1. In this Petition, sanction of this Tribunal is sought under Sections 230 to 232 of the Companies Act, 2013, to the Scheme of Amalgamation (Scheme) between Khajrana Ganesh Properties Private Limited (First Petitioner Company /Transferor Company) and Viridis Office Park Private Limited (Second Petitioner Company/Transferee Company), (hereinafter jointly referred to as the Petitioner Companies), and their respective shareholders.
2. We have heard the Ld. Counsel for the Petitioner Companies and the representative of the Regional Director, Western Region, Ministry of Corporate Affairs, Mumbai. Neither any person objected to the Scheme nor any party controverted any averments made in the Petition.
3. The Ld. Counsel for the Petitioner Companies submits that-
(i) the First Petitioner Company is currently engaged in development, construction, completion, operation, maintenance, management of real estate projects, industrial parks, information technology parks and other commercial real estate projects. The Second Petitioner Company is currently engaged in buying, developing, operating, maintaining any industrial parks, information technology parks, techno parks, techno cities, hi-tech parks, knowledge based centres and industries and deal in all kinds of immovable properties or any other commercial real estate projects (including land and building) or to invest in securities of companies engaged in relation to same.
(ii) the Board of Directors of the Petitioner Companies in their respective meeting held on 17.01.2023, have approved the proposed Scheme. The copies of the aforesaid resolutions passed by the respective Board of Directors of the Petitioner Companies are annexed to this Petition.
(iii) the Scheme mainly provides for (i) transfer by way of an amalgamation of the Transferor Company (as more particularly defined in the Scheme) with the Transferee Company on a going concern basis and no shares of the Transferee Company shall be allotted in lieu or exchange of the holding in the Transferor Company as the Transferor Company is a wholly owned subsidiary company of the Transferee Company; and (ii) various other matters consequential or otherwise integrally connected herewith.
(iv) the rationale and benefits mentioned in the Scheme are as follows:
a. Consolidation of operations within the Transferee Company leading to greater synegies and efficiency in overall business;
b. Stronger balance sheet and net worth;
c. Greater integration and greater financial strength and flexibility for the amalgamated entity, which would result in maximising overall shareholder value, and will improve the competitive position of the combined entity;
d. Board of Transferee Company to have greater oversight over the consolidated business operations;
e. Streamlining and simplification of the overall group structure including achieving sim-plified organizational structure to align with the intent of creation of business platform of yield generative assets and to well-position the combined entity to take advantage of the long-term growth opportunities in the commercial real estate sector;
f. Rationalization of administrative overheads;
g. Better and more economic and efficient management, control and running of the busi-ness; and
h. Greater administration efficiency, managing entities and better utilization of resources and improved cash management.
Thus, the amalgamation is in the interest of the shareholders, creditors and all other stake-holders of the companies and is not prejudicial to the interests of the concerned shareholders, creditors or the public at large.
(v) the Petitioner Companies have complied with all the requirements as per the directions of this Tribunal and have made requisite filings to demonstrate compliance. Moreover, the Petitioner Companies undertake to comply with all the statutory requirements, if and to the extent applicable, as may be required under the Companies Act, 2013 and the rules made thereunder. We have taken the said undertaking on record.
4. The Regional Director (Western Region) has filed report dated 04.12.2023 (RD Report), containing certain observations on the Scheme, as given in paragraphs 2(a) to 2(h) of the RD Report. In response to the said observations, the Petitioner Companies have provided clarifications and undertakings by way of an affidavit vide their reply dated 08.12.2023 to the RD Report. The observations made in the RD/Registrar of Companies (RoC) in their Reports and the clarifications and undertakings given by the Petitioner Companies are summarised below:
|
Para |
Regional Director Report/Observations dated 04.12.2023//Observations of ROC |
Response of the Petitioner Companies |
|
(a) |
Regional
Director |
So
far as the observation in paragraph 2(a)(i), of the Report of the Regional
Director is concerned, the Petitioner Companies submits that it
represents the facts of the case. of
the creditors will be protected as per the provisions of the Scheme. |
|
(b) |
Transferee company should undertake to comply with the provisions of sec- tion 232(3)(i) of the Companies Act, 2013 through appropriate affirmation in respect of fees payable by Trans- feree Company for increase of share capital on account of merger of trans- fer of companies. |
So far as the observation in paragraph 2(b) of the Report of the Regional Di- rector is concerned, the Transferee Company undertakes that it shall com- ply with the provisions of Section 232(3)(i) of the Companies Act, 2013 in respect of fees payable by Trans- feree Company for increase of share capital on account of merger of Transferor Company. |
|
(c) |
In compliance of Accounting Stand- ard-14 or IND-AS 103, as may be ap- plicable, the transferee company shall pass such accounting entries which are necessary in connection with the scheme to comply with other applica- ble Accounting Standards including AS- 5 or IND AS-8 etc. |
So
far as the observation in paragraph 2(c) of the Report of the Regional Di-
rector is concerned, the Petitioner Companies undertake that, in
addition to compliance with AS-14 for ac- counting treatment, they
shall pass any necessary accounting entries in connection with the
Scheme to com- ply with other applicable accounting |
|
(d) |
The Hon'ble Tribunal may kindly di- rect the Petitioner Companies to file an affidavit to the extent that the Scheme enclosed to the Company Ap- plication and Company Petition are one and same and there is no discrep- ancy, or no change is made. |
So
far as the observation in paragraph 2(d) of the Report of the Regional Di-
rector is concerned, the Petitioner Companies submit that the
Scheme enclosed with the Company Applica- tion and Company Petition is one
and the same, without any discrepancy or |
|
(e) |
The
Petitioner Companies under pro- visions of section 230(5) of the Com- panies Act
2013 have to serve notices to concerned authorities which are likely to be
affected by the Amalgama- tion or arrangement. Further, the ap- proval of the
scheme by the Hon'ble Tribunal may not deter such authori- ties to deal with
any of the issues aris- ing after giving effect to the scheme. |
So
far as the observation in paragraph 2(e) of the Report of the Regional Di-
rector is concerned, the Petitioner Companies confirm that notices
have been served to the concerned authori- ties that are likely to be
affected by the Scheme. |
|
(f) |
As
per Definition of the Scheme, |
So far as the observation in paragraph 2(f) of the Report of the Regional Di- rector is concerned, the Petitioner Companies submit that the Appointed Date for the Scheme is the close of business hours on June 30, 2023 or such other time and date as may be fixed or approved by the Tribunal, be- ing the time and date with effect from which this Scheme will be deemed to be effective. Further, the Petitioner Companies confirm and undertake |
|
becoming
effective" or "effectiveness of the scheme" means the last of
the dates on which the conditions referred to in Clause 18 have been
fulfilled. |
that upon the order sanctioning this Scheme, as passed by the Hon'ble Tri- bunal, being filed by the Petitioner Companies with the Registrar of Com- panies, Mumbai, the Scheme shall take effect from the Appointed Date, in compliance with the clarifications issued in circular no. F.No.7/12/2019/CL-I dated August 21, 2019, issued by the Ministry of Corporate Affairs. |
|
|
(g) |
Petitioner Companies shall undertake to comply with the directions of the In- come Tax Department & GST Depart- ment, if any. |
So far as the observation in paragraph 2(g) of the Report of the Regional Di- rector is concerned, the Petitioner Companies undertake that no specific directions have been received from the Income Tax Department and GST De- partment. Further, the Petitioner Com- panies undertake to comply with any future directions received, if any, as per the applicable provisions of the law. |
|
(h) |
Petitioner Companies shall undertake to comply with the directions of the concerned sectoral Regulatory, if any. |
So far as the observation in paragraph 2(h) of the Report of the Regional Di- rector is concerned, the Petitioner Companies undertake to comply with directions of sectoral Regulatory, if applicable/required. |
5. We have perused the observations made by the Regional Director/RoC and the corresponding explanations/clarifications/undertakings given by the Petitioner Companies. The Ld. authorised representative for the RD appeared and reported that most of the observations made by the RD are general in nature, and the RD has no specific objection against approving the Scheme. We are satisfied with the explanations/clarifications/undertakings given by the Petitioner Companies in response to the RD/RoC Report.
6. The Official Liquidator has filed his report on 05.12.2023, inter alia, stating that the affairs of the Transferor Company have been conducted in a proper manner not prejudicial to the interests of the shareholders of the Transferor Company and that the Transferor Company may be ordered to be dissolved by this Tribunal.
7. From the material on record and after perusing the explanations/clarifications/ submissions of the Petitioner Companies, the Scheme appears to be fair and reasonable and does not violate any provisions of law and is not contrary to public policy.
8. Since all the requisite statutory compliances have been fulfilled, CP(CAA)/282/MB/2023 is made absolute in terms of the prayer clauses of the Company Scheme Petition.
ORDER
a) The Scheme is hereby sanctioned and declared the same to be binding on the Petitioner Companies and their respective shareholders.
b) The Appointed Date of the Scheme shall be close of business hours of 30.062023. i.e., from the. The Scheme shall be operative from the “Effective Date” as per the provisions of the Scheme.
c) The First Petitioner Company be dissolved without winding up.
d) The Petitioner Companies are directed to submit a certified copy of this Order along with a copy of the Scheme with the concerned Registrar of Companies, electronically in e-Form INC-28, within 30 (thirty) days from the date of receipt of the order from the Registry, duly certified by the Joint/ Deputy/ Assistant Registrar of this Tribunal.
e) The Petitioner Companies are directed to submit a certified copy of this Order and the Scheme duly authenticated by the Joint/ Deputy/ Assistant Registrar, as the case may be, of this Tribunal, with the concerned Superintendent of Stamps for adjudication of stamp duty payable, if any, within 60 (sixty) days from the date of receipt of certified copy of the Order from the Registry of this Tribunal.
f) All concerned regulatory authorities to act on a copy of this Order along with Scheme duly certified by the Joint/ Deputy/ Assistant Registrar, as the case may be, of the National Company Law Tribunal, Mumbai Bench.
g) Any person interested is at liberty to apply to this Tribunal in the above matters for any directions that may be necessary.
h) Any concerned Authorities are at liberty to approach this Tribunal for any further clarification as may be necessary.
i) Ordered today in the Open Court. Accordingly, CP (CAA) No. 282 of 2023 is allowed and disposed-of. Files to be consigned to records.
