Ayum Enterprises Private Limited And Ors. vs Valore Enterprises Private Limited

Narender Kumar Bhola, Member (T)

The Present Petition is filed by Petitioner Companies under Sections 230 & 232 of the Companies Act, 2013 read with Rules framed thereunder, as in force from time to time, for the Sanction of the proposed Scheme of Amalgamation of Ayum Enterprises Private Limited, Metos Marketing Private Limited, Prsasti Projects Private Limited with Valore Enterprises Private Limited and their respective Shareholders and Creditors (hereinafter referred to as "Scheme" or "Scheme of Amalgamation").

A perusal of the present Petition discloses that initially the Petitioner Companies had filed Company Application No. CA (CAA) 84 (PB)/2019 seeking directions of this Tribunal to dispense with the requirement of convening the meetings of the Shareholders of the Transferor Companies No. 1 to 3 and the Transferee Company. Accordingly, this Hon'ble Tribunal vide its order dated 29th July, 2019, was pleased to dispense with the requirement of convening all the meetings of the Shareholders of the Transferor Companies No. 1 to 3 and of the Transferee Company. The Transferor Companies No. 1 & 3 and the Transferee Company did not have any Secured Creditor or Unsecured Creditor.

This Hon'ble Tribunal vide its order dated 21st August, 2019 directed to issue notice of hearing in respect of present Company Petition to the Statutory Authorities and also to make paper publication in this respect in "Business Standard" (English, Delhi Edition) and "Business Standard" (Hindi, Delhi Edition).

In compliance thereof, the Petitioner Companies have filed Affidavit of service and publication, confirming that notices have been duly published in "Business Standard" (English, Delhi Edition) and "Business Standard" (Hindi, Delhi Edition) both dated 26th September, 2019. The Petitioner Companies have also served notice of the Company Petition to (a) the Central Government through the office of the Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi; (b) the Registrar of Companies, New Delhi; (c) The Official Liquidator, New Delhi; and, (d) the Income Tax Department.

In response to the above stated notice, the Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi submitted his report, wherein it state that, in reference to the Clause 10 of the scheme, the transferee company may be directed to comply with the provisions of section 232(3)(i) of the Companies Act, 2013, in regard to fee payable on its revised authorized share capital.

The Official Liquidator, Ministry of Corporate Affairs, New Delhi has also submitted his report through a representation, wherein it has not raised any objection against the Scheme of Amalgamation.

The Income Tax Department has also sent its report, as per the report of the Income Tax Department, the Applicant company M/s. Ayum Enterprises Pvt. Ltd., has outstanding Income Tax demands as under:

Petitioners have represented that, none of the Petitioner Transferor Companies and Transferee Company is regulated or governed by the Reserve Bank of India (RBI), Securities and Exchange Board of India (SEBI), Competition Commission of India (CCI) or any other Sectoral Regulator or Regulatory Authority. Hence, notice of this Petition was not required to be served on the RBI, SEBI, CCI or any other Sectoral Regulator or Regulatory Authority.

In the joint petition it has also been affirmed that no proceedings for inspection, inquiry or investigation under the provisions of the Companies Act, 2013 or under provisions of the Companies Act, 1956 are pending against the Petitioner Companies.

We, have gone through the reports of the Ld. Regional Director (Northern Region), Ministry of Corporate Affairs, New Delhi, Ld. Official Liquidator, Ministry of Corporate Affairs, New Delhi and the Income Tax Department and after perusing the same, we are of the view that the sanction of the present Scheme is not against public policy, nor it would be prejudicial to the public interest at large.

Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this court to the scheme will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners, while approving the Scheme as above, we further clarify that this order should not be construed as an order in granting any exemption from payment of stamp duty, taxes including Income Tax, GST etc. or any other charges, if any, and payment in accordance with law or in respect of any permission/compliance with any other requirement may be specifically required under law.

THIS TRIBUNAL FURTHER ORDERS:

1) Upon the sanction becoming effective from the appointed date of amalgamation, i.e., 1st April, 2018, the Petitioner Companies shall stand dissolved without undergoing the process of winding up.

2) All property, rights and powers of Demerged Undertaking be transferred without further act or deed, to the Resulting Company and accordingly the same shall pursuant to Section 232 of the Act, be transferred to and vested in the Resulting Company for all intents, purposes and interests of the Demerged Undertaking subject nevertheless to all changes now affecting the same and;

3) All the liabilities (if any) and dues of the Transferor Companies be transferred without further act or deed, to the Resulting Company (Transferee Company) and accordingly, the same shall be pursuant to Section 232 of the Act.

4) That all proceedings now pending by or against the Transferor Companies be continued by or against the Transferee Company. The Transferor Companies shall stands dissolved without being wound up.

5) All contracts of the Petitioner Companies which are subsisting or having effect immediately before the Effective Date, shall stand transferred to and vested in the Transferee Company and be in full force and effect in favor of the Transferee Company and may be enforced by or against it as fully and effectually as if, instead of the Petitioner Companies, the Transferee Company had been a party or beneficiary or obliged thereto;

6) All the employees of the Petitioner Companies shall be deemed to have become the employees and the staff of the Transferee Company with effect from the Appointed Date, and shall stand transferred to the Transferee Company without any interruption of service and on term and conditions no less favorable than those on which they are engaged by the Transferor Companies, as on the Effective Date, including in relation to the level of remuneration and contractual and statutory benefits, incentive plans, terminal benefits, gratuity plans, provident plans and any other retirement benefits;

7) With respect to petitioner companies, there will be no limitation on the power of Income Tax Department for recovery of any past, present, or future tax dues including interest or penalty etc. from the assets of the transferee company.

8) All liabilities of the Petitioner Companies, shall, pursuant to the provisions of section 232(4) and other applicable provisions of the Companies Act, 2013, to the extent they are outstanding as on the Effective Date, without any further act, instrument or deed stand transferred to and be deemed to be the debts, liabilities, contingent liabilities, duties and obligations etc., as the case may be, of the Transferee Company and shall be exercised by or against the Transferee Company, as if it had incurred such liabilities.

9) The Petitioner Companies shall within thirty days of the date of the receipt of this order cause a certified copy of this order to be delivered to the Registrar of Companies for registration.

10) Any person shall be at liberty to apply before this Tribunal in the above matter for such directions as may be necessary.

Accordingly, the present Company Petition stands disposed of in the above terms.