be continued by or against the transferee company in the same manner and to the same extent. [Paras 5]Assets, liabilities and pending proceedings of transferor companies transferred to and to be enforced against the transferee company.Filing of schedule of assets and statutory filings post sanction - Adjustment of fees on clubbing of authorized share capital - Payment of applicable stamp duty on transfer of immovable property - Post sanction compliance directions were issued: schedule of assets to be filed, certified copies to be delivered to ROC, transferee to increase authorised capital if necessary and to comply with adjustment of fees and payment of applicable stamp duty. - HELD THAT: - In exercise of its supervisory powers the Tribunal directed that the schedule of assets be filed within 60 days and that the companies cause certified copies of the order to be delivered to the Registrar of Companies within 30 days of obtaining the certified copy. The transferee was directed to issue and allot shares as envisaged in the Scheme and increase authorised share capital if necessary. In response to Regional Director's representations, the transferee gave undertakings to comply with the requirement to adjust fees upon clubbing of authorised capital and to pay applicable stamp duty on transfer of immovable properties; the Tribunal recorded these undertakings and imposed the filing and compliance directions as conditions of sanction. [Paras 4, 5]Directions issued for filing schedule of assets, statutory filings, adjustment of fees on clubbing of authorised capital and payment of stamp duty; undertakings by transferee recorded.Official Liquidator's report - Regional Director's representations - Representations of the Official Liquidator and the Regional Director were considered; no objection from the Official Liquidator and RD's concerns were addressed by undertakings and compliance recorded. - HELD THAT: - The Tribunal noted the Official Liquidator's report which recorded no complaints and observed that the affairs of the transferor companies did not appear to have been conducted prejudicially. The Regional Director had queried the justification for the appointed date and raised ancillary compliance points; the petitioners filed a rejoinder furnishing the timeline and gave specific undertakings (including compliance with fee adjustment, payment of stamp duty and identity of the Scheme document). Having considered these responses and the absence of objections from statutory authorities (including no observations from Income Tax authorities on service), the Tribunal found the concerns satisfactorily addressed and proceeded to sanction the Scheme. [Paras 3, 4, 5]Official Liquidator's report recorded no objection; Regional Director's observations were met by petitioners' undertakings and compliance, and the Tribunal accepted the same.Final Conclusion: The Company Petition is allowed: the Scheme of Amalgamation is sanctioned with effect from 1st April, 2019; assets, liabilities and pending proceedings of the transferor companies are transferred to the transferee; directions and undertakings regarding statutory filings, schedule of assets, adjustment of fees, payment of stamp duty and delivery of certified copies to the Registrar of Companies are recorded and made conditions of the sanction. Issues Involved:1. Approval and Sanction of the Scheme of Amalgamation.2. Compliance with Statutory Requirements.3. Objections and Observations by Statutory Authorities.4. Transfer and Vesting of Properties, Rights, Liabilities, and Proceedings.5. Issuance and Allotment of Shares.6. Dissolution of Transferor Companies.Detailed Analysis:1. Approval and Sanction of the Scheme of Amalgamation:The petition was filed under Sections 230(6) and 232(3) of the Companies Act, 2013, for the sanction of the Scheme of Amalgamation involving multiple companies with Planet Commodities Private Limited as the Transferee Company. The Scheme was approved by the respective Boards of Directors on 27th November 2019. The amalgamation aims to consolidate business activities, restructure capital, achieve economies of scale, and streamline management and finances.2. Compliance with Statutory Requirements:The Scheme was confirmed to be in conformity with the accounting standards as per the certificates from the Statutory Auditors dated 02nd December 2019. The exchange ratio of shares was deemed fair and reasonable based on a report by an IBBI Registered Valuer. The Tribunal directed the dispensation of meetings for equity shareholders and unsecured creditors, as consents were provided via affidavits. Notices were served to regulatory authorities, and advertisements were published as per the Tribunal's order dated 11th November 2021.3. Objections and Observations by Statutory Authorities:The Official Liquidator reported no complaints against the Scheme and stated that the affairs of the Transferor Companies were not conducted prejudicially. The Regional Director (RD) raised several points, including the justification for the appointed date being more than one year before the filing date, pending cases against two companies, compliance with Section 232(3)(i) of the Companies Act, and payment of applicable stamp duty. The Petitioners provided satisfactory responses, including undertaking compliance with statutory provisions and confirming that the Scheme documents were identical.4. Transfer and Vesting of Properties, Rights, Liabilities, and Proceedings:The Tribunal ordered that all properties, rights, and interests of the Transferor Companies be transferred to and vested in the Transferee Company without further act or deed. Similarly, all liabilities and duties were transferred to the Transferee Company. Pending legal proceedings by or against the Transferor Companies were directed to continue against the Transferee Company.5. Issuance and Allotment of Shares:The Transferee Company was ordered to issue and allot shares to the shareholders of the Transferor Companies as per the Scheme. The Tribunal also directed the filing of the schedule of assets within 60 days from the date of the order.6. Dissolution of Transferor Companies:The Transferor Companies were ordered to stand dissolved from the appointed date. Certified copies of the order were to be delivered to the Registrar of Companies, West Bengal, for registration within 30 days of obtaining the certified copy.Conclusion:The Tribunal sanctioned the Scheme of Amalgamation, binding with effect from 1st April 2019, transferring all properties, rights, liabilities, and proceedings to the Transferee Company. The Transferor Companies were dissolved, and all statutory formalities were duly complied with. The Company Petition was disposed of accordingly, and urgent certified copies of the order were to be supplied upon compliance with requisite formalities.