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Judgment
M.M. Kumar, CJ
This joint petition filed by the Petitioner Companies under section 230 to 232 of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016 for the purpose of approval of the composite Scheme Of Amalgamation embodying the following:
a. amalgamation of Balaji I.T. Parks Private Limited (Petitioner Company-I) with and into RKS Cityscapes Private Limited (Transferee Company-1 Petitioner Company-II"); and
b. amalgamation of Transferor Company-2, Sundaram I.T. Parks Private Limited (Petitioner Company-Ill), WTC Chandigarh Development Company Private Limited (Petitioner Company-IV), Erika Infracon India Private Limited (Petitioner Company-V) with and into WTC Noida Development Company Private Limited (Transferee Company-2/ Petitioner Company-VI).
That the Petitioner Companies are engaged in the business of real estate. Petitioner Company- IV and Petitioner Company-V have their real estate projects registered with the Real Estate Regulatory Authority, Punjab and Petitioner Company-VI have its real estate projects registered with the Real Estate Regulatory Authority, Punjab, Uttar Pradesh and Gujarat.
A perusal of the Petition discloses that initially the joint first motion application seeking directions with respect to the meeting of shareholders and creditors was filed before us vide Company Application (CAA)-03(PB)/2019 and based on such joint application moved under section 230 to 232 of the Act, the meeting of equity shareholders, debenture holders and secured creditors of the Petitioner Companies were dispensed with. In respect of unsecured creditors of the Petitioner Companies, directions were issued for convening respective meetings of unsecured creditors of the Petitioner Company-I, Petitioner Company-Ill, Petitioner Company-IV, Petitioner Company-V and Petitioner Company-VI vide order dated 26.02.2019. The above mentioned meetings were duly convened and the resolution in favor of the Scheme was passed by majority of the unsecured creditors present and voting at their respective meetings.
In the second motion order dated 02.05.2019 passed in Petition, the Petitioner Companies were directed to carry out the publication in the news papers namely, 'Business Standard' (English, Delhi edition) and 'Jansatta' (Hindi, Delhi edition). In addition to the public notice, notices of petition in terms of section 230(5) of the Companies Act, 2013 were directed to be served upon statutory authorities namely, Central Government through Regional Director (Northern Region), Registrar of Companies of National Capital Territory of Delhi and Haryana, Official Liquidator attached to the Delhi High Court, Income Tax authorities and other sectoral regulators.
It is seen from the records that the Petitioner Companies have filed respective affidavits dated 30.05.2019 confirming compliance of the directions passed by the Tribunal vide order dated 02.05.2019. A perusal of the affidavits disclose that the Petitioner Companies have jointly served the notice of petition upon the office of respective Income Tax Authorities, Official Liquidator, Registrar of Companies and Regional Director, upon the office of Standing Counsel of Income Tax at Delhi High Court and Real Estate Regulatory Authority, Punjab, Uttar Pradesh and Gujarat. Further, the Petitioner Companies have affected the newspaper publication as directed in the 'Business Standard' (English, Delhi edition) and 'Jansatta' (Hindi, Delhi edition) on 14.05.2019. It is further affirmed in the affidavit that there is no other sectoral regulator who may have significant bearing on the operations of the Petitioner Companies.
Pursuant to said newspaper publication, the Petitioner Companies had not received any objection from any person, and the said fact had been filed with the Hon'ble Tribunal, by the Petitioner Companies vide an affidavit dated 28.06.2019.
The Regional Director has filed its representation and has observed that the compliance with Section 232(3)(i) of the Companies Act, 2013 be done. The companies have filed an undertaxing dated 20.06.2019 to that effect.
The Official Liquidator has issued its representations/ affidavits wherein no material objection has been raised against the approval of the Scheme. It is further submitted that the Scheme is not prejudicial to the interest of its shareholders, creditors and public at large. Hence, they raised no objection towards the Scheme.
That the Petitioner Companies are in receipt of no-objection reports from the Income Tax Authorities having jurisdiction over them. However, it is clarified that there shall be no limitation on the power of the Income tax Department for the department of the pending income tax dues, including imposition of penalties etc. as provided in the law. Also, the Petitioner Company-VI has filed an affidavit dated 25.06.2019, whereby it has undertaken to pay all dues and liabilities of the Petitioner Company-I, subject to right to appeal available under various laws.
The Real Estate Regulatory Authorities, Punjab has issued its representation vide an affidavit dated 09.04.2019, wherein it has been observed That after the scheme for amalgamation is approved, the concerned promoters would be obliged to comply with the provisions of section 15 of Real Estate (Regulation and Development) Act, 2016 and necessary directions to this effect may be issued.'' Petitioner Company- VI has filed an affidavit on 01.07.2019, whereby it has undertaken to comply with the provisions of section 15 of the Real Estate (Regulation and Development) Act, 2016 pursuant to sanctioning of the Scheme.
The Real Estate Regulatory Authorities, Uttar Pradesh has issued its representations vide an affidavit dated 23.07.2019, wherein following observations have been raised:
"3. In light of the above, you may:
1) Upload complete information with respect to all the projects as required under section 4 of the Real Estate (Regulations and Development) Act, 2016 including updated CA/Architect/Engineer Certificates and all information as required under section 11 of the Act and the rules and regulations thereunder including updated Quarterly Progress Reports and Annual Report on Statement of Accounts on the website of the Authority.
2) Furnish an undertaking by way of affidavit that the proposed merger will not adversely impact the timely completion of the projects and all other compliances/obligations to be fulfilled by you as the promoter of the projects. "
In respect of the above observations, the Petitioner Company-VI has filed an affidavit on 20.08.2019, whereby it has disclosed the details of all the compliances done by the Petitioner Company-VI under the provisions of Section 4 and Section 11 of the Real Estate (Regulations and Development) Act, 2016. Further, the Petitioner Company-VI has also undertaken that the proposed Scheme of Amalgamation amongst the Petitioner Companies shall not adversely impact timely completion of Existing Projects of the Transferee Company 2.
The Petitioner Companies have not received any observation/ affidavit from Real Estate Authorities, Gujarat, accordingly, in terms of section 230(5) of the Act, it is deemed that the abovementioned authorities have no objection to the said Scheme.
It has also been affirmed that no proceeding or investigation are pending against any of the Petitioner Companies. It has further been deposed that pursuant to newspaper publications as aforesaid, neither the Petitioner Companies nor the advocates has received any objection on the said Scheme.
Certificate of the respective statutory auditors of all the Petitioner Companies have been placed on record to the effect that the accounting treatment proposed in the Scheme is in conformity with the Accounting Standards notified by the Central Government as specified under the provisions of section 133 of the Companies Act, 2013.
In view of the foregoing, upon considering the approval accorded by the members and creditors of the Petitioner Companies to the proposed Scheme and no-objection affidavits filed by Official Liquidator attached to the Delhi High Court, Regional Director, Registrar of Companies and Income Tax Authorities, sanction is hereby granted to the Scheme under section 230 to 232 of the Act.
The Petitioner Companies shall however remain bound to comply with the statutory requirements in accordance with law.
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 any way granting exemption from payment of stamp duty, taxes, GST or other charges, if any, and payment in accordance with law or in respect to any permission/ compliance with any other requirement which may be specifically required under any law.
It is stated that the appointed date as provided in the Scheme shall be April 1, 2018.
21.THIS TRIBUNAL DO FURTHER ORDER:
A. In respect of the Amalgamation of the Petitioner Company-I with and into Petitioner Company-II:
a) That all the property, rights and powers of the Transferor Company-1 be transferred without further act or deed to the Transferee Company-1 and accordingly the same shall pursuant to section 232 of Companies Act, 2013 be transferred to and vested in the Transferee Company-1 for all intents and interest of the Transferor Company-1 therein but subject nevertheless to all charges now affecting the same; and
b) That all the liabilities of the Transferor Company-1 be transferred without further act or deed to the Transferee Company-1 and accordingly the same shall pursuant to section 232 of the Act, be transferred to and become the liabilities and duties of the Transferee Company-1; and
c) That all proceedings now pending by or against the Transferor Company-1 be continued by or against the Transferee Company 1.
B. In respect of the Amalgamation of the Petitioner Companv-II, Petitioner Company-Ill, Petitioner Company-IV, Petitioner Company-V, with and into Petitioner Company-VI:
a) That all the property, rights and powers of the Transferor Company-2, Transferor Company-3, Transferor Company-4 and Transferor Company-5 be transferred without further act or deed to the Transferee Company-2 and accordingly the same shall pursuant to section 232 of Companies Act, 2013 be transferred to and vested in the Transferee Company-1 for all intents and interest of the Transferor Company-2, Transferor Company-3, Transferor Company-4 and Transferor Company-5 therein but subject nevertheless to all charges now affecting the same; and
b) That all the liabilities of the Transferor Company-2, Transferor Company-3, Transferor Company-4 and Transferor Company-5 be transferred without further act or deed to the Transferee Company-2 and accordingly the same shall pursuant to section 232 of the Act, be transferred to and become the liabilities and duties of the Transferee Company-2; and
c) That all proceedings now pending by or against the Transferor Company-2, Transferor Company-3, Transferor Company-4 and Transferor Company-5 be continued by or against the Transferee Company-2;
d) That 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 and the Transferor Companies on such certified copy being so delivered shall deemed to be dissolved. The Registrar of Companies shall place all documents relating to the Transferor Companies and registered with him on file kept by him in relation to the Transferee Company and files relating to the Petitioner Companies shall be consolidated accordingly;
e) That any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary.
The Petition stands disposed of in the above terms.