In Re: Spectra Products Private Limited And Ors vs Viijay investments Private Limited And Ors

Hemant Kumar Sarangi, Member (T)

This Joint Petition has been filed by the Petitioner Companies under section 230-232 of Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016, for the purpose of the approval of the Scheme of Arrangement as contemplated between the Companies and its Shareholders and Creditors by way of Demerger between M/s. Spectra Products Private Limited, Vijay Investments Private Limited and Stabhya Projects Private Limited. The copy of the Scheme of Arrangement (hereinafter referred to as the "Scheme") has been placed on record.

Spectra Products Private Limited (Demerged Company) was incorporated on 05.12.1991 under the provisions of the Companies Act, 1956. Having CIN U74899DL1991PTC046647. The registered office of the Company is situated at 824, Vikas Deep Building, District Centre, Laxmi Nagar, New Delhi-110092. The present Authorized Share Capital of the Demerged Company is Rs. 2,00,00,000/- divided into 20,00,000 Equity Shares of Rs. 10/- each. The present Issued, Subscribed and paid-up Share Capital of the Company is Rs. 63,57,010/- divided into 6,35,701 Equity Shares of Rs. 10/- each.

Vijay Investments Private Limited (Resulting Company 1), bearing CIN U65999DL2019PTC349922, was incorporated on 10.05.2019, under provisions of the Companies Act, 2013 and presently having its registered office at 824, Vikas Deep Building, District Centre, Laxmi Nagar, New Delhi-10092. The present Authorized Share Capital of the Transferee Company is Rs. 1,00,000/- divided into 10,000 Equity Shares of Rs. 10/-each. The present Issued, Subscribed and paid-up Share Capital of the Company is Rs. 1,00,000/- divided into 10,000 Equity Shares of Rs. 10/- each. The Resulting Company 1 is the wholly owned subsidiary of the Demerging Company.

Stabhya Projects Private Limited (Resulting Company 2), bearing CIN U70109DL2019PTC349765, was incorporated on 08.05.2019, under provisions of the Companies Act, 2013 and presently having its registered office at 824, Vikas Deep Building, District Centre, Laxmi Nagar, New Delhi-10092. The present Authorized Share Capital of the Resulting Company 2 is Rs. 1,00,000/- divided into 10,000 Equity Shares of Rs. 10/- each. The present Issued, Subscribed and paid-up Share Capital of the Company is Rs. 1,00,000/-divided into 10,000 Equity Shares of Rs. 10/- each. The Resulting Company 2 is the wholly owned subsidiary of the Demerging Company.

From the records, it is seen that the Joint First Motion application was filed seeking directions for dispensing with the requirement of convening the meetings of Equity Shareholders and Unsecured Creditors of the Demerging Company and dispensing with the requirement of convening meetings of Equity Shareholders of Resulting Company 1 and Resulting Company 2. The requirement of the meeting of secured creditors is obviated because there is no secured creditor in the company and therefore, the requirement of convening meeting of secured creditors did not arise. This Tribunal, in the First Motion bearing No. CA (CAA)-140/ND/2019, vide Order dated 16.10.2019, dispensed with the requirement of convening the meetings of the Equity Shareholders and Unsecured Creditors of the Demerging Company and meeting of Equity Shareholders of Resulting Company 1 and Resulting Company 2 in view of the consent affidavits being on record.

Subsequent to the Order of dispensation of the meetings, the Second Motion Petition was moved by the Petitioner Companies in connection with the Scheme of Demerger. Vide order dated 22.11.2019 the Petitioner Companies were directed to carry out publication in the newspapers

"Business Standard" (English, Delhi Edition) and "Jansatta" (Hindi, Delhi Edition). In addition to the public notice, notices were directed to be served on the Regional Director (Northern Region), Registrar of Companies, NCT of Delhi and Haryana, the Income Tax Department and to the other relevant sectoral regulators.

In view of the above, the Petition of Second Motion filed by the Petitioner Companies is taken up for final consideration by this Bench. That all the Petitioner Companies have filed an Affidavit dated 27.12.2019 in compliance of the Order dated 22.11.2019. In the aforesaid Affidavit the Petitioner Companies have submitted that it had effected the paper publication as directed by this Tribunal in "Business Standard" (English, Delhi Edition) and in "Jansatta" (Hindi, Delhi Edition) on 03.12.2019. Further, it has also been stated by the Petitioner Companies that Notices have been issued to the Regional Director, Registrar of Companies, NCT Delhi and Haryana on 27.11.2019 and Income Tax Department by hand on 29.11.2019.

It is pertinent to state here that at the time of final hearing the Ld. Counsels on behalf of the Income Tax Department and Regional Director have not raised any objection in respect of the approval of the Scheme.

The Regional Director, Northern Region, MCA has filed an Affidavit on 06.01.2020 and has made the following observation:

"7. .however, the office of ROC has not received any complaint/objections of the shareholders, creditors or stakeholders of the above companies with regard to the proposed scheme of amalgamation.

That as per the report of Registrar of Companies the Demerged Companies have filed their due Annual Return and Balance Sheets for the Financial Year ended 31.03.2018. The Resulting Company was incorporated on 08.05.2019. No prosecution has been filed & no inspection or investigation has been conducted in respect of the Demerged Company."

It is further seen that the Income Tax Department has filed its report on 13.01.2020 and has stated that:

"The Income Tax Department must be permitted to retain its recourse for recovery in respect of any existing or future tax liabilities of the demerged company or the resulting company, in respect of the assets sought to be transferred under the proposed scheme, and that this protection must be made explicit by this court in its final order and has to bind all the parties to the Scheme, particularly the demerged company or the resulting company. There should be no limitation on the power of the Income Tax Department for recovery, including imposition of penalties, etc."

Upon considering the approval accorded by the Members and Creditors of all Companies to the proposed Scheme, and no sustainable objections having been raised by the Office of the Regional Director, Income Tax Department or any other interested party, there does not appear to be any impediment in granting sanction to the Scheme. Accordingly, in sequel to the above, sanction is hereby granted to the Scheme of Arrangement for Demerger under sections 230-232 of the Companies Act, 2013. The sanctioned Scheme of Arrangement shall be binding on the Demerged Company, Resulting Companies and their Shareholders and Creditors. The Parties shall also be bound to comply with the requisite 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 Petitioner Company.

While approving the Scheme as above, it is clarified that this Order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other statutory dues, 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.

THIS TRIBUNAL DO FURTHER ORDERS:

With Respect To The Demerged Company And Resulting Companies

1) The Appointed Date shall be the 1st April 2019 as per the Scheme;

2) That the following property, rights and powers of the Demerged Company, in respect of Demerged Undertaking 1 and Demerged Undertaking 2, be transferred without further Act or deed, to the corresponding Resultant Companies No. 1& 2 and accordingly the same shall, pursuant to section 232 of the Act, be transferred to and vest in the respective Resulting Companies for all the estate and interests of the Demerged Company in respect of Resulting Undertakings therein :

i) The Investment Division of the Demerged company shall be transferred to Vijay Investments Private Limited i.e. Resulting Company 1;

ii) The Land Project Division of the Demerged Company shall be transferred to i.e. Stabhya Projects Private Limited i.e. Resulting Company 2.

iii) The M/s. Spectra Products Private Limited (Demerged Company) will retain only Manufacturing Division and other residuary business in the company;

3) The rest of the undertakings of the Demerged Company will remain vested in it only and the Demerged Company shall continue its business of such undertakings;

4) That all the liabilities and duties of the Demerged Company, in respect of Demerged Undertaking 1 and Demerged Undertaking 2, be transferred without further act or deed, to the Resultant Company and accordingly the same shall, pursuant to section 232 of the Act, be transferred to and become the liabilities and duties of the Resulting companies;

5) That all proceedings now pending by or against the Demerged Company, in respect of Demerged Undertaking 1 and Demerged Undertaking 2, be continued by or against the respective Resultant Companies No. 1 & 2;

6) The Petitioner Company to lodge a copy of this order and the Scheme duly certified by Deputy Director or Assistant Registrar, as the case may be, National Company Law Tribunal, New Delhi Bench, with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same, within 60 Days from date of receipt of copy of order.

7) That the Demerged Company 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

8) 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.

Let copy of the order be served to the parties.