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Judgment
Hemant Kumar Sarangi, Member (Technical)
This petition has been filed by the Petitioner Company ( for brevity Transferee company") under Sections 230 to 232 of the Companies Act, 2013 read with Rule 15(1) of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, for the Scheme of Arrangement (for brevity Scheme), praying for fixing a date of hearing of the main Company Petition, for approving the scheme of arrangement by way of amalgamation, as well as for issuance of direction concerning publication of notices in the press to be carried and notices to be issued to the authorities concerned, including regulators, if any.
It is seen from the records that the First Motion application seeking convening/dispensation from convening the meetings of Shareholders and Creditors of the petitioner companies was filed before this Bench vide Company Application CA(CAA)43(PB)/2021. Based on such joint application, moved under Sections 230-232 of the Companies Act, 2013, vide order dated 25.08.2021, passed by this Bench, directions were issued by this Tribunal, wherein it has been observed that the registered office of the Transferor Company falls within the jurisdiction of National Company Law Tribunal, Hyderabad Bench. The approval of the same shall be taken by the Transferor Company form the National Company Law Tribunal, Hyderabad Bench for the Scheme to be considered sanctioned. For the Transferee the meeting of equity share holders has been dispensed with, Transferee Company has no Secured Creditor, hence the necessity of convening a meeting of the Creditors does not arise. Transferee Company has 34 Unsecured Creditors, 6 creditors out of the total have given their consent by way of consent affidavits holding 95.633% in total value, hence the necessity of convening a meeting of the secured Creditors was dispensed with. It is seen that the registered office of the Transferee companies is situated in NOT of Delhi; within the territorial jurisdiction of this Bench.
Therefore, in the present second motion petition, filed under Sections 230 to 232 of Companies Act, 2013, read with Rule 16 of the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016, the prayer for fixing a date of hearing, as well as for other consequential directions is allowed with the following directions: -
(i) The next date of hearing of the Petition shall be on 23.12.2021 for the consideration of the approval of the Scheme of Amalgamation as contemplated between the Petitioner Companies.
(ii) Notice of the hearing shall be advertised in the newspapers namely, "Business Standard" (English, Delhi edition) and "Business Standard" in Vernacular (Hindi, Delhi edition) not less than 10 days before the next date fixed for hearing.
(iii) In addition to the public notice, each of the Petitioners shall serve the notice of the Petition on the following Authorities namely, (a) Central Government through Regional Director (Northern Region), Ministry of Corporate Affairs; (b) Registrar of Companies, NCT of Delhi 86 Haryana, Ministry of Corporate Affairs; (c) the Income Tax Department through the Income Tax Cell at at DCIT (HC Cell), Lawyer's Chamber Block No. 1, Room No. 428 & 429 Delhi High Court, New Delhi; and (d) Official Liquidator; and to such other Sectoral Regulatory Authorities who are likely to be affected by the Scheme, at least 30 days before the date fixed for hearing of the above Petition. The said authorities are directed to send their representations if any, within 30 days from the date of receipt of such notice as per the provisions of sub-section 5 of Section 230 of the Companies Act, 2013.
(iv) Further, notices shall also be served to the Objector(s) or to their representative, if any, as contemplated under Sub-Section (4) of Section 230 of the Companies Act, 2013 who may have made representation and who have desired to be heard in their representation along with a copy of the Petition and the Annexures filed therewith at least 15 days before the date fixed for hearing.
(v) All the Petitioner companies shall, at least 7 days before the date of hearing of the Petition, file an affidavit of service in relation to paper publication effected as well as service of notices on the Authorities specified above includina the Seetnrn1 Regulators as well as to the Objectors, if any.
(vi) Objections, if any, to the Scheme contemplated by the authorities to whom notices have been given, may file their objections on or before the date fixed for hearing, failing which it will be considered that there is no objection on the part of the authorities to the approval of the Scheme by this Tribunal and subject to other conditions being satisfied as may be applicable under the Companies Act, 2013 and relevant rules framed thereunder.
(vii) The Petitioner Companies shall individually comply with proviso to sub section (3) of Section 232 or proviso to sub section (7) of Section 230, of the Companies Act, 2013, as may be applicable under the circumstances on or before the date fixed for hearing by filing the required certificate of Company's auditor.
(viii) The petitioner companies shall file their respective up to date audited financial statements before the next date of hearing.
Let a copy of the order be served to the parties.