Akin Logistics And Services Private Limited Vs

Kishore Vemulapalli, Member (Judicial)

The Court is convened through video conferencing today.

Learned Counsel for the Transferor Company and Transferee Company (collectively referred to as ‘Applicant Companies’) states that the present Scheme is a Scheme of Amalgamation of AKIN LOGISTICS AND SERVICES PRIVATE LIMITED, the Transferor Company with AKIN CHEMICALS PRIVATE LIMITED, the Transferee Company under sections 230 to 232 of the Companies Act, 2013 (‘Scheme’).

Learned Counsel for the Applicant Companies states that the Board of Directors of the Transferor Company and Transferee Company in their respective meetings conducted on 27th August 2021 for the Transferor Company and the Transferee Company have approved the Scheme. The Appointed Date fixed under the Scheme is April 1, 2021.

The Applicant Company No.1 was set up in the year 2011 to undertake the business to establish, organize, manage, run, charter, conduct, contract, develop, handle, own, operate and to do business as fleet, carriers, transporters, in all its branches on land, air, water space, for transporting goods, articles, or things on all routes and lines in National and International level subject to law in force through all sorts of carries like trucks, lorries, trawlers, dumpers, coaches, tankers, tractors, haulers, jeeps, trailers, motor buses, omnibuses, motor taxies, railways, tramways, aircrafts, hovercrafts, rockers, space shuttles, ships, vessels, boats, barges.

The Applicant Company No.2 commenced its business in the year 1997 and has been carrying on the business as buyers, sellers, exporter, importer, job worker, vendor, contractor, supplier or otherwise to deal in all types of organic, inorganic, industrial, laboratory, photographic, fine, biological, pathological, pharmaceutical and other chemicals, compound, drugs, formulations, preparations, acids, solvents, oils, solutions, derivatives, fluids.

The authorized Share Capital of the Applicant Company No.1 as on 31st March 2021 is Rs. 5,00,000 (50,000 Equity shares of Rs. 10/- each) and Issued, Subscribed and Paid-up Rs. 5,00,000 (50,000 Equity shares of Rs. 10/- each fully paid-up).

The authorized Share Capital of the Applicant Company No.2 is Rs. 1,50,00,000 (15,00,000 Equity shares of Rs. 10/- each) and Issued, Subscribed and Paid-up Rs. 1,50,00,000 (15,00,000 Equity shares of Rs. 10/- each fully paid-up).

The financial details/summary of the First Applicant Company/Transferor Company as on 31.03.2021 is as under:

Year

Net worth in Rs.

Turnover in Rs.

Profit /(Loss)

in Rs.

2019-2020

2,81,01,871

1,02,00,000

91,499

2020-2021

2,80,79,719

8,73,751

(22,152)

The financial details/summary of the Second Applicant Company/Transferee Company as on 31.03.2021 is as under:

Year

Net worth in

Rs.

Turnover in

Rs.

Profit /(Loss) in

Rs.

2019-2020

51,29,58,556

4,66,70,91,239

7,20,87,798

2020-2021

71,85,37,905

3,83,19,05,676

20,55,79,349

Learned Counsel for the Applicant Company No.1 states that there are 2 Equity Shareholders in the Applicant Company No.1. That the convening and holding the meeting of the Equity Shareholders of the Applicant Company No.1 for the purpose of considering and, if thought fit, approving, with or without modification(s) the proposed Scheme of Amalgamation of the Transferor Company with the Transferee Company is dispensed with in view of the Consent Affidavits given by the two Equity Shareholders of the Applicant Company No.1, which are annexed as ‘Exhibit I-1 to I-2’ to the Company Scheme Application.

Learned Counsel for the Applicant Company No.2 states that there are 23 Equity Shareholders in the Applicant Company No.2. That the convening and holding the meeting of the Equity Shareholders of the Applicant Company No.2 for the purpose of considering and, if thought fit, approving, with or without modification(s) the proposed Scheme of Amalgamation of the Transferor Company with the Transferee Company is dispensed with in view of the Consent Affidavits given by the twenty-three Equity Shareholders of the Applicant Company No.2, which are annexed as ‘Exhibit J-1 to J-23’ to the Company Scheme Application.

That the counsel for the Applicant Companies submits that there are no Secured Creditors in the Applicant Company No. 1 mentioned in Para 23 of the Application, therefore, the question of convening and holding of the meeting or sending notices to Secured Creditors of the applicant company does not arise.

The Counsel for the Applicant Company No. 2 submits that as on 31st August 2021 there are 4 (Four) Secured Creditors having an outstanding balance of Rs.16,71,05,527/- of the Applicant Company No.2. That Counsel for the Applicant Company No. 2 submits that since the scheme is for amalgamation between Transferor and Transferee Company and their respective Shareholders in accordance with the provisions of the Companies Act, 2013 and as there is no compromise and/or Arrangement with the creditors and as no sacrifice is called for, this Bench hereby directs that the meetings of Secured Creditors is therefore, dispensed with. The Transferor Company shall issue individual notices to all the Secured Creditors by Courier/Registered Post-AD/Speed Post/Hand Delivery and through Email (to those Creditors whose email addresses are duly registered with the Applicant Company No.1 for the purpose of receiving such notices by email), as required under section 230 (3) of the Companies Act, 2013.

This Bench directs the Applicant Company No.2 to file the Consent Affidavits of 4 Secured Creditors of the Applicant Company No.2 at the time of filing of Company Petition.

That the counsel for the Applicant Companies submits that there are no Unsecured Creditors in the Applicant Company No. 1 mentioned in Para 25 of the Application.

The Counsel for the Applicant Company No. 2 submits that there are 135 (One Hundred Thirty-Five) Unsecured Creditors of the value of Rs.77,96,75,682/- of the Applicant Company as on 30th June 2021. That Counsel for the Applicant Company No. 2 submits that so far as Unsecured Creditors of the Applicant Company No. 2 are concerned, the scheme of amalgamation does not envisage any compromise or arrangement with the Unsecured Creditors of the Applicant Company No. 2 and hence they will in no way be affected by the Scheme of Arrangement. It is further submitted that the Applicant Company No.2 is meeting the amounts payable to its Creditors from its activities and upon the Scheme becoming effective, the Applicant Company No. 2 shall continue with its existence and shall accordingly continue to meet the liabilities of its Unsecured Creditors as they arise in the normal course. Hence, this Bench hereby directs that the meetings of Unsecured Creditors is therefore, dispensed with. The transferor company shall issue individual notices to all the Unsecured Creditors by Courier/Registered Post/Speed Post/Hand Delivery and through Email (to those Creditors whose email addresses are duly registered with the Applicant Company No.2 for the purpose of receiving such notices by email), as required under section 230 (3) of the Companies Act, 2013.

The Applicant Companies are directed to submit a list of directors of their respective companies at the time of filing the Company Petition.

The Applicant Companies are directed to submit details of license obtained or required to be obtained under any law for the time being in force, if any, relating to the business activity of both the companies, from any authority and also issue due notices of the scheme to those License Authorities at the time of filing the Company Petition.

The Applicant Companies shall submit details of Assets, Liabilities, Net Worth, Income, Expenditure and Profit/Loss of the Transferor Company before the amalgamation as well as the effect of the scheme on both the Companies after the scheme comes into effect at the time of filing the Company Petition.

The Applicant Companies shall submit details of Corporate Guarantee, Performance Guarantee, Bank Guarantee executed by them, if any, and the same shall be substantiated with documents dealing with it at the time of filing the Company Petition.

The Applicant Companies shall submit details of all Letters of Credit sanctioned and utilized as well as Margin Money details; if any at the time of filing the Company Petition.

The Applicant Companies shall submit list of pending IBC cases, if any, along with all other litigation pending against the Applicant Companies having material impact on the proposed Scheme at the time of filing the Company Petition.

The Applicant Companies are directed to serve Notice by Registered Post-AD/Speed Post and Hand Delivery to the RBI, pursuant to Section 230(5) of the Companies Act, 2013 as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. If no response is received by the Tribunal within 30 days of the date of receipt of the notice it will be presumed that RBI has no objection to the proposed Scheme as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.

The Applicant Companies to serve the notice upon the Regional Director, Western Region, Ministry of Corporate Affairs, Mumbai Maharashtra, pursuant to Section 230(5) of the Companies Act, 2013 as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. If no response is received by the Tribunal from Regional Director within 30 days of the date of receipt of the notice it will be presumed that Regional Director and/ or Central Government has no objection to the proposed Scheme as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016

The Applicant Companies to serve the Notice upon the Registrar of Companies, Mumbai, pursuant to Section 230(5) of the Companies Act, 2013 as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, If no response is received by the Tribunal from the Registrar of Companies within 30 days of the date of receipt of the notice it will be presumed that Registrar of Companies has no objection to the proposed Scheme as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules. 2016.

The Applicant Companies to serve the Notice on the concerned Income Tax Authority within whose jurisdiction, The Applicant Company No. 1 PAN: AAJCA7318R having his address at The Income Tax Officer, (12)(1)(1), Aayakar Bhawan, Churchgate, Mumbai-400020. The Applicant Company No. 2 PAN: AACCA4152E having his address at The Dy. Commissioner of Income Tax , (4)(2)(1), Aayakar Bhawan, Churchgate, Mumbai-400020 where the Applicant Company’s assessments are made, pursuant to Section 230(5) of the Companies Act, 2013 as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. If no response is received by the Tribunal from the Income Tax Authority within 30 days of the date of receipt of the notice it will be presumed that Income Tax Authority has no objection to the proposed Scheme as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.

The Applicant Companies are directed to serve Notice by Registered Post-AD/Speed Post and Hand Delivery to the concerned GST Authorities as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. If no response is received by the Tribunal from the GST Authority within 30 days of the date of receipt of the notice it will be presumed that GST Authority has no objection to the proposed Scheme as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.

The Transferor Company is also directed to serve intimations of the Scheme by Registered Post-AD/Speed Post and Hand Delivery upon Official Liquidator, pursuant to section 230(5) of the Companies Act, 2013 and as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. The Tribunal is appointing M/s. A.S. Kanchwalla & Associates, Chartered Accountants, to assist the Official Liquidator to scrutinize the books of accounts of the said Transferor Company for the last 5 years and submit its representation / report to the Tribunal. The aforesaid Companies to pay fees of Rs. 1,00,000/- for this purpose. If no representation / response is received by the Tribunal from Official Liquidator, Bombay within a period of thirty days from the date of receipt of such notice, it will be presumed that Official Liquidator has no representation / objection to the proposed Scheme as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.

The Applicant Companies to file an Affidavit of Service and Compliance within 10 working days after serving to notice to all the regulatory authorities as stated above and do report to this Tribunal that the directions regarding the issue of notices have been duly complied with.

The Appointed Date is 1st April, 2021.