Fortum Amrit Energy Pvt. Ltd Vs

Hemant Kumar Sarangi, Member (Technical)

This application has been jointly filed by the Applicant Companies under Sections 230 and 232 of the Companies Act, 2013read with the Companies (Compromises, Arrangements and Amalgamations)  Rules,  2016  and the National Company Law Tribunal Rules, 2016, and under Section 66 of the Companies Act for the subsequent reduction of the Share Capital of the Transferee Company, duly supported by separate affidavits of the Applicant  Companies,  for  seeking  appropriate  directions  for dispensing with the holding/convening of the meetings of the respective  shareholders  and  creditors  of  all  the  Applicant companies for approval of the proposed Scheme of Amalgamation  as  contemplated  between  the  applicant  companies.  The  said Scheme of Amalgamation (hereinafter referred to as the "Scheme") has been placed on record along with the joint application.

It is represented that the registered office of all the applicant companies is situated in New Delhi and therefore the subject matter of this joint application falls within the Jurisdiction of this Bench.

Transferor Company was incorporated under the Companies Act, 1956 on 29th March 2007 in the name and style of "Fortum Amrit Energy Private Limited" with the  office of Registrar of Companies,   NCT  of  Delhi   and  Haryana,   under  the   CIN. U40101DL2007PTC267540.Its  authorized  share  capitalis  Rs. 23,36,25,000/-divided into 2,33,62,500 equity shares of Rs. 10/- each, while its issued, subscribed, and paid-up capital is Rs. 23,04,51,740/-  divided into 2,30,45,174  equity shares of Rs. 10/- each.

It is submitted that the Transferor Company has 2 Equity Shareholders  and  one  secured  creditor  and  No  unsecured creditors.   The certificate of chartered accountant in respect of creditors  has  also  been  placed  on  record.   In  respect  of shareholders and secured creditors, prayer has been made for issuance of directions for dispensing the convening of   the meeting of   the shareholders.

The  Transferee  Company  was  incorporated  under  the  Companies Act, 1956 on 9th October 2013 in the name and style of " Fortum Finnsurya Energy Private Limited " in the office of Registrar of Companies, NCT of Delhi and Haryana, under the Corporate  Identification  No.  is  U40300DL2013FTC259011.Its present authorized share capital is Rs. 1,50,00,00,000 /- divided into 1,50,00,000 equity shares of Rs. 100/- each, while its issued, subscribed, and paid-up share capital of Rs.4,01,00,000 divided into 4,01,000 equity shares of Rs. 100/- each.

It is submitted that the Transferee Company has 2 Equity Shareholders. It is represented by the counsel for Applicants that the transferee company has 3 secured as well as 2 unsecured Creditors. The certificates of chartered accountant in respect of creditors has also been placed on record. In respect of shareholders, secured creditor and unsecured creditors, prayer has been made for issuance of directions for dispensing their respective meetings.

We have perused the joint applications and the connected documents/  papers  filed  herewith  including  the  Scheme  of Amalgamation contemplated between the Applicant companies.

It is further submitted that the board of directors of all the applicant  companies  vide  separate  Board  meetings,  held  on 30.06.2021 respectively   have   unanimously approved   the proposed Scheme of Amalgamation and copies of such board resolutions passed thereat have been placed on record by the companies.

All the applicants have filed their respective Memoranda and Articles of Associations. The applicants have also filed their latest   audited   financial   statements   for   the   year   ending 31.03.2020. It is further Submitted that the Applicants have also placed the Provisional Unaudited Reports for the current financial year 1st April 2021- 10 July 2021.

All  the  companies have  submitted that no investigation proceedings are pending under the provisions of the Companies Act against any of the applicant company.

Further,  it has been  stated in the  application that the Scheme is not prejudicial to the interests of the shareholders, and creditors of the applicant companies. The Scheme will be beneficial to all the applicant companies and their respective shareholders, and creditors.

The certificates of statutory auditors of all the applicant companies  confirming  that  the  accounting  treatment  in  the scheme is in compliance of and in conformity with Section 133 of the Companies Act, 2013 have been placed on record.

Taking into consideration the application filed jointly by the Applicant Companies the following directions are issued:

A. In relation to Transferor Company

With respect to Equity Shareholders:

Meeting of the 2equity shareholders is directed to be dispensed with as the 100% written consent has been obtained by way of affidavits for the proposed merger.

ii.  With respect to secured creditors:

Meeting of the sole secured creditor is directed to be dispensed with as pursuant to its power under section 230(9)  of  the  Companies  Act, 2013.  The  Consent Affidavit of the sole secured creditor has already been placed on record.

iii. With respect to unsecured creditors:

As there is no unsecured creditor in the Transferor Company,  the  requirement  of convening  meeting  of unsecured creditors does not arise. Hence, directed to be dispensed with as prayed by the applicant.

B. In relation to Transferee Company

i. With respect to Equity Shareholders:

Meeting of the 2 equity shareholders is directed to be dispensed with as the 100% written consent has been obtained by way of affidavits for the proposed merger.

ii.  With respect to secured creditors:

Meeting of the 3 Secured Creditors is directed to be dispensed with as pursuant to its power under section 230(9) of the Companies Act, 2013). The 100% of the secured creditors have already given their consent by way of affidavit, placed on record. Hence, directed to be dispensed with as prayed by the applicant.

iii. With respect to unsecured creditors:

Meeting of the 2 unsecured creditors is directed to be dispensed with as pursuant to its power under section 230(9) of the Companies Act, 2013. The 100% of the unsecured creditors have already given their consent by way of affidavit, placed on record.

In addition to the public notice, the applicant company shall serve notice of the Application on the following authorities, as applicable: (i) Regional Director (Northern Region at B-2 Wing, 2nd Floor, Pt. Deendayal Antyodaya Bhawan (earlier known as Paryawaran Bhawan), C.G.O.  Complex, New Delhi-110003; (ii) Registrar of Companies, N.C.T. of Delhi 86 Haryana at 4th Floor, IFCI Tower, 61, Nehru Place, New Delhi-110019; (iii) Income Tax Department  through its nodal office at Lawyer's Chamber, Block 1, Room Nos. 428 & 429 Delhi High Court, New Delhi and the jurisdictional assessment office of the Petitioner Companies; (iv) SEBI at SEBI Bhavan BKC, Plot No. C4-A, 'G' Block, Bandra-Kuria Complex, Bandra (East), Mumbai-400051, Maharashtra; (v) NSE at Exchange Plaza, C-1, Block G, Bandra-Kurla Complex, Bandra (East) Mumbai-400051, Maharashtra; (vi) BSE at Phiroze Jeejeebhoy Towers, Dalal Street, Mumbai-400001, Maharastra; and to the Official Liquidator through email or through registered post or speed post or courier services, along with copy of required documents  and  disclosures  required  under  the  provisions  of Companies  Act,  2013  read  with  Companies  (Compromises, Arrangements, Amalgamations) Rules, 2016.

All the aforesaid directions are to be complied with strictly in  accordance  with  the  applicable  law  including  forms  and formats contained in the Companies (Compromises,Arrangements,  Amalgamations)  Rules, 2016  as  well  as  the provisions of the Companies Act, 2013 by the Applicants.

The application stands allowed in the aforesaid terms.

Let the copy of the order be served to the parties.