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In the Matter of: Shah Sponge & Power Limited & Others


Company & Directors' Information:- SHAH SPONGE AND POWER LIMITED [Active] CIN = U27100WB2005PLC134108

Company & Directors' Information:- B R SPONGE AND POWER LIMITED [Active] CIN = U27101OR2003PLC007028

Company & Directors' Information:- S R S SPONGE PRIVATE LIMITED [Active] CIN = U27102WB2004PTC099344

Company & Directors' Information:- J G SPONGE AND POWER PRIVATE LIMITED [Active] CIN = U27109DL2003PTC121655

Company & Directors' Information:- S. N. SPONGE PRIVATE LIMITED [Active] CIN = U27310MH2015PTC270853

    CA No. 362/KB of 2019, TP No. 338/KB of 2017, CP No. 353 of 2015

    Decided On, 05 April 2019

    At, National Company Law Tribunal Kolkata

    By, THE HONOURABLE MR. MADAN B. GOSAVI
    By, JUDICIAL MEMBER

    For the Appearing Parties: Manju Bhuteria, Advocate, N. Gurumurthy, F.C.A., Sanjay Sardar, Deputy Director.



Judgment Text

1. This application has been filed by the Applicant Companies, namely, (1) Ivory Impex Private Limited, (2) Saphire Dealcom Private Limited, (3) Aakarsha Vanijya Private Limited, (4) Leo Dealers Private Limited and (4) Ankit Dealtrade Private Limited [hereinafter referred to as the Transferor Companies] with Shah Sponge and Power limited [hereinafter referred to as the Transferee company] filed before the Hon’ble High Court Calcutta and subsequently transferred to National Company Law Tribunal, Kolkatta Bench. A copy of the Scheme of Arrangement has been annexed with the application (CP/353/2015) as Annexure A.

2. The Object of this Petition is to obtain sanction of the Hon’ble Tribunal to a Scheme of Amalgamation where all the assets, properties, rights and claims whatsoever of the Transferor Companies and their entire undertakings together with all rights and obligations relating thereto are proposed to be transferred to and vested in the Transferee Company on the terms and conditions fully stated in the Scheme of Amalgamation.

3. It appears from the record that the Hon’ble High Court Calcutta in its order dated 9/4/2015 in CA No.215 of 2015 has passed as follows:

“In this application under sections 391(1) and 393 of the Companies Act, 1956, the Judge’s Summons has been taken out for dispensing with the meetings of the shareholders of the applicants. Such prayer is allowed. In view of the written consent given by all the shareholders of the applicants which is annexed in original to the affidavit in support of the Judge’s Summons.

The Judge’s Summon be signed as of date.

The applicants are directed to file the confirmation petition within five weeks hereof.

The application is thus disposed of.”

4. It further appears from the record that the Hon’ble High Court Calcutta in its order dated 12/5/2015 in CP No.353 of 2015 connected with CA No.215 of 2015 has passed as follows:

“The petition is submitted subject to scrutiny by department.

Let a notice along with a Copy of this Petition be served on the Central Government through the Regional Director, Ministry of Corporate Affairs, Eastern Region, Calcutta by 5th June 2015.

Advertisements of the notice of the petition are to be published once in “Business Standard”, Kolkatta and once in “Bartaman” Kolkata by 20th June 2015.

The petition is returnable on 7th July 2015, before which the Central Government may file its affidavit, if any.”

5. Pursuant to the Direction contained in the order passed by the Hon’ble High Court on 12/5/2015 in CP No 353 of 2015 connected with CA No.215 of 2015, the Petitioner Companies published advertisements of the notice of the petition dated 20th May, 2015 in “Business Standard”, Kolkata and once in “Bartaman” Kolkata.

6. In appears from the records that the Hon’ble High Court Calcutta vide its order dated 7/7/2015 in CP No.353 of 2015 connected with CA No.215 of 2015 has passed as follows:

“Since non appears in support of the Petition No 353 of 2015 is dismissed for default.”

7. It further appears from the records that the Hon’ble High Court Calcutta vide its order dated 6/4/2017 in CA No.152 of 2017 connected CP No.353 of 2015 connected with CA No.215 of 2015 has passed as follows:

“An affidavit of service is on record.

None appears for the Central government.

Sufficient cause is shown. Delay is condoned. There was sufficient cause for non appearance of the petitioner on the day this matter was dismissed for default.

The order dated 7th July 2015 is set aside. The Company Petition No.353 of 2015 is restored to file. Thereafter the registry of this court will transfer the same to N.C.L.T. following the usual procedure.

The present application being CA No.152 of 2017 is hereby allowed.”

8. It reveals from the Company Petition that the reason that have necessitated and/or justified the said Scheme of Amalgamation are as follows:

a) The Transferee Company and Transferor Companies are engaged in investing activities. The business of the Transferor Companies and the Transferee Company can be combined and carried forward conveniently with combined strength;

b) The amalgamation will enable the Transferee Company to consolidate its line of business by restructuring and re-=organizing its business activities and Capital Structure;

c) The amalgamation will enable the amalgamated company to broad base their business activities under the roof of the Transferee Company;

d) The amalgamation will result in economy of scale including reduction in overhead expenses relating to management and administration in better and more productive utilization of various resources;

e) The business of the companies can be conveniently and advantageously combined together and in general business of the companies concerned will be carried on more economically and profitably under the said scheme;

f) The said Scheme of Amalgamation will enable the establishment of a larger company with larger resources and a larger capital base enabling further development of the business of the company concerned. The said scheme will also enable the undertakings and business of the said applicant company to obtain greater facilities possessed and enjoyed by one large company compared with a number of small companies for raising capital, securing and conducting trade on favourable terms and other benefits;

g) The said scheme will contribute in furthering and fulfilling the objects of the companies concerned and in the growth and development of these businesses;

h) The said scheme will strengthen and consolidate the position of the amalgamated company and will enable the amalgamated company to increase its profitability;

i) The said scheme will enable the undertakings concerned to pool their resources and to expand their activities;

j) The said scheme will enable the companies concerned to rationalise and streamline their management, business and finances and to eliminate duplication of work to their common advantages;

k) The said scheme will have beneficial results for the companies concerned, their shareholders, employees and all concerned.

9. It has been the assets of the applicant companies are sufficient to meet all their liabilities. Further the said Scheme of Amalgamation does not involve any compromise or composition with the creditors of the applicant companies. The Scheme will not affect the rights of the creditors of the applicant companies in any manner whatsoever.

10. That the Regional Director, Eastern Region, Ministry of Corporate Affairs, Kolkata vide his affidavit duly affirmed on 29/8/2018 has made his observation as follows:

Para 2(a)

That it is submitted that on examination of the report of the Registrar of Companies, West Bengal it appears that no complaint and/or representation has been received against the proposed Scheme of Amalgamation. The petitioner companies are also up-dated in filing their statutory returns. It is further submitted that on examination of the proposed Scheme of amalgamation it appears that the proposed Scheme is not prejudicial to the interest of members/shareholders and/or public. The Central government has, therefore, decided that the instant petition/scheme need not be opposed.

Para 2(b)

It is further submitted that the petitioner Companies reported that no meeting of creditors conveyed as per the practice followed by the Hon’ble High Court, and also reported that supplementary affidavit will be filed before the Hon’ble Bench in this regard, so it may kindly be perused by the Hon’ble Tribunal.

Para 2(c)

It is submitted that as per instructions of the Ministry of Corporate Affairs, New Delhi, a copy of the scheme was forwarded to the Income Tax Department on 22-05-2015 and further reminder letter on 19-06-2018 with a request to forward their comments/observations/objections, if any, but the said authority has till date not forwarded any rely about the proposed Scheme.

11. The Petitioner Companies have filed this application before this Tribunal on 29/3/2019 wherein they have filed affidavit of consent of Secured Creditors and Unsecured Creditors of the Transferee Company and payment and discharge of all liabilities by the Transferor Companies as on 31//2018 duly certified by Chartered Accountant.

12. Heard Ld. Counsel for the applicant companies and authorized representative of Regional Director, Eastern Region, Ministry of Corporate Affairs at Kolkata, In view of absence of any objection and since all the requisite compliance has been fulfilled, the following order is passed:-

ORDER

i. The Scheme of Amalgamation being Annexure A hereto is sanctioned by this Hon’ble Court to be binding with effect from 1st April, 2014 on Shah Sponge and Power Limited, Ivory Impex Private Limited, Saphire Dealcom Private Limited, Aakarsha Vanijya Private Limited, Leo Dealers Private Limited, Ankit Dealtrade Private Limited and their shareholders and all concerned;

ii. All the properties, rights and interest of Ivory Impex Private Limited, Saphire Dealcom Private Limited, Aakarsha Vanijya Private Limited, Leo Dealers Private Limited, Ankit Dealtrade Private Limited be transferred to and vested in without further act or deed in Shah Sponge and Power Limited and accordingly the same shall pursuant to section 394(2) of the Companies Act, 1956 be transferred to and vested in Shah Sponge and Power Limited for all the estate and interest of Ivory Impex Private Limited, Saphire Dealcom Private Limited, Aakarsha Vanijya Private Limited, Leo Dealers Private Limited, Ankit Dealtrade Private Limited but subject nevertheless to all charges, now affecting the same;

iii. All the liabilities and duties of Ivory Impex Private Limited, Saphire Dealcom Private Limited, Aakarsha Vanijya Private Limited, Leo Dealers Private Limited, Ankit Dealtrade Private Limited be transferred without further act or deed to Shah Sponge and Power Limited and accordingly the same shall pursuant to section 394(2) of the Companies Act, 1956 be transferred to and become the liabilities and duties of Shah Sponge and Power Limited;

iv. That all the proceedings and/or suit appeals now pending by or against Ivory Impex Private Limited, Saphire Dealcom Private Limited, Aakarsha Vanijya Private Limited, Leo Dealers Private Limited, Ankit Dealtrade Private Limited shall be continued by or against Shah Sponge and Power Limited;

v. Shah Sponge and Power Limited, ivory Impex Private Limited, Saphire Dealcom Private Limited, Aakarsha Vanijya Private Limited, Leo Dealers Private Limited, Ankit Dealtrade Private Limited shall within 30 days after the date of obtaining the Certified Copy of the order to be made herein cause certified copies of this order to be delivered to the Registrar of Companies, West Bengal for registration respectively;

vi. The Offi

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cer Liquidator be directed to make a report under second proviso to section 394(1) of the Companies Act, 1956 in respect of Ivory Impex Private Limited, Saphire Dealcom Private Limited, Aakarsha Vanijya Private Limited, Leo Dealers Private Limited, Ankit Dealtrade Private Limited within 3 months from the date of the order to be made herein; vii. The said Officer Liquidator be directed to serve a copy of the report to be filed by him in terms of prayer above on the Advocate-on-record of the Petitioners immediately after filing the said report with this Hon’ble Court; viii. Leave be given to Shah Sponge and Power Limited to apply for dissolution without winding up of Ivory Impex Private Limited, Saphire Dealcom Private Limited, Aakarsha Vanijya Private Limited, Leo Dealers Private Limited, Ankit Dealtrade Private Limited upon filling of the said report by the Officer Liquidator; 13. The Transfer Petition No.338/KB/2017 connected with Company Petition No 353 of 2015 [in CA No.362/KB/2019] is disposed of. 14. There shall be no order as to costs. 15. Urgent certified copies of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.
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