AI Structured Summary
Not yet generated for this judgment
Judgment
Harnam Singh Thakur, Member (Judicial)
This is a joint First Motion Application filed by Applicant Companies namely; ASG Overseas Pvt Ltd, BPTP Parklands Pride Ltd, BPTP Resort Pvt Ltd, Countrywide Promoters Pvt Ltd, Delhi Strong Build Infrastructure Pvt Ltd, Garnish Colonisers Pvt Ltd, Gateway Infraprojects Pvt Ltd, Lunar Developers Pvt Ltd, Moonlight Buildmart Pvt Ltd, Remarkable Estate Pvt Ltd, Super Belts Pvt Ltd, Triangle Builders and Promoters Pvt Ltd, Well Worth Developers Pvt Ltd, Antariksh Construction Company Pvt Ltd, Anupam Towers Pvt Ltd, Ashirbad Buildwell Pvt Ltd, Brainwave Builders Pvt Ltd, Bright Star Builders Pvt Ltd, Business Park Builders Pvt Ltd, Business Park Developers Pvt Ltd, Business Park Overseas Pvt Ltd, Business Park Promoters Pvt Ltd, Delite Realtech Pvt Ltd, Designer Realtors Pvt Ltd, Digital SEZ Developers Pvt Ltd, Druzba Overseas Pvt Ltd, Elite Realtech Pvt Ltd, Eventual Builders Pvt Ltd, Excel Infraventures Pvt Ltd, Focus Builders Pvt Ltd, Fragrance Construction Pvt Ltd, GAG Constructions Pvt Ltd, Garland Infrastructure Pvt Ltd, Gitanjali Promoters Pvt Ltd, Glaze Buildcon Pvt Ltd, Glitz Builders and Promoters Pvt Ltd, Green Park Estates Pvt Ltd, Green Valley Housing & Land Development Pvt Ltd, Green Valley Towers Pvt Ltd, Grow High Realtors Pvt Ltd, IAG Promoters and Developers Pvt Ltd, Imagine Builders Pvt Ltd, Impartial Builders Pvt Ltd, Impower Infrastructure Pvt Ltd, ISG Estates Pvt Ltd, Jasmine Buildtech Pvt Ltd, KA Promoters & Developers Pvt Ltd, Merit Marketing Pvt Ltd, Native Buildcon Pvt Ltd, Passionate Builders Pvt Ltd, Perpetual Infracon Pvt Ltd, Poonam Promoters and Developers Pvt Ltd, Precision Infrastructure Pvt Ltd, Rainbow Promoters Pvt Ltd, Saraswati Kunj Infrastructure Pvt Ltd, Shalimar Town Planners Pvt Ltd, Shrinkhla Infrastructure Pvt Ltd, Sunaina Towers Pvt Ltd, Sunglow Overseas Pvt Ltd, Supergrowth Constructions Pvt Ltd, USG Buildwell Pvt Ltd, Vasundra Promoters Pvt Ltd, Visual Builders Pvt Ltd, Vivek Promoters Pvt Ltd and Westland Developers Pvt Ltd (for short hereinafter referred to as Applicant Companies No. 1 to 65/Transferor Companies No. 1 to 65), BPTP Ltd (for short hereinafter referred to as Applicant Company No.66/Transferee Company) and Logical Builders Pvt Ltd and Praya Buildtech Pvt Ltd (for short hereinafter referred to as Applicant Companies No. 67 & 68/Resulting Companies No. 1 & 2); under Sections 230 & 232 of the Companies Act, 2013, read with Section 66 and 52 of the Companies Act, 2013 (the Act) and other applicable provisions of the Act read with Companies (Compromises, Arrangements, and Amalgamations) Rules, 2016 (the Rules) in relation to the Scheme of Arrangement between the Applicant Companies. The said Composite Scheme is attached as Annexure A-11 of the Application.
The Applicant Companies have prayed for dispensing with the requirement of convening the meetings of the Equity Shareholders of the Transferor Companies No. 1 to 65, the Transferee Company and the Resulting Companies No. 1 & 2, meetings of the Preference Shareholders of the Transferor Companies No. 4, 12, 13, 19, 28, 36, 39, 51 & 56 and meetings of the Un-secured Creditors of the Transferor Companies No. 1 to 65 and the Resulting Companies No. 1 & 2. The Applicant Companies have further prayed for the convening of separate meetings of the Secured Creditors of the Transferor Companies No. 2, 4, 29 & 49 and the Transferee Company; and of Un-secured Creditors of the Transferee Company.
It is further submitted that all the Applicant Companies are engaged in the real estate business in various capacity, led by the Transferee Company-BPTP Ltd being the Flagship Company of the Group.
It is submitted that the respective Registered Offices of all the Applicant Companies are situated in Faridabad in the State of Haryana and hence all applicant companies are under the territorial jurisdiction of this Bench.
The rationale of the Scheme is given below:
5.1 The circumstances which justify and/or necessitate the proposed Amalgamation of the Transferor Companies No. 1 to 65 with the Transferee Company-BPTP Ltd are, inter alia, as follows:
i. All the Transferor and Transferee Companies are closely held un-listed Group Companies under common management and control. The proposed amalgamation of the Transferor Companies with the Transferee Company would result in consolidation of Group Companies and pooling of their resources into a single entity.
ii. The Transferee Company is the Flagship Company of the Group, engaged in real estate business. The Transferor Companies are also engaged in real estate business in various capacities. It would be advantageous to combine the activities and operations in a single Company, to grow the business in an efficient manner, achieve operational synergies and benefits from economies of scale by combining all existing real estate projects launched by the respective Transferor companies with the Transferee Company by way of amalgamation; and build strong capability to effectively meet future challenges in a competitive business environment. The proposed amalgamation will enable integration of respective business activities of the Transferor Companies with those of the Transferee Company.
iii. The proposed Amalgamation would result in business synergy, pooling of physical, financial and human resource of these Companies for the optimal utilization of these factors in the combined entity.
iv. The proposed Scheme of Arrangement will result in usual economies of a centralized and a large company including elimination of redundancies, reduction of overheads, optimal utilization of financial, human and other resources and enhancement of overall business efficiency. The proposed Scheme of Arrangement will enable these Companies to combine their managerial and operating strength, to build a wider capital and financial base and to promote and secure overall growth.
v. The amalgamation will result in significant reduction in multiplicity of legal and regulatory compliances which at present are required to be made separately by the Transferee Company as well as by the Transferor Companies.
vi. The proposed Scheme of Arrangement would enhance the shareholders’ value of the Transferor and the Transferee Companies.
vii. The proposed Scheme of Arrangement will have beneficial impact on the Transferor and the Transferee Companies, their shareholders, employees and other stakeholders and all concerned.
5.2 The circumstances which justify and/or necessitate the proposed Demerger of identified ‘Plotted Real Estate Undertaking’ and identified ‘Retail Real Estate Undertaking’ (the Demerged Business 1 & 2, respectively) of BPTP Ltd into the Resulting Companies No. 1 & 2, respectively, are, inter alia, as follows:
i. The Transferee Company is engaged in real estate business and other related activities. To have better management control and administrative convenience, the Transferee Company is proposing to demerge its ‘Demerged Business 1 & 2’ into two separate companies-the Resulting Companies No. 1 & 2, respectively.
ii. The management of Transferee Company intends to demerge two business verticals, viz., identified ‘Plotted Real Estate Undertaking’ and identified ‘Retail Real Estate Undertaking’ (the Demerged Business 1 & 2, respectively), which require separate management focus to chart out a clear growth path and unlock value for all involved stakeholders. Further, both these business verticals (i.e., the Demerged Business 1 & 2) have different funding requirements owing to the nature of business activities, and hence are proposed to be carved-out in order to obtain appropriate funding as required by the respective businesses. Accordingly, it is proposed to demerge the ‘Demerged Business 1 & 2’ of the Transferee Company in separate companies, i.e., Resulting Companies No. 1 & 2, respectively, to run as independent business activities.
iii. The Demerger will also enable greater/enhanced focus of management in the respective Demerged Businesses thereby facilitating the management to efficiently capture opportunities for respective businesses. It will also enable future fund raising from investors at specific business vertical level, attracting business specific investors and strategic partners and providing better flexibility in accessing capital, focused strategy and specialization for sustained growth and thereby enable de-leveraging of the respective businesses in the longer-term. The Demerger proposed by this Scheme will enable investors to hold investments in respective businesses with different investment characteristics thereby enabling them to stay invested in the business vertical(s) which best suit their investment strategies and risk profiles.
iv. The Demerger will enable creation of focused business entities for the respective Demerged Businesses. The proposed Demerger will impart better management focus, will facilitate administrative convenience and will ensure optimum utilization of various resources by these Companies.
v. The proposed Demerger will provide scope for independent expansion of various businesses. It will strengthen, consolidate and stabilize the business of these Companies and will facilitate further expansion and growth of their business. The Transferee Company and the Resulting Companies may pursue organic and inorganic growth opportunities of their respective business activities.
vi. The Transferee Company and the Resulting Companies No. 1 & 2 would be able to attract better valuation multiples from investors/capital markets in future, resulting in value unlocking for all the stakeholders.
vii. The proposed Demerger will have beneficial impact on the Transferee Company and the Resulting Companies, their employees, shareholders and other stakeholders and all concerned.
It is stated that the Board of Directors of the Transferee Company-BPTP Ltd in their respective meetings held on 27.08.2022 have considered and unanimously approved the proposed Composite Scheme of Arrangement. The respective Board of Directors of all the Transferor Companies and the Resulting Companies in their respective meetings held between 27.08.2022 to 01.09.2022 have also considered and unanimously approved the proposed Scheme of Arrangement and same are attached as Annexure A-4 of the application.
The appointed date of the Scheme is [1st April, 2022, for the proposed Amalgamation and 1st August, 2022, for the proposed Demerger] as mentioned in Clause 1.4 and 1.5, respectively of Part-I of Scheme of Arrangement which is attached as Annexure: A-11 of the application.
It is stated that all the Applicant Companies have filed their Audited Financial Statements as on 31st March, 2022.
It is submitted that no corporate debt restructuring is envisaged in the proposed Scheme of Arrangement.
It is further submitted that in pursuance of the proviso to Section 230(7) and Section 232(3) of the Act, all the Applicant Companies has filed certificates issued by their respective Statutory Auditors certifying that the Scheme is in compliance with the Accounting Standards under Section 133 of the Act and the same are attached as Annexure A-9 with the application.
It is further submitted by the Applicant Companies that as per Valuation Report/Share Entitlement Ratio Report dated 19.08.2022 submitted by Mr Amit Kumar, the Registered Valuer having registration No. IBBI/RV/11/2019/12492 which is attached as Annexure A-10, the following Share Entitlement Ratio is proposed:
11.1 To Equity Shareholders of the Transferor Companies: The Transferee Company-BPTP Ltd will issue new Equity Shares having Face Value of ₹10 each, credited as fully paid-up, to the Equity Shareholders of the Transferor Companies in lieu of the Equity Shares held in the Transferor Companies in the ratio as tabulated below:
Particulars
Exchange Ratio for Equity Shares
[New Equity Shares in Transferee Company in lieu of existing Equity Shares held in Transferor Companies]
Transferor Companies No. 1 to 13
Nil1
Transferor Company No. 14
1 Share to each Shareholder2
Transferor Company No. 15
111:100
Transferor Company No. 16
32:100
Transferor Company No. 17
1 Share to each Shareholder2
Transferor Company No. 18
18:100
Transferor Company No. 19
34:100
Transferor Company No. 20
194:100
Transferor Company No. 21
10:100
Transferor Company No. 22
39:100
Transferor Company No. 23
9:100
Transferor Company No. 24
536:100
Transferor Company No. 25
28:100
Transferor Company No. 26
137:100
Transferor Company No. 27
1 Share to each Shareholder2
Transferor Company No. 28
7701:100
Transferor Company No. 29
402:100
Transferor Company No. 30
1 Share to each Shareholder2
Transferor Company No. 31
2591:100
Transferor Company No. 32
210:100
Transferor Company No. 33
1 Share to each Shareholder2
Transferor Company No. 34
20:100
Transferor Company No. 35
1 Share to each Shareholder2
Transferor Company No. 36
3:100
Transferor Company No. 37
145:100
Transferor Company No. 38
36:100
Transferor Company No. 39
128:100
Transferor Company No. 40
1 Share to each Shareholder2
Transferor Company No. 41
770:100
Transferor Company No. 42
31:100
Transferor Company No. 43
1 Share to each Shareholder2
Transferor Company No. 44
329:100
Transferor Company No. 45
16:100
Transferor Company No. 46
19:100
Transferor Company No. 47
70:100
Transferor Company No. 48
12:100
Transferor Company No. 49
1398:1003
Transferor Company No. 50
1:100
Transferor Company No. 51
12961:1003
Transferor Company No. 52
1845:100
Transferor Company No. 53
73:100
Transferor Company No. 54
2459:100
Transferor Company No. 55
825:100
Transferor Company No. 56
296:100
Transferor Company No. 57
1 Share to each Shareholder2
Transferor Company No. 58
177:100
Transferor Company No. 59
900:100
Transferor Company No. 60
110:100
Transferor Company No. 61
314:100
Transferor Company No. 62
2764:100
Transferor Company No. 63
25:100
Transferor Company No. 64
1 Share to each Shareholder2
Transferor Company No. 65
21:100
1 Since the Transferor Companies No. 1 to 13 are direct or step down wholly owned subsidiaries of the Transferee Company, no new shares will be issued by the Transferee Company pursuant to the amalgamation of the Transferor Companies No. 1 to 13 with the Transferee Company.
2 Fair Value of Equity Shares of these Transferor Companies is in negative. To provide a token participation to the Shareholders of these Transferor Companies, the Transferee Company will issue 1 (one) Equity Share of ₹10 each, credited as fully paid up, to each of the Shareholders of these Transferor Companies against their respective Equity Shareholding in the concerned Transferor Companies (irrespective of number of Equity Shares held by the Shareholders in these Transferor Companies).
3 The Transferor Company No. 49-Native Buildcon Pvt Ltd has issued Class-A, Class-B and Class-C Equity Shares, each class having face value of ₹10 per share. Whereas the Transferor Company No. 51-Perpetual Infracon Pvt Ltd has issued Class-A and Class-B Equity Shares, each class having face value of ₹10 per share. However, the Transferee Company-BPTP Ltd has only one class of Equity Shares. It is, accordingly, proposed that the Transferee Company will issue only one class of Equity Shares to all the Equity Shareholders of the Transferor Companies No. 49 and 51, holding the respective Class of Equity Shares.
11.2 To Compulsorily Redeemable Preference Shareholders of the Transferor Companies: Some of the Transferor Companies have also issued Compulsorily Redeemable Preference Shares (CRPS). The Transferee Company-BPTP Ltd will issue new Equity Shares having Face Value of ₹10 each, credited as fully paid-up, to the CRPS Holders of the Transferor Companies in lieu of the CRPS held in the Transferor Companies in the following ratio:
Particulars
Exchange Ratio for CRPS
[New Equity Shares in Transferee Company in lieu of existing CRPS held in Transferor Companies]
Transferor Company No. 4
17:100
Transferor Company No. 13
17:100
Transferor Company No. 19
17:100
Transferor Company No. 28
20:100
Transferor Company No. 36
17:100
Transferor Company No. 39
17:100
Transferor Company No. 56
17:100
11.3 To Compulsorily Convertible Preference Shareholders of the Transferor Companies: The Transferor Companies No. 12 and 51 have issued Compulsorily Convertible Preference Shares (CCPS). The Transferee Company-BPTP Ltd will issue new Equity Shares having Face Value of ₹10 each, credited as fully paid-up, to the CCPS Holders of the Transferor Companies in lieu of the CCPS held in the Transferor Companies in the following ratio:
Particulars
Exchange Ratio for CCPS
[New Equity Shares in Transferee Company in lieu of existing CCPS held in Transferor Companies]
Transferor Company No. 12
8258:100
Transferor Company No. 51
12961:100
11.4 To Debenture Holders of the Transferor Companies: The Transferor Company No. 24-Designer Realtors Pvt Ltd has issued 50,00,000 Un-secured Fully Convertible Debentures (FCD-Series-I) of ₹10 each aggregating to ₹5,00,00,000 and 4,34,783 Un-secured Fully Convertible Debentures (FCD-Series-II) of ₹23 each aggregating to ₹1,00,00,009. The Transferee Company will issue equal number of Debenture(s) to the Debenture Holders of the Transferor Company No. 24, on the same terms and conditions.
It is submitted that the Scheme (Annexure A-11) also takes care of the interest of the staff/workers and employees of the Applicant Companies, by virtue of Clause 2.5 and 3.7 of the Scheme.
The authorised signatories of Applicant Companies have deposed by way of affidavits that the Applicant Companies are unlisted companies and are not regulated by any sectoral regulator other than Haryana RERA, Panchkula and Haryana RERA, Gurugram. The aforesaid affidavits of the authorised signatories are filed along with the Application at page No. 112-171.
The Applicant Companies have filed revised affidavits giving up to date list of material legal proceedings pending against the Applicant Companies before different judicial authorities vide Diary No. 02345/4 dated 24.01.2023. The authorised signatories of Applicant Companies have further deposed that the proposed Scheme of Arrangement will not have any adverse impact on any of the pending proceedings/litigations.
It is submitted by Authorized Signatory of Transferee Company way of affidavit that the Corporate Insolvency Process has been initiated against the transferee company by order dated 14.11.2022 passed by the Hon’ble NCLT, New Delhi, Bench-II. Thereafter, a settlement agreement dated 15.11.2022 and addendum dated 16.11.2022 were entered between the parties and an appeal has been filed before Hon’ble National Company Law Appellate Tribunal. Hon’ble NCLAT has stayed the order dated 14.11.2022 of NCLT, New Delhi, Bench-II and thereafter, NCLAT has also set aside the aforesaid order by judgement dated 7. 12.2022. The aforesaid Judgements/orders along with affidavit are filed by the authorised representative of Transferee Company by Diary No. 02345/3 dated 30. 11.2022.
The Applicant Companies have furnished the following documents:
i. Proposed Scheme of Arrangement (Annexure A-11 of the application).
ii. Soft copies of the complete sets of Memorandum and Articles of Association of all the Applicant Companies.
iii. List of Equity Shareholders of all the Applicant Companies as on 30th August, 2022 along with consent affidavits (Annexure A-5 respectively of the application).
iv. List of Preference Shareholders of all the Applicant Transferor Companies No. 4, 12, 13, 19, 28, 36, 39, 51 and 56 as on 30th August, 2022 along with consent affidavits (Annexure A-6 respectively of the application).
v. List of Secured Creditors of the Applicant Companies as on 31st March, 2022 duly certified by A Prasad & Associates, Chartered Accountants (Annexure A-7 respectively of the application).
vi. List of Unsecured Creditors of the Transferee Company as on 31st March, 2022 duly certified by A Prasad & Associates, Chartered Accountants (Annexure A-8 of the application).
vii. List of Unsecured Creditors of the Transferor Companies No. 1 to 65 and the Resulting Companies No. 1 & 2 as on 31st March, 2022 duly certified by A Prasad & Associates, Chartered Accountants and their consent affidavits (Annexure A-8 respectively of the application).
viii. Certificates of Statutory Auditors to the effect that the Accounting treatment proposed in the Scheme is in conformity with Section 133 of the Companies Act, 2013 (Annexure A-12 of the application).
ix. Soft copies of the Audited Balance Sheets as at 31st March, 2022 for all the Applicant Companies.
x. Report on Valuation of Shares & Share Entitlement Ratio (Annexure A-10 of the application).
The Applicant Companies have furnished the details of the Equity Shareholders, Secured Creditors, and Unsecured Creditors as follows:
17.1 Status of Equity Shareholders and Consent Affidavits obtained:
Company
Equity Shareholders
Consent Affidavits obtained
Total No.
Total Value
No.
Total Value
% of Total Value
Transferor
Company No. 1
7
5,00,000
7
5,00,000
100
Transferor Company No. 2
7
8,37,99,650
7
8,37,99,650
100
Transferor Company No. 3
7
5,00,000
7
5,00,000
100
Transferor Company No. 4
7
5,00,000
7
5,00,000
100
Transferor Company No. 5
7
5,00,000
7
5,00,000
100
Transferor Company No. 6
7
5,00,000
7
5,00,000
100
Transferor Company No. 7
7
5,00,000
7
5,00,000
100
Transferor Company No. 8
7
5,00,000
7
5,00,000
100
Transferor Company No. 9
7
5,00,000
7
5,00,000
100
Transferor Company No. 10
7
5,00,000
7
5,00,000
100
Transferor Company No. 11
7
5,00,000
7
5,00,000
100
Transferor Company No. 12
7
1,00,00,000
7
1,00,00,000
100
Transferor Company No. 13
7
5,00,000
7
5,00,000
100
Transferor Company No. 14
2
1,00,000
2
1,00,000
100
Transferor Company No. 15
2
54,00,000
2
54,00,000
100
Transferor Company No. 16
2
1,00,000
2
1,00,000
100
Transferor Company No. 17
2
1,00,000
2
1,00,000
100
Transferor Company No. 18
2
1,00,000
2
1,00,000
100
Transferor Company No. 19
2
1,05,000
2
1,05,000
100
Transferor Company No. 20
2
7,50,000
2
7,50,000
100
Transferor Company No. 21
2
27,54,000
2
27,54,000
100
Transferor Company No. 22
2
1,75,00,000
2
1,75,00,000
100
Transferor Company No. 23
2
1,00,000
2
1,00,000
100
Transferor Company No. 24
2
5,00,000
2
5,00,000
100
Transferor Company No. 25
2
1,00,000
2
1,00,000
100
Transferor Company No. 26
2
50,00,000
2
50,00,000
100
Transferor Company No. 27
2
1,00,000
2
1,00,000
100
Transferor Company No. 28
2
1,00,000
2
1,00,000
100
Transferor Company No. 29
2
1,00,000
2
1,00,000
100
Transferor Company No. 30
2
1,00,000
2
1,00,000
100
Transferor Company No. 31
2
1,05,000
2
1,05,000
100
Transferor Company No. 32
2
10,20,000
2
10,20,000
100
Transferor Company No. 33
2
1,00,000
2
1,00,000
100
Transferor Company No. 34
2
25,50,000
2
25,50,000
100
Transferor Company No. 35
2
1,00,000
2
1,00,000
100
Transferor Company No. 36
2
15,00,000
2
15,00,000
100
Transferor Company No. 37
2
4,50,000
2
4,50,000
100
Transferor Company No. 38
2
4,98,750
2
4,98,750
100
Transferor Company No. 39
2
4,00,000
2
4,00,000
100
Transferor Company No. 40
2
1,00,000
2
1,00,000
100
Transferor Company No. 41
2
1,02,000
2
1,02,000
100
Transferor Company No. 42
2
5,00,000
2
5,00,000
100
Transferor Company No. 43
2
1,00,000
2
1,00,000
100
Transferor Company No. 44
2
1,00,000
2
1,00,000
100
Transferor Company No. 45
2
26,52,000
2
26,52,000
100
Transferor Company No. 46
2
1,00,000
2
1,00,000
100
Transferor Company No. 47
3
50,00,000
3
50,00,000
100
Transferor Company No. 48
2
1,00,000
2
1,00,000
100
Transferor Company No. 49
Class-A
6
2,04,070
6
2,04,070
100
Class-B
1
1,69,98,960
1
1,69,98,960
100
Class-C
1
1,27,50,710
1
1,27,50,710
100
Transferor Company No. 50
2
1,00,000
2
1,00,000
100
Transferor Company No. 51
Class-A
2
5,00,000
2
5,00,000
100
Class-B
1
5,00,000
1
5,00,000
100
Transferor Company No. 52
2
1,05,000
2
1,05,000
100
Transferor Company No. 53
2
1,00,000
2
1,00,000
100
Transferor Company No. 54
2
1,05,000
2
1,05,000
100
Transferor Company No. 55
2
1,00,000
2
1,00,000
100
Transferor Company No. 56
2
15,00,000
2
15,00,000
100
Transferor Company No. 57
2
1,00,000
2
1,00,000
100
Transferor Company No. 58
2
12,24,000
2
12,24,000
100
Transferor Company No. 59
2
3,55,000
2
3,55,000
100
Transferor Company No. 60
2
1,05,000
2
1,05,000
100
Transferor Company No. 61
2
1,02,000
2
1,02,000
100
Transferor Company No. 62
2
1,05,000
2
1,05,000
100
Transferor Company No. 63
2
1,00,000
2
1,00,000
100
Transferor Company No. 64
2
1,00,000
2
1,00,000
100
Transferor Company No. 65
2
7,35,000
2
7,35,000
100
Transferee Company
31
256,76,14,310
31
256,76,14,310
100
Resulting Company No. 1
2
1,00,000
2
1,00,000
100
Resulting Company No. 2
2
1,00,000
2
1,00,000
100
17.2 Status of Preference Shareholders and Consent Affidavits obtained:
Company
Preference
Shareholders
Consent Affidavits obtained
Total No.
Total Value
No.
Total Value
% of Total Value
Transferor
Company No. 4
1
2,50,00,000
1
2,50,00,000
100
Transferor Company No. 12
6
1,10,44,050
6
1,10,44,050
100
Transferor Company No. 13
1
50,00,000
1
50,00,000
100
Transferor Company No. 19
1
1,00,00,000
1
1,00,00,000
100
Transferor Company No. 28
1
26,00,00,000
1
26,00,00,000
100
Transferor Company No. 36
1
50,00,000
1
50,00,000
100
Transferor Company No. 39
1
75,00,000
1
75,00,000
100
Transferor Company No. 51
2
10,00,000
2
10,00,000
100
Transferor Company No. 56
1
25,00,000
1
25,00,000
100
17.3 Status of the Secured Creditors and Consent Affidavits obtained:
Company
Total No. of Secured Creditors
Consent Obtained
Transferor Company No. 1
Nil
N.A.
Transferor Company No. 2
1
Meeting to be Convened
Transferor Company No. 3
Nil
N.A.
Transferor Company No. 4
1
Meeting to be Convened
Transferor Company No. 5
Nil
N.A.
Transferor Company No. 6
Nil
N.A.
Transferor Company No. 7
Nil
N.A.
Transferor Company No. 8
Nil
N.A.
Transferor Company No. 9
Nil
N.A.
Transferor Company No. 10
Nil
N.A.
Transferor Company No. 11
Nil
N.A.
Transferor Company No. 12
Nil
N.A.
Transferor Company No. 13
Nil
N.A.
Transferor Company No. 14
Nil
N.A.
Transferor Company No. 15
Nil
N.A.
Transferor Company No. 16
Nil
N.A.
Transferor Company No. 17
Nil
N.A.
Transferor Company No. 18
Nil
N.A.
Transferor Company No. 19
Nil
N.A.
Transferor Company No. 20
Nil
N.A.
Transferor Company No. 21
Nil
N.A.
Transferor Company No. 22
Nil
N.A.
Transferor Company No. 23
Nil
N.A.
Transferor Company No. 24
Nil
N.A.
Transferor Company No. 25
Nil
N.A.
Transferor Company No. 26
Nil
N.A.
Transferor Company No. 27
Nil
N.A.
Transferor Company No. 28
Nil
N.A.
Transferor Company No. 29
1
Meeting to be Convened
Transferor Company No. 30
Nil
N.A.
Transferor Company No. 31
Nil
N.A.
Transferor Company No. 32
Nil
N.A.
Transferor Company No. 33
Nil
N.A.
Transferor Company No. 34
Nil
N.A.
Transferor Company No. 35
Nil
N.A.
Transferor Company No. 36
Nil
N.A.
Transferor Company No. 37
Nil
N.A.
Transferor Company No. 38
Nil
N.A.
Transferor Company No. 39
Nil
N.A.
Transferor Company No. 40
Nil
N.A.
Transferor Company No. 41
Nil
N.A.
Transferor Company No. 42
Nil
N.A.
Transferor Company No. 43
Nil
N.A.
Transferor Company No. 44
Nil
N.A.
Transferor Company No. 45
Nil
N.A.
Transferor Company No. 46
Nil
N.A.
Transferor Company No. 47
Nil
N.A.
Transferor Company No. 48
Nil
N.A.
Transferor Company No. 49
1
Meeting to be Convened
Transferor Company No. 50
Nil
N.A.
Transferor Company No. 51
Nil
N.A.
Transferor Company No. 52
Nil
N.A.
Transferor Company No. 53
Nil
N.A.
Transferor Company No. 54
Nil
N.A.
Transferor Company No. 55
Nil
N.A.
Transferor Company No. 56
Nil
N.A.
Transferor Company No. 57
Nil
N.A.
Transferor Company No. 58
Nil
N.A.
Transferor Company No. 59
Nil
N.A.
Transferor Company No. 60
Nil
N.A.
Transferor Company No. 61
Nil
N.A.
Transferor Company No. 62
Nil
N.A.
Transferor Company No. 63
Nil
N.A.
Transferor Company No. 64
Nil
N.A.
Transferor Company No. 65
Nil
N.A.
Transferee Company
6 (Includes Debenture holder)
Meeting to be Convened
Resulting Company No. 1
Nil
N.A.
Resulting Company No. 2
Nil
N.A.
17.4 Status of the Un-secured Creditors and Consent Affidavits obtained:
Company
Un-secured Creditors
Consent Affidavits obtained
Total No.
Total Value
No.
Total Value
% of Total Value
Transferor
Company No. 1
4
1,08,34045
3
1,08,24,605
99.91%
Transferor Company No. 2
51
41,30,21,142
5
37,67,06,698
91.21%
Transferor Company No. 3
5
94,13,147
3
93,88,707
99.74%
Transferor Company No. 4
175
364,76,63,119
3
340,74,69,67
7
93.42%
Transferor Company No. 5
2
41,880
2
41,880
100%
Transferor Company No. 6
2
50,080
2
50,080
100%
Transferor Company No. 7
4
1,46,540
3
1,41,540
96.59%
Transferor Company No. 8
3
55,999,55
2
55,90,515
99.83%
Transferor Company No. 9
4
4,00,63,141
3
4,00,53,701
99.97%
Transferor Company No. 10
5
3,00,053
4
2,90,613
96.85%
Transferor Company No. 11
4
18,08,67,944
3
18,08,58,504
99.99%
Transferor Company No. 12
3
15,040
2
14,440
96.01%
Transferor Company No. 13
4
10,84,059
2
10,17,179
93.83%
Transferor Company No. 14
7
27,36,73,480
6
27,36,64,040
99.99%
Transferor Company No. 15
6
10,45,43,471
4
9,55,34,031
91.38%
Transferor Company No. 16
6
78,05,75,851
5
78,05,66,411
99.99%
Transferor Company No. 17
3
5,02,28,254
2
5,02,18,814
99.98%
Transferor Company No. 18
6
46,11,04,146
4
46,10,75,826
99.99%
Transferor Company No. 19
3
3,23,28,204
2
3,23,18,764
99.97%
Transferor Company No. 20
6
5,88,65,583
4
5,78,56,082
98.29%
Transferor Company No. 21
5
9,85,880
4
9,76,440
99.04%
Transferor Company No. 22
4
3,27,70,997
3
3,27,61,557
99.97%
Transferor Company No. 23
3
72,18,612
2
72,09,171
98.87%
Transferor Company No. 24
57
79,28,25,465
3
78,31,36,261
98.78%
Transferor Company No. 25
4
29,02,34,290
3
29,02,24,850
99.99%
Transferor Company No. 26
8
87,02,39,590
3
79,99,23,330
91.92%
Transferor Company No. 27
4
9,34,64,931
2
9,34,54,491
99.99%
Transferor Company No. 28
5
79,81,64,353
4
79,81,54,913
99.99%
Transferor Company No. 29
4
17,35,78,846
2
16,99,85,339
97.93%
Transferor Company No. 30
53
540,51,71,841
50
538,76,12,40
1
99.68%
Transferor Company No. 31
4
8,56,72,288
3
8,56,62,848
99.99%
Transferor Company No. 32
9
35,05,017
5
34,22,451
97.64%
Transferor Company No. 33
6
41,20,20,884
5
41,20,11,444
99.99%
Transferor Company No. 34
3
4,31,67,874
2
4,31,58,434
99.98%
Transferor Company No. 35
5
39,45,38,828
4
39,45,29,388
99.99%
Transferor Company No. 36
4
3,60,07,978
3
3,59,98,538
99.97%
Transferor Company No. 37
2
15,490
2
15,490
100%
Transferor Company No. 38
6
3,40,80,736
3
3,19,71,296
93.81%
Transferor Company No. 39
2
45,180
2
45,180
100%
Transferor Company No. 40
9
10,19,30,924
7
10,19,19,984
99.99%
Transferor Company No. 41
2
9,840
2
9,840
100%
Transferor Company No. 42
7
75,82,19,485
6
75,82,10,045
99.99%
Transferor Company No. 43
5
14,51,38,167
4
14,51,28,727
99.99%
Transferor Company No. 44
2
12,93,211
1
12,83,771
99.27%
Transferor Company No. 45
3
2,45,06,425
2
2,44,96,985
99.96%
Transferor Company No. 46
5
23,24,35,752
3
22,95,26,312
98.75%
Transferor Company No. 47
4
8,77,93,426
3
8,77,83,986
99.99%
Transferor Company No. 48
3
51,880
3
51,880
100%
Transferor Company No. 49
55
148,88,61,323
2
144,72,26,75
9
97.2%
Transferor Company No. 50
5
38,49,64,856
3
38,49,54,417
99.99%
Transferor Company No. 51
12
41,78,448
10
40,76,648
97.56%
Transferor Company No. 52
4
4,92,38,012
3
4,47,38,012
90.86%
Transferor Company No. 53
4
75,97,519
3
75,88,079
99.88%
Transferor Company No. 54
4
136,02,39,942
2
136,02,30,50
2
99.99%
Transferor Company No. 55
5
23,61,45,858
4
23,61,36,418
99.99%
Transferor Company No. 56
10
71,76,75,439
3
70,36,12,999
98.04%
Transferor Company No. 57
4
2,94,390
3
2,84,950
96.79%
Transferor Company No. 58
8
31,79,909
4
30,97,343
97.4%
Transferor Company No. 59
5
6,30,44,210
4
6,30,34,770
99.99%
Transferor Company No. 60
4
3,50,262
2
3,36,102
95.96%
Transferor Company No. 61
2
28,040
2
28,040
100%
Transferor Company No. 62
4
4,36,86,634
3
4,36,77,194
99.99%
Transferor Company No. 63
5
37,68,98,061
4
37,68,88,621
99.99%
Transferor Company No. 64
8
108,48,37,143
6
105,02,24,13
7
96.81%
Transferor Company No. 65
4
3,84,23,398
3
3,84,13,958
99.98%
Transferee Company
1,046
1587,20,11,592
Meeting to be Convened
Resulting Company No. 1
4
14,50,240
1
13,40,000
92.40%
Resulting Company No. 2
3
12,560
2
11,540
91.88%
Accordingly, the directions of this Bench in the present case are as under:
I. In relation to Equity Shareholders:
a. All the Equity Shareholders of the Transferor Companies No. 1 to 65, the Transferee Company and the Resulting Companies No. 1 & 2 have given their written consents by way of affidavits. Therefore, the requirement of convening meetings of the Equity Shareholders of the Transferor Companies No. 1 to 65, the Transferee Company and the Resulting Companies No. 1 & 2 is dispensed with.
II. In relation to Preference Shareholders:
a. All the Preference Shareholders of the Transferor Companies No. 4, 12, 13, 19, 28, 36, 39, 51 & 56 have given their written consents by way of affidavits. Therefore, the requirement of convening meetings of the Preference Shareholders of the Transferor Companies No. 4, 12, 13, 19, 28, 36, 39, 51 & 56 is dispensed with.
III. In relation to Secured Creditors:
a. Since, there are no Secured Creditors in the Applicant Transferor Company No. 1, 3, 5 to 28, 30 to 48, 50 to 65 and Resulting Company No. 1 & 2, the requirement of convening the meeting of Secured Creditors does not arise;
b. Meeting of the Secured Creditors of the Transferor Company No. 2 is to be convened on Friday, 26th May, 2023, at 11:00 A.M. at Shangri-La Eros Hotel, 19 Ashoka Road, Janpath, Connaught Place, New Delhi 110001 subject to notice of meeting being issued.
c. Meeting of the Secured Creditors of the Transferor Company No. 4 is to be convened on Saturday Friday, 26th May, 2023, at 12:00 A.M. at Shangri-La Eros Hotel, 19 Ashoka Road, Janpath, Connaught Place, New Delhi 110001 subject to notice of the meeting being issued.
d. Meeting of the Secured Creditors of the Transferor Company No. 29 is to be convened on Friday, 26th May, 2023, at 01:00 P.M. at Shangri-La Eros Hotel, 19 Ashoka Road, Janpath, Connaught Place, New Delhi 110001 subject to notice of meeting being issued.
e. Meeting of the Secured Creditors of the Transferor Company No. 49 is to be convened on Friday, 26th May, 2023, at 03:00 P.M. at Shangri-La Eros Hotel, 19 Ashoka Road, Janpath, Connaught Place, New Delhi 110001 subject to notice of meeting being issued.
f. Meeting of the Secured Creditors (including debenture holders) of the Transferee Company is to be convened on Friday, 26th May, 2023, at 04:00 P.M. at Shangri-La Eros Hotel, 19 Ashoka Road, Janpath, Connaught Place, New Delhi 110001 subject to notice of meeting being issued. The quorum of the meeting of the Secured creditors shall be 4 in number or 40% in value of the Secured Creditors present.
IV. In relation to Unsecured Creditors:
a. All the Un-secured Creditors of the Transferor Companies No. 1 to 65 and the Resulting Companies No. 1 & 2 have given their written consents by way of affidavits. Therefore, the requirement of convening meeting of the Un-secured Creditors of the Transferor Companies No. 1 to 65 and the Resulting Companies No. 1 & 2 may be dispensed with.
b. Meeting of the Un-secured Creditors of the Transferee Company is to be convened on Saturday, 27h May, 2023, at 11:30 A.M. through video conferencing subject to notice of meeting being issued. The quorum of the meeting of the Unsecured creditors shall be 419 in number or 40% in value of the total Un-secured Creditors.
V. In case the required quorum as noted above for the meetings is not present at the commencement of the meeting, the meeting shall be adjourned by 30 minutes and thereafter the persons shall be deemed to constitute the quorum.
VI. Mr. Rajesh Sharma, Former Member (Technical), National Company Law Tribunal (NCLT), address: 705, Jasminium Apartments, Sector 45, Gurugram (Haryana), Mobile: +91-9312264174, Email: [email protected], is appointed as the common Chairperson for the meeting to be called under this order. An amount of ₹2,00,000/- (Rupees Two Lakhs Rupees Only) be paid for his services as the Chairperson.
VII. Mr. Shashi Pratap Singh, Advocate, Office Address- B4/227, Ground Floor, Safdarjung Enclave New Delhi, 110029, Mobile No. 91 9560536975, E-mail id: [email protected], is appointed as the common Alternate Chairperson for the meeting to be called under this order. An amount of ₹ 1,50,000 (Rupees One Lakh Fifty Thousand Only) be paid for his services as the Alternate Chairperson.
VIII. Mr. Nipan Bansal, Chartered Accountant, Address: 10B, Udham Singh Nagar, Ludhiana, Punjab. Mobile No. 9876445400, email id: [email protected], is appointed as the common Scrutinizer for the above meeting to be called under this order. An amount of ₹ 1,00,000 (Rupees One Lakh Only) be paid for her services as the Scrutinizer.
IX. The fee of the Chairperson, Alternate Chairperson, Scrutinizer and other out-of-pocket expenses for them shall be borne by the Applicant Transferor Companies No. 2, 4, 29 & 49 and the Transferee Company Jointly.
X. It is further directed that individual notices of the said meetings shall be sent by the Transferor Companies No. 2, 4, 29 & 49 and the Transferee Company to their respective Secured Creditors; and Transferee Company to their respective Unsecured Creditors through registered post or speed post or through courier or e-mail, 30 days in advance before the scheduled date of the meetings, indicating the day, date, the place and time as aforesaid, together with a copy of the Scheme, copy of the explanatory statement with Share Exchange Ratio as discussed in para 11 of this order required to be sent under the Companies Act, 2013 and the applicable Rules and any other documents as may be prescribed under the Act shall also be duly sent with the notice.
XI. It is further directed that along with the notices, the Transferor Companies No. 2, 4, 29 & 49 and the Transferee Company to their respective Secured Creditors; and Transferee Company to their respective Unsecured Creditors shall also send, statements explaining the effect of the scheme on the creditors, key managerial personnel, promoters and non-promoter members, etc. along with the effect of the scheme of arrangement on any material interests of the Directors of the Company or the debenture trustees, if any, as provided under sub-section (3) of Section 230 of the Act.
XII. It is also directed that the Audited Financial Statements of Applicant Companies not older than 6 Months or as on a subsequent date be also circulated for the aforesaid meeting(s) in terms of Section 232 (2) (e) of the Act.
XIII. That the Applicant Companies shall publish an advertisement with a gap of at least 30 clear days before the aforesaid meetings, indicating the day, date and place and the time of the meetings as aforesaid, to be published in “Business Standard” (English, All India Edition) and “Business Standard” (Hindi, All India Edition); The publication shall indicate the time within which copies of the Scheme of Arrangement shall be made available to the concerned persons, free of charge from the registered office of the Applicant Companies. The publication shall also indicate that the explanatory statement required to be furnished pursuant to Sections 230 & 232 read with Section 102 of the Companies Act, 2019 can be obtained free of charge at the registered office of the Applicant Companies in accordance with second proviso to sub-section (3) of Section 230 and Rule 7 of the Companies (CAA) Rules, 2016. The Applicant Companies shall also publish the notice of the meetings on their website, if any.
XIV. It shall be the responsibility of the Transferor Companies No. 2, 4, 29 & 49 and the Transferee Company to ensure that the notices are sent under the signature and supervision of the authorized representative of the company on the basis of Board resolutions and that they shall file their affidavits in the Tribunal at 7 days before the date fixed for the meetings.
XV. Voting in case of meetings conducted through video-conferencing shall be allowed on the “Scheme” through electronic means which will remain open for a period as mandated under Clause 8.3 of Secretarial Standards on General Meetings to the Applicant Companies under the Act and the Rules framed thereunder.
XVI. Voting by proxy/authorised representatives is permitted in case of physical meetings only provided that the proxy in the prescribed form duly signed by the person entitled to attend and vote at the aforesaid meetings is filed with the Applicant Companies at their Registered Office, not later than 48 hours before the meeting vide Rule 10 of the Companies (CAA) Rules, 2016 read with Section 105 of the Act. Valid Proxies and Authorised Representatives shall be counted for the purpose of quorum.
XVII. The Scrutinizer’s report will contain his/her findings on the compliance to the directions given in Para X to XVI above.
XVIII. The Chairperson shall be responsible to report the result of the meetings to the Tribunal in Form No. CAA-4, as per Rule 14 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 within 7 (seven) days of the conclusion of the meetings. The Chairperson would be fully assisted by the authorized representative/Company Secretary of the Applicant Companies and the Scrutinizer, who will assist the Hon’ble Chairperson and Alternate Chairperson in preparing and finalizing the report.
XIX. The Applicant Companies shall individually and in compliance of sub-section (5) of Section 230 of the Act and Rule 8 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 send notices in Form No. CAA-3 along with copy of the Scheme, Explanatory Statement and the disclosures mentioned in Rule 6 of the “Rules” (a) the Central Government through the office of the Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi; (b) the Registrar of Companies, NCT of Delhi and Haryana, New Delhi; (c) the Official Liquidator, Haryana, Chandigarh; (d) Haryana RERA, Panchkula; (e) Haryana RERA, Gurugram; and (f) the Income Tax Department, in the respective circle/ward where these Companies are assessed or through the nodal office by mentioning the PAN number of the Applicant Companies; and to such other Sectoral Regulator(s) governing the business of the Applicant Companies, if any, stating that report on the same, if any, shall be sent to this Tribunal within a period of 30 days from the date of receipt of such notice and copy of such report shall be simultaneously sent to the applicant companies, failing which it shall be presumed that they have no objection to the proposed Scheme.
XX. The Applicant Companies shall furnish a copy of the Scheme free of charge within one day of any requisition for the Scheme made by any Creditor entitled to attend the meetings as aforesaid.
XXI. The authorized representative of the Applicant Companies shall furnish affidavit of service of notice of meetings and publication of advertisement and compliance of all directions contained herein at least a week before the proposed meetings.
XXII. All the aforesaid directions are to be complied with strictly in accordance with the applicable laws including forms and formats contained in the Rules as well as the provisions of the Companies Act, 2013 by the Applicant Companies.
With the aforesaid directions, this First Motion Application stands disposed of. A copy of this order be supplied to the learned counsel for the Applicant Companies who in turn shall supply a copy of the same to the Chairperson, Alternate Chairperson and the Scrutinizer immediately.