In Re: VRP Telematics Private Limited And Ors Vs

P.S.N. Prasad, J

This Application has been jointly filed by the Applicant Companies under sections 230 and 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangement and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016, for the purpose of the approval of the scheme of amalgamation, as contemplated between the demerged company and resulting Company and its shareholders by way of amalgamation of the demerged company with the resulting company.

The Demerged Company VRP Telematics Private Limited having its Registered Office at 3rd Floor, 4, Shankar Vihar, Vikas Marg, New Delhi-110092. The company was originally incorporated under the name and style of V R Portfolio Ltd.', as a public company vide certificate of incorporation dated 05th April 2005. The company was converted into a private limited company and the name of the company was changed to 'V R Portfolio Private Limited' vide fresh certificate of incorporation dated 29th June 2011. Further, the name of the company was changed to its present name 'V R P Telematics Pvt. Ltd. vide fresh certificate of incorporation dated 23rd June 2015.

The Resulting Company VRP Enterprises Pvt. Ltd. incorporated as a public company under the provisions of companies act 2013 vide certificate of incorporation dated 12th August 2016 having its Registered Office at 3rd Floor, 4, Shankar Vihar, Vikas Marg, Delhi - 110092.

A perusal of the petition discloses that initially the demerged and the resulting companies had jointly filed a joint first motion, application bearing C.A. (CAA) No. 142/ND/2019 before this Tribunal. This Tribunal vide its order dated 16th October 2019 dispensed with the requirement of convening meetings of shareholders, Secured creditors and Un- secured creditors of the Demerged Company and the meetings of Shareholders and Un-secured creditors of Resulting company. The Resulting Company has no secured creditor. The Scheme was approved unanimously. Thereafter the petitioners have filed their joint petition for sanction of the Scheme of Amalgamation before this Tribunal.

On 6th November 2019 this Tribunal ordered issuance of notice, in the Second Motion petition in C.A.A. No. 149 (ND) 2019 in connection with the scheme amalgamation, to the Regional Director and the Official Liquidator. The Petitioners were also directed vide the said order to carry out publication in the newspapers 'Business Standard' (English Delhi edition as well as in 'Business Standard' (Hindi Delhi Edition), returnable on 08.01.2020.

It is seen from the records that the Petitioners have filed an affidavit dated 24.12.219 affirming compliance of the order passed by the Tribunal dated 16th November 2019. A perusal of the affidavit discloses that the petitioners have affected the paper publication as directed in one issue of the 'Business Standard' (English Delhi edition) on 11.12.2019 as well as in 'Business Standard' Hindi edition on 11.12.2019 in relation to the date of hearing of the petition on 16.11.2019. Further, the affidavit also discloses that copies of petition have been duly served to the Registrar of Companies, Regional Director, Northern Region and the Official Liquidator.

Additionally, in the affidavit dated 03.01.2020 the petitioners have also affirmed that neither the petitioners herein nor their Legal Counsels had received any objection/representation against the proposed scheme of Amalgamation till the date of such affidavit.

The Official Liquidator has filed his report, wherein no objections have been raised by official liquidator. Further it has been submitted that he did not receive any complaint against the proposed Scheme from any person/party interested in the Scheme in any manner and that the affairs of the Petitioners companies do not appear to have been conducted in a manner prejudicial to the interest of its members or to public interest and that none of the demerged and the resulting company is subject to matter of dissolution pursuant to the Scheme of Amalgamation.

The Income Tax department, Meerut Uttar Pradesh through Mr. Sanjeev Gupta filed its reply affidavit dated 06.01.2020 furnishing the reports/comments in respect of both the companies. The Income tax department raised the following demands for the demerged Company :

a) Assessment Year 2013-14 to the tune of Rs. 12,19,790/-, the company made a payment of Rs. 2,44,000/- and a balance of Rs. 9,75,790/- is pending and an appeal is pending before the CIT (Appeal), Kanpur.

b) Assessment Year 2014-15 to the tune of Rs. 1,89,300/-, the company made a payment of Rs. 38,000/- is pending and an appeal is pending before the ITAT (New Delhi).

c) Assessment Year 2015-16 to the tune of Rs. 55,600/-, the company made the payment of the said due in full.

d) The Assessment Year 2017-18, has been scrutinized and a demand of Rs. 31,966/- was raised against the company vide notice of demand dated 24th December 2019. The company has deposited Rs. 31,970/- against the aforesaid demand in full on 26th December 2019, The receipt of payment has been attached with the petition.

e) The scrutiny assessment for the year 2018-19 is still pending with the IT Department.

There are no pending dues in respect of the resulting company. It is further submitted by the Income Tax Department none of the demerged and the resulting company is subject to dissolution and the said merger shall not adversely affect any proceeding initiated by the Income Tax. The income tax department confirmed that all dues pending against the demerged company shall be paid by the company after completion of proceedings. The petitioner companies undertook to pay/clear the said pending tax liabilities as and when the final assessment order is passed by the respective Appellate Tax Authorities. In view of the undertaking filed by the Petitioner companies and the records produced before us by petitioner and taking into consideration the overall scheme, in general and in particular we consider that the interest of the revenue, is sufficiently protected.

The Regional Director has filed its representation/report dated 02.01.2020, along with report of the registrar of Companies in which it has been submitted that no adverse observations have been made by Registrar of Companies. Hence no objection has been raised by the Regional Director and the Registrar of Companies to the proposed Scheme of Amalgamation.

It is pertinent to mention that upon this scheme become effective and with effect from the appointed date, after the re-organization of the share capital would not involve any diminution of liability in respect of unpaid share capital or payment to any shareholder of any paid up capital. Further it is clarified that no company is proposing buy back of shares from its shareholders.

It is further submitted by the petitioner submitted that no creditor of the demerged or the resulting company will be adversely affected and the redeemable preference shares to be issued in terms of this scheme shall be redeemed in accordance with provisions of companies act 2013. Hence such redemption of preference shares will not be deemed to be reduction of share capital of these companies. To determine the share swap ratio for the proposed and the report of the registered valuer has been filed and the said report had been unanimously accepted by the Board of Directors.

The resulting company shall issue one 9% non cumulative compulsory Redeemable Preference shares of Rs. 10 each, credited as fully paid up for every ten equity shares held in Demerged Company.

It is submitted that all assets and liabilities including income tax shall be transferred and shall vest in the resulting company.

It is submitted that all the employees of the demerged companies in service, if any, on the date immediately preceding the date on which the scheme takes effect, i.e. the effective date shall become the employees of the resulting company on such date without any break or interruption in service and upon terms and condition not less than favorable than those subsisting in concerned demerged company on the said date.

We have heard the learned counsels for the parties and also considered the representations made by the Regional Director, Northern Region and, report of official liquidator and the affidavit filed by the Petitioners.

In view of the foregoing, upon considering the approval accorded by the members and creditors of the Petitioners to the proposed Scheme, and the affidavits filed by the Regional Director, Northern Region, Ministry of Corporate Affairs, there appears to be no impediment to grant sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme under section 230 & 232 of the Companies Act, 2013. The Petitioners 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 or any 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.

THIS TRIBUNAL DO FURTHER ORDER

The Demerged Companies stand dissolved without being wound-up;

That all the property, rights and powers of all the Demerged company, be transferred without further act or deed, to the resulting company and accordingly the same shall pursuant to section 232 of the Act, be transferred to and vest in the resulting company for all the estate and interests of the demerged company therein but subject nevertheless to all charges now affecting the same; and

That all the liabilities and duties of all the Demerged companies, be transferred without further act or deed, to the Resulting 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 company; and

That all proceedings now pending by or against all the Demerged companies, be continued by or against the Resulting company; and

That all the employees of the Demerged companies in service, if any, on the date immediately preceding the date on which the scheme takes effect, i.e. the effective date shall become the employees of the resulting company on such date without any break or interruption in service and upon terms and condition not less than favorable than those subsisting in concerned demerged company on the said date.

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 on such certified copy being so delivered the demerged companies shall be dissolved and the Registrar of Company shall place all documents relating to the demerged company and registered with him on the file kept by him in relation to the Resulting company and the files relating to all the petitioner companies shall be consolidated accordingly; and

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.