The instant joint petition, under section 230 to 232 of the Companies Act, 2013, is filed by the Petitioner Companies seeking sanction of a Scheme of Amalgamation ["Scheme" for short] of JK Commodities and Services Private Limited (the Petitioner Transferor Company) with JK Securities Limited (the Petitioner Transferee Company) and their respective shareholders and creditors, with effect from the Appointed Date.
2. The Petitioner Companies had earlier filed Company Application CA (CAA) No. 27 of 2019, seeking dispensation of meetings of Equity Shareholders, Preference Shareholders and Unsecured Creditors of the Petitioner Companies for the purpose of considering and if thought fit, approving with or without modifications(s), the proposed Scheme of Amalgamation. This Tribunal vide order dated 19th March, 2019 made in Company Application CA (CAA) No. 27/NCLT/AHM/2019, dispensed with the meetings of Equity Shareholders as well as Preference Shareholders of both the Petitioner Companies on the basis of the consent affidavits received from the Equity Shareholders as well as Preference Shareholders of the Petitioner Companies. This Tribunal also dispensed with the meetings of the Unsecured Creditors of both the Petitioner Companies on the basis that the Scheme does not affect the rights of the creditors of any of the Petitioner Companies and under the Scheme, no compromise is offered to any of the Unsecured Creditors and neither any liability of the creditors under the Scheme is being reduced nor extinguished and considering the fact that the Petitioner Transferee Company has substantial Net Worth Pre or Post Amalgamation. It was reported by the Petitioner Companies that neither of the Petitioner Companies has any Secured Creditor. By the said order, the Petitioner Companies were also directed to send a common notice in Form No. CAA.3 along with copy of the Scheme of Amalgamation to (i) the Central Government through the Regional Director, North West Region; (ii) the Registrar of Companies; (iii) the Income Tax Authorities and (iv) the Official Liquidator (in case of the Petitioner Transferor Company) in compliance of sub section (5) of section 230 of the Companies Act, 2013 and Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.
3. Pursuant to the aforesaid order of this Tribunal, the Petitioner Companies served notices upon the aforesaid statutory authorities on the 25th day of March, 2019.
4. The Petitioner Companies, thereafter, filed the present Company Petition seeking sanction of the Scheme.
5. In response to the notice issued by the Petitioner Companies, the Regional Director filed a common representation dated 18th April, 2019 in respect of both the Petitioner Companies. Likewise, the Official Liquidator also filed representation dated 24th April, 2019 in respect of Petitioner Transferor Company.
6. This Tribunal by order dated 8th April, 2019, fixed the date of hearing of the Petition as on 23rd April, 2019 and directed the Petitioner Companies to publish common notice of hearing of the Petition by way of publication in English daily "Indian Express" and Gujarati daily "Sandesh Daily - Anand edition", not less than ten days before the date fixed for hearing calling for objections, if any, on or before the date of hearing. The Petitioner Companies were also directed to issue individual notices to (i) the Central Government through the Regional Director, North West Region (ii) Registrar of Companies, Gujarat, Dadra and Nagar Haveli, (iii) concerned Income Tax Authorities and (iv) Official Liquidator (in case of the Petitioner Transferor Company) asking them to file their representations, if any, on the proposed Scheme of Arrangement.
7. The Petitioner Companies filed affidavits in respect of publications made in the newspapers as well as proof of service of notices upon the aforesaid statutory authorities. Besides, the Petitioner Companies also served notices to National Commodity Exchange of India Limited and Multi Commodity Exchange of India Limited as applicable to the Petitioner Transferor Company and to Metropolitan Stock Exchange, BSE Limited and National Stock Exchange of India Limited as applicable to the Petitioner Transferee Company. In response to such individual notices and the publication made in newspapers, no objection is received from any of the creditors or stakeholders. On perusal of the record, it is observed that the there are no representations received from the Income Tax Department or any of the Stock Exchanges to which the Petitioner Companies had issued notices as duly mentioned in the affidavits of the Petitioner Companies filed on 15.04.2019.
8. In response to the representation made by the Official Liquidator, the Petitioner Transferor Company has not filed any counter affidavit as the Official Liquidator has not made any adverse observation in the said representation. The Official Liquidator has, however, requested this Tribunal to direct the Petitioner Transferor Company to preserve its books of accounts, papers and records and shall not disposed of without prior permission of Central Government as per the provision of section 239 of the Companies Act, 2013 and ensure statutory compliance of all applicable laws and also on sanctioning of the Scheme, the Petitioner Transferor Company shall not be absolved from any of its statutory liabilities, in any manner.
9. In response to the notice of the petition to the Central Government, the Regional Director, North-Western Region, Ministry of Corporate Affairs, filed a common representation dated 18th April, 2019. It is stated that the Regional Director has not made any adverse observation in the said representation. However, the Regional Director requested this Tribunal to direct the Petitioner Companies to undertake the compliance of section 232 (3) (i) of the Companies Act, 2013 and to pay fees accordingly. In addition to the same, the Regional Director also requested this Tribunal to direct the Petitioner Companies to place on record all the relevant facts of the matter in relation to the mentioning of the name of the Petitioner Transferor Company as "JK Commodities & Services Private Limited" instead of "JK Commodities and Services Private Limited". In this regard, it is pertinent to mention that the name of the Petitioner Transferor Company shall be treated as per the records of the Ministry of Corporate Affairs i.e. "JK Commodities and Services Private Limited" only.
10. In response to the notice of this Tribunal, the Income Tax Authorities have not filed any representation.
11. In compliance with the proviso to sub-section (7) of the Section 230, the Petitioner Companies placed on record along with Company Application CA (CAA) No. 27 of 2019, certificates issued by Chartered Accountant dated 11th January, 2019, confirming that the accounting treatment specified in Clause 10 of the Scheme of Arrangement is in compliance with the applicable Accounting Standards notified by the Central Government in section 133 of the Companies Act, 2013 read with Rule 7 of the Companies (Accounts) Rules, . 2014 and other Generally Accepted Accounting Principles.
12. Considering the entire facts and circumstances of the present case and on perusal of the Scheme and the documents placed on record, it appears that all the requirements of sections 230 to 232 of the Companies Act, 2013 are satisfied.
13. In the result, the present Petition is allowed. The Scheme of Amalgamation is hereby sanctioned and it is declared that the sanctioned Scheme shall be binding on the Petitioner Companies, viz. JK Commodities and Services Private Limited (Petitioner Transferor Company) and JK Securities Private Limited (Petitioner Transferee Company) and their respective shareholders, creditors and all concerned under the Scheme. It is also declared that Petitioner Transferor Company viz. JK Commodities and Services Private Limited shall stand dissolved without winding up.
14. The Petitioner Transferee Company is hereby directed to preserve the books of accounts, papers and records of the Petitioner Transferor Company and not to dispose of the same without prior permission of the Central Government as required under section 239 of the Companies Act, 2013. It is hereby further directed that even after the Scheme is sanctioned, the Petitioner Transferor Company shall comply with all the applicable provisions of law and shall not be absolved from any of their statutory liabilities.
15. The Petitioner Transferee Company is hereby directed to pay the difference amount of fees which is payable on the enhanced Authorised Capital of Rs. 5,60,00,000/- as on date and the total payable amount of fees which have already been paid by all the Petitioner Companies at the time of registration / increase in authorised . capital as the case may be in terms of provisions of section 232 (3) (i) of the Companies Act, 2013.
16. The cost to be paid to the Official Liquidator is quantified at Rs. 10,000/- in respect of the Petitioner Transferor Company. The said fees to the Official Liquidator shall be paid by the Petitioner Transferee Company.
17. The legal fees / expenses of the office of the Regional Director are quantified at Rs. 25,000/- in respect of Petitioner Companies. The said fees to the Regional Director shall be paid by the Petitioner Transferee Company.
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iling and issuance of drawn up order is hereby dispensed with. All concerned authorities to act on a copy of this order along with the Scheme duly authenticated by the Registrar of this Tribunal. The Registrar of this Tribunal shall issue the authenticated copy of this order along with the Scheme immediately. 19. The Petitioner Companies are further directed to lodge a copy of this order, the schedule of immovable assets of the Petitioner Transferor Company as on date of this order and the Scheme duly authenticated by the Registrar of this Tribunal, with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty, if any, on the same within 60 days from the date of the order. 20. The Petitioner Companies are directed to file a copy of this order along with a copy of the Scheme with the concerned Registrar of Companies, electronically, along with Form INC-28 in addition to the physical copy as per relevant provisions of the Act. 21. This Company Petition is allowed and disposed of accordingly.