Bharat Serums And Vaccines Limited And Ors. Vs

The Bench is convened by videoconference today.

Counsel for the Applicant Companies states that the present Scheme is a Scheme of Amalgamation of Bharat Serums and Vaccines Limited

(‘First Applicant Company’or ‘First Transferor Company’) and BSVLife Private Limited (â€S˜econd Applicant Company’or

‘Second Transferor Company’) with Aksipro Diagnostics P Limited (‘Third Applicant Company’or ‘Transferee Company’)

and their respective shareholders (hereinafter referred as to “Schemeâ€​).

Counsel for the Applicant Companies states that the Scheme has been approved by the Board of Directors of the First Applicant Company in their

meeting held on 17 August 2020 and by the Board of Directors of the Second Applicant Company and Third Applicant Company in their respective

meetings held on 14 August 2020. The Appointed Date fixed under the Scheme is 14 February 2020.

The Counsel for the Applicant Companies states that with the ultimate objective of acquiring the ongoing business carried on by the Transferor

Companies, the Transferee Company on the Appointed Date i.e. 14 February 2020 acquired majority of outstanding equity shares in First Transferor

Company from the erstwhile shareholders of First Transferor Company. Pursuant to the above referred acquisition of shares in First Transferor

Company, the Transferor Companies and Transferee Company now form part of the same management. Thus, with a view to achieve the main

objective of consolidation of business carried on by Transferor Companies and Transferee Company, it is desirable to merge the Transferor

Companies into Transferee Company in this Scheme. Counsel for the Applicant Companies further submits the rationale for the scheme that:

a. With the ultimate objective of acquiring the ongoing business carried on by the Transferor Companies, the Transferee Company entered

into multiple share purchase agreements (“SPAsâ€) dated November 18, 2019 with certain shareholders of First Transferor Company to

acquire majority shareholding of the First Transferor Company on a fully diluted basis. This acquisition was completed on 14 February

2020 as a stepping stone towards acquisition of existing business of the First Transferor Company and Second Transferor Company

(collectively ‘Transferor Companies’).

b. Pursuant to the above referred acquisition, the Transferor Companies and Transferee Company form part of the same management. Thus,

with a view to achieve the main objective of the shareholders of the Transferee Company, i.e., consolidation with the business carried on by

the Transferor Companies, and in order to achieve and maintain a simple corporate structure and eliminate duplicate corporate

procedures, it is proposed to merge the Transferor Companies with the Transferee Company. The merger of the Transferor Companies with

the Transferee Company shall facilitate consolidation of the business of the Transferor Companies with the business of the Transferee

Company, and therefore enable effective management and unified control of operations. Further, the merger would create economies in

administrative and managerial costs by consolidating operations and would substantially reduce duplication of administrative

responsibilities and multiplicity of records and legal and regulatory compliances.

c. The merger of the Transferor Companies with the Transferee Company with effect from the Appointed Date (as hereinafter defined) is in

the interest of the shareholders, creditors, employees and other stakeholders of the Transferor Companies and the Transferee Company.

Further, there is no likelihood that any creditor of either the Transferor Companies or the Transferee Company will be prejudiced as a

result of the Scheme. It is hereby clarified that the intended Scheme is only for the merger of the Transferor Companies into the Transferee

Company and is not an arrangement with their respective creditors. The proposed merger will neither impose any additional burden nor

adversely affect the interests of any class of shareholders and/ or creditors of either the Transferor Companies or the Transferee Company.

d. The merger of the Transferor Companies with the Transferee Company pursuant to and in accordance with this Scheme shall take place

with effect from the Appointed Date and shall be in accordance with Section 2(1B) of the Income-tax Act, 1961.

Counsel for the Applicant Companies further submits that the First Applicant Company is engaged in the business of research, development,

manufacturing, distribution, marketing and licensing of: (i) pharmaceutical formulations, (ii) serums and vaccines, and (iii) biotech and biological Active

Pharmaceutical Ingredients (API); in each case, in the therapeutic areas of gynaecology, critical care and/ or emergency medicines for human use, in

India and outside India. Second Applicant Company in accordance with its memorandum of association, is engaged in the business of providing

treatment to human beings using medical and nonmedical applications specifically for dermatology, cosmetology, trichology, plastic surgery,

reconstructive surgery, aesthetic purpose, healing wounds and orthopedics and therapies including growth factor concentrate and other regenerative

therapies and Third Applicant Company in accordance with its memorandum of association, is engaged in the business of consultancy and

management services and of exporters, importers, traders, dealers, distributors, manufacturers, producers, and agents in any kind of medical, surgical,

anatomical, dental, x-ray, orthopedic equipment instruments, apparatus and accessories.

The Counsel for the Applicant Companies submits that there are 10 (Ten) Equity Shareholders in the First Applicant Company and that the First

Applicant Company has procured the consent affidavits, in writing agreeing to the Scheme from all the Equity Shareholders holding 100% of the

issued, subscribed and paid up Share Capital of the First Applicant Company which are annexed as Annexure “I1 to I10â€to the Company Scheme

Application. That due to the subsequent purchase of further stake by the Third Applicant Company in the First Applicant Company, the Third

Applicant Company, provided an updated consent affidavit in capacity of a shareholder on 05 October 2020 which is annexed as Annexure “Bâ€​ to

the Additional Affidavit dated on 22 October 2020.

The Counsel for the Applicant Companies submits that there are 2 (Two) Equity Shareholders in the Second Applicant Company and that the

Second Applicant Company has procured the consent affidavits, in writing agreeing to the Scheme from both the Equity Shareholders holding 100% of

the issued, subscribed and paid up Equity Share Capital of the Second Applicant Company which are annexed as Annexure “K1 to K2â€to the

Company Scheme Application.

The Counsel for the Applicant Companies submits that there are 8 (Eight) Equity Shareholders in the Third Applicant Company and that the Third

Applicant Company has procured the consent affidavits, in writing agreeing to the Scheme from all the Equity Shareholders holding 100% of the

issued, subscribed and paid up Equity Share Capital of the Third Applicant Company which are annexed as Annexure “M1 to M7â€to the

Company Scheme Application. That Ansamira Limited i.e. the shareholder of the Third Applicant Company had further subscribed and acquired

additional stake in the Third Applicant Company and subsequently as a consequence of the additional shares subscribed and acquired by it provided an

updated consent affidavit dated 30 September 2020 which is annexed as Annexure “D†to the Additional Affidavit dated on 22 October 2020.

That Mr Bhaskar Iyer has purchased stake in the Third Applicant Company and subsequently, as a consequence of the shares acquired by him

provided an updated consent affidavit dated 13 November 2020 which is annexed as Annexure “B†to the Additional Affidavitfiled on 19

November 2020.

In view of the fact that the Applicant Companies have obtained consents affidavits from all its Equity Shareholders, the meeting of the Equity

Shareholders of the Applicant Companies are hereby dispensed with.

The Counsel for the Applicant Companies submits that there is 1 (One) Preference Shareholder in the First Applicant Company and that the First

Applicant Company has procured the consent affidavit, in writing agreeing to the Scheme from the sole Preference Shareholder holding 100% of the

issued, subscribed and paid up Preference Share Capital of the First Applicant Company which is annexed as Annexure “O†to the Company

Scheme Application.

The Counsel for the Applicant Companies submits that there is 1 (One) Preference Shareholder in the Third Applicant Company and that the

Third Applicant Company has procured the consent affidavit, in writing agreeing to the Scheme from the sole Preference Shareholder holding 100%

of the issued, subscribed and paid up Preference Share Capital of the Third Applicant Company which is annexed as Annexure “Qâ€to the

Company Scheme Application.

In view of the fact that the First Applicant Company and the Third Applicant Company has obtained consents affidavit from their sole Preference

Shareholders, the meeting of the Preference Shareholders of the First Applicant Company and the Third Applicant Company is hereby dispensed with.

The Counsel for the Applicant Companies submits that there are 3 (Three) Secured Creditors in the First Applicant Company and that the First

Applicant Company has procured the consent affidavit, in writing agreeing to the Scheme from the three Secured Creditors constituting 100% of the

total outstanding amount of the Secured Creditors of the First Applicant Company. The Consent affidavits procured from the Secured Creditors are

annexed as Annexure “B1 to B3â€​to the Additional Affidavit dated 22 October 2020.

In view of the fact that the First Applicant Company has obtained consents affidavit from all their Secured Creditors, the meeting of the Secured

Creditors of the First Applicant Company is hereby dispensed with.

The Counsel submits that there are NIL Secured Creditors in Second Applicant Company and Third Applicant Company.

The Counsel for Applicants further submits that the present Scheme is an arrangement between the Applicant Companies and their shareholders

as contemplated under section 230(1)(b) of the Companies Act, 2013 and there is no compromise or arrangement with Creditors as no sacrifice is

called for. The rights of the Creditors are not affected as all the Creditors would be paid off in the ordinary course of business. In view of this, the

meetings of the Unsecured Creditors in the Applicant Companies are hereby dispensed with. This bench hereby directs the Applicant Companies to

issue notice to all its Unsecured Creditors by Courier/Registered Post/Speed Post/Hand Delivery or through Email (to those creditors whose email

addresses are duly registered with the Applicant Companies for the purpose of receiving such notices by email), at their last known address or email

addresses as per the records of the Applicant Companies with a direction that they may submit their representations, if any, within a period of thirty

(30) days from the date of receipt of such notice to the Tribunal and copy of such representations shall simultaneously be served upon the Applicant

Companies failing which, it shall be presumed that the authorities have no representations to make on the Scheme.

The Applicant Companies are directed to serve the notice along with the copy of scheme upon:- (i) the Central Government through the office of

Regional Director, Western region, Mumbai, (ii) Registrar of Companies, Mumbai, (iii) concerned Income Tax Authority within whose jurisdiction the

Applicant Companies’assessments are made i.e. for First Applicant Company, having PAN No: AAACB2431M, Circle 3(1)(1), Mumbai, for

Second Applicant Company, having PAN No: AADCE5805F, Circle 3(1)(2), Mumbai, for Third Applicant Company having PAN No:

AAACA5081C, Ward 1(1)(1), Mumbai, with an intimation that they may, if they so wish, submit their representations, if any, within a period of thirty

days from the date of receipt of such notice with the Tribunal with copy of such representations shall simultaneously be served upon the Applicant

Companies respectively failing which, it shall be presumed that the authorities have no representations to make on the proposed Scheme.

Additionally, First Applicant Company and Second Applicant Company are also directed to serve notice along with a copy of the Scheme upon the

Official Liquidator, High Court, Bombay pursuant to Section 230(5) of the Companies Act, 2013. Mr. Anjan Bhattacharya, Mobile: 9557539539, Email:

[email protected], Address: 404, Building No.-37, Avenue D, Rustamjee Global City, Virar West, Palghar-401303, is hereby appointed as

Chartered Accountants to assist the Official Liquidator to scrutinize books of Accounts of the First Applicant Company and Second Applicant

Company for the last 5 years. The fees of the Chartered Accountant is fixed at Rs. 2,00,000/-. The Official Liquidator may submit his representations,

if any, within a period of thirty (30) days from the date of receipt of such notice to the Tribunal and a copy of such representations shall simultaneously

be served upon the First Applicant Company and Second Applicant Company failing which, it shall be presumed that the Official Liquidator has no

representations to make on the proposed arrangement embodied in the Scheme.

The Applicant Companies shall file compliance report with the registry in regard to the directions given in this Order proving dispatch of notices to

relevant Unsecured Creditors of the Applicants and service of notice to 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.

Ordered accordingly.